Introduction

If emergency powers are conceptualised as involving the partial suspension of the rule of law for reasons of necessity (political or otherwise), and the principal justification for such action is the long-term preservation of the legal order and various basic liberties underlying that order, then the so-called Northeast Asian developmental state, of which Japan is a prominent example, poses something of a conundrum. After all, a recurring feature of developmental state discourse has been the contention that the law has, at least historically speaking, played a limited role in regulating political and social life, and that the rule of law has not yet fully emerged. It has often been suggested that the primary function of law within such states has been to bolster the position of the executive and to insulate, often ‘extra-legal’, administrative action from judicial scrutiny. This has been achieved by curtailing judicial independence and the scope of human rights, and has resulted in a greatly diminished zone of legality compared to other jurisdictions with comparable levels of economic development.

In the absence of a strong rule of law and human rights tradition one might conclude that the crucial elements that allow us to distinguish, in an analytically precise way, between a ‘normal’ and an ‘emergency’ situation are absent. This, in turn, casts some doubt on the necessity of constitutional or legislative provision for emergency powers or a ‘state’ of emergency. In the absence of substantive legal constraints on executive action, why legislate for their suspension?

Formulating an appropriate response to terrorism presents all governments with an acute political dilemma. On the one hand, by failing to act decisively a government runs the risk of providing terrorist groups with the opportunity to consolidate in order to launch further and even more devastating attacks. On the other hand, there is the opposite danger of over-reacting. After all, one of the key objectives of terrorism is to provoke states into adopting security policies that expose the commitment to constitutional rule as being shallow, hypocritical and contingent upon circumstances. By inviting a ‘terror against terror’, the terrorist hypothesis is that violent attacks can cause governments to derogate from key constitutional principles, and that such a suspension of norms exposes the limits of the rule of law and undermines the moral authority of the state. Striking an appropriate balance between the need for action and the danger of over-reaction has, post-9/11, become a pressing issue for all governments as they formulate counter-terrorism policy.

This chapter will examine some of the key issues raised by Japan's response to the 9/11 attacks and the global ‘war on terrorism’ that has followed. In responding to 9/11, many liberal democracies substantively expanded the coercive powers of the criminal law as well as the investigative powers of state agencies.