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Analysis: The End of Constitutional Pacifism in Japan?

In response to the Japanese diet enacting ‘Security Laws’ on 19 September 2015, the Japan Association of Constitutional Law has decided to post the following entry written by Professor Yasuo Hasebe at Waseda University, former vice-president of IACL.

National Diet of JapanOn 19 September 2015, the National Diet of Japan enacted a series of statutes, which enable the government to exercise the right of collective self-defence. One of the statutes also enables the government to dispatch the Self-defence Forces to take charge of logistics for foreign military forces waging wars. This enactment symbolises Japan’s turn of course regarding its long-held stance on constitutional pacifism.

Whereas Article 9 of the Constitution of Japan stipulates that ‘land, sea, and air forces, as well as other war potential, will never be maintained’, the Self-defence Forces, which many people regard as nothing but military forces, have been set up and maintained. The official explanation on this point has been basically that it would manifestly unreasonable for the constitution to prohibit the government from maintaining and using minimum forces to protect lives and property of the people. In other words, the constitution merely demands that the forces to be maintained and used should be strictly minimal.

The government’s statement submitted to the National Diet on 14 October 1972 held that: ‘the current constitution, which is based on pacifist principle, cannot be understood to tolerate unlimited exercise of the right of self-defence. The constitution recognises the use of the right only in cases it is essential to protect Japanese people’s rights to life, liberty, and pursuit of happiness, as these rights are jeopardised by foreign military attacks’. Since the right of collective self-defence is to be invoked when foreign states are under military attack and request support from Japan, such use of force is beyond the constitutional limit. In concrete terms, the government may use force only when

  • (1) Japan itself is under on-going or imminent, unlawful armed attack emanating from abroad;
  • (2) to terminate the attack, use of force is necessary; and
  • (3) the extent of the use of force is proportionate to the end to be achieved. These three conditions should be co-existent.

In accordance with this line of reasoning, the government has, again and again, stated that among the right of self-defence recognised by Article 51 of the UN charter, the constitution recognises only the right of individual self-defence; in other words, the use of the right of collective self-defence is unconstitutional. Various government spokespersons, including successive chiefs of the cabinet legislation bureau who are primarily in charge of providing legal advices to the government, have stated that in order for the government to exercise the right of collective self-defence, amendment of Article 9 is essential.

Mr Shinzo Abe, who was elected as the 96th prime minister in December 2012, has long been critical about this official view. In January 2004, in his question at Parliament addressed to the then chief of the cabinet legislation bureau, he suggested that there might be some cases of exercising the right of collective self-defence even under the interpretation indicated in the above-mentioned statement on 14 October 1972.

After taking up the post of prime minister in 2012, he first asked the advice of the then chief of the cabinet bureau, Mr Tsuneyuki Yamamoto, on this issue. Mr Yamamoto duly repeated the view that the use of the right of collective self-defence is unconstitutional. In August 2013, he was asked to retire, and appointed as an associate justice of the Supreme Court. Unprecedentedly the next chief, Mr Ichiro Komatsu, was not promoted from within the bureau, but recruited from the foreign ministry, which had also been critical of the authoritative interpretation given by the bureau. Although Mr Komatsu retired from this post in May 2014 because of serious illness (he deceased in June 2014), he made substantial preparation for the change of the interpretation, which successive governments had maintained could not be altered.

On 1 July 2014, the cabinet made the statement that use of the right of collective self-defence is constitutional within some limits. According to the new interpretation, in addition to the above situation (1), use of force will be also permitted when (1a) Japanese people’s rights to life, liberty, and pursuit of happiness are jeopardised because of military attacks against foreign countries, which are in close relationship with Japan. Other conditions (2) and (3), mentioned above, remain basically unchanged. Hereafter, use of force will be permitted if conditions (1), (2), & (3) or conditions (1a), (2), & (3) are co-existent.

