The Asia-Pacific Journal | Japan Focus Volume 16 | Issue 5 | Number 5 | Mar 01, 2018

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Rethinking Japan’s Constitution from the Perspective of theAinu and Ryūkyū Peoples

Uemura Hideaki, Jeffry Gayman

Abstract

Through a historical analysis of Japaneseconstitutions and key constitutional drafts fromthe Meiji Era to the present day, this articleexamines the relationship between theconstitution of Japan and the rights ofindigenous peoples. In recent decades, theconstitutions of a number of countries haveintroduced clauses recognizing the culture orrights of indigenous people, but this stillremains a lacuna in Japanese constitutionaldebates. After examining the continuing socialproblems which result from this lack ofconstitutional recognition, particularly from theperspective of the Ainu and Ryūkyū peoples,the article concludes with a call to opposecurrent government schemes for constitutionalchange by putting forward a radical alternativeproposal to revise the constitution in a way thatwould recognize and celebrate Japan’s ethnic,historical and cultural pluralism.

Keywords

Indigenous peoples; constitution; human rights;pluralism; Japan; Ainu; Okinawa.

Modern Japan and its Basic Laws

2018 marks the 150th anniversary of the MeijiRestoration, an event generally seen asinitiating the construction of a “modern state”which imported its political and legal systemfrom the Western powers. The phrase bunmeikaika, used as a translation of “civilization” inFukuzawa Yukichi's “Outline of Civilization”

(1875), became a term symbolic of the times. Inthe 1870s, the Family Registration Act (1871),the Military Conscription Ordinance (1871),and the Land Tax Reform (1873) were allpromulgated and implemented, while railroadsand telegraph were both initiated as early as1872.

Strictly speaking, though, the characteristics ofthe political and administrative system of thistime can be thought of as a modern revival ofthe Heian period imperial government systemof the 8th-12th century (the ritsuryō system),rather than as westernization. As in the ancientritsuryō system, the six ministries, Civil Affairs,Treasury, Military Affairs, Prisons, ImperialHousehold, and Foreign Affairs, and also theGreat Council (created in 1869) were placedunder the institutional authority of theemperor, and their officers were nominallyappointed by the Emperor himself. In the1880s, a westernized form of nation-buildingfinally became clearly distinguishable; that is,the “Western exterior” of the traditional nationbased on the ritsuryō system took on arecognizable shape. Beginning with theImperial Rescript to establish the Diet (1881),the 1880s saw the creation of the cabinetsystem (1885), the promulgation of the MeijiC o n s t i t u t i o n a n d o f t h e H o u s e o fRepresentatives Election Law (both in 1889),and implementation of the constitution andopening of the Diet (both in 1890).

The basic laws of the modern nation of Japan,born of the history that emerged from this era,are contained in the following two documents,which were enduring, in the sense that neitherever underwent revision and they thus

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possessed the character of “eternal texts”1: the1890 “Constitution of the Empire of Japan”(containing 7 chapters and 76 articles) and the1947 “Constitution of Japan” (containing 11chapters and 103 articles). In this essay, weconsider the rights of indigenous peoplesthrough an analysis centered on these twoconstitutions.

But it is also important to consider thealternatives that have been proposed. Anumber of private drafts were submitted duringthe preparatory debates about eachconstitution. For instance, in the Meiji Period,drafts called “private constitutions” werepublished, most of them in 1881, by UekiEmori, Fukuchi Genichirō, Nishi Amane andothers. In the case of the postwar Constitutionof Japan, a draft constitution (1945) was drawnup by the Constitutional Study Group formed in1945 by Takano Iwasaburō and Suzuki Yasuzō,and in 1946, by the Japan Liberal Party. TheProgressive Party, the Socialist Party, andCommunist Party also all compiled andpublished separate drafts. Finally, in additionto these, in the current constitutionalamendment debate, the “Draft Amendment ofthe Japanese Constitution” announced by theLiberal Democratic Party (LDP) in 2012(containing 11 chapters and 102 articles) hasbecome the focus of controversy.

As well as analyzing the two constitutionswhich were actually put into effect, we willconsider two private drafts which, in differentways, cast important l ight on Japan’sconstitutional possibilities and challenges: UekiEmori ’s 1881 “Draft o f the Nat ionalConstitution for Great Japan of the East”(which contained 18 sections and 220 articles)and the 2012 Draft Amendment to theConstitution of Japan compiled by theConstitutional Reform Promotion Headquartersof the Liberal Democratic Party. Through thisanalysis, we examine the larger context andsignificance of the relationship between theconstitution of Japan and the rights of

indigenous peoples.

The main point we wish to emphasize is the factthat, in all of the four constitutional modelscovered in this article (and in the other draftsfrom this period from the Meiji Era to thepresent day), there is no clause concerningmulticultural / multi-ethnic society or pluralisticcitizen’s rights. In recent decades, a number ofconstitutions (such as those of Canada,Norway, Sweden and Finland) have introducedclauses recognizing the culture or rights ofindigenous people, but this still remains alacuna in Japanese constitutional debates. Thisis both a cause and a consequence of theindifference of the Japanese government, andof the majority of citizens, to the reality ofJapan’s multicultural / multi-ethnic society. It isalso both cause and consequence of thesituation in which there is no constitutionalfoundation upon which to consider Japan’sindigenous peoples and their rights. Based onthis premise, we discuss the merits andshortcomings of the current JapaneseConstitution from the point of view of the rightsof indigenous peoples.

The Draft of the National Constitution forGreat Japan of the East and Pluralism

We begin by considering the “Draft of theNational Constitution for Great Japan of theEast”, compiled in 1881 by Ueki Emori (1857 ~1892), because, to borrow from the words ofhistorian Ienaga Saburō, Ueki’s remains theonly one of the existing constitutional conceptsto model Japan within a framework ofpluralism.2 Ueki was a founding member of thepolitical organization Risshisha (1874 ~1883),which played a central role in the Freedom andPopular Rights movement [Jiyū Minken Undō],and was also a member of the RisshishaConstitutional Investigation Bureau’s DraftingCommittee. Ueki was a prudent Asianist,cautious about expanding national powerthrough the use of force, His draft, though, is

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considered to be the most democratic / radicalamongst the “private constitutions” of the time.While embracing constitutional monarchy, it isalso known for clarifying the rights todemocracy (Article 40), freedom (Article 5,Article 43 etc.), resistance (Article 64, Article70), and revolution (Article 72)3. In addition, itis said that Takano, Suzuki et al. used Ueki’smanuscript as reference material for their 1945“Constitution Draft Summary”. Ienagaevaluated Ueki’s draft as “the most democraticamongst all existing constitutional visions” inJapan.4

