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‘Reinterpreting’ Article 9 endangers Japan’s rule of law

by Craig Martin

Special To The Japan Times

Prime Minister Shinzo Abe is expected to continue to press for Cabinet approval of a “reinterpretation” of the war-renouncing Article 9 of the Constitution of Japan. His goal is to relax the constitutional prohibition on Japan’s use of force for purposes of engaging in collective self-defense actions and participating in United Nations collective security operations. There may be good reasons for Japan to consider relaxing the constraints of Article 9, but this so-called reinterpretation is entirely illegitimate and poses dangers to Japan’s democracy.

To be clear on what this so-called re-interpretation means, the prime minister is seeking to circumvent the constitutional amendment procedure mandated by the Constitution itself, and to dictate a radical change to the meaning of fundamental principles in the Constitution by way of Cabinet fiat, with no Diet debate or vote, and no public approval.

The very process violates fundamental principles of constitutionalism and the rule of law, while the substance of the proposed reinterpretation does further violence to these principles.

To fully appreciate why this is so, we need to review briefly the relevant aspects of constitutionalism and the rule of law. Constitutions in democracies are typically the highest law of the land. They define and distribute authority, enshrine individual rights, and serve to limit the government’s power in important ways. Indeed, in this function of limiting the exercise of government power, particularly in moments of crisis, constitutions serve as “pre-commitment devices.” They constrain future generations to abide by the principles, rights and power structures envisioned by the founders.

A crucial element of this constraining characteristic of constitutions, is that they typically provide for a specific amendment procedure that governs precisely how the constitution itself may be altered or revised. Such procedures typically make it difficult, but not impossible, for limits on government action to be changed in the future.

The Constitution of Japan conforms to this model. The Constitution is the supreme law of the land (Article 97-99), and an independent judiciary, in particular the Supreme Court of Japan, is charged with the authority to interpret and enforce this supreme law (Article 76 and 81). The Constitution explicitly provides for an amendment procedure (Article 96), which requires that amendment proposals be initiated in the Diet and voted for by a two-thirds majority in each chamber, and approved by a majority vote of the people in a referendum.

Article 9 of the Constitution of Japan is relatively unique in the world as a pre-commitment against government involvement in war. In its first clause it renounces war as a sovereign right of the nation, and the threat or use of force as a means of settling international disputes (Article 9(1)).

From shortly after the time Japan re-emerged from the war as a fully sovereign state in 1952, this has been consistently understood to prohibit Japan from engaging in any use of force beyond the minimum necessary to defend Japan itself from armed attack. In other words, it permits individual self-defense, but prohibits collective self-defense and participation in U.N. collective security operations, even though these would be sovereign rights under international law.

Many within the ruling Liberal Democratic Party (LDP) have sought to amend Article 9 for decades. This has proved impossible for political reasons. The myth has thus arisen that the formal amendment procedure in the Constitution is simply too difficult, and that other means of revision are thus justified. But this is untrue. Recent comparative analysis of the relative difficulty of constitutional amendment in many democracies has found that at least eight constitutions, including that of the United States, are more difficult to amend than that of Japan, and yet they have been amended many times.

Turning to the rule of law, the primary principle at the foundation of the rule of law is that no person or agency is above the law. Its very essence is the idea that there is one set of laws to which every person and entity is subject, and which is applied equally to all. Thus, not only is the government subject to the law, but government power must be exercised through and in accordance with the law, and not through the use of discretion or arbitrary fiat.

A further and important aspect of the rule of law is that the law must be generally accessible and intelligible, meaning that laws are sufficiently clear, precise and predictable.

Laws must also be susceptible to change, but only in accordance with established mechanisms, and in conformity with democratic principles.

The formal amendment procedure for a constitution is thus a fundamentally important component of the principles of both constitutionalism and the rule of law. This is not to say that constitutions do not evolve over time, and in ways that do not involve formal amendment. But to the extent that interpretations of constitutional provisions evolve, they do so incrementally and gradually, typically through a series of constitutional decisions of superior courts.

The Cabinet Legislation Bureau (CLB), the government agency that advises the executive on the constitutionality of laws, played a role in defining the initial understanding of Art. 9 in the early years; but it is the courts in most democracies that are charged with the authority to enforce and interpret constitutional provisions and the constitutionality of laws. The Supreme Court of Japan has, in the Sunagawa judgment of 1960, affirmed that Article 9(1) does not deny Japan the right of individual self-defense, but it has never endorsed the view that Article 9(1) could allow collective self-defense or involvement in collective security operations. Indeed, the Nagoya High Court in 2008 opined that Japanese involvement in the occupation of Iraq after 2004 was a use of force in violation of Article 9(1).

It is in relation to these principles that one must assess the efforts of Abe to “re-interpret” Article 9. Abe, beginning during his first term as prime minister in 2007, decided to make revision of Article 9 one of his primary objectives. He paid lip service to the ongoing efforts at amendment in accordance with the formal amendment process, but he also set out to subvert that legitimate procedure if necessary.

First, in order to undermine the formal amendment process, Abe attacked the amendment procedure of the Constitution itself. He proposed to amend Article 96 so as to effectively reduce the Constitution to little more than a normal piece of legislation, which can be amended by bare majorities in each Chamber of the Diet. This was transparently a precursor to then amending Article 9. But it would also have undermined the Constitution’s status as supreme law with effective constraints on government power.

For the purpose of circumventing the procedure altogether, Abe in 2007 had initiated the “reinterpretation” process, establishing an ad hoc Advisory Panel on the Reconstruction of the Legal Basis for Security (the “advisory panel”). This was a group with few lawyers, far less constitutional scholars, who were primarily selected for their hawkish views on national security. It was given a mandate to provide recommendations on how Article 9 should be reinterpreted.

When the attack on Article 96 failed, Abe revamped the advisory panel and had it update its work. He then made a political appointment of an outsider to the position of director of the CLB. This was an unprecedented departure from a long-standing convention of