Emergency and the constitution
May 5, 2011
Noriho URABE (Adviser , Japan Institute of Constitutional
The function of the constitution was widely discussed in relation to the earthquake disaster, on and around this year's Constitution Day, May 3rd. Such arguments had been expected, as the 64th Constitution Day was celebrated while many faults were being revealed regarding the rescue and recovery systems and operations after the quake and the nuclear accident. Some political parties and newspaper editorials call for constitutional amendments in order for the government to be better prepared for swift actions in case disasters or emergencies occur. They point out that systematic or constitutional defects are causing serious inefficiencies in emergency operations. Such points are similar to those of looters, in that they take advantage of ongoing calamities. I must question sincerity of those politicians and commentators. Regrettably, some people might accept their assertions that "The inadequate constitution without provisions of emergencies, including limitations of private rights, is not effective enough. It should be changed." as the government handles various impresumable events in a chaotic and tardy manner.
To begin with, the constitution authorizes the government to exercise power, while restricting its use, in order to protect private rights of the people. In other words, the constitution does not allow those who are in power to tyrannically take away or limit people's rights. Legislation, or constitutional procedure, is necessary for the government to exercise power over the people, or to limit people's rights. That can not be done without showing enough reasons why that is necessary. However, in emergencies, such procedures may hinder the government from moving quickly enough. Even some scholars who major in laws and the constitution say that the government should be allowed to exercise such "emergency power" to limit citizens' rights without constitutional or legal procedures in real emergencies including wars, civil wars and disasters.
"Emergency power" authorizes the government to act beyond constitutional limits, by temporary invalidating the constitution, in case of national crisis including wars, civil wars and natural disasters, when normal and constitutional operations seem ineffective in overcoming the difficulties. In other words, "emergency power" allows those in power to exercise centralized power without being bound by the constitution. National crisis puts the constitution in danger. Therefore, it is explained that "emergency power" is a measures to protect the constitution by temporary nullifying it, as a last resort to prevent collapse of the constitutional system.
We must note that "emergency power" is for a real exceptional case in modern constitutionalism, as the constitution's basic function is to legally control the use of power. They might nullify the constitutionalism itself if they assert that "emergency power" is spontaneously granted in emergency. Therefore, it is widely believed that "emergency power" necessitates limits and provisions to be clarified in the constitution. For example, the French Constitution authorizes the President to exercise centralized power in emergency. On the other hand, the Japanese Constitution lacks such a clause. Taking advantage of this "constitutional defect," some revisionists loudly argue that "That causes delay in rescue and rehabilitation after the quake and the nuclear accident. We must change the constitution."
A similar argument was vigorously made 16 years ago after the Kobe earthquake. I commented, in those days, that the constitution is not to be blamed for the inadequacy of the rehabilitation efforts, and that politicians and bureaucrats should have clearer vision and stronger sense of responsibility. Unfortunately, some people always blame the constitution, because they dislike the constitution and human rights. They take advantage of any unusual events and try to lift the constitutional barriers and to restrict human rights. Some of their arguments sound logic to some others, however they are not honest enough. Their real intention is to design the constitution to allow the man in power to enjoy freedom to use his power.
In 1925, Hans Kelsen wrote in "General Theory of the State" that "Behind a commendable assertion that 'the state must survive,' always hidden is an impudent wish that "it must survive in the way that is justified by those who make 'emergency power' legitimate for their own utilization."
Similarly, in 1943, Tomoo Odaka wrote in his essay that, "The assertion that 'we must protect our state for its survival,' to which anybody should consent, can easily embody a secret intention to manage the state exactly in the way they plot, by flying the flag called 'emergency power.'" 《Odaka, Kokka Kinkyuken no Mondai (Question of Emergency Power)Hogaku Kyokai Zasshi (Journal of the Jurisprudence Association) vol. 62 #9》