Main Issues [Topic 3 Guarantees for Fundamental Human Rights] | Birth of the Constitution of Japan

Main issues

Topic 3 Guarantees for Fundamental Human Rights

1 Expansion of Guarantees for Fundamental Human Rights

The Meiji Constitution guaranteed fundamental human rights, but these rights were limited by the phrase, "within the limits of law." The Potsdam Declaration and US Government policy for the occupation of Japan ("Reform of the Japanese Governmental System (SWNCC 228)"The comment of [Reform of the Japanese Governmental System (SWNCC 228)]) described the necessity to revise this limitation on the guarantees for fundamental human rights. This problem was also pointed out in the "Report of preliminary studies and recommendations of Japanese Constitution"The comment of [Report of preliminary studies and recommendations of Japanese Constitution] prepared within the GHQ.

The Japanese Government also recognized the necessity to expand the guarantees for fundamental human rights during its study of constitutional revision (Prince Konoye's "Draft of Constitution Revision,"The comment of [Prince Konoye's "Draft of Constitution Revision] Joji Matsumoto's "Four-Point Principle for Constitutional Reform," etc.The comment of [Joji Matsumoto's "Four-Point Principle for Constitutional Reform]), but they left in the phrase "within the limits of law" intact (Soichi Sasaki, "Necessity to Reform the Imperial Constitution"The comment of [Soichi Sasaki, "Necessity to Reform the Imperial Constitution]), (Arguments at the Constitutional Probrems Investigation CommitteeThe comment of [Arguments at the Constitutional Probrems Investigation Committee] and others).

Because the "Gist of the Revision of the Constitution,"The comment of [Gist of the Revision of the Constitution] which the Constitutional Problems Investigation Committee (Matsumoto Committee) submitted to GHQ, had not removed the limiting clause "within the limits of law," GHQ was not satisfied with it ("Charles Kades' Comments"The comment of [Charles Kades' Comments]).

In the "GHQ Draft,"The comment of [GHQ Draft] it was decided not to place limitations upon individual human rights in principle, but to include "general welfare" as the limitation only in the general provision and a few specific provisions for human rights. This point was included, in the clause "public welfare" used to describe the general constraining principle of human rights, in the "March 2 Draft."The comment of [March 2 Draft that was prepared by the Japanese Government based on the GHQ Draft. The framework stipulating the preservation of human rights was kept fundamentally unaltered in the ("Constitution of Japan"The comment of [Constitution of Japan]) as it exists today.

In this way, the "public welfare" was introduced as a new constraining principle, but even after the enactment of the new Constitution, it was discussed whether and how it differed from the limiting principle in the Meiji Constitution. The problem of how to balance personal rights with the interests of society as a whole remains moot, and the arguments surrounding the reality of the "public welfare" continue to be contentious to this day.

2 Inclusion of Social Rights

Social rights were not stipulated in the Meiji Constitution. As the Weimar Constitution (enacted in 1919) described social rights in detail, it was considered the model for 20th century Sozialstaats (social states), and attracted attention also in Japan. Therefore, the inclusion of social rights in the constitution was thought to be necessary as shown in various proposals, whether they were prepared within the Japanese government even before the GHQ Draft was introduced such as Soichi Sasaki's, "Necessity to Reform the Imperial Constitution,"The comment of [Necessity to Reform the Imperial Constitution] and Junji Nomura's "Position Paper"The comment of [Position Paper] or written by the political parties and private groups such as Japan Socialist Party's DraftThe comment of [Japan Socialist Party's Draft] and the Constitution Investigation Association's DraftThe comment of [Constitution Investigation Association's Draft].

