Nuclear Controversy and the Right to Petition in Japan

—Tokujin Matsudaira, Kanagawa University Faculty of Law

Last week, Taro Yamamoto, a member of Japanese House of Councillors in the Diet, set off a controversy when he personally handed a letter to the Japanese Emperor expressing concern about the Fukushima nuclear power plant. Here is how RT reported the event:

An anti-nuclear lawmaker broke a taboo, drawing heavy criticism in Japan, by handing the Emperor a letter of concern over the issue of the growing Fukushima radiation and the impact on children’s health.

Taro Yamamoto, an independent lawmaker at the Tokyo prefecture in the House of Councilors, the upper house of the Japanese parliament, personally handed the letter to Emperor Akihito during a party at the Akasaka Palace’s imperial garden on Thursday.

The vocal anti-nuclear activist said that he wanted to inform the Emperor “directly” of the crisis at the Fukushima nuclear plant north of Tokyo. The Tohoku earthquake that hit off Japan’s Pacific coast in March 2011 triggered a tsunami that damaged nuclear reactors at the Fukushima Daiichi. Since then the plant has been leaking radioactivity leading to the evacuation of more than 150 000 people. The land surrounding the plant has been off-limits due to high radiation that can cause cancer and other health problems.

“I wanted him to know about the children who have been contaminated by radiation. If this goes on, there will be serious health impacts,” said Yamamoto.

…

The politician’s initiative set off a storm of protest in the Japanese media with many saying that his action was inappropriate breaking the “taboo” of involving a member of the Imperial Family in politics.

Some critical netizens called on Yamamoto to resign from parliament calling his action “really low.”

Chief cabinet secretary, Yasuhide Suga, also expressed disapproval, telling a news conference, “There is a line for appropriate behavior at such an occasion”.

On November 5, in response to questions from the media, the 39 year-old former TV personality repeated his claim that he had handed the Emperor (Tenno in Japanese) the letter to bring to his attention the government cover-up of Fukushima crisis. It seems Mr. Yamamoto presumes that the Tenno Akihito, known for his discrete personality and liberal thought, will pressure the Abe government into trying to change the Japanese nuclear industry’s policy. If so, his action can be considered as a form of petition. Thus, the fall-out from this incident raises an important question: does the Constitution’s right to petition extend to members of the Diet?

Mr. Yamamoto’s “petition” to the Tenno is problematic for liberal constitutionalists because it is rooted in the pre-war Japanese mentality that the Emperor’s subjects have no choice but to appeal to the Emperor when they suffer some injustice at the hands of His Majesty’s officials. Such direct appeals (Jikiso in Japanese) were common in the Edo period (1603-1868), when farmers pleaded with their feudal lords to correct the evils of local magistrates. Today, however, the post-war constitution establishes the sovereignty of the people and it is therefore unnecessary and perhaps even improper for a subject to appeal to the Emperor.

Liberal constitutionalists find Mr. Yamamoto’s petition problematic because it suggests that the post-war regime of constitutional rights is insufficient to address the claims raised by Mr. Yamamoto. That Japanese citizens must rely on a traditional conservative approach to protect their rights risks undermining the new constitutional regime. Conservatives, therefore, should feel good about this. However, the reality is the opposite.

Most of Japan’s political parties are conservative to some degree. Moderate conservatives in the LDP, New Komeito and DPJ condemn Mr. Yamamoto’s actions, arguing that he was using the Tenno for political purposes and thus harmed the neutrality of the symbolic Tenno system provided by the post-war constitution. This is ironic, though, since LDP, the conservative government party led by the Prime Minister Abe, never hesitates to commandeer the Tenno for its political purposes–using worship of the Tenno to pursue conservative constitutional amendments.

Cabinet ministers from the right-wing LDP have compared Mr. Yamamoto’s actions to a similar event in the pre-war Meiji period (1868-1912), when a parliamentarian who had petitioned the Tenno Mutsuhito, Akihito’s great-grandfather, and was ready to be punished for lese majesty. [He was finally released by the police, and prosecutor treated him as mentally ill]. The far-right media and rightists argue today that Mr. Yamamoto should be removed from the Diet for disrespecting the Tenno. Shiegru Ishibashi, LDP’s secretary general, one of powerful parliamentary politicians, made a public statement asking Mr. Yamamoto to resign.

The House of Councillors has asked Mr. Yamamoto to explain his behavior and it has suggested that he will be subject to disciplinary action if Mr. Yamamoto does not resign. Mr. Yamamoto has thus far refused to do so.

This raises the question whether a member of the Diet can enjoy the right to petition guaranteed by the Japanese Constitution. Mr. Yamamoto’s critics argue that his “petition” constitutes misconduct as a member of Diet; they cite the enabling statute requiring that petitions to the Tenno be submitted to the Cabinet. But Article 16 of the Constitution states that “every person shall have the right of peaceful petition for the redress of damage, for the removal of public officials, for the enactment, repeal or amendment of laws, ordinances or regulations and for other matters; nor shall any person be in any way discriminated against for sponsoring such a petition.”

Whether the right to petition extends to members of the Diet has yet to be examined under the current Constitution. Mr. Yamamoto’s recent actions may provide an opportunity to answer the question.

Suggested citation: Tokujin Matsudaira, Nuclear Controversy and the Right to Petition in Japan, Int’l J. Const. L. Blog, Nov. 7, 2013, available at: http://www.iconnectblog.com/2013/11/nuclear-controversy-and-the-right-to-petition-in-japan