Apparently, the new condition (1a) was extracted from the government statement on 14 October 1972, which was meant to offer the reason why the exercise of collective self-defence was not permitted under the current constitution. Although the statement refers quite abstractly and ambiguously to changes of international circumstances and military situations Japan is now surrounded by, what exactly are the grounds of this newly declared interpretation is not clearly articulated. Whereas the tension between China and Japan has recently heightened regarding islets called Senkaku, this is obviously a matter not of collective but of individual self-defence.

This change of government view has caused a lot of concerns. First, the denial of the right of collective self-defence under the current constitution was a conclusion perfected through elaborate deliberations of many years by various government departments. It has been steadily confirmed and repeated. If we may here borrow the expression of Sir Edward Coke: ‘by many succession of ages, it hath been fined and refined by an infinite number of grave and learned men’. If such a product of many minds of requisite art can be changed in accordance with policy preference of a transitory premier who happens to be in charge, the role of the constitution to limit political power would almost evaporate. Any interpretation of any constitutional clause seems now up for grabs.

Second, authority of the cabinet legislation bureau has become seriously undermined in the eyes of many people because of this change of interpretation. Even several former chiefs of the bureau openly criticised this turnaround. The bureau has been highly regarded because it has given legal advices to various governments from the standpoint detached from party politics. However, on this issue, the current bureau chief, Mr Yusuke Yokobatake who succeeded Mr Komatsu from within the bureau, is suspected to succumb to Mr Abe’s pressures. If the bureau has come to say that some government action is constitutional because the prime minister wants it to be, there remains scarce respect for its opinions.

Third, it is difficult to understand the exact meaning of the newly issued conditions of use of force. On its text, the cabinet statement states that use of force is permitted when (1a) Japanese people’s rights to life, liberty, and pursuit of happiness are jeopardised because of military attacks against foreign countries. If understood literally, it is quite hard to imagine concrete cases where such a situation is realised. While some politicians, including Shinzo Abe, claim that under the new interpretation, Self-defence Forces could be dispatched to the Hormuz Strait when it is blockaded, since such a blockade would result in the sharp rise of oil prices and make daily lives of the people difficult, other politicians of the governmental coalition—in particular, those of Komei party—have asserted that it is hardly imaginable that troubles caused by higher oil prices could satisfy the condition (1a). As to the question of whether possible destabilisation of the US-Japan alliance caused by foreign military attacks against American forces satisfies the condition (1a), opinions of Foreign minister, Humio Kishida, and Mr Yokobatake have patently differed. As a result of this change of interpretation, the meaning of Article 9 has become much more blurred, though the normal role of interpretation should have been that of providing determinate meaning to an ambiguous text.

Fourth, it is not certain at all whether such expansion of the range of using military forces may contribute to the peace and security in the East Asia. Though the government asserts that this change of interpretation increases deterrent effects of the US-Japan alliance, this may also bring about military expansion on the part of neighbouring countries, making all parties more liable to miscalculate. The risk that Japan might be implicated in quarrels of other countries would also increase.

The government proposed the expected ‘national security’ bills to the National Diet on 15 May 2015. While it took more than 4 months to finally enact the statutes, the populace are not quite persuaded by the government that these statutes are necessary at all. During the Parliamentary deliberation, several former chiefs of the Cabinet Legislation Bureau, one Justice of the Supreme Court, and many constitutional law scholars argued that the bills were unconstitutional. On the other hand, several political scientists argued that these bills were necessary for the security of Japan. Perhaps, they tried to say that necessitas cogit legem. However, while they just asserted abstract necessity of the bills, they did not point out any specific factual circumstances which necessitated the bills.

According to the opinion poll conducted by Asahi Shimbun on 12 and 13 of September 2015, around 54% retorted that they were against the bills, and 68% retorted that it was unnecessary to enact the bills within the current session of the Diet. Since the end of August, a large number of people opposing to the bills started to gather around the National Diet in order to demonstrate their opinions. And this movement still continues even after the enactment on 19 September. Opposition parties claim that they will abolish the statutes when they take power at the next election. 

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This entry was posted on September 23, 2015 by in IACL national association, National constitutions and tagged .
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