A crucial feature of Ueki’s draft is his conceptof a federal nation state for Japan (Article 7),modeled upon the United States andSwitzerland, and consisting of seventyindependent state governments and a federalgovernment. Articles 7 to 39 consist ofprovisions concerning the relationship betweenthe federal government and the states, andspecify state land rights (Article 14), as well asother points, in detail. Although Ueki’s draftcontains a “Ryūkyū State”, Hokkaido is notenvisaged as a “state”, and in this respect wecan detect a marked ambiguity of territorialawareness in the early Meiji period5. In otherwords, the renaming in 1869 of the so-called“Land of Ezo” as “Hokkaido” effectively meantthe colonization of the territory of the Ainupeople, Ainu Mosiri, by the modern state. Aparallel act of colonization occurred in the1879 renaming of the Kingdom of the Ryūkyūsas “Okinawa Prefecture”. It is interesting that,while Ueki did not recognize Hokkaido as anindependent area which should be treated as a“state”, he used the name “Ryūkyūs” andrecognized their “statehood” (that is, theirstatus as a province with considerable powersof autonomy) even after Okinawa Prefecturehad been established.

Another important point in considering theconstitution from the perspective of pluralismis the position of the emperor. Unlike thepolitical position of the presidents of the United

S ta te s and France , t he emperor i ssimultaneously both a political and a religiousinstitution of a specific ethnic group: theYamato people. In other words, the Japaneseemperor system is historically located outsideof the Ainu or Ryūkyūan world. On that point,to Ueki’s credit, the “Draft of the NationalConstitution for Great Japan of the East” usesthe term kōtei (the word used to translate thetitle of the emperors of other countries)6 ratherthan the (exclusively Japanese and Shintōbased) tennō, and, while Articles 75 to 113 ofPart 5 deal with the “Emperor and ImperialRegency”, the “emperor” is defined as apersonage with authority limited solely tocontrol over the federal government. Given thepresence of other cultures and ethnic groupswithin the nation, this system would havereduced the oppressive nature of suchsovereign power.

The “Constitution of the Empire of Japan”and the Emperor System

By contrast, Japan’s first constitution, theConstitution of the Empire of Japan, drafted bythe Japanese government centered around ItōHirobumi, was presented by the Meiji Emperorto Prime Minister Kuroda Kiyotaka in 1889, andpromulgated as a constitution bestowed by thesovereign. By this time the Ainu people, havingbeen distinguished in the 1871 Family Registerby the derogatory label “Former Aborigines”,had been incorporated into the Japanese stateas “commoners” in the new family registrationsystem [known as the jinshin koseki] which wasinitiated in the following year. Meanwhile, in1879 the Japanese government had completedthe so-called Ryūkyū Shobun (Disposal)crushing the resistance of the Ryūkyū Kingdomand establishing Okinawa Prefecture viaannexation. Thus, under the Constitution of theEmpire of Japan, the problems of the Ainunation and Ryūkyū people existed as a matterof fact, but the solution which the constitution

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proffered to these issues was the very simpleexpedient of completely neglecting them in itslegal framework.

Unlike Ueki’s draft constitutional proposal, theConstitution of the Empire of Japan (which wasmodeled on the Constitution of Prussia)enshrined the Emperor (Tennō) from the startin its first chapter (Articles 1–17), prescribing“Imperial Sovereignty” in Article 1: “TheEmpire of Japan shall be reigned over andgoverned by a line of Emperors unbroken forages eternal”. As mentioned above, followingupon the model of Britain, a cabinet system hadalready been put in place in 1885 in Japan, butin order to realize a stronger imperialsovereignty, the constitution stipulated a“Minister of State” without ever evenmentioning a cabinet system. In other words,under its provisions, the emperor held theposition of head of state and exercised powerover government on the advice of the ministerof state. For example, the emperor appointedthe prime minister to select the cabinet, andthe cabinet had responsibility only to theemperor. Juridical powers were delegated tothe courts in the name of the emperor, and healso commanded the army and navy. In return,residents of the empire, within the limits of thelaws enacted by the emperor with the supportof parliament, were guaranteed certain rightsas subjects of the monarchy. Under this system,the forced incorporation of a number of non-Yamato ethnic groups was carried out throughthe “disposal” of the Ryūkyūs, the “acquisition”of Taiwan in 1895, the “Former AboriginesProtection Act” of 1899, and the annexation ofKorea in 1910; but the diversity of thesecolonies and of Japan’s domestic indigenouspeoples was simply incorporated under theabsolute power of the “Emperor’s Sovereignty”,with no revision to the Constitution, but ratherthrough extra-constitutional measures.

For example, in the formal colonies, thecoercive powers of the emperor systemembodied in imperial ordinances and

“standardized law”7

made possible aconstitutionally “un-problematic” (yetthoroughly discriminatory) regulation of therelationship between the emperor and hissubjects. On the lands of domestic indigenouspeoples, the same objective was accomplishedthrough forced assimilation policies. To giveone example, in 1915, under the local system ofthe colony of Karafuto (Sakhalin), villages andtowns were organized under “Imperial DecreeNo.101”, and in 1918, mainland Japanese lawbecame applicable to the colony under thestandardized law, which had just come intoforce. In 1920 it became possible to apply theprovisions of mainland Japanese law toKarafuto via “Imperial Decree No. 124”, andfinally, in 1943, with the abolition of the samedecree, Karafuto was fully incorporated intoJapan’s domestic territories. In the process,unlike the Ainu on the main island of Hokkaido,who became Japanese citizens, Sakhalin Ainuuntil 1932 were designated as “KarafutoAborigines” under the Karafuto FamilyRegister, only later to be incorporated into thesame mainland Japanese Family Registersystem as the Hokkaido Ainu.

As far as the Ryūkyūs were concerned, due topurported reasons such as the Okinawansubjects’ “lack of loyalty” or “low degree ofcivilization”, there were arbitrary delays inenforcing of mainland Japanese law, andOkinawa was given the designation, socharacteristic of colonialism, of an “anomalousregion”; but the legal inconsistency of theseprocesses were never questioned in terms ofthe constitution. For instance, the 1871Military Conscription Ordinance was enforcedin the main island area of Okinawa only in1898, after the Sino-Japanese War, and only in1902 was it enforced in the Sakishima Islandssurrounding Ishigaki Island. Similarly, theHouse of Representatives Election Law of 1889which stipulated the right of suffrage, afundamental right of subjects, was onlyamended and applied to Okinawa Prefecture in1912, and its application to the Sakishima

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Islands was delayed even further until 1919.Additionally, the Japanese Governmentenforced the Okinawa Prefecture LandReorganization Law in 1899 and embarked onefforts to reform the land tax, but the landreorganization project was not completed until1903, and meanwhile, the Okinawa Prefectureand Islands Towns and Villages Decree (DecreeNo. 40 of 1907), which established a speciallocal administrative system for OkinawaPrefecture, was not enacted until 1908. DecreeNo. 40 that designated this regional systemwas abolished only in 1920, when the localsystem of Okinawa Prefecture became “equal”with the that of the “mainland”. Meanwhile inHokkaido, in a policy which targeted not onlyAinu people but other residents, theestablishment of an equal system with themainland was similarly greatly delayed, ineffect creating an “anomalous area” of the sortused by the Japanese government to delineateits colonies8.

