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For ‘no war’ Article 9, any reinterpretation will do

In ironic twist, could neighbors use similar rationales to justify a Fukushima foray?

by Colin P.A. Jones

American presidents generally try to appoint Supreme Court justices whose constitutional views are consistent with their own political philosophy. By contrast, Japan’s Supreme Court is apparently the perfect place to send jurists whose opinions on the nation’s most important law are politically inconvenient.

This was nicely illustrated by Prime Minister Shinzo’s Abe’s recent appointment to the top court of Tsuneyuki Yamamoto, the former director-general of the Cabinet Legislation Bureau. One of the government’s most powerful agencies, the CLB oversees the drafting of most legislation passed by the Diet and provides legal advice to the government, including constitutional interpretations. In performing its advisory role, the CLB has long held that Article 9 of the Constitution does not allow the nation to participate in collective self-defense activities abroad in concert with other nations.

Yamamoto confirmed this view at a press conference after his appointment, stating: “This has been debated constantly for half a century. Changing the current interpretation is difficult. To realize the type of right to collective self-defense that can be exercised on the other side of the world, it would be more appropriate to amend the Constitution” (my translation).

The CLB has the final word when it comes to interpreting the famous “no war” provisions of Article 9, largely by default. Although constitutionally the Supreme Court is the “court of last resort with power to determine the constitutionality of any law, order, regulation or official act” (Article 81), it abdicated this role decades ago with respect to Article 9, declaring national defense to be a “high-level political issue” in which the judiciary should not get involved.

Somewhat ironically, therefore, making Yamamoto a justice probably has the merit of rendering his views on this part of the Constitution harmless. It also opened the door for Abe to install in the CLB a more pliable replacement in the form of Ichiro Komatsu, a former diplomat said to support a more aggressive interpretation of Article 9 and collective self-defense.

Komatsu’s appointment is not just significant because of his take on the Constitution; it also represents another salvo in the long battle by elected politicians to bring the powerful bureaucracy to heel. The CLB is full of elite bureaucrats, typically on secondment from key ministries (and the judiciary) through unwritten rules allocating posts in a way that ensures a balance of power in the advisory and legislative processes. Similar unwritten rules have also resulted in alumni from just four ministries — Finance, Justice, Internal Affairs and Communications, and Economy, Trade and Industry — filling the position of director-general.

Since 1952, the deputy director-general has always been promoted to director-general. Furthermore, the deputy director-general in turn has always been appointed from the head of the CLB’s First Department, the unit charged with providing legal and constitutional opinions to the government as well as maintaining the CLB’s constitutional archives.

The continuity underlying this rigidly defined career path may help explain why for decades the CLB has been able to maintain a reasonably consistent interpretation of Article 9, one that has frustrated the prime ministers it supposedly serves. The appointment of Komatsu as top dog breaks half a century of institutional tradition and puts the CLB under the direction of someone with no prior experience in the organization — a Foreign Ministry man at that.

In a central government where most of the powerful ministries are nominally equal and jealously protect their status and turf, the CLB is a rare exception — a “superior” agency that can tell other parts of the executive branch what to do (or perhaps more importantly, what they can’t do). Thus, in spite of the low profile it keeps, the CLB, together with the Finance Ministry’s Budget Bureau, is considered to be at the pinnacle of the national bureaucracy — if not the government itself.

The CLB once wielded so much power that it was abolished during the postwar Occupation along with other institutions of government the Americans viewed as hindering Japanese democracy. It was promptly re-established after the Occupation ended in 1952. It is sometimes whispered that the director-general of the CLB might be more powerful than the prime minister. The director-general’s official residence was even larger than that of the prime minister until the latter was rebuilt in 2005. The total compensation that comes with the position reportedly tops that of Diet members — despite a statutory requirement that the legislators be paid no less than the top-ranking member of the civil service.

The CLB interpretation of Article 9 is said to have played a key role in keeping Japan from direct involvement in Gulf War I despite tremendous political pressure on Japan to do more than just cut checks. Japanese troops were sent to Iraq in 2004 after Gulf War II, but the CLB was able to stick to its doctrinal guns by holding that they were involved in civilian aid and reconstruction rather than collective self-defense.

The views of the CLB doubtless provide a useful scapegoat for some politicians who want to have their cake and eat it, too, by publicly expressing support for Japanese involvement in overseas military adventures safe in the knowledge it won’t actually happen. For others, however, the current “official government interpretation” of Article 9 remains an obstacle to a more assertive Japanese foreign policy — one that would allow the nation to have aircraft carriers (rather than the “flat-top destroyer” the SDF recently commissioned) and launch pre-emptive strikes on North Korean missile sites.

