draft makes an explicit recognition of a “self-defense military” and the establish-
ment of a military tribunal. More importantly, it denies individualism and the
universal character of constitutional rights. Whereas the current Article 13 provides
that every person shall be respected as an “individual,” the proposed draft replaces
“individual” with “human.” It also completely deletes Article 97 , which declares
that “the fundamental human rights...guaranteed to the people of Japan are fruits
of the age-old struggle of man to be free; they...are conferred upon this and
further generations in trust, to be held for all time inviolable.”
The proposed draft of the LDP appears to aim to replace the fundamentally
individualistic and universal character of the human reflected in current consti-
tutional rights with more communitarian and Japanese-specific rights. It is no
exaggeration to say that the proposed draft is a kind of declaration of independence
from Western constitutionalism that has finally extended to Eastern European
countries.
The second Abe government now plans first to remove the supermajority
requirement of constitutional amendment in Article 96 to make it possible to
amend the Constitution by a simple majority. If the LDP and other right-wing
parties win the upcoming election for the House of Councilors, they will have the
supermajority to amend the Constitution as they wish.
ii. the awakening of japanese judicial review?
The most conservative court in the world
There is a now a consensus among comparative constitutional scholars that the
Supreme Court of Japan has been one of the most conservative constitutional
courts in the world. For example, the famous Canadian comparative constitutional
scholar David Beatty has said that “among comparativists, constitutional review in
Japan is regarded as the most conservative and cautious in the world.”^34 Recently,
David S. Law pointed out that one could characterize the court as “conservative”
in two senses of the word.^35 On the one hand, one could characterize it as
“conservative” in the sense that it is so passive or cautious that it almost never
challenges the government.^36 Although over sixty years have passed since its
(^34) David Beatty,Constitutional Law in Theory and Practice(Toronto: University of Toronto
Press, 1995 ), p. 121.
(^35) David S. Law, “The anatomy of a conservative court,” pp. 146 – 7.
(^36) See, e.g., John O. Haley, “The Japanese judiciary: maintaining integrity, autonomy, and
the public trust,” in Daniel H. Foote (ed.),Law in Japan: A Turning Point(Seattle, WA:
University of Washington Press), p. 99 ; Noriho Urabe, “Rule of law and due process: a
comparative view of the United States and Japan,” in Luney and Takahashi,Japanese
Constitutional Law, pp. 173 , 182 ; Shigenori Matsui, “Why is the Japanese Supreme Court
so conservative?” ( 2011 ) 88 Washington University Law Review 1375.