The "GHQ Draft"The comment of [GHQ Draft] set up social rights such as the right to work and basic rights of workers, and it also listed such rights as mandatory free education, public health reform, and social security to be used as legislative guidelines to promote social welfare. As a result of the negotiations between the Japanese government and GHQ, in the government Draft of April 17, 1946, some of the rights listed in legislative guidelines were moved into a condensed version of the clause "... laws shall be designed for the promotion and extension of social welfare and security, and of public health." (Draft for a Revised ConstitutionThe comment of [Draft for a Revised Constitution]). Among other rights in the list, the right to education was rewritten in a separate article to express, "the right to receive an equal education." Before the clause of legislative guidelines, during deliberations in the House of Representatives, a stipulation granting the right to live was added in the form of the clause "All people shall have the right to maintain the minimum standards of wholesome and cultured living." ("Bill for Revision of Imperial Constitution" Revised and Passed by the House of Representatives The comment of [Bill for Revision of Imperial Constitution" Revised and Passed by the House of Representatives])

This is the manner in which the Constitution of Japan came to assure social rights. However, the problem of whether these stipulations give concrete rights to the people or did these rights remain abstract, or were they simply legislative guidelines has been argued in the courts.

3 Human Rights for Aliens

As well as contesting the "within the law" clause in the Meiji Constitution's guarantee of human rights, the U.S. government took its lack of protection of rights for foreign nationals in Japan as a problem (Reform of the Japanese Governmental System (SWNCC 228)The comment of [Reform of the Japanese Governmental System (SWNCC 228)]). This matter was considered in a few studies done within the Japanese government (Prince Konoye's "Draft of Constitution Revision,"The comment of [Prince Konoye's "Draft of Constitution Revision) and (Soichi Sasaki, "Necessity to Reform the Imperial Constitution"The comment of [Necessity to Reform the Imperial Constitution]), but the majority of the Constitutional Problems Investigation CommitteeThe comment of [Constitutional Problems Investigation Committee] took a negative stance on the principle of treating foreigners in the same way as "Japanese subjects."

The "Gist of the Revision of the Constitution"The comment of [Gist of the Revision of the Constitution] submitted to GHQ by the Matsumoto Committee did not have a stipulation regarding protection of the rights of foreign nationals, either. GHQ was critical of this point as shown in "Charles Kades' Comments"The comment of [Charles Kades' Comments]. In the "GHQ Draft,"The comment of [GHQ Draft] the term "person" was used in many of the articles on human rights, and an article providing for equal protection under the law for aliens was included. The article on equal protection under the law for aliens was left in the Japanese government's "March 2 Draft."The comment of [March 2 Draft] But in the "March 5 Draft"The comment of [March 5 Draft] it was combined with the article that established equality under the law for Japanese nationals. It was rewritten as "All natural persons, Japanese or alien, are equal under the law and there shall be no discrimination." Following the negotiations, the phrase "Japanese or alien" was deleted ("Outline of a Draft for a Revised Constitution"The comment of [Outline of a Draft for a Revised Constitution]). Then, the subject was changed to "All of the people" in the "Colloquially Written Constitution Draft Number 2,"The comment of [Colloquially Written Constitution Draft Number 2] which was created on April 13. The subject of other articles was changed from "person" to "the people." Because GHQ objected to these changes (Negotiations with GHQ Regarding Partial Revision to the Draft of the New ConstitutionThe comment of [Negotiations with GHQ Regarding Partial Revision to the Draft of the New Constitution]), the Japanese government made changes, returning "the people" to "person," except in some articles. These amendments were not changed after that and exist in the Constitution of Japan to this day ("Constitution of Japan"The comment of [Constitution of Japan]).

Following the enactment of the Constitution, there were disputes regarding whether the Constitution protected the human rights of "foreign nationals." It is now considered that all of the rights that can be applied to foreigners should be provided equally to them. Currently, there are individual, concrete points of contention regarding (1) which and to what extent human rights provisions should be guaranteed to foreign nationals, and (2) if it is necessary to define the human rights that are protected in various categories to satisfy the wide variety of foreigners ranging from tourists passing through Japan temporarily to those who have settled down in Japan and have status of special permanent residence.

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