Human Rights Constitutionalism in Japan and Asia

Page 1 Human Rights Constitutionalism in Japan and Asia The Writings of Lawrence W. Beer Lawrence Ward Beer was born in Portland, Oregon on May 11, 1932. In 1966 he received the Ph.D. degree from the University of Washington, Seattle. In over fifty years of studying the constitutional law and politics of Japan and other Asian countries, he has written and lectured extensively on human rights law (e.g., Freedom of Expression in Japan, 1984). He taught at the University of Colorado, Boulder, 1966–1982, and was F.M. Kirby Professor of Civil Rights, Lafayette College, 1982–1997. Lawrence W. Beer has chaired the Committee on Asian Law of the Association for Asian Studies and the World Association of Law Professors of the World Peace through Law Center. He received the Distinguished Asianist Award of the Mid-Atlantic Association for Asian Studies in 2003. In retirement, he lives with his wife Keiko in Boulder, Colorado, USA. Less noticed in the West than wars, terrorism and economic trends has been the historic develop- ment since World War II of constitutional government and law in Asia. Lawrence W. Beer has been a close observer of Asian linkages among law, politics, culture, and national security issues for over fifty years. His perspectives have been refined during long residence in Asia, especially Japan, by substantial friendly interactions with Asian legal scholars, judges and attorneys involved in the world of human rights constitutional law. This volume, which will be widely welcomed by students and researchers, brings together a selection of Lawrence W. Beer’s many works previously published in diverse venues, but no longer easily accessible. The collection opens with a review of constitutionalism in Asia and the United States and con- cludes with a recent examination of Japan’s rejection of war: ‘Japan’s Constitutional Discourse and Performance’. By way of Afterword, the author offers an in-depth review of ‘Globalization of Human Rights in the 21st Century’. 11:07:12:03:09 Page 1 Page 2 Lawrence W. Beer 11:07:12:03:09 Page 2 Page 3 THE WRITINGS OF Volume 1 Human Rights Constitutionalism in Japan and Asia THE WRITINGS OF LAWRENCE W. BEER 11:07:12:03:09 Page 3 Page 4 Series: THE WRITINGS OF Volume 1 HUMAN RIGHTS CONSTITUTIONALISM IN JAPAN AND ASIA The Writings of Lawrence W. Beer First published 2009 by GLOBAL ORIENTAL LTD PO Box 219 Folkestone Kent CT20 2WP UK www.globaloriental.co.uk © Global Oriental Ltd 2009 ISBN 978-1-905246-71-7 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any electronic, mechanical or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without prior permission in writing from the publishers. British Library Cataloguing in Publication Data A CIP catalogue entry for this book is available from the British Library Set in Plantin 10 on 11pt by RefineCatch, Bungay, Suffolk Printed and bound in England by Antony Rowe Ltd., Chippenham, Wilts 11:07:12:03:09 Page 4 Page 5 Contents Preface vii Part I Asia 1 1 Constitutionalism in Asia and the United States 3 2 Current Human Rights Issues in Asia 42 3 Constitutionalism and Rights in Japan and Korea 51 4 Comparative Perspectives on Human Rights in Korea 81 5 Human Rights Theory and “Freedom Culture” 95 Part II Japan 111 6 Japan, 1969: “My Homeism” and Political Struggle 113 7 Social Patterns and Freedom of Expression 125 8 Human Rights Commissioners (Jinken Yogo Iin) and Lay Protection of Human Rights in Japan 153 9 Constitutional Revolution in Japanese Law, Society, and Politics 167 10 Freedom of Expression: The Continuing Revolution 194 11 Japan’s Constitutional Law, 1945–1990 219 v 11:07:12:03:09 Page 5 Page 6 CONTENTS 12 National Security and Freedom of Expression in Japan 249 13 Rejection of War: Japan’s Constitutional Discourse and Performance 259 Part III The Future 265 14 Conclusion: Towards Human Rights Constitutionalism in Asia and the United States? 267 15 Afterword: Asian Constitutionalism in the Twenty-First Century 276 Appendix: Adventures with Asia 288 Bibliography (Writings of Lawrence W. Beer) 296 Index 303 vi 11:07:12:03:09 Page 6 Page 7 Preface n the second half of the twentieth century the colonial powers—the United IKingdom, the United States, Holland, Japan, Portugal, and France—yielded to Asian demands for independence and went home. Each Asian country, drawing on indigenous and Western sources, adopted a single-document national constitution with some provision for human rights. This book brings together a selection from many writings on human rights constitutionalism in Asia published over the past fifty years but not now easily accessible to students of Asia. During long residence in Asia, especially Japan, I have learned much from indigenous constitutional lawyers while introducing the non-Asian world to the legal, political and cultural dimensions of human rights in Asia. A byproduct of this work has been to join in the dialog among Asian scholars unfamiliar