USJI Voice Vol.27
Article 9: Should It Be Amended?
Prime Minister Shinzo Abe’s proposal to amend Article 9 of the Japanese Constitution courts uncertainties that could undermine established understandings on the use of military force. We should not hastily revise the Constitution when we are familiar with its meanings and practices. Here too, a known devil is probably better than an unknown angel—writes, Yasuo Hasebe*
On 3rd May, 2017, Prime Minister Shinzō Abe made public his intention to revise Article 9 of the Constitution in his video message sent to and delivered at a pro-amendment meeting in Tokyo. One of his proposals is to add a new sentence to Article 9, which will make it clear that the government can keep the Self-defence Forces (SDF) while maintaining the present clauses 1 and 2. He also mentioned that he hoped to see the new sentence come into effect in 2020.
Article 9 states that (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.
Since he was appointed as the 96th Prime Minister in December 2012, Mr Abe has been reticent about proposing specific amendments to the Constitution, though he criticised the rigidity of the amending process stipulated in Article 96 and advocated that amendments should be realised through a less rigid process (Article 96 demands that amendments should be initiated through a concurring vote of two-thirds or more of all the members of each House and then ratified at national referendums). This time, he appears to be uncharacteristically impetuous in proposing a revision in Article 9, which is the very core of the pacifism in the Constitution of Japan.
A couple of minor right-wing parties immediately welcomed Mr Abe’s initiative. However, most of the opposition parties, such as the Democratic Progressive Party, the Communist Party, and the Social Democrats, strongly criticised his proposal as being half-baked and harmful to constitutionalism. Moreover, there are some voices, even among the ruling Liberal Democrats, indicating that his abrupt intervention may make parliamentary negotiations for amending the Constitution more, rather than less, difficult. The junior partner of the ruling coalition, the Komei Party, expresses the view that it is better for an amendment to be made with a broad consensus among political parties and in accordance with public opinion.
The calculus behind Mr Abe’s proposal is unclear. There are several possibilities. As is well-known, successive administrations of Japan have held that despite Clause 2 of Article 9, which prohibits the government from maintaining any ‘war potential’, the SDF are constitutional forces that are necessary to protect the lives and property of the people of Japan. In addition, the range of roles and missions of the SDF have been meticulously determined and restricted through authoritative interpretations by the Cabinet Legislation Bureau, which undertakes the interpretation of the Constitution for the Cabinet. Mr Abe may want to revoke norms that surround and restrain the actions of the Self-defence Forces.
However, Mr Abe’s objective may simply be to amend any part of any article of the Constitution because his ideological stance is that the current Constitution should be changed as soon as possible because it is an imposed one and it has never been amended to realise the identity of Japan he values. Perhaps he thinks that adding a new sentence to Article 9 will be the easiest way to do that, though the wisdom of his calculus is dubious.
At the same time, it is doubtful whether this revision, if realised, will make the security of Japan more solid. In July 2014, the Abe administration declared that the use of the right of collective self-defence, which was considered unconstitutional by previous administrations, is constitutional within certain limits, when the right to life, liberty, and the pursuit of happiness of the Japanese people are jeopardised because of military attacks against foreign countries which are in close relationship with Japan. This forcible change of a long-held and repeatedly confirmed authoritative view was made without providing sufficiently persuasive reasons. This change has been severely criticised as undermining the concept of constitutionalism. Moreover, it is not certain whether such use of military force would contribute to peace and security in East Asia. Instead, it may bring about military expansion in neighbouring countries. The latter outcome would make all parties involved more prone to miscalculation, partly because even high-ranking government officials have expressed contradicting views as to the new interpretation of Article 9. As a result of these uncertainties, the exact nature of the roles and missions of the SDF has become more vague and ambiguous (see my ‘The End of Constitutional Pacifism?’ in the Washington International Law Journal, Vol. 26, No. 1, 125 (2017)).
The same thing may be said about the possible results of the revision of Article 9 as proposed by Mr Abe. If the revision were realised, the SDF would be ‘constitutionally legitimatised’ under the revised Article 9. However, it would become more difficult for the Japanese people and outsiders to predict under what conditions Japan might exercise the use of its military forces. The burden of legitimising the SDF has been imposed upon the government exactly because the SDF has not been recognised in the Constitution. Thus the meticulously refined restrictions laid down by successive administrations, which were destabilised by the change of the government view in 2014, might wholly lose their relevance under the new clause. New restrictions after the proposed amendment, if there ever be, would have to be produced from scratch by government officials.
One tricky issue about Mr Abe’s proposal is his claim that he only intends to ‘constitutionalise’ the status quo of the SDF. Therefore, if his proposal is rejected at the national referendum, we will have to conclude that the sovereign people deny the legitimacy of the status quo. Such a result will destroy the baseline about the SDF, and may bring about an uncontrollable confusion about the constitutionality of the SDF.
As President Donald Trump of the United States puts pressure on North Korea to abandon its missile and nuclear weapons programs, the military tension in East Asia is becoming heightened. President Trump has sent the USS Carl Vinson, a Nimitz-class super carrier, and its strike group to the Sea of Japan to show off the American military might. Mr Abe may think that this situation, which he described as a ‘deteriorating security situation’, provides a favourable environment to initiate the revision of Article 9. However, it is unlikely that revising Article 9 and enlarging the roles and missions of the SDF will persuade North Korea to abandon its military projects. North Korea’s objective is to maintain the current political regime and it assumes that holding the capability of attacking the United States with nuclear bombs is the only effective way to achieve that. These days it has shown off its missile capabilities repeatedly despite protests from many countries.
According to the opinion poll conducted by the Mainichi Shimbun newspaper on 20th and 21st May, 2017, 31% of people polled said that they were against Mr Abe’s proposal to amend Article 9, while 28% said that they were in favour of it and 32% said that they did not know. 59% of people polled said that it is not necessary to make the new Article 9 come into effect in 2020 (see Mainichi Shimbun, 22nd May, 2017). It will not be easy for the ruling coalition to build a consensus within the Parliament that is strong enough to amend Article 9 in accordance with Abe’s proposal, although the ruling coalition of the Liberal Democrats and the Komei Party now control a two-thirds majority in both Houses.
The current Constitution and its received interpretations have long precluded the risk of returning to militarist autarchy Japan experienced before and during the Second World War, kept Japan out of conflict, at home and abroad after the war, and allowing the state to focus its effort and resources on socio-economic development. We should not hastily revise the Constitution when we are familiar with its meanings and practices. Here too, a known devil is probably better than an unknown angel.
*Yasuo HASEBE is Professor of Constitutional Law at Waseda University, Law School. He formerly taught constitutional law at the University of Tokyo, School of Law until 2014. His publications include ‘War Powers’, in Oxford Handbook of Comparative Constitutional Law, eds. Michel Rosenfeld and András Sajó (2012), and ‘Constitutions’, in Routledge Handbook of Constitutional Law, eds. Mark Tushnet, Thomas Fleiner and Cheryl Saunders (2013) (with Cesare Pinelli).
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