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Who will defend Japan’s Constitution?

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Prime Minister Shinzo Abe announced at the beginning of April that the government was establishing a “panel of experts” to examine the question of whether to “revise the current interpretation of the Constitution,” in order to permit Japan to engage in collective self-defense activities.

This is an outrageous proposition from the perspective of constitutional law, and yet the announcement appears to have been met with little more than a murmur. Regardless of whether one may feel strongly that Japan ought to participate in collective self-defense operations, or that Article 9 should be amended, this latest step in the emasculation of Article 9 seriously endangers the normative power and integrity of the entire Constitution.

First, let us recall that there is already a strong movement toward an extensive revision of the Constitution, in accordance with the amendment process provided for in the Constitution. The government is currently pushing a referendum law through the legislature for the purpose of implementing that process.

While the DPJ opposes the current version of the proposed referendum law in its detail, it is not opposed in principle. While there continue to be voices of dissent in both parties, the leadership of both the LDP and the DPJ seek to amend Article 9 specifically to permit Japan’s participation in collective self-defense and other international peace and security operations. If they are able to persuade a sufficient number of both houses of the Diet and the population of Japan, the Constitution will be so amended. If they cannot, then it is the will of the nation that it not be so amended.

Second, it is entirely nonsensical for a government to speak of “revising an interpretation” of a constitution as a matter of formal policy. Constitutions can be revised through amendment, and the interpretations of constitutions may evolve incrementally over time through court decisions, but governments do not “revise” or establish “new” interpretations of a constitution. Interpretation of the Constitution of Japan is the purview of the courts, and the amending process provided for in the Constitution is the sole mechanism for formally changing the Constitution itself.

The amending process of a constitution is set in place both to ensure an orderly mechanism for change, but also to ensure that the pre-commitments to the fundamental principles established in the constitution cannot be too easily changed. The Constitution of Japan provides for a process that requires, in addition to the consent of two thirds of both houses of the Diet, the vote of the people of Japan to endorse any proposed revision. The government cannot short-circuit that process by way of some back-room “re-interpretation.”

Which brings us to the third problematic aspect of the prime minister’s announcement. Aside from the fact that it does an end run around the amending process, the “revision” study is being conducted by an extra-constitutional body appointed by the executive. Of the three branches of government, the executive is the least empowered to have any say in how the Constitution is to be interpreted. It should be recalled that the Constitution provides that the legislature (the Diet) is the highest organ of state (Art. 41); that the Constitution is the supreme law of the nation, and that no law, ordinance or other act of government that is contrary to the Constitution is valid (Art. 98); and that the courts are vested with the authority to interpret the Constitution and determine the constitutionality of any law, order, regulation or other official act (Art. 81).

It is not the role of the executive to be mandating interpretations of the Constitution, and any action that the government may take on the basis of some new “re-interpretation” may still be held to be unconstitutional and invalid by the courts. The body to which the executive has turned to do the actual work of analyzing the issue of interpretation, is one that is not provided for in the Constitution at all — the “panel of experts” is an extra-constitutional body that has no authority whatsoever to interpret the Constitution.

Finally, the “revision” that is sought is patently contrary to any reasonable interpretation of Article 9 of the Constitution. Article 9 provides, in part, that “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.” It also provides that the “right of belligerency of the state will not be recognized.”

Using Japanese military forces, including Japan-based antimissile defense systems and Japanese naval vessels operating with allied forces in international waters, to engage the military forces of other countries when Japan is not directly under attack, can only ever be interpreted as the use of force for means of settling international disputes.

Moreover, Japan would most certainly expect to enjoy all the rights, protections and obligations under the laws of war that belligerents are entitled to under international law in such circumstances, a status that Article 9 specifically renounces. The Supreme Court of Japan has held that while Japan retains a right to self-defense under Article 9, it is limited to only such measures that are for the protection of Japan (in the so-called Sunakawa case).

The Cabinet Legislation Bureau has consistently maintained that Article 9 forbids participation in collective self-defense or the deployment of troops abroad for military operations. For the government to now try to argue that notwithstanding what the Constitution plainly states, and what the courts have said it means, and what past governments have accepted as binding, that Japan can now do the opposite, is to do great violence to the Constitution of Japan.

There is an amendment process for a reason, and it can be used to achieve the objectives of having Japan play a more robust role in the area of international collective security. Careful study leading up to such amendments will also ensure that other checks and balances can be built into the revised Constitution to ensure that there is sufficient democratic accountability and civilian control as Japan engages in more extensive international operations. To try to circumvent that process undermines the entire structure of the Constitution.

If Article 9 can be merely interpreted away, why not other provisions? A democracy allows its Constitution to be undermined at its peril, and the erosion of constitutional controls on a country seeking greater military influence will almost certainly alarm its neighbors.