with each other’s constitutional systems. The geographical, legal, and cultural distances between Asian countries, for example, between Pakistan and Korea, are formidable. The occasion for producing the first of two panoramic books on constitutionalism in Asia was the 1976 bicentennial of the United States Declaration of Independence. The Committee on Asian Law of the Association for Asian Studies co-sponsored with many public agencies and private organizations a month-long program of pre- sentations by some of Asia’s most distinguished jurists. As they traveled the country, they shared their perspectives on the American influence, if any, on constitutionalism in their respective countries. This resulted in Constitutionalism in Asia: Asian Views of the American Influence (University of California Press, 1979); this and a subsequent second edition are out of print. Years later, as the bicentennials of the Constitution of the United States of America (1987) and the Bill of Rights (1991) approached, professional colleagues, most persistently Professor Albert P. Blaustein, urged on the publication of a second volume, containing thirteen country studies, Constitutional Systems in Late Twentieth Century Asia (University of Washington Press, 1992), from which comes the first chapter of the present book. The other items were chosen for inclusion based on favorable comment by colleagues in the field, earlier republication, or a belief that they lent helpful perspec- tive on the status of human rights constitutional law in the country discussed. vii 11:07:12:03:09 Page 7 Page 8 PREFACE Comparative constitutional studies seem best served by a methodological approach which gives attention to constitutional and statutory texts, policies, judicial decisions, institutions, and elements of legal culture peculiar to the country and issue under study. This book is suffused with the conviction that a country’s performance with respect to constitutionalism is a more valid measure of “advanced” or “high civiliza- tion” than its prowess in economic, technological, military or legal terms, because modern barbarism is compatible with all those standards. And among the various alternative foundations for a nation’s constitutionalism a preoccupation with defense and promotion of human rights sets the bar highest. For fifty years of generous sharing of their perspectives on human rights in constitutional law, I should thank many legal scholars, judges and lawyers of Asia, especially Japan. For their support of this republication project, I am most grateful to Arthur Stockwin, Kendall Whitney, Larry Repeta, Hidenori Tomatsu, and Paul Norbury. Lawrence W. Beer Boulder, Colorado USA viii 11:07:12:03:09 Page 8 Page 1 PART I ASIA 11:08:12:03:09 Page 1 Page 2 11:08:12:03:09 Page 2 Page 3 First published in Lawrence W. Beer (ed.), Constitutional Systems in Late Twentieth Century Asia, Seattle, University of Washington Press, 1992, pp. 1–52. 1 Constitutionalism in Asia and the United States INTRODUCTION he latter decades of the twentieth century will be remembered, as many times Tpast, for wars, leaders and economic changes, and as no time past, for human entry into space, computers, and genetic codes. It may also be noticed a hundred years hence that this was an era of unprecedented experimentation in forms of government and law under written constitutions, as colonialism ended and each newly independent state sought its constitutional identity while other countries responded to challenge by revising or amending their basic laws. The trend was global, but most dramatic in 1989 and 1990 when Mikhail Gorbachev’s government allowed the waves of independence and constitutionalist creativity to sweep through Mongolia, Eastern Europe, and the Soviet Union. Three phenomena attended these historic decades of frenetic constitution-making activity: (1) a convergence in the world towards relatively few living traditions of modern law, and the beginnings of mutual comprehension among legal scholars and practitioners of these different traditions; (2) the achievement of at least formal global political consensus on the centrality—once national independence and stabil- ity are achieved—of human rights to sound and moral government and law (though with differences among nations on which rights to emphasize); and (3) at the deepest level, like the sliding together of suboceanic continental plates, convulsive interactions among profoundly different cultures, all reciprocally accepted for the first time as authentically human by educated international elites. That sometimes contradictory emphases characterize world discourse on human rights is less surpris- ing than the level of mutual comprehension achieved (the basis for all genuine disagreements) across all seas, and the virtually universal compulsion felt by national leaders to act on the world stage as if they were responsive advocates of human rights.

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