Such declarations and imperial decreesrepeatedly presented the political fiction of theperpetuity and eternity of the Imperial familyfrom ancient times as the legitimating principleof modern state sovereignty. For instance, aphrase from the Imperial Proclamation of theConstitution clearly states that Japan haspersisted as an Empire since the times of theGoddess Amaterasu and Emperor Jimmu: “TheImperial Founder of Our House and Our otherImperial Ancestors, by the help and support ofthe forefathers of Our subjects, laid thefoundation of Our Empire upon a basis, whichis to last forever”. But in the context of such avision, for those subjects who did not acceptthis religious ideology, even the “grace andfavor” rights conferred on them were onlyarbitrarily protected. Under this structure, theAinu people, despite their ethnic difference,were seen as gradually assimilating subjects(Former Aborigines) of the Empire, and theRyūkyū people, as “Okinawan citizens”, wereviewed as a group of subjects of the ancientEmpire who had been absorbed by a process of

ethnic integration. Neither was officiallyrecognized as having their own distinctive setsof rights based on their own history, and bothwere subjected to severe discrimination.

Ueki Emori

The Constitution of Japan: Hopes andHarsh Realities

Current constitutional debates in Japan focuson proposals put forward by the LiberalDemocratic Party for the amendment of thepostwar Constitution of Japan, and particularlyhighlight the revisions of the constitution’s“peace clause” embodied in this proposal. Herewe re-examine the nature of the existingpostwar constitution from the perspectives ofpluralism and indigenous rights, before goingon to argue for an alternative strategy tocounter the multiple negative features of theLDPs proposed revisions.

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1) The Postwar Constitution, Japan’sConstitutional Scholars and IndigenousPeoples’ Rights

The Constitution of Japan which came intoeffect in 1947 essentially ignored issues ofmulticulturalism, multi-ethnicity and the rightsof indigenous peoples. The premise behind itsbasic structure is exactly the same single,homogeneous political and administrativesystem as was presupposed by the Meiji eraConstitution of the Empire of Japan and re-inscribed (as we shall see) in the LDP’s 2012draft revised constitution. For example, inArt icle 1 of Chapter 1 of the postwarconstitution, the emperor, although not thehead of state, is still depicted as “the symbol ofthe national integration of Japan”. Moreover,the content of Articles 10 to 40 of Chapter3—Citizens' Rights and Obligations – whichclearly lays outs the rights and responsibilitiesof citizens, is surprisingly similar to the contentof the 2012 LDP draft for a new constitution.

Japanese constitutional scholars, in defendingthe postwar constitution, have been remarkablyindifferent to the situation of Ainu and otherindigenous people and to the conditions ofpluralism. For example, even MiyazawaToshiyoshi and Itō Masami, prominent andconscientious constitutional scholars, makesuch statements as the following (this fromMiyazawa in 1967):

To discriminate by race means, for example,restricting the legal capacity of Ainu in thesphere of private law more than that of averagecitizens…In Japan, racial differences are small,so racial discrimination has not become aserious problem, but there are many cases inforeign countries.9

Campaigns by the Ainu people for a “New AinuLaw” as well as for the abolition of thediscriminatory Hokkaido Former AboriginesProtection Act took place in 1984, but these did

not alter the views of Miyazawa (who had beenone of the founders of the ConstitutionalProblem Study Group, created in 1958 in orderto disseminate the values of the postwarConstitution of Japan). In 1994 he was stillsaying: “There is little difference in race amongJapanese citizens, so discrimination on thegrounds of race has never been a problem inJapan.”10

Meanwhile, Itō Masami, a constitutionalscholar who served as a justice of the SupremeCourt as well as chairperson of the 1995 ExpertCouncil on Utari Countermeasures (discussedfurther below), made the following statement in2006: “Currently, as there are few people ofdifferent races subject to Japanese rule, so theproblem (of the recognition of Ainu people ashaving their own ethnicity under the AinuCultural Promotion Act) is less than in othercountries.”11

On the other hand, Ebashi Takashi who,unusually amongst constitutional scholars, hascommented and acted on Ainu issues, criticizedthis perspective as follows in a paper entitled,“Rights of Indigenous Peoples and theConstitution of Japan”:

Discrimination against the Ainu people hasbeen almost ignored in interpretations of theConstitution of Japan by constitutional scholars... After Ainu individuals and activist groupsraised their voices expressing grief atcontinued discrimination, the problem surfacedin the United Nations Human Rights Sub-Commission and ILO and other bodies. Inaddition, discrimination against Ainu peoplehas been identified by government and otherstudies. If most of the literature continues tokeep silent even after that, this reflects ashameful ignorance of hundreds of thousandsof human rights violations.12

Yet none of the six volumes of the IwanamiSeries—Constitution, a major work on thesubject published by Iwanami Shoten in 2007and written mainly by the young constitutional

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scholars Hasebe Yasuo and Doi Shin’ichi –takes up the issue of multiculturalism anddiverse ethnic groups in Japan and itsconstitution.

The key point about this situation is thatconstitutional scholars tend to see the reasonsfor the problem of the neglect of minorityethnic groups in Japan as lying in the fact thattheir numbers are small in relation to the totalnumber of nationals, and simultaneously toconstrue this issue only in terms of theprinciple of “equality under the law”. In otherwords, for these scholars, there is nofundamental distinction between indigenouspeople and others, and there would be noproblem if it were not for the fact that theirnumbers are small. These scholars do not eventry to imagine, let alone try to try to address,indigenous peoples' distinctive history andculture and the unique rights demands whichstem from these. Kayano Shigeru, a person ofAinu ethnicity who served in the Japanese Diet,criticised Japan's “democratic” system,including the constitution, for its “violence ofnumbers”13. What is completely missing fromthis analysis is that the violence inflicted by theprinciple of majority rule is also a post-colonialproblem: an issue of indifference to thecolonialism and colonial responsibility whichcreated this situation in the first place14. To putit another way, the problem is not simply thatAinu are a small minority in Japan, but thatthey are a minority whose (quite large) landwas appropriated by the Japanese state withouttheir consent.

