Passport Confiscated: Japan's ISIS Fears Prevent Journalist From Traveling To Syria, But Is It Constitutional?

Japan has defended its decision on Monday to confiscate the passport of Japanese journalist Yuichi Sugimoto, who was planning to travel to Syria later in February, citing safety as the primary factor in the decision. Experts, however, say the government’s justification for its actions might be questionable, perhaps even unconstitutional. As Japan enters a new era where it is participating more in the international defense community for the first time since World War II, the pacifist nation finds itself increasingly having to rebalance personal freedoms and global politics.

“There is a gap between what the Constitution says and what is put into practice,” said Annelise Riles, professor of Far East Legal Studies at Cornell University Law School. “Citizens have the freedom of speech as guaranteed by the Constitution, but in practice Japanese courts are far less willing to interpret against the government.”

The Foreign Ministry announced Saturday Sugimoto's passport had been confiscated because he had plans to travel to Syria against government wishes, the Asahi Shimbun reported. Japan is still reeling from the deaths of journalist Kenji Goto and Haruna Yukawa, who were held hostage and beheaded by the Islamic State group in January, and does not want a repeat with Sugimoto. Sugimoto said he was going to avoid ISIS-controlled areas and planned to cover refugee camps inside Syria. This is the first time the Foreign Ministry has ordered a passport surrendered as a means to protect the passport holder’s life. "Tonight, an official with the Foreign Ministry's Passport Division came and took my passport," Sugimoto told Asahi Shimbun Saturday. "What happens to my freedom to travel and freedom of the press [protected by the Constitution]?"

The Japanese government remained resolute. “We believe the utmost respect should be given to freedom of the press and the freedom to travel, which are guaranteed by the Constitution,” Chief Cabinet Secretary Yoshihide Suga said at a Monday press conference, according to the Japan Times. “At the same time, it is an extremely important duty for the government to secure the safety of Japanese traveling abroad and those staying overseas.”

Article 22 of the Japanese Constitution guarantees the “freedom of all persons to move to a foreign country … shall be inviolate.” Also, Article 98 of the Constitution compels Japan to follow any international treaties concluded by Japan, of which Article 12 of the International Covenant on Civil and Political Rights states that everyone “shall be free to leave any country, including his own.”

While those clauses mean the Japanese government’s confiscation of Sugimoto’s passport infringed on his rights, there are also clauses and laws that defend the government’s actions. Article 22 guarantees the right to travel, choose an occupation and change residence in any country, but it also comes with the caveat that “it does not interfere with the public welfare.” Also, Article 19 of the Passport Law states a passport can be impounded “in cases where there is a need to cancel a trip abroad in order to protect the life, body and assets of the passport holder."

Even if there are laws permitting the confiscation of the passport, said Craig Martin, associate professor of law at Washburn University, one has to examine whether the law was rational, its objectives consistent with the country’s democracy, and whether it was overreaching. “I think this was excessive, given this guy’s intentions,” Martin said, referring to Sugimoto, who Asahi Shimbun reported had no intention of going to ISIS-controlled territories. “Where do they draw the line, if [confiscating Sugimoto’s passport] is permissible?”

As a result, courts then have to decide what constitutes public welfare and national interest. “If I were to bet who the courts would back if the journalist did decided to bring a case against the government, I would bet they would back the Japanese government,” Cornell's Riles said.

“There is no debate about the Japanese courts being deferential to the government,” Martin said. “However, it is hard to say why that is because there are so many different explanations.” He added the Japanese Supreme Court has been extremely conservative, has a record of ruling in the government’s favor and has not been very strong in upholding individual rights since World War II.

Sugimoto certainly has a case against the government, even if he is unlikely to win, Riles said. “However, what is interesting is that in the process of hearing the claim, the courts can allow it to become a public debate,” Riles said, adding the courts could dismiss the claim but include a lengthy explanation for the dismissal, allowing it to become public record. “The general public reads these records, quite unlike in the United States,” Riles said. Litigation serves a public benefit, even if the claimant loses, Martin said.

The jury is still out on public sentiment over Sugimoto’s passport confiscation in light of Japan’s recent ISIS hostage crisis, Martin said. Opinions are divided on how much power the government should have regarding rights and the duties of citizens. “In Japan, there’s a strong sense that citizens have an obligation to act in a way that benefits the collective interest, and not use one’s rights [in a way] that would be harmful to the society at large,” Riles said. So this means while Japanese citizens expect the government to do everything within its means to protect Japanese lives, there’s a tacit understanding not to put the government in such a bind.

Japan is not unique when it comes to compromising personal freedom for national security: Many other countries have accepted such measures as no-fly zones and security screenings. But the difference in Japan is when there is a public expectation for the government to save its citizens’ lives no matter what, the cost of a government letting any individual put him- or herself at risk is higher. In Western countries such as the United States, the public understands individuals choose to go to conflict areas such as Syria, and accept the consequences as their own. While the American public expects its government to do as much as it can to save its citizens’ lives when threatened, the public also accepts the larger ramifications of acceding to terrorists’ requests and the government’s decision not to. This contrasts the Japanese public sentiment of calling for the government to pay the ransom and save the lives of Goto and Yukawa when they were held by ISIS.

In the meantime, Japanese Prime Minister Shinzo Abe is pushing for Japan to play a bigger role in the international defense community, which will inevitably cut back on individuals' freedom. Abe has been trying to push for a constitutional reform of its pacifist clause Article 9, which would permit its self-defense force a greater role worldwide. “The government’s clearly trying to exploit this crisis,” Martin said. “You see them saying. ‘This is why we need to get more involved,’ and then adding, ‘By the way, you’re going to have to accept some limitations of your personal rights.’”