Friday, May 27, 2016

Natural Rights to be Suspended by National "States of Emergency" in Japan and Elsewhere


The Mainichi today has an article on an LDP draft of Constitutional changes that proposes a distinction between the protection of "big" and "small" human rights in the wake of crises situations, referred to as "states of emergency."

According to Shojiro Sakaguchi, a professor at Hitotsubashi University and an expert on constitutional law, the LDP's revision essentially deconstructs the idea of "natural rights" and elevates the authority and power of the state (as embodied in the Constitution) over the supposed natural rights of individuals:
LDP draft Constitution differentiates between 'big' and 'small' human rights. The Mainichi, May 26, 2016, http://mainichi.jp/english/articles/20160526/p2a/00m/0na/025000c

How puzzling. A question-and-answer booklet that the ruling Liberal Democratic Party (LDP) has created to explain its draft revision of the Constitution claims there are two types of human rights: the big ones and the little ones. 
The concept of "big human rights" and "small human rights" appears in the booklet's section on the LDP draft Constitution's controversial "state of emergency" provision, which allows for temporary restrictions on human rights and concentration of authority in the Cabinet in the case of an emergency such as an armed attack from external forces, disturbances in social order due to domestic turmoil, or major disasters.
 

[Shojiro Sakaguchi, a professor at Hitotsubashi University and an expert on constitutional law ] is particularly worried about the possibility that freedom of expression will be restricted as a "small human right" in times of emergency. "To position property rights as a 'big human right' and allow limitations to freedom of expression in the name of 'protecting a big human right,' such as property rights, is the complete opposite of the way it should be," he says.

And where do Sakaguchi's concerns come from? "It's written in the LDP's Q&A booklet that rules based on the Western notion of 'natural rights' must be amended, and that the people have a duty to respect the Constitution. One gets the impression that the draft revision puts the state in a position superior to human rights," Sakaguchi says. "If you switch the part that reads, 'To protect the big human rights, such as the lives, bodies and properties of the people' to say 'To protect the state,' the actual intent of the draft constitutional revisions becomes very clear."

He continues, "The purpose of the provision on emergencies is to protect the state. Such a provision can lead to thinking that 'to protect the state, which is in danger, the public must refrain from making statements or taking actions that are critical of the state,' thereby restricting freedom of expression and other human rights. I think the LDP's true intention is to push things along with priority on the state's will, rather than the human rights of the individual."

This is along the lines of the idea that human rights depend on the existence of a state, Sakaguchi says. He characterizes this as "a sharp break from the idea of human rights, which should be a universal principle of humanity."

Efforts by the LDP to change Japan's Constitution by inserting an emergency clause have been recently escalating. On May 4, 2016 The Mainichi described a conservative group's efforts to push forward an amendment petition that suspends the Constitution under emergency conditions:
Conservative group behind pro-constitutional amendment petition collecting. The Mainichi, may 4, 2016, http://mainichi.jp/english/articles/20160504/p2a/00m/0na/011000c
The conservative activist organization Nippon Kaigi (Japan Conference) is behind a pro-constitutional amendment group's campaign for 10 million signatures to call for changes in Japan's pacifist Constitution.  The group decided that the establishment of an "emergency clause" that will allow the suspension of the constitutional system -- including the guarantee of human rights and separation of powers -- in times of major disasters and emergency situations will be the key issue.
I noted in my coverage of this development that the Italian social philosopher Giorgio Agamben points out that sovereignty in the modern era is most aptly dramatized by the power of decision that emerges under conditions of crisis.[i] He describes sovereignty as arising from the decision to deny individuals full recognition of their rights, a kind of exclusion smuggled into democratic government. I address the implications of these developments in my recent book, here.

Efforts to limit citizens' constitutionally enshrined "natural rights" are spreading globally:
 Martin Untersinger, “Emergency Measures May be Written into the French Constitution,” The Intercept, December 12, 2015, accessed December 14, 2015, https://theintercept.com/2015/12/12/terrorist-attacks-spark-crackdown-constitutional-changes-in-france/  
JUST HOURS INTO A TERRORIST ATTACK that started on the evening of November 13, and would eventually claim 130 lives, Fran├žois Hollande announced that France was reestablishing border controls, and used a 1955 law to proclaim a state of emergency.

This 60-year-old law gives French law enforcement wide and sweeping powers, freeing them from much of the normal judicial oversight. The law gives prefects, the French government’s local representatives, the ability to place people under house arrest, based merely on the suspicion of the intelligence service that they pose a threat to national security. They can also order police raids targeting any place where they think information about terrorism may be found, without a warrant.

Initially intended to last 12 days, the state of emergency was extended on November 19 for an additional three months by both chambers of parliament. During the vote in the lower house, only six MPs voted against the extension.... (read full article at link)
The US extended its "state of emergency" because of terrorism in 2010
https://www.whitehouse.gov/the-press-office/2010/09/10/letter-president-continuation-national-emergency-with-respect-certain-te

USA Today and The Washington Post reported in 2014 that the US then was under 30 official states of emergency:

http://www.usatoday.com/story/news/politics/2014/10/22/president-obama-states-of-emergency/16851775/
https://www.washingtonpost.com/news/wonk/wp/2014/11/19/the-united-states-is-in-a-state-of-emergency-30-of-them-in-fact/

Liberal democracy is arguably under assault as states utilize emergency clauses to limit citizens' supposedly "natural rights."

