What lessons do we have from Japan’s Constitution making experience?

Porque em Mozambique se discute a revisao constitucional, lembrei me de um seminario em 2010 em que apresentei reflexoes sobre a Constituicao Japonesa e abaixo se encontram as principais conclusoes por mim reportadas. Alguns aspectos deste texto podem servir de reflexao para Mocambique embora eu nao tenha feito esse estudo comparativo. Voila:


" Japan’s experience in Constitution making is unique, not only due to the environment where it was created and all the lobbies and backstage scenarios, but mainly for its articles, specially the Article 9. Due to his peculiarity, the following lessons can be taken:

1-      A constitution needs to reflect the willing of the people, which kind of system, government and main rules the people want to follow. A State is an autonomous territory with sovereignty, population and national symbols. The population needs to decide which kind of government they want and the Institutions that will exercise the monopoly of use of force. Fortunately Japan people were in line with the new precepts aligned in their new constitution.

2-      Transference or transplant of laws that was the case of the new Japanese Peace Constitution after war, government’s position in the negotiations is very important. Even though the war was lost, Japanese officers didn’t face any retaliation and the Emperor kept his position as symbol of State although he lost powers as an omnipotent god. The book Written by Bernie Weisz entitled “Unit 731, the testimony” explains how Japanese officers used data from biological experiments to negotiate with USA the freedom of officers involved in what he called “crime wars”. One lesson, even when a war is lost you have to have secret weapons to negotiate better terms of surrender, and in that issue Japan did a good job thanks to Genenal Shiro Ishii and the good timing use of opportunities that the country had after the atomic bombs. Note that Japanese officer failed to address the terms of surrender just after the Potsdam Declaration that leaded to Hiroshima and Nagasaki bombing.        

3-      Change the principles of one Constitution using the same people who drew the previous might not be a good transparency option. Matsumoto’s draft did not change the basic principles of Meiji Constitution such as military issues and they had no intention or they were not capable of including issues related with human rights, liberalism and democracy. To overcome this problem, an outside advice might increase to reflect the division of power and decentralization needed in any good democracy.

4-      Any amendment on the constitution needs to follow the same national willing to do so. The Japanese Constitution is completing 64 years this year, and no revisions so far, despite a lot of debates and discussions about the way forward for the constitution, there is no consensus about which kind of Constitution to draw (kaikenron vs. kakenron shukenron vs. gokenron). More than 50% of Japanese people agree with the revision and more than 50% because of the Article 9. The USA constitution has about 224 years and 21 amendments, so maybe due to this all uncertain position of Japan’s future, the legislatures should think about which directions to take. But as Japan is not unanimous on which kind of changes to do, I would suggest a partial amendment, at least to accommodate new contemporary issues such as the use of self-defense forces in overseas operations."

Note: Chapter II: Renunciation of War; Article 9: Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. 2) In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.