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Rethinking Japan's Constitution from the Perspective of the Ainu and Ryūkyū Peoples
Published online by Cambridge University Press: 14 March 2025
Abstract
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Through a historical analysis of Japanese constitutions and key constitutional drafts from the Meiji Era to the present day, this article examines the relationship between the constitution of Japan and the rights of indigenous peoples. In recent decades, the constitutions of a number of countries have introduced clauses recognizing the culture or rights of indigenous people, but this still remains a lacuna in Japanese constitutional debates. After examining the continuing social problems which result from this lack of constitutional recognition, particularly from the perspective of the Ainu and Ryūkyū peoples, the article concludes with a call to oppose current government schemes for constitutional change by putting forward a radical alternative proposal to revise the constitution in a way that would recognize and celebrate Japan's ethnic, historical and cultural pluralism.
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Notes
1 The phrase “Eternal Text” (i.e. a legal code so excellent that it never becomes obsolete) is sometimes used in reference to the postwar Constitution of Japan; even the Referendum Law which is the procedural law necessary for the revision of this constitution was not enacted until 2007.
2 Kobatake Takashi, “Ueki Emori no Kenpō Kōsō: Tōyō Dainippon Koku Kenpō Sōan” (Emori Ueki's Concept of the Constitution) “Draft Proposal of the National Constitution for Great Japan of the East”, Bunka Kyōseigaku Kenkyū. (Okayama University Graduate School of Social Sciences and Humanities), 2008, Volume 6.
3 In Shiryō ni Miru Nihon no Kindai (Historical Materials on Modern Japan) 1-14, Ueki Emori no Kenpō Kōsō - Tōyō Dainippon Koku Kenpō Sōan (Emori Ueki's Concept of the Constitution/Draft Proposal of the) National Constitution for Great Japan of the East Accessed 27 July, 2017.
4 Kobatake, “Ueki Emori no Kenpō Kōsō”, p. 83.
5 In Ueki Emori's draft, the regulation in Article 10 stating that “states which have not achieved independence will be under the jurisdiction of the federal government” is thought to refer to Hokkaido.
6 In other words, the head of state as existing in countries like the Austro-Hungarian Empire (Japanese: kōtei), rather than a sovereign imbued with a divine lineage (Japanese: tennō), as in the conception of State Shinto.
7 “Standardized Law” was a law enacted in 1918 to coordinate laws and regulations between the Japanese external colonies of Taiwan, Korea, Karafuto, Kwantung and Japan's South Seas Mandate, and the Japanese mainland.
8 The Ministry of Foreign Affairs Treaty Bureau's “Foreign Legal Journal” published in 1957 (Volume 2 “Outline of Foreign Legal System”) (The Ministry of Foreign Affairs) defines colonies (foreign areas) as “anomalous areas” and lists Japanese colonies prior to 1943 as Taiwan, Korea, Kanto Province, the South Seas Mandate, and Karafuto. In relation to the land tax system, Hokkaido was also an anomalous area. The Japanese government started the modern tax system with the enforcement of the Land-tax Reform Ordinance (Chiso-Kaisei Jorei) in 1873. But this system was only introduced into Hokkaido in the 1890s. After the start of the Hokkaido Colonial Development Program in 1869, the Japanese government encouraged the settlement of Japanese migrants from mainland Japan to Hokkaido, and established an ordinance to issue certificates of land title in Hokkaido in 1877. It also started a land survey throughout Hokkaido (of course totally ignoring traditional relationship of Ainu people to the land) which was completed in the 1890s. A revenue office was established in Hokkaido in 1890. In the early years of colonization, land was exempted from tax, or taxed at a much lower rate, in Hokkaido than in mainland Japan.
9 Miyazawa Toshiyoshi, Kenpō Kōwa (Lectures on the Constitution), Tokyo: Iwanami Shoten, 1967, p. 69.
10 Miyazawa Toshiyoshi, Kenpō II (The Constitution II), Tokyo: Yūhikaku, 1994, p.247.
11 Itō Masami, Kenpō Nyūmon (Introduction to the Constitution) [Supplemented 4th Edition], Tokyo: Yūhikaku, 2006, pp. 138-9.
12 Ebashi Takashi, “Senjū Minzoku no Kenri to Nihonkoku Kenpō” (Indigenous Peoples' Rights and the Japanese Constitution). In, Higuchi Yōichi et al. (eds), Kenpōgaku no Tenbō (Prospects of Constitutional Studies), Tokyo: Yūhikaku, 1994, pp. 471-490.
13 Honda Katsuichi, Senjū Minzoku Ainu no Genzai (Indigenous Ainu People Now), Tokyo: Asahi Shinbunsha, 1993, p. 220.
14 Uemura Hideaki and Fujioka Mieko, “Introduction. Nihon ni Okeru Datsushokuminchika no Ronri to Heiwagaku” (Theory of Decolonization in Japan and Peace Studies) in Japan Peace Studies Association (ed.), Heiwa Kenkyū: Datsushokuminchika no tame no Heiwagaku (Peace Research: Toward A Peace Studies for Decolonization) Tokyo: Waseda University Press, 2016, Volume 37, pp. 1-xx.