Prime ministers and senior Diet leaders alike have feuded openly with the CLB, often questioning its democratic credentials. At one point, the staunchly conservative Yomiuri Shimbun called for its abolition. According to Richard Samuels, director of the Center for International Studies at the Massachusetts Institute of Technology, former Democratic Party of Japan (DPJ) head honcho Ichiro Ozawa’s “vendetta against bureaucrats in general and against the CLB in particular” has its roots in the CLB’s refusal to shift its position on Article 9 during the first Gulf War. (The controversial yet ultimately fruitless criminal investigation and subsequent prosecution of Ozawa on dubious charges that commenced in 2009, just as he was on the verge of becoming prime minister, indicate the vendetta was reciprocated.)

The director-general of the CLB also occupies a special place in the bureaucracy in being the one who formally responds to parliamentary questions about the Constitution, which requires that ministers of state attend the Diet to answer questions or explain policies. This requirement provides members of parties that are in perpetual opposition with a means of racking up political accomplishments and holding the government to account. The director-general, however, is not a minister of state, and the fact that an unelected bureaucrat responds to questions about the government’s interpretation of the Constitution rather than a democratically accountable Cabinet member has long been a source of criticism. During their brief time at the wheels of power, the DPJ briefly experimented with doing away with the practice, but had given up and reinstated it even before they were trounced in the 2012 elections.

Despite much pre-election fanfare about amending Article 96 to lower the threshold for amendments, Komatsu’s appointment reflects a strategy of constitutional change first through reinterpretation, at least on the subject of defense. Within weeks of taking office in December 2012, Abe had already re-established an advisory panel of carefully selected “knowledgeable persons” to deliberate on reinterpreting Article 9, particularly to enable participation in collective security activities. Helpful suggestions made at the panel’s most recent meeting on Oct. 16 included (I am paraphrasing): “It would violate international law to respond to events requiring collective self-defense through an expansive interpretation of unilateral self-defense”; “whether to allow collective self-defense isn’t even a constitutional problem, it’s a policy problem”; “Collective self-defense is a right, not a duty”(?!); and my personal favorite, “Just put an end to the prior interpretation by calling it a mistake.”

If the Supreme Court continues to eschew any role in the debate, whatever interpretive changes that result will be the work of the CLB, the legislature and politically appointed experts such as those on the panel discussed above. Thus, perhaps we shouldn’t await anything more sophisticated in terms of reasoning. After all, since the conclusion — that Article 9 permits Japan to participate in collective security efforts — is already known, all that is really called for, rather than a well-reasoned legal analysis, is some kind of excuse that the public can nod to before returning to their smartphones.

On Oct. 23, Komatsu answered an interpretive question in the Diet for the first time, expressing the view that the majority of scholars of international law considered the right of collective security to be a creation of the U.N. Charter. Perhaps this will help set the stage for an interpretation of Article 9 that not only allows Japan to engage in collective self-defense activities but even characterizes it as a duty under international law. So stay tuned for further interpellations.

But wait. One of the interesting things about Abe’s advisory panel deliberations was at one point when they discussed a variety of crisis scenarios in which Japanese interests were threatened and the current view of Article 9 impeded its leaders’ freedom to act in concert with other nations. Some of these were scenarios that did not involve war or other hostilities, such as rescuing Japanese nationals from foreign crisis zones. Another scenario of this type was mines being laid in the shipping lanes linking Japan to its oil and gas suppliers, an act of passive aggression that could threaten the nation’s existence. According to materials presented to the panel, under the current interpretation of Article 9, Japan would have to wait until the mines were deemed abandoned by a ceasefire accord before it could participate in collective mine-sweeping efforts. Really.

As long as we are doing scenarios that involve threats to the safety of Japan and its people, I hope some minority back-bencher will take the opportunity to present Prime Minister Abe with the following question. Perhaps Komatsu can give an answer based on the new, more assertive official government interpretation of Article 9.

“Suppose a nuclear plant in a neighboring country (North Korea, perhaps) suffers a serious containment failure. Despite several years of struggling, the country seems incapable of getting the situation under control. As a result, Japan and other neighboring countries face the prospect of eventually being subject to long-term contamination from radioactive substances leaking into the environment from the plant. Furthermore, experts say that an earthquake or other natural disaster, or even human error, could have catastrophic ramifications for the entire region.

“Under what circumstances would it be constitutionally permissible for Japan to intervene in the situation, either unilaterally or in concert with other concerned nations, as part of an exercise in ‘collective self-defense’ against a potentially existential environmental threat?”

It would be an entirely hypothetical question, of course. But it might help bring some much-needed focus on the political priorities of the current government. It might also serve as a helpful reminder to everyone that the rationales for foreign military adventures generally work both ways.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Law of the Land appears on the third Thursday of the month. Send your comments and story ideas to community@japantimes.co.jp.