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Nuclear protest and the right of assembly in Japan

As disturbing new reports come in [see here, here and here] finding abnormally high levels of thyroid growths in children of Japan’s Fukushima prefecture, there is renewed attention being drawn to the Democratic Party of Japan government’s controversial decision to re-open some nuclear plants this past summer.  Some polls have showed that 70% of citizens wanting a moratorium on nuclear energy, but no major political party has called for an immediate moratorium, and instead the DPJ has called for a phased reduction in use of nuclear energy to be completed by 2030.  The country’s powers-that-be are concerned about how to power the future.

An interesting constitutional dimension to this controversy concerns public protest.  This past summer saw large-scale public protests over the proposed re-opening of nuclear plants. With over 100,000 citizens participating in some of the demonstrations, these were arguably the largest public protests in Japan since the the renewal of the US-Japan Security Treaty in the early 1960s.  Yet  now the Tokyo Metropolitan Government, headed by nationalist politician Shintaro Ishihara, has denied protestors a permit to gather in Hibiya Park in downtown Tokyo. Earlier this month, the Tokyo High Court upheld the denial.

Larry Repeta recently explained the situation in a letter to the Japan Times:  “Setsuko Kamiya’s article “Antinuclear activists denied use of park”  describes one example of the kind of severe restriction routinely applied to public demonstrations in Japan.  Language in the Constitution protects the “right of assembly” alongside freedom of speech, but these fundamental rights are not upheld by the Supreme Court.  Since the Constitution took effect in 1947, the Supreme Court has not found a violation of these rights in even a single case.  It always upholds the action of the police.  The result is a series of severe restrictions applied to public demonstrations and other actions that criticize government.  Hibiya Park is Tokyo’s public square.  This is the most natural venue for people to gather and speak out.  But use of the park is denied because it may inconvenience library users or interfere with traffic.  In Japan, protecting the right of free speech is a very low priority.”

As if it were needed, this is just another reminder that a constitution that looks very liberal on paper can be illiberally interpreted.  But the deeper problem concerns the quality of Japanese democracy, which despite 15 years of legal reforms has not seen a major expansion in courts’ willingness to handle sensitive political issues.  The courts do not see their role as being responsive to social and political issues; and in this Japan is an outlier among industrialized democracies.

 

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Published on November 26, 2012
Author:          Filed under: Developments
 

One Response

  1. Tokujin Matsudaira

    The Court’s jurisprudence is that the freedom of assembly is a right against govt interference, NOT a right of free access to govt property. Hence citizens’ interest to assemble at a public park stem from statutes or ordinances prescribing the procedure of using that govt property, not the constitutional guarantee of free assembly. In most of cases the enabling statute is the Local Autonomy Act, which requires local govts to provide “justifiable grounds” if they deny permission of using govt property to citizen applicants. Applicants have right to ask whether the denial was made on justifiable grounds, and the Court will ask local govts to interpret the statute in a fashion reconciling the constitutional value, but that’s all. See one of leading cases on freedom of assembly the Japanse Sup Ct decided in 1995:

    ”Whether or not said restrictions can be accepted as necessary and reasonable restrictions should basically be decided by comparing the importance of freedom of assembly as one of fundamental human rights, with the matters such as the content of other fundamental human rights that are possibly infringed when the assembly were held, and the degree of risk of occurrence of such infringement. The restrictions on the use of the Hall under Article 7 of the Ordinance, as far as they are accepted through this comparison as necessary and reasonable restrictions, do not unduly infringe freedom of assembly, nor do they constitute censorship, and therefore said restrictions do not contravene Article 21 of the Constitution…” Case number 1989 (O) No. 762, Minshu Vol. 49, No. 3 at 687.

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