Die japanische Notstandsgesetzgebung
Abstract
One of the most controversial points of the current debate on the reform of the Japanese Constitution is the question of whether a “state of emergency” should be regulated in the constitution. Until now, no such constitutional provision has existed in Japan. When the Japanese Constitution took effect in 1946, there was no need to regulate emergency powers as the defense of Japanese territory and the maintenance of public order were guaranteed by the Allied Powers after the end of the war. In the time after the enactment of the constitution, it was taboo to consider a constitutional regulation of emergency powers. Every governmental initiative of this kind led to fierce protest from the Japanese public. The debate on the correct course of Japanese defense policy changed only after the Gulf War of 1990/ 1991 and the emerging fear of North Korean atomic bombs had led to a change of public consciousness. This allowed the enactment of the three so-called “emergency laws” to close the perceived constitutional gap. The three emergency laws provide for a broad range of measures in the case of an armed attack on Japanese territory or other similar state of emergency such as a natural disaster. As the regulation of a state of emergency ordinarily provides for the centralization of powers in the event of an emergency, which differs from the normal separation of powers laid down by the constitution, it seems problematic to close a perceived constitutional void by enacting sub-constitutional laws. The article studies whether the emergency laws are in conflict with the constitution and attempts to predict the content of a future constitutional provision on emergency powers in Japan.