2) The Const i tut ion of Japan andIndigenous Peoples: The Case of the Ainu

Nevertheless, the Ainu, and also the Ryūkyūpeople (the emergence of debates aboutindigenous r ights and r ights to sel f -determination rights in the Ryūkyū context),also put their hopes in the postwar Constitutionof Japan. This is because, compared with other

basic laws or constitutional concepts, somepossibilities and hopes of realizing their rights,however slight, appear to exist in thisconstitution.

For example, in the case of the Ainu people,these hopes can be seen in the movement forthe enactment of the New Ainu Law. In 1984,the Draft for a New Ainu Law was passed bythe General Assembly of the then HokkaidoUtari Association (now the Hokkaido AinuAssociation), demanding the abolition of the1899 Hokkaido Former Aborigines ProtectionAct and calling for legislation that stipulatedthe rights of the Ainu people. In its “Preamble:Reason for Establishing this Law”, the draftrefers to the Constitution of Japan as follows:

This law aims to recognize the existence of theAinu people, who possess a culture unique inJapan, to ensure respect for their pride andestablish a guarantee of their rights as a peopleon the basis of the Constitution of Japan …TheAinu ethnic problem is a shameful historicalproduct of the processes of creation of themodern state of Japan, and embodies importantissues related to fundamental human rightsguaranteed by the Constitution of Japan.Recognizing that it is the government'sresponsibility to solve such a situation, and thatthis is an issue for all citizens, we herebyabol i sh the humi l ia t ing A inu rac ia ldiscrimination law, the Hokkaido FormerAborigines Protection Act, and enact a new lawconcerning the Ainu people.15

This demand for a new law, drafted by the Ainupeople themselves, located their problemwithin a very simple structure: it highlightedthe lack of rights and of policies which should,as a matter of course, be assured to the Ainupeople, and it defined this situation as aninfringement of fundamental human rights thatthe Constitution of Japan is supposed toguarantee. Thus, the duty and responsibility toactualize these rights and policies is located inthe constitution. In this way, instead of

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brandishing the grandiloquent interpretationsof constitutional scholars, the Ainu peopleappealed directly to the fundamental principlesof the constitution and demanded a new legalframework to address Ainu issues.

Following this movement, the Japanesegovernment responded with what has sincebecome a pattern in regard to Ainu affairs: a“council of experts” is established as anadvisory body in the Cabinet Secretariat, thecouncil submits a report, and the governmentimplements policies in response to therecommendations of the report. In 1995 and2008, the councils established, respectively,were the Expert Panel on Utari Policy(composed of seven members chaired by ItōMasami; hereinafter referred to as the UtariPanel), and the Expert Panel on Ainu Policy(composed of eight members chaired by SatōKōji; hereinafter referred to as the Ainu Panel).

Though established separately, both groupswere similar in composition. First, thechairpersons, Itō Masami and Satō Kōji, areboth giants in the field of constitutional law,authorities from the University of Tokyo andKyoto University, respectively16. Next, one ofthe committee members has inevitably been aconstitutional scholar from the University ofHokkaido; in the Utari Panel this councilmember was Nakamura Mutsuo, formerPresident of the University of Hokkaido andcurrently serving Chairperson of theFoundation for the Research and Promotion ofAinu Cul ture; in the Ainu Panel i t i sNakamura's leading disciple, TsunemotoTeruki, the current Director of the HokkaidoUniversity Center for Ainu and IndigenousStudies. One of the main reasons for includingthese people was that, from the perspective ofthe constitution, which contains no specificrecognition of the distinct history and specialrights of the Ainu people or other indigenouspeoples, it is deemed essential to have rulingsor interpretations from constitutional scholarsthemselves in order to advance the issue. A

telling example of this reliance on legal expertsto provide constitutional interpretation can befound in the fact that , fo l lowing thepresentation of the Draft for the New Ainu Law,a “Committee to Examine the Issue of the AinuNew Law” consisting of administrators at thesection head level from ten separate ministriesand agencies related to Ainu issues, wasestablished in 1989, only to be disbanded in1995 on formation of the Utari Panel, withoutever having reached a single conclusion.Apparently, the task of formulating Ainu policywas beyond the abilities even of bureaucratsfrom the central government without inputfrom constitutional experts.

In any event, constitutional scholars in generalhave not shown increasing interest in the issuein recent years, nor has the discussiondeepened, and it can thus be said with onlyslight exaggeration that the Japanesegovernment’s approach to the indigenouspeoples’ issue under the provisions of theJapanese constitution is actually being decidedby two constitutional studies authorities andtwo constitutional law scholars from HokkaidoUniversity.

The Utari Panel submitted a report in the yearfollowing its formation (1996), the content ofwhich, as summarized by its Chairperson, ItōMasami, was broadly as follows: First, thepanel recognized the Ainu’s “indigeneity /ethnicity” as a historical fact, but noted thatthat there were serious conflicts in variouscountries of the world over the definition ofindigenous peoples, collective rights, individualhuman rights and the handling of self-determination rights, etc. In setting out newpolicies, the council considered that “it [was]necessary to make judgments in line with theactual circumstances of our country.” Secondly(with something of a leap in logic), the panelproposed that the aim should be “therealization of a society wherein the ethnic prideof the Ainu people is respected and the furtherdevelopment of national culture is advanced

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through the preservation and promotion ofAinu language and Ainu traditional culture andthrough fostering understanding of the Ainupeople”17.

In July 1997, following this recommendation,the Ainu Cultural Promotion Act became law;but this was premised on the assumptions setout above: that in the “actual circumstances ofour country” it is possible to create a societythat respects Ainu pride merely through thepromotion of Ainu culture. This was a majorstep back from the Ainu ethnic rights – i.e.indigenous rights – which Ainu groups haddemanded in their Draft for a New Ainu Law. Itshould also be noted that another importantevent of 1997 was the handing down of theNibutani Dam judgment. In this ruling on acase in which Ainu plaintiffs sued over theconstruction of a dam which would destroyculturally significant sites, the Sapporo DistrictCourt became the first official body torecognize the Ainu people as indigenous.However, this ruling also had limitations whichare discussed below.

Subsequently, in June 2008, both Houses of theDiet adopted a “Resolution Seeking toRecognize the Ainu as an Indigenous People”,which led to the establishment of the ExpertCouncil on Ainu Policy in the same year, but inthe resolution itself there is no wordingreferring to the Constitution of Japan. Instead,it called for “further promotion of the Ainupolicy [enacted] so far and the establishment ofcomprehensive measures” with reference to theUnited Nations Declaration on the Rights ofIndigenous Peoples18 adopted by the GeneralAssembly of the United Nations in 2007, theprevious year.

