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Government and Economy

Self-Expression and Democracy
— The Article 9 Haiku Case

Motonari Imaseki
Professor, Faculty of Law (constitutional law), Waseda University

Limited freedom of expression

Blatant interventions on mass media are being conducted in public: the Minister of Internal Affairs & Communications threatened to execute broadcast suspensions; the Japan Broadcasting Corporation (NHK) Chair stated at a press conference, “If we broadcast programs based on democracy (author’s note: i.e. majority rule), we would automatically be reflecting the government’s stance.” This man also mentioned that, "We cannot say 'left' when the government says 'right.'" These examples present a stark contrast against the emphasis placed on the freedom of expression for enacting a law restricting hate speeches. Mass media’s independence is also questionable. Executives of media companies frequently meet with the prime minister, harboring doubts regarding their duties as watchdogs on power. Meanwhile, ordinary citizens and students started to express their opinions, such as objecting to Japan's Legislation for Peace and Security and nuclear energy policies. Some people find hope in Japanese democracy through their actions. However, a political climate not allowing criticism of the current administration is affecting the freedom of expression. For instance, a man wearing an Article 9 T-shirt was questioned by police, a panel presentation on comfort women at a city community center was rejected, and the Tokyo Metropolitan Art Museum was compelled to remove Katsuhisa Nakagaki's installation entitled "Portrait of the Times: Endangered Species, idiot JAPONICA Round Tomb" to which a sheet of paper attached said, "Observe Article 9 of the Constitution, acknowledge the folly of worshipping at Yasukuni Shrine, and prevent the current administration from leaning to the right." A work of art entitled “Manifesto” by artist Makoto Aida and his family, which criticized the educational policy of the Ministry of Education under the slogan "We object to the Ministry of Education," was also forced to be removed from the Museum of Contemporary Art Tokyo (Aida refused this request). Moreover, in Himeji, the city government halted a performance by the labor union in the short play "Say 'No' to the Abe administration" during a festival in front of the station, claiming that it offended public order and morals (The city apologized after the labor union started a lawsuit).

Political expression and the administration's neutrality

A local community center refused to publish in its newsletter an Article 9 haiku, which read, "Echoing in the sky of the rainy season/Are shouts of women demonstrators/Who Repeat 'Protect Article 9.'" Sued by the author of the haiku, the city government responded with the following arguments: (1) different interpretations of Article 9 of the Constitution was becoming a political issue polarizing public opinion, (2) the city government has the duty to ensure neutrality, fairness and public trust, (3) if the city published a haiku depicting a demonstration scene in favor of protecting Article 9, it would follow that the city supports this point of view and contradict the principle of neutrality and fairness, and (4) the city government cannot gain the trust of citizens if the haiku’s publication invites misunderstanding, causing people to believe that the community center intentionally included the content in the newsletter according to its own political beliefs.

The freedom of expression is assured provided that democracy is based on free and open deliberation over political matters. Democracy does not function without the freedom of expression. It is true that a democratic decision is made by the majority (majority rule), but the freedom of expression guarantees that those who lose by a majority vote accept the decision. Therefore, it is indispensable for democracy that anyone can express their opinions in the decision-making process. This holds true not only for political institutions but also for society at large. A wide range of social deliberation should be all the more encouraged if the topic is so controversial as to divide the nation into two camps. If so, Argument (1) in the paragraph above rather serves to deny the legitimacy of refusing the haiku to be published.

Argument (4) is also irrelevant. It is the type of argument that would suggest that police officers must not provide security for protestors because they would appear to be supporting the demonstration. In fact, police officers have the duty to protect lawful demonstrators from hostile audiences. What’s more, shouldn't the city government also pay attention to expressive actions regardless of political standpoints? Argument (3) links the political nature of the haiku piece (whose position is to support the protection of Article 9) directly with the city government violating its principle of neutrality, but these two matters should be strictly distinct from each other. The city government would rather avoid controversy. Even so, if the poem becomes published, the city government is only required to explain that it does not support the poet’s position, and the poem was selected out of fairness to those who complain. This would easily dispel suspicions regarding the city's neutrality. The city government should be accountable for explaining the reasons behind the haiku’s publication rather than infringe on the freedom of expression by refusing it.

Democratic government and the freedom of expression

As illustrated in the case of the Article 9 haiku, refusal of certain publications by administrations is without plausible reasons except for having anti-governmental messages. This case provides a glimpse into the structure of the realm of speech in Japan. Voicing one's opinions against the majority is very difficult in Japanese society because of the timid attitudes taken by city government to avoid complaints and evade responsibilities, its servility of conjecturing intentions of the current administration and societal atmosphere, and the lack of self-awareness that city government itself is violating the freedom of expression. Those who want to object to the haiku or other artwork should not ask for public authorities’ help to prevent its publication or display but express their opinions about the work. In the sphere of expression, the principle is "speech for speech (more speech).” Because the Article 9 haiku or Nakagaki’s installation are evidently not part of a systematic propaganda by public authorities, all the city government or the museum need to do is explain that there is nothing wrong with their actions. If public authorities can consider an invisible majority’s position and a surmised intent of the current administration, to exclude a particular expression for reasons of its political position, platforms for speech would simply fall apart.

When politicians asserted to revise the Article 96 (amendments clause) of the Constitution, they emphasized that relaxed requirements for the initiative by Diet would allow people with increased opportunities to be part of the decision-making process through referendums and purported that the judicial system reform would prompt people to become sovereign citizens. Thus popular sovereignty and self-government were highlighted under the context of Constitutional revision or non-democratic judiciary, but in the usual political process by contrast, democratic self-government is denied because the freedom of speech of citizens is substantially restrained. Sovereign citizens exist only through vigorous public discussions. Therefore, if we are to think seriously about popular sovereignty and democratic self-government, we have to pay the greatest attention to guaranteeing the freedom of speech. The would-be advocates for democracy must not impede the efforts of individuals and mass media attempting to step aside from silence based on conjecture in order to create a democratic society with free and open discussion.

Motonari Imaseki
Professor, Faculty of Law (constitutional law), Waseda University

[Brief history]

Born in 1957, Motonari Imaseki graduated from Waseda University with a bachelor's degree in law in 1979. He left completed the doctoral course at the Graduate School of Law in 1984.

[Publications]

Compulsory Indictment by the Committee for the Inquest of Prosecution—The People as the Ruler, (Horitsu Jiho Vol. 83 No. 4, 2011), What Is Participation by the People in Criminal Trials? Association for Studies of Constitutional Theory, Political Changes and Constitutional Theory, (Keibundo, 2011), "University Autonomy" and Constitutional Council, (Waseda Law Review Vol. 87 No. 2), Introduction of an Ex Post Facto Examination System into the French Constitutional Council, (Waseda Law Review Vol. 85 No. 3), and A Dictionary of French Legal Terms (Third Edition), (jointly supervised and translated by Nakamura, Niikura, and Imaseki, Sanseido Co., Ltd., 2012)