Written By: Nami Kumagai
Source: https://www.dw.com/en/shinzo-abes-victory-a-mandate-to-amend-japanese-constitution/a-41075805
What is Article 9?
Before discussing Article 9 of the Japanese Constitution, it is important to understand the history behind it. The current Japanese Constitution was written after WW2 with the help of American diplomats. It was significant in that the Constitution was not only a reflection of Japan’s experience of war, but also its commitment to peace. As such, Article 9 specifically deals with Japan’s sovereign right to belligerency.
Article 9 reads as follows:
“1. 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.”[1]
Why does the Japanese government want to amend it?
The Article is inherently clear that Japan cannot possess any armed forces. However, soon after the end of WW2, Japan was forced to rearm again. In 1950, the Korean War forced occupational US troops in Japan to be moved to the battlefield, leaving Japan vulnerable to a potential invasion by the Soviet Union. Encouraged by the United States, Japan began to rearm itself and subsequently established the National Police Reserve aimed at maintaining public security. This later transformed into what is now known as the Self-Defense Force (SDF).[2]
One of the reasons why the Japanese government wants to amend the Article is to clear any doubts surrounding the legality of possessing SDFs. Article 9 makes it explicitly clear that the possession of any form of force is prohibited. Hence, according to the Constitution, the SDF can be interpreted as military forces, even though their objective is to defend Japan from any potential threats and not for intentional war combat purposes. However, the Japanese government has a different view regarding the SDFs. Although they understand that Article 9 does prohibit any use of force, they point to ‘the right to live in peace, free from fear and want’ in the preamble of the Constitution and ‘…right to life, liberty, and the pursuit of happiness… be the supreme consideration in legislation and in other governmental affairs’ in Article 13 as justification for having SDFs. The government believes that SDFs can protect people’s right to live peacefully and freely through self-defence, emphasizing that these self-defence measures will only be activated when an event occurs (e.g., foreign invasion) that undermines the Japanese people’s rights to pursue a free, happy, and peaceful life. Hence, the government concluded that retaining a minimum level of necessary force for the purpose of self-defence is permissible and not a breach of the constitution.[3]
Another reason why the Japanese government has been vocal about the amendment issue recently is due to Japan being surrounded by increasingly hostile nations such as North Korea and China. North Korea’s possession of missiles has been a growing problem of concern for Japan since 2017 when North Korean missiles flew over Japanese territory into the Pacific Ocean. This shows that not only is North Korea capable of launching missiles, but they are also capable of targeting Japan if they wish. The same goes for China as their increasing hostility in the South China Sea and repeated invasions of Japan’s Exclusive Economic Zone (EEZ), where the disputed Senkaku Islands are located, have worried many about China’s aggressive behaviour. Not being able to possess any military power has forced Japan to rely on the USA for military defence, which is something that cannot be taken for granted. Therefore, it is understandable that the Japanese government has been trying to amend Article 9 to defend itself from hostile countries. However, this must be done in accordance with the law.
What has the government done to amend Article 9?
Back in 2013, Prime Minister (PM) Abe, who has long advocated for the amendment of Article 9, tried to amend Article 96. Article 96 is a clause in the Japanese Constitution that details the process for a constitutional amendment. For a constitution to be amended, not only must the amendment gain two-thirds support in both houses of the National Diet, but it also requires a majority in a national referendum for it to be ratified.[4] Arguably, Article 96 has prevented the Liberal Democratic Party (LDP) from amending Article 9 as it has never been able to obtain a two-thirds majority in both houses of the National Diet, even in the recent 2019 elections where the LDP failed to secure a two-thirds majority in the upper house of the Diet. So, when PM Abe tried to amend Article 96 such that it only required the support of a simple majority in both houses of the National Diet, it was heavily criticized. It was obvious that he intended to make the amendment process of Article 9 easier.[5]
After failing to amend Article 96, PM Abe changed the government’s interpretation of Article 9 in 2014. The change has now made the right of collective self-defence permissible under the Constitution.[6] Again, the government received criticism for the way the PM had circumvented the amendment process. Instead of going through Article 96 to amend Article 9, the change in interpretation of Article 9 was included in the new national security legislation, which even Japan’s Federation of Bar Association called the move “illegal”[7]
This was partly possible because PM Abe successfully appointed a new General Director to the Cabinet Legislation Bureau (CLB) who came from a department that was sympathetic to the change of the interpretation. The CLB is responsible for the interpretation of laws and ensuring that its interpretations and legislations conform to the existing legal order. It may be surprising to some that the Supreme Court did not step in on this issue. This is because the Japanese Supreme Court tends to avoid adjudicating heavily politicized issues. As a result, the new interpretation that was included in the new national security legislation passed through both houses of the National Diet with a simple majority.[8]
What now?