The report of the Ainu Panel, on which Satōhimself served as chairperson, was submittedin July 2009. I ts core content can besummarized into four points. Firstly, the panelplunged into an in-depth history of the Ainupeople. In Satō’s own words, “in order to

develop a forthright new policy, the councilcould not avoid making an evaluation ofhistory.”19 Secondly, based on its historicalevaluation, the council concluded that,considering the serious damage whichmodernization policy had inflicted on Ainuculture, the Japanese government “has a strongresponsibility to pay serious attention to therestoration of the culture of the indigenousAinu people”20. Thirdly, “culture” is interpretedin the report in the broad sense of the “entirelifestyle,” specific to the Ainu people, includingland use. Lastly, the fourth point is that“restoration of culture” encompasses thecreation of a “new Ainu culture” for thefuture21.

Following the recommendations of this report,in December of 2009, the governmentestablished an “Ainu Policy Promotion Council”with the Cabinet Secretary as chair. Thiscouncil was entrusted with a mission toadvance two major initiatives: a project for thecreation of a “Symbolic Space for EthnicHarmony” and a “Survey of the LivingConditions of Ainu Living Outside of Hokkaido”.As a constitutional basis for such a policy, Satōturns to Article 13 of the Constitution of Japan,which states, “all of the people shall berespected as individuals. Their right to life,liberty, and the pursuit of happiness shall, tothe extent that it does not interfere with thepublic welfare, be the supreme consideration inlegislation and in other governmental affairs”.

Satō then in t roduces the fo l lowinginterpretat ion of this constitut ionalrequirement:

Recognizing that a fundamental value for eachperson lies in pursuing his/her own happinessand living to the full as an autonomous being,we strive for a society and nation which willallow people to coexist while respecting thisvalue to the greatest extent, and we envisagethe guarantee of basic rights to each personfrom this point of view.22

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In other words, Article 13 stipulates people’s“rights to personal autonomy” including “theright to the pursuit of happiness” as a moralright, and this includes the right for the Ainu tolive as Ainu. According to this interpretation,Ainu ethnic policy further establishes a legalright which accords with the fundamentalhuman rights of Article 11, and is supported byArticle 97 of the “supreme law”23. The 1997Nibutani Dam judgment also applies Article 13of the Japanese Constitution, and TsunemotoTeruki has evaluated this Article as “providinga context in which individuals belonging to anethnic group can choose their way of life.”24

But in these cases, Ainu policy as construed interms of the constitution depends not uponclear stipulations found in the actualconstitution itself , but rather on theinterpretations of a handful of constitutionalscholars. Moreover, Article 13 of theconstitution clearly deals with the human rightsof individuals (not of groups), and does so onlyto the extent that this “does not interfere withthe public welfare”. In other words, while thecriteria of the United Nations Declaration onthe Rights of Indigenous Peoples emphasizesthe centrality of collective rights, Ainu policyfalls at the exact opposite end of the spectrum:it is presented as a matter of the rights ofindividuals to “life, liberty, and the pursuit ofhappiness”. Tsunemoto came to refer to thisunique rights policy in 2010 as “Japanese-styleIndigenous Peoples’ Policy”25. Not surprisingly,this idea has become an extremely effectiveback-up for the Japanese government,part icular ly for central governmentbureaucrats who are reluctant to support grouprights.

Demonstrators call for official recognitionof the Ainu's rights as indigenous peoples.

3) The Const i tut ion of Japan andIndigenous Peoples: The Case of theRyūkyū People

The relationship between the Ryūkyū/Okinawanpeople and the postwar Constitution of Japan isfurther complicated by the direct interventionof the United States. At the same time,expectations by the Ryūkyū people toward theConstitution of Japan were as high, or perhapseven higher, than those of the Ainu. In March1945, with the onset of the Battle of Okinawa,the US military promulgated the Nimitz Decree(US Navy Decree No. 1) which terminated theadministrative power of the Japanesegovernment over the territory of the formerRyūkyū Kingdom. After occupation by theAmerican military, this territory came underthe direct military control of the U.S. Army, andwas thus outside the scope of Japanese rule.Although the name for this system ofgovernment was to change from the “UnitedStates Military Government of the RyūkyūIslands” (1945 to 1950), to the “United StatesCivil Administration of the Ryūkyū Islands”(1950 to 1972), in essence the structure wasalways one of occupation by the US Army, withthose serving as the heads of government—the“Military Governor”, “Governor”, and “HighCommissioner—all being military personnel.

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This Nimitz Decree was approved by theJapanese government itself at the 89th ImperialDiet of November 1945, held after defeat in thewar . S imu l taneous ly , the House o fRepresentatives Election Law was revised, andin the general election of the House ofRepresentatives on the 22nd of April 1946, atthe same time that women's suffrage wasachieved, the right to vote of “Okinawancitizens” (and of former colonial subjects livingboth in Okinawa Prefecture and throughoutJapan) was peremptorily terminated. Duringthe 90th Imperial Diet session (June - October1946), the draft of the Constitution of Japanunderwent domestic scrutiny by serving Dietmembers, but at this time there were noparliamentarians elected from “OkinawaPre fec ture” present . In e f fec t , theRyūkyūs/Okinawa was excluded by the decisionof the Imperial Diet which accepted the NimitzDecree, and, as a US military colony, wasoutside the Constitution of Japan which cameinto force in 1947.

Initially, the US military encouraged theinflated expectations of Ryūkyū residents, whohoped for the realization of democracy by theUS in place of Japanese colonial rule. Whenthose expectations were betrayed, however, anew social movement began in the Ryūkyūs.This movement def ined Japan as the“motherland” and the US military as ethnicothers – colonizers who did not even speak thelanguage of the colonized – and placed itshopes in the pacif ism of the Japaneseconstitution. The aim was thus the revival ofOkinawa Prefecture under Japanesejurisdiction. At the movement’s center was theOkinawa Prefecture Reversion Council, formedin 1960, with goals which included “nationalunity” against “rule by foreigners”. Thisreversion movement, though, was not in realitya movement centering around Okinawanidentity itself, but was rather an anti-war / anti-base crusade opposing oppression by the USmilitary, and seeking protection from Japan’speace constitution. When actual reversion to

the “motherland” approached and it becameclear that the condition after return would bethe preservation of the US military bases,expec ta t i on changed t o pe rvas i vedisappointment. This can be seen in theemergence of “anti-reversionism”26, whichgained growing support in some circles justbefore reversion. It can also be seen in the factthat the members of the Okinawa PrefectureReversion Council themselves were absentfrom the ceremony of reversion to themotherland, celebrating the return of Okinawato Japan on May 15, 1972. In any case, on thatday, Okinawa Prefecture was revived as a unitof local government and reintegrated under theConstitution of Japan. At the same time, thevast area of US military bases remained, itslegal status redefined under the Japan-USSecurity Treaty.