15 See Ainu Minzoku Shiryōshitsu (Ainu People Resource Room Homepage) (Accessed 29 July 2017)
16 No Ainu participated in the “Utari Roundtable”. The logic behind their exclusion was that they possessed a “conflict of interests”. As for the “Expert's Council on Ainu Policy”, Katō Tadashi (Chairman of the Ainu Association of Hokkaido) was the sole Ainu person serving as a Committee Member.
17 Satō Kōji, Nihonkoku Kenpō to Senjū Minzoku de aru Ainu no Hitobito (The Constitution of Japan and the Ainu, an Indigenous People) (Booklet Number 1), Sapporo: Hokkaido University Center for Ainu and Indigenous Studies, 2013, p. 6.
18 Satō, Nihonkoku Kenpō to Senjū Minzoku de aru Ainu no Hitobito, p. 10.
19 Satō, Nihonkoku Kenpō to Senjū Minzoku de aru Ainu no Hitobito, pp. 16-17.
20 Satō, Nihonkoku Kenpō to Senjū Minzoku de aru Ainu no Hitobito, p. 17.
21 Satō, Nihonkoku Kenpō to Senjū Minzoku de aru Ainu no Hitobito, p. 29.
22 Satō, Nihonkoku Kenpō to Senjū Minzoku de aru Ainu no Hitobito, p. 29-30.
23 Satō, Nihonkoku Kenpō to Senjū Minzoku de aru Ainu no Hitobito, p. 46.
24 Tsunemoto Teruki, “Ainu Minzoku to ‘Nihongata’ Senjyūminzoku Seisaku” (The Ainu People and “Japanese” Indigenous Policy) in Gakujutsu no Dōkō (Academic Trends), Tokyo: Japan Science Support Foundation, 2011, Volume 9, pp. 79-82.
25 Tsunemoto, ibid.
26 For example, Shinkawa Akira and Kanamaru Shinichi, editors of the only comprehensive magazine in “Okinawa” at the time, New Okinawa Literature, were made “Anti-Reversion Theory” a central feature of volumes 18 and 19 (1970-71) of the journal.
27 During the period of US rule, land was forcibly taken from Okinawan landowners for bases. Following a prolonged struggle in the 1950s, owners were paid rent for this land, but some owners refused to sign lease contracts, as a sign of their opposition to the presence of the military bases. After the reversion of Okinawa to Japan, the Japanese government introduced a series of measures forcibly extending these contracts, which were signed by local mayors as “proxies” for the anti-base landowners. If the mayors refused to sign (as three did in 1995-1996) the governor of the prefecture was required to provide a proxy signature on the leases. Governor Ōta's refusal to provide this proxy signature resulted in a court case which he lost.
28 “Proxy Signature Lawsuit Prefecture's Loss Confirmed”, Ryūkyū Shimpō, August 29, 1996. From this era, the movement to position the Ryūkyūs as “indigenous peoples” began to develop mainly within UN human rights institutions.
29 See also Gavan McCormack, “Japan's Problematic Prefecture: Okinawa and the US-Japan Relationship”, The Asia-Pacific Journal: Japan Focus, volume 14, issue 17, number 2, September 1, 2016; and Gavan McCormack and Sandi Aritza, “The Japanese State versus the People of Okinawa: Rolling Arrests and Prolonged and Punitive Detention”, The Asia-Pacific Journal: Japan Focus, volume 15, issue 2, number 4, January 15, 2017.
30 The Okinawa Petition is a protest document from Okinawa Prefecture submitted to the Prime Minister of Japan in January, 2013, calling for the cessation of deployment of new military model Osprey aircraft as well as the closure and removal of the US Military Futenma Base. Unlike protests which had been submitted before that time, the Petition was a non-partisan document symbolically rising above ideology and including the signature of all of the 41 mayors and chairs of municipal assemblies in the Prefecture of Okinawa.
31 “Henoko Lawsuit Receives Supreme Court Ruling” (Editorial), Okinawa Times, 21 December, 2016. For further information on the Henoko struggle, see Hideki Yoshikawa (trans. Gavan McCormack), “U.S. Military Base Construction at Henoko-Oura Bay and the Okinawan Governor's Strategy to Stop It”, The Asia-Pacific Journal: Japan Focus, volume 16, issue 2, number 1, January 16, 2018. Uemura Hideaki notes: I am indebted, and hereby express my gratitude to Ms. Takara Sachika of Okinawa University for providing me with information regarding the Okinawan situation.
32 See LDP Website. Accessed 27 July, 2017.
33 The Ainu Cultural Promotion Act refrains from defining the rights of the Ainu people. Nonetheless, Article 1, which remains vitally important law in terms of recognition of the multicultural nature of Japan, reads as follows: Article 1 To realize a society in which the ethnic pride of the Ainu people is respected and to contribute to the development of diverse cultures in our country, by the implementation of measures for the promotion of the Ainu traditions and culture from which Ainu individuals find their ethnic pride (hereafter referred to as “Ainu Traditions”), the spread of knowledge related to Ainu Traditions, and the education of the nation (hereafter referred to as “The Promotion of Ainu Culture”), in light of the situation Ainu Traditions are currently placed in (emphasis by authors).
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