Although PM Abe resigned recently due to health problems, his successor Yoshihide Suga, who was PM Abe’s Chief Cabinet Secretary (second most powerful position after the Prime Minister), has been an advocate for amending Article 9. However, the question must also be asked whether or not it is even worth it to amend Article 9. It is important to note that there is still much debate going on internally within LDP as to what the amendment should look like. Some suggest adding a third paragraph to Article 9 along the lines of “SDFs shall not be considered a military force” or “This shall not prevent the right to exercise self-defence”. Other radical proposals include removing paragraph 2 entirely and making it explicitly clear that SDFs are an army.[9] Without consensus on what the amendment should look like, it is looking increasingly difficult for the LDP to amend Article 9. As such, it is unlikely that PM Suga will be able to gain much support for the amendment from both houses of the National Diet and the public. Hence, the change in interpretation is probably the closest thing the government could have achieved to ratifying an amendment.
It still must not be forgotten that the interpretation of Article 9 has changed. Even though it is still too early to say what the impact of the change in interpretation has in geopolitics, it certainly benefits Japanese allies such as the USA the most. It must be stressed that the new national security law does not guarantee that Japan will aid in the name of “collective self-defence” as they will only do so if it is “inevitable for ensuring Japan’s survival and protecting its people”, but this new legislation could be helpful for allies as they can look to Japan for potential military support in extreme situations. This signals to Japan’s adversaries that Japan is increasingly willing to use force to defend itself and its allies.
Conclusion
Article 9, a key element in the post-war Japanese Constitution, reflects Japan’s horrific war experiences and shows the commitment of the Japanese to lasting peace in the world. However, the notion that a country can survive without possessing any legitimate military force may be unrealistic in the modern age. Although the Japanese government’s efforts to amend Article 9 may certainly be seen as unlawful, their intentions can certainly be understood. If the government still wishes to proceed with amending Article 9, they must comply with the legal process laid out by Article 96 to avoid further criticism in terms of the legitimacy of legislation, which can have a significant impact on Japan’s future.
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
[1] Article 9 of the Japanese Constitution (日本国憲法第九条) [2] BBC, “Toothless tiger: Japan Self-Defence Forces’ (BBC, 14 October 2015) <https://www.bbc.co.um/news/world-asia-34485966> accessed 20 November 2020 [3] Ministry of Defense, ‘憲法第9条の趣旨についての政府見解’ (Ministry of Defense, 2019) <https://www.mod.go.jp/j/publication/wp/wp2019/htnl/n21202000.html> accessed 20 November 2020 [4] Article 96 of the Japanese Constitution (日本国憲法第九十六条) [5] Takashi Hitora, ‘Behind Moves to Revise Article 96’ (The Nippon Communications Foundation, 11 July 2013) <https://www.nippon.com/en/column/100042/> accessed 20 November 2020 [6] Prime Minister of Japan and his Cabinet, ‘Cabinet Decision on Development of Seamless Security Legislation to Ensure Japan’s Survival and Protect its People’ (Japan Kantei, 1 July 2014) <http://japan.kantei.go.jp/96_abe/decisions/2014/__icsFiles/afieldfiel/2014/07/03/anpohosei_eng.pdf> accessed 20 November 2020 [7] Japan Federation of Bar Associations, ‘安保法は立憲主義に反し憲法違反です’ (Japan Federation of Bar Associations, 2015) <https://nichibenren.or.jp/activity/human/constitution_issue/ikenkokoku.html> accessed 20 November 2020 [8] Kensuke Ueda, ‘Reinterpreting Article 9 of the Constitution of Japan’ (The Constitution Unit, 28 August 2014) <https://constitution-unit.com/2014/08/28/reinterpreting-article-9-of-the-constitution-of-japan/> accessed 20 November 2020 [9] Say-g, ‘憲法９条とは？3つの憲法改正案と非常事態宣言について’ (Say-g, 6 May 2020) <https://say-g.com/article-9-of-the-constitution-520#i-17> accessed 20 November 2020