After the reversion of Okinawa to Japan, theissue of the US military bases in Okinawa wasseen by many Okinawan critics as a problemcreated by the conservative LDP government,which was subordinate to the United States.Following reversion, Okinawan progressivesjoined with mainland progressives in the anti-security treaty movement. As its conceptualbasis, this movement placed its hopes in theconstitutional enshrinement of the right ofpeaceful survival (Preamble Section 2, Article9, Article 13), the principle of equality (Article14), respect for fundamental human rights(Chapter 3), and local autonomy (Article 95).For residents of the Ryūkyūs, the constitutionthus became a valuable tool in their fight forthe rights of the communities whose lives weredominated by the presence of US bases.

However, in August 1996, a legal strugglebroke out between the Japanese governmentand Okinawa Prefecture over Governor ŌtaMasahide's refusal to give his proxy signatureapproving the forced use of land by the USmilitary.27 At this time, the full bench of theSupreme Court ruled that the Act on SpecialMeasures concerning US Forces Japan Land

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Release, which concerns the mandatory use ofRyūkyū land by the United States, was legal interms of the Constitution of Japan. The Courtproceeded to dismiss Ōta’s appeal on thegrounds that Governor Ōta's refusal to sign theleases would “significantly harm the publicinterest.” It should be kept in mind that thisjudgement was a unanimous one by the fifteenjudges of the full bench of the Supreme Court,the institution which should be the guardian ofthe constitution28.

73.8% of US military-dedicated facilities areconcentrated in Okinawa Prefecture which hasonly 0.6% of the nation's land, and a widerange of abuses associated with the bases areoccurring, with violations of freedom ofexpression, health rights, women's rights etc.Yet, even though these abuses have often beenhighlighted, amongst the 475 members of theHouse of Representatives in the current Diet,only four members are elected from theOkinawa electoral district (five members ofparliament from Okinawa also serve in thecurrent Lower House, but are elected from aproportional representation bloc whichincludes Kyushu), and amongst 242 members ofthe House of Councilors, only two members areelected from the Okinawa electoral district, sovoices calling for equality and human rights forOkinawa Prefecture are drowned out in thelegislature. In this sense, even though theOkinawan situation is less extreme than that oft h e A i n u ( w h o a t p r e s e n t h a v e n orepresentatives in parliament), KayanoShigeru’s claim about the “violence ofnumbers” is highly applicable to Okinawa aswell. In the case of Okinawa, though, (ashighlighted by the article by C. DouglasLummis in this special issue) the problem iscompounded by the way that the SecurityTreaty with the United States (Ampo) interactswith and (particularly in the case of Okinawa)impedes the application of the postwarconstitution.29

On the other hand, Okinawan citizens were

given hope by the promises of former PrimeMinister Hatoyama Yukio and his DemocraticParty of Japan, which defeated the LDP andbecame the ruling party in September, 2009,after Hatoyama pledged to relocate thecontroversial Futenma Airbase “out of thecountry if possible, and at least to a differentprefecture.” When Hatoyama visited Okinawai n M a y 2 0 1 0 , h o w e v e r , h e i n s t e a ddisappointingly withdrew his pledge,apologetically stating that it was too difficult torelocate the base outside the prefecture. In thebackground to this development, it has beenclaimed that there was interference bybureaucrats from the Ministries of ForeignAffairs and Defense, non-cooperation within theCabinet, criticisms of the plan by major mediaoutlets as “unrealistic”, and so on: all of these,of course, were domestic problems withinJapan itself, not problems of the US military.Under the same Democratic Party of Japanadministration in February 2012, when the USgovernment offered to relocate 1500 Okinawa-stationed Marine Corps troops to Iwakuni Base(Yamaguchi Prefecture), the Governor ofYamaguchi Prefecture and the Mayor ofIwakuni announced their opposition, andForeign Minister Genba Kōichirō promptlyannounced his refusal to approve the transferof the US military. In other words, the lattertwo cases show that the root of the problemcould not simply be defined as lying either withthe conservative Liberal Democratic Party, orwith the “violence of numbers.”

In July 2014 an “All-Island Council to Realizethe Demands of the Okinawa Petition and Openthe Future”30 was created, going beyondJapan’s conservative versus progressiveideological frameworks. Then, in November ofthe same year, Governor Onaga Takeshi tookoffice under the slogans “identity rather thanideology” and “richness of pride”. In September2015, Onaga visited the United Nations HumanRights Council to read a statement thatOkinawa's right to self-determination underinternational law was being infringed, at the

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same time announcing the revocation of hisgovernment’s approval for the construction ofthe Henoko offshore base as a replacement forthe Futenma Airbase. Governor Onaga'sdecision to rescind the Henoko approvalmobilized the right to local autonomy as adefense, but in December 2016 the Japanesegovernment challenged this action in thecourts, and in the ensuing court case, thesecond bench of the Supreme Court judgedOnaga’s revocation of approval as illegal,dismissing the prefecture’s appeal andupholding the position of the Japanesegovernment. This judgment too was aunanimous decision by the court’s fourjudges31.

Just as the Ainu people have relied on theinterpretations of constitutional scholars, theRyūkyū people, in the case of the courtroombattles, tried to mobilize the principles of theconstitution itself. The Henoko Base oppositionwas also a fight by the Okinawa PrefecturalGovernor, who had been elected by the citizensof Okinawa. Yet, even when party control of thenational government changed hands, no changein the situation occurred, and the “violence ofnumbers” in the National Diet could not beoverturned by majority rule. Nor did the keyorgan of the judiciary, the Supreme Court,bring any improvement to the situation. Ofcourse, there are still those experts who believethat such a situation would not occur if theConstitution of Japan were properly put intoeffect and duly respected. But if we face thefacts, it is hard to deny that there is a majorproblem in the structure of the constitutionitself. In other words, in the case of Okinawansas in the case of the Ainu, the rights of citizensare not being effectively protected by thepostwar constitution’s general provisions onhuman rights, because these provisions fail totake account of Okinawa’s distinct history as acolonized area. This problem is furtheraggravated for Okinawa by the extra-constitutional powers embedded in the US-Japan Security Treaty.

The LDP’s 2012 Draft Amendment to theConstitution of Japan and the Denial ofPluralism

Now, let us turn to the LDP’s 2012 draftrevised constitution, drawn up mainly by theDrafting Committee of the LDP's ConstitutionalReform Promotion Headquarters (under thechairmanship of Nakatani Gen), to show howthis draft, far from amending the weaknesses ofthe postwar constitution, seriously aggravatesthem. The creation of an “autonomousconstitution” has been part of the LDPs policysince the formation of the party in 1955, andthis draft is described as embodying thataspiration.

