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Will Constitution survive Abe?

“If the Abe administration could not [revise the Constitution], who could? That is the sense of crisis and irritation I now feel,” said Sanae Takaichi, chairwoman of the ruling Liberal Democratic Party’s Policy Affairs Research Council at a Jan. 18 intra-party symposium on amending the Constitution.

Her irritation is shared by conservative hawks who are close allies of Prime Minister Shinzo Abe because the move for revising the supreme law has not gained as much momentum as they had hoped.

Speaking for liberals who favor maintaining the Constitution as it is, a former Cabinet member of the Democratic Party of Japan government sarcastically said that Abe was the ultimate protector of the postwar Constitution, explaining that it wasn’t that only Abe could revise the Constitution but rather that it could not be revised because of Abe.

Pro-amendment forces now have enough seats in both chambers of the Diet to satisfy Article 96 of the Constitution, which states that an amendment must be initiated “through a concurring vote of two-thirds or more of all the members of each house” and approved by a majority of votes cast in a special referendum.

The LDP and its junior coalition partner, New Komeito, will submit a bill to the current session of the Diet to clarify provisions of the law governing the referendum process. If it is approved, a study will likely begin on the wording of amending the supreme law before yearend and the final draft amendment could be presented to the Diet in early 2015. Even so, considerable time would be required because Diet deliberations on the revision draft are likely to last for more than six months and up to 180 days will be needed between Diet passage of the revision draft and the holding of a national referendum.

Abe has the advantage of having three years to work on revising the Constitution as he will not face a national election until the summer of 2016 when terms are up for half the Upper House members, unless he decides to dissolve the Lower House and call a general election before then.

Why is it then that some people think Abe would not be able to make any change to the Constitution despite all the circumstances that seem favorable to him?

One reason is Abe’s posture toward amending the Constitution, which is in stark contrast with that of Taro Nakayama, a former LDP lawmaker who headed the Lower House Constitutional Research Council for years. Nakayama believes that it is essential for the governing party and the largest opposition group, which may form the next government, to agree on amending the Constitution because its basic function — to bind those in power — is different in nature from ordinary laws that can be changed whenever a government change takes place.

Hajime Funada, chairman of an LDP body promoting constitutional amendment, and Yukio Eda, who headed a constitution study group within the DPJ, share this view.

Abe, on the other hand, does not attach importance to reaching agreement with the leading opposition party. During his previous tenure as prime minister in 2007, he abruptly declared that he would make a constitutional amendment a “point of contention” in the upcoming Upper House election scheduled for that year, despite the fact that working level officials of the LDP, New Komeito and the DPJ came close to agreeing to submitting a bill to revise the referendum law to the Diet.

After returning to power in 2012, Abe has sought to build close ties with the pro-constitutional amendment Japan Restoration Party and Your Party so that his administration can initiate a constitutional revision in the Diet without requiring the cooperation of the DPJ or New Komeito.

To prevent a referendum on a constitutional revision from becoming a tool for politicking, it should not be held together with a national election. But Abe does not see any need for formulating a consensus with the No. 1 opposition party on the constitutional issue.

Many LDP members think that a referendum on a constitutional revision should be held simultaneously with the Upper House election in 2016 because they believe that it should be an election issue.

The second reason why many doubt Abe’s ability to revise the Constitution lies in his views on law. Abe insists on enabling Japan to exercise the right to collective self-defense by changing the government’s long-standing interpretation of the Constitution. But there are voices even in the LDP that say such a change should be made only through a normal constitutional revision.

Stretching and bending an interpretation of a law or arbitrarily enforcing a law is not commensurate with “the rule of law,” which is often touted by Abe, but rather with “the rule by law,” which is equivalent to a single-party dictatorship like China’s government or a military regime.

Uneasiness over Abe’s ambition to revise the Constitution is amplified by the fact that his knowledge about legal matters appears shallow. For example, in September 2010, Abe criticized Prime Minister Naoto Kan for not permitting the public release of video footage showing a Chinese fishing boat ramming a Japan Coast Guard patrol boat near the Senkaku Islands.

But the Kan administration did not release the video footage because it was evidence that was needed to indict and try the captain of the fishing boat. Its public release could have jeopardized Japan’s legal case.

A then high-ranking government official was surprised at Abe’s lack of basic knowledge about this kind of thing. The strong resistance against Abe’s recent move to enact the national secrets law is not unrelated to suspicions about Abe’s attitude toward law in general.

The third factor impeding Abe’s ambition is the danger inherent in his insistence on “breaking away from the postwar regime.” His recent visit to Yasukuni Shrine is said to represent his repudiation of the San Francisco Peace Treaty, which was predicated on Japan’s acceptance of the legitimacy of the 1946-48 Tokyo Trials.

If that is the case, his posture would not be much different from that of Shintaro Ishihara, coleader of the Japan Restoration Party, who calls for “revoking” rather than amending the Constitution.

As long as people have fears about Abe’s idea of creating a state based on denial of the postwar international order, support for his attempt to revise the Constitution will not broaden.

The law concerning a referendum on a constitutional revision is also likely to work against Abe because it stipulates that both proponents and opponents of a proposed constitutional amendment be given equal amounts of time and space to express their respective views in TV commercials and newspaper ads, no matter how small the number of opponents in the Diet may be. It is generally accepted that proponents would face higher hurdles if opponents make careful preparations to take advantage of this egalitarian provision. The louder Abe calls for changing the Constitution, the more vociferous will be opponents’ reaction.

Given that the LDP garnered only about 28 percent of the total votes cast for proportionate representation in the 2012 Lower House election and around 35 percent also for proportional representation in the Upper House election last year, the conceited manner with which the party has been behaving would not make it easy to win a majority vote in a referendum in support of a constitutional amendment

When he spoke at an LDP national convention on Jan. 19, Abe concentrated on his economic agenda and made no mention of a constitutional revision. His policy speech before both houses of the Diet five days later touched on amending the Constitution only briefly. But it is doubtful that his tactics of self-restraint represent a shift away from the high-handed manner with which he has run the government especially since his party’s victory in the Upper House election.

Even if Abe is serious about becoming more moderate, his self-restraint will not last long because he is surrounded by shortsighted conservative hawks who are irritated by the slowness of the move toward a constitutional revision. He may be able to have the Diet initiate a proposal to amend the Constitution. In all likelihood, however, the proposal will be rejected in a referendum, leading to his Cabinet resigning en bloc.

This is an abridged translation of an article from the February issue of Sentaku, a monthly magazine covering Japanese political, social and economic scenes.