It is a slippery slope!


RELATED POSTS

The State of Exception (informative discussion):  https://acrowinghen.com/2013/09/18/the-state-of-exception-sovereignty-and-the-national-emergencies-act/

My review of emergency powers in the US and the state of exception: http://majiasblog.blogspot.com/2016/05/emergency-powers-under-crises.html

6 comments:

  1. Isao Tomoita died a couple of weeks ago Mania. maybe he died of a broken heart. He was one of the greatest Japanese and world-class classical musicians

    When I think about the beautiful art, landscapes, and culture of Japan past, it makes me so sad.

    When I read your words and think of Fukushima, a tear starts in my eye.

    When I watch this video it makes me cry in lamentation of this once beautiful earth, it makes me cry because such beautiful people are suffering so greatly and now being repressed Majia.

    Isao tomita my favorite muscian died. It is the end of and era in Japan and the world.

    World famous impressionist, electronic-composer and pioneer Isao Tomita - Clair de Lune Debussy :

    http://youtu.be/dFsTOm7sWvA

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    1. LOVELY!
      I listened to his music and it is truly amazing. So incredibly beautiful!

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  2. One of the traditions on this planet is for sentient beings to go extinct. Perhaps humans are in the last stage of a journey. But nothing good is lost. We will be always remembered in the Akasha and our experiences will be available for other sentient beings in places we will never learn about. Nothing to regret. As a medieval philosopher remarked, No natural desire is in vain.
    Benjamin Franklin considered freedom of expression the right upon which the other depended. He was correct. Take that one away as the the USSR and Communist China did and then one can not even complain. In the USA PC is slowly eroding the First Amendment.

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  3. Some people refuse to give-up their fairy tale version of reality. That is one reason we are in this in this nuclear nightmare. Hitler was authoritarian so was Stalin. The people who wrote the constitution had in mind freedom of speech for a select few. The concept of political correctness is a reverse psychology technique originated by the vile talking head George will. Same people who tell us we have a liberal media.

    Think Edward Bernays, who reveled in brain washing and doublethink. He was able to talk stupid people into loving being brainwashed and willingly shoveling bucks they probably cannot afford , out to be brainwashed. The ultimate pyramid scheme and suicidal prosperity ministry. The gods must be laughing at the smiles on our pathetic masochistic mugs.
    Authoritarianism sucks but, so does delusion to the point of mass insanity. We have had the mass insanity for 70 years. Since the beginning of the nuclear era.

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    1. The soviets lied badly about nuclear insanity as our handlers did. The soviets went to great ends to contain the meltdown at Chernobyl. I do not see tha happening at Fukushima. With stronger ideology there is some sense of for the better good. There is also the ends justifies the means. Extreme ideologues like ayn rand become caricatures of themselves because of the inherent contradictions of their extremist philosophies . "We she eliminate the state and have no laws limiting individuality and here are 20 commandments on how to do that." Ayn Rand had an unnatural admiration for fascists and psychopaths . Both extreme ends of the spectrum are inherently flawed.

      Bernie sabers is hardly an extreme ideologue. Clinton is a self-serving elitist and perhaps a nihilist.

      I think Trump is the ultimate panderer and is appealing to the proto-fascist hearings of our Weimar- like situation He has set himself up as a smorgasbord of right wing taste treats especially with hardened ideologues.

      I saw this bit of satire on enenews and though I would share it:
      "Hillary Clinton is a neoliberal imperialist and war monger. It seems that people forget about the other nwo meanies, the republicans, and romanticise some of their ideology. Remember George sr coined new world order. This is from a website called The New World Odor

      "Orcs Declare They Are Anarcho-Capitalists, Still Bummed Ron Paul Lost

      After Orc leader Gothmog read articles on the internet about Murray Rothbard and started mining bitcoin, orcs throughout Middle Earth have joined message boards to discuss “anarcho”-capitalism.

      “Property should be valued above all, even life,” said Gothmog. “If the government begins repressive activities, our job is to take guns into poor areas and defend businesses and shopping malls from rioters and looters.”

      Despite not actually being an anarchist school-of-thought (almost two centuries of anarchist thought is anti-capitalist), orcs using Facebook continually link to the Webster’s dictionary definition of anarchism which says “absence of government and absolute freedom of the individual, regarded as a political ideal.”

      “Yeah, only an ancap would use a bourgeoisie book dictate what the definition of anarchism is,” said an anarchist dwarf in the Glittering Caves. “The phrase ‘property is theft’ was written by an anarchist for fuck’s sake. The orcs are just fascists trying to steal anarchist imagery.”

      Gothmog and other orcs began volunteering for the Ron Paul campaign in 2008, though this time around they are split on who to support in the Republican nomination process.

      “I’m an anarchist, but I like some of the things Trump has to say,” said an ancap orc. “He really could make this country great again. I really wish Rand Paul would of been more like his father though.”

      «Kim Jong-un Throws Hat in the Ring for Republican Nomination»Entire Human Race Problematic, Left Can’t Work With Them"

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    2. "Weimer like situation" seems to sum it up very well....

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