It is often noted that the problematic point ofthis 2012 LDP draft is that the currentC o n s t i t u t i o n o f J a p a n ’ s “ C h a p t e r2—Abandonment of War” has been rewritten as“Chapter 2 — Security”. The draft replaces therenunciation of military power and the denial ofright to belligerency with a proclamation of theright to self-defense and the right to a nationaldefense army, and also strengthens “citizen'sobligations” at the expense of “citizen's rights.”However, from the standpoint of emphasizingmulticultural / multi-ethnicity and pluralism,the issue central to this article, we also need topay close attention to the full rewrite of theconstitution’s preamble, which in a nutshell,departs radically from that of the postwarConstitution of Japan and becomes close to thepreamble of the Meiji Constitution of theEmpire of Japan. In short, the LDP draftpreamble re-emphasizes the origins andtraditional values of the state, rather thanfocusing on the reasons why the constitutionwas enacted.

For example, it states:

Japan is a nation with a long history and uniqueculture, having the Emperor as the symbol ofthe unity of the people and governed... The

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Japanese people will defend the nation andhomeland with pride and strong spirit, andrespecting fundamental human rights, valueharmony and form a nation state where familiesand the whole society assist one another.32

This statement from the preamble re-assertsthat Japan is a nation with “a long history andunique culture” centered on the emperor, andhighlights the spirit of “harmony” thatsupposedly characterizes the collectivismunique to the Yamato people, as well as thespirit of cooperation embodied in “family ands o c i e t y ” . T h e a t t r i b u t i o n o f t h e s echaracteristics to the nation is reinforced in“Chapter 1— The Emperor”, with its clauses onthe Head of State, the national flag, thenational anthem, and so on. Needless to say, ifindigenous people were to accept suchcharacteristics of the nation, it could only be onthe premise of re-assimilation into the Yamatonation. The “Rights and Obligations ofNationals" are set out in Chapter 3, Articles 10to 40. These cover the “enjoyment of basichuman rights” (Article 10). Discriminationagainst the disabled has been added to the listof types of prohibited discrimination in terms of“equality under the law” (Article 14), andenvironmental protection [Section 2],protection of Japanese nationals living abroad[Section 3], and consideration for crime victims[Section 4] have been added to “the right tolife” (Article 25). But the content of theprinciple of equality in this draft constitution isbeing pursued with almost no improvement interms of address ing core issues of amulticultural society. From a criticalperspective, this draft provides no innovativeconstitutional concept for the 21st century, onlya return to the embrace of the Mei j iConstitution of the Empire of Japan.

The important thing to remember about theLDP draft is its date of compilation: 2012.Already in 1997, the Nibutani Dam Judgment(Sapporo District Court) had been handeddown, recognizing the Ainu as an indigenous

people. In the same year, with the adoption ofthe Ainu Cultural Promotion Act33, Japan’sstatus as a multicultural society had beenrecognized (Article 1). In 2008, both Houses ofthe Diet had already passed the “ResolutionSeeking to Recognize the Ainu as anIndigenous People”, and in response to this, in2009 the Ainu Policy Promotion Council, withthe Chief Cabinet Secretary as Chairperson,had been established. Although these werefragmentary, they were steps towards thecreation of a multi-cultural society. Butunfortunately – or perhaps we should see thisas the essence of Japanese society – thesedevelopments are in no way reflected in theLDP 2012 draft. A single homogeneous politicaland administrative system is taken for granted.

The Limits of the Constitution of Japan inTerms of Indigenous Rights

In this article, we have sought to examine theJapanese constitution and the rights ofindigenous peoples in relation to one another.Viewed in terms of this relationship, it is clearthat there is a fundamental problem in realizingthe rights of indigenous peoples under theconstitution. So far, no constitutional conceptwhich can overcome the problem has been putforward in Japan. As long as there is littleprospect of such a new concept emerging, it isunfortunately necessary to defend the existingconstitution from the point of view of itsrecognition of civic rights, as well as for otherreasons.

But, this does not mean that we should closeour eyes to the problem. The point is that wemust confirm multicultural and multi-ethnicsociety as the fundamental direction for Japan,and also clarify the fact that reflection on pasthistory, and particularly on the history ofcolonialism, is the basis of this process. Forexample, the preamble to the constitutionshould clearly describe both the good and badsides of Japanese modernity. Furthermore,

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while expanding human rights according tointernational standards, it is essential toinclude explicit clauses in the constitutionwhich are premised on the presence ofminorities and indigenous groups, and whichcreate both collective rights and a system ofpluralism.

Personally speaking, we feel that, in the face ofdemands for constitutional amendment fromconservative groups, the liberal side has simplybeen reacting in a defensive way. The defensiveliberal side brings Article 9 to the fore, butdoes not raise issues of pluralism. It may beargued that this approach is pursued forstrategic reasons, but as generations who donot directly know war expand, is this really a

sound strategy? Instead, how about boldlyproducing a radical revised draft, as UekiEmori did, but this time including pluralism,and using it to confront the conservativegroup? In that way, we think that it may bepossible to involve citizens in wide-reachingdiscussions that shake the conservativegovernment. However, in places into which wecannot delve deeply, we have an uneasy feelingthat the essentially authoritarian structure ofthe postwar Japanese society is still alive andwell: a structure which, with its notion of “anethnically homogeneous nation state”, fails tosee, or disdains, pluralistic society.

(https://apjjf.org/#_ednref33)

SPECIAL ISSUE

A New Constitution for Japan?

Edited by Tessa Morris-Suzuki and Takahashi Shinnosuke

Tessa Morris-Suzuki, The Constitution, Human Rights and Pluralism in Japan: AlternativeVisions of Constitutions Past and Future (https://apjjf.org/2018/5/Morris-Suzuki.html)

C. Douglas Lummis, We, the Japanese People: Rethinking the Meaning of the PeaceConstitution (https://apjjf.org/2018/5/Lummis.html)

Okano Yayo, Prime Minster Abe’s Constitutional Campaign and the Assault on IndividualRights (https://apjjf.org/2018/5/Okano.html)

Noah McCormack, Affirmative Action Policies Under the Postwar Japanese Constitution: Onthe Effects of the Dōwa Special Measures Policy (https://apjjf.org/2018/5/McCormack.html)

UEMURA Hideaki is Professor specialising in International Law and Peace Studies at KeisenUniversity. He has published widely on minority and indigenous rights, was a founder of theNGO Citizens Diplomacy Centre (Shimin Gaikō Sentā), and has been actively involved in thepromotion of indigenous rights in Japan and internationally. His publications include Senjū

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Minzoku no “Kindaishi” – Shokuminchishugi o Koeru tame ni (A Modern History of IndigenousPeople: To Overcome Colonialism, 2001) and Ainu Minzoku Hiteiron o Kōsuru (CombattingDenialism towards the Ainu People, coedited, 2015)

Jeffry Gayman is Associate Professor with a dual affiliation in the Research Faculty ofInternational Media and Communication and the School of Education at Hokkaido University.His research focuses on indigenous peoples, multiculturalism, indigenous and Interculturaleducation and endangered language revitalization. His publications include “Ainu Right toEducation and Ainu Practice of ‘Education’: Current Situation and Imminent Issues in Light ofIndigenous Education Rights and Theory”, Intercultural Education (2011), and a chapter onthe Ainu in the forthcoming volume Indigenous Philosophies of Education Around the World.

Notes1 The phrase “Eternal Text” (i.e. a legal code so excellent that it never becomes obsolete) issometimes used in reference to the postwar Constitution of Japan; even the Referendum Lawwhich is the procedural law necessary for the revision of this constitution was not enacteduntil 2007.2 Kobatake Takashi, “Ueki Emori no Kenpō Kōsō: Tōyō Dainippon Koku Kenpō Sōan” (EmoriUeki’s Concept of the Constitution) “Draft Proposal of the National Constitution for GreatJapan of the East”, Bunka Kyōseigaku Kenkyū. (Okayama University Graduate School ofSocial Sciences and Humanities), 2008, Volume 6.3 In Shiryō ni Miru Nihon no Kindai (Historical Materials on Modern Japan) 1-14, Ueki Emorino Kenpō Kōsō - Tōyō Dainippon Koku Kenpō Sōan (Emori Ueki’s Concept of theConstitution/Draft Proposal of the) National Constitution for Great Japan of the East(http://www.ndl.go.jp/modern/cha1/description14.html) 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 notachieved independence will be under the jurisdiction of the federal government” is thought torefer 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), asin the conception of State Shinto.7 “Standardized Law" was a law enacted in 1918 to coordinate laws and regulations betweenthe Japanese external colonies of Taiwan, Korea, Karafuto, Kwantung and Japan’s South SeasMandate, 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) definescolonies (foreign areas) as “anomalous areas” and lists Japanese colonies prior to 1943 asTaiwan, Korea, Kanto Province, the South Seas Mandate, and Karafuto. In relation to the landtax system, Hokkaido was also an anomalous area. The Japanese government started themodern tax system with the enforcement of the Land-tax Reform Ordinance (Chiso-Kaisei

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Jorei) in 1873. But this system was only introduced into Hokkaido in the 1890s. After the startof the Hokkaido Colonial Development Program in 1869, the Japanese governmentencouraged the settlement of Japanese migrants from mainland Japan to Hokkaido, andestablished an ordinance to issue certificates of land title in Hokkaido in 1877. It also starteda land survey throughout Hokkaido (of course totally ignoring traditional relationship of Ainupeople to the land) which was completed in the 1890s. A revenue office was established inHokkaido in 1890. In the early years of colonization, land was exempted from tax, or taxed ata 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’ Rightsand 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 noRonri to Heiwagaku” (Theory of Decolonization in Japan and Peace Studies) in Japan PeaceStudies Association (ed.), Heiwa Kenkyū: Datsushokuminchika no tame no Heiwagaku (PeaceResearch: Toward A Peace Studies for Decolonization) Tokyo: Waseda University Press, 2016,Volume 37, pp. 1-xx.15 See Ainu Minzoku Shiryōshitsu (http://www.geocities.co.jp/WallStreet/8729/ainu.html) (AinuPeople Resource Room Homepage) (Accessed 29 July 2017) 16 No Ainu participated in the “Utari Roundtable”. The logic behind their exclusion was thatthey possessed a “conflict of interests”. As for the “Expert’s Council on Ainu Policy”, KatōTadashi (Chairman of the Ainu Association of Hokkaido) was the sole Ainu person serving as aCommittee Member.17 Satō Kōji, Nihonkoku Kenpō to Senjū Minzoku de aru Ainu no Hitobito (The Constitution ofJapan and the Ainu, an Indigenous People) (Booklet Number 1), Sapporo: Hokkaido UniversityCenter 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 Peopleand “Japanese” Indigenous Policy) in Gakujutsu no Dōkō (Academic Trends), Tokyo: JapanScience Support Foundation, 2011, Volume 9, pp. 79-82.25 Tsunemoto, ibid.26 For example, Shinkawa Akira and Kanamaru Shinichi, editors of the only comprehensivemagazine in “Okinawa” at the time, New Okinawa Literature, were made “Anti-Reversion

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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 someowners refused to sign lease contracts, as a sign of their opposition to the presence of themilitary bases. After the reversion of Okinawa to Japan, the Japanese government introduceda 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 in1995-1996) the governor of the prefecture was required to provide a proxy signature on theleases. Governor Ōta’s refusal to provide this proxy signature resulted in a court case whichhe 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 todevelop mainly within UN human rights institutions.29 See also Gavan McCormack, “Japan’s Problematic Prefecture: Okinawa and the US-JapanRelationship (http://apjjf.org/2016/17/McCormack.html)”, The Asia-Pacific Journal: JapanFocus, volume 14, issue 17, number 2, September 1, 2016; and Gavan McCormack and SandiAritza, “The Japanese State versus the People of Okinawa: Rolling Arrests and Prolonged andPunitive Detention (http://apjjf.org/2017/02/McCormack.html)”, 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 thePrime Minister of Japan in January, 2013, calling for the cessation of deployment of newmilitary model Osprey aircraft as well as the closure and removal of the US Military FutenmaBase. 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 the41 mayors and chairs of municipal assemblies in the Prefecture of Okinawa.31 “Henoko Lawsuit Receives Supreme Court Ruling” (Editorial), Okinawa Times, 21December, 2016. For further information on the Henoko struggle, see Hideki Yoshikawa(trans. Gavan McCormack), “U.S. Military Base Construction at Henoko-Oura Bay and theOkinawan Governor’s Strategy to Stop It (http://apjjf.org/2018/02/Yoshikawa.html)”, The Asia-Pacific Journal: Japan Focus, volume 16, issue 2, number 1, January 16, 2018. UemuraHideaki notes: I am indebted, and hereby express my gratitude to Ms. Takara Sachika ofOkinawa University for providing me with information regarding the Okinawan situation.32 See LDP Website (http://constitution.jimin.jp/draft/). 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 themulticultural nature of Japan, reads as follows: Article 1 To realize a society in which theethnic pride of the Ainu people is respected and to contribute to the development of diversecultures in our country, by the implementation of measures for the promotion of the Ainutraditions and culture from which Ainu individuals find their ethnic pride (hereafter referredto as “Ainu Traditions”), the spread of knowledge related to Ainu Traditions, and theeducation of the nation (hereafter referred to as “The Promotion of Ainu Culture”), in light ofthe situation Ainu Traditions are currently placed in (emphasis by authors).