Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

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Major constitutional developments in Japan in the first


decade of the twenty-first century


Shojiro Sakaguchi


This chapter reviews several major constitutional developments in Japan in the first


decade of the twenty-first century and then examines the current and future state of


Japanese constitutional law. Among the many possible topics that merit attention,


this chapter focuses on two main subjects from the perspective of comparative


constitutional law, namely ( 1 ) the rise and fall of the movement towards


constitutional reform and ( 2 ) the recent tendency towards activist judicial review


by the Supreme Court of Japan.


Regarding the first issue, I argue that the conflict between the Cabinet Legisla-


tion Bureau and conservative politicians concerning the interpretation of Article 9


is a principal cause of the recent movement towards constitutional revision.


As to the second issue, I argue that the Supreme Court has not finally abandoned


its conservative attitude despite its recent tendency towards activism. I also briefly


discuss the revision of the Fundamental Law on Education.


Finally, I argue that the impact of the change of government, from the


Liberal Democratic Party (LDP) to the Democratic Party, on the development


of Japanese constitutional law is relatively insignificant since both parties are


basically inclined towards constitutional reform. In December 2012 , the LDP


won the House of Councilors election and returned to the position of ruling


party. Since then, the LDP has made revision of the Constitution part of its


political agenda.


The first topic is a major development in Japanese constitutional law in the first


decade of the twenty-first century. The Constitution of Japan has never been


amended despite attempts to do so in the past. The current movement to revise


the Constitution will have an effect across Asia because Article 9 , which is the main


issue of current constitutional revision, was originally enacted to ensure peace in


the region. Since Japan has still failed to deal with the question of war responsibility


and earn the trust of neighboring countries, any revision of Article 9 would be too


premature to be accepted by them.


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