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/011000cI 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.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.
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, François Hollande announced that France was reestablishing border controls, and used a 1955 law to proclaim a state of emergency.The US extended its "state of emergency" because of terrorism in 2010
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)
USA Today and The Washington Post reported in 2014 that the US then was under 30 official states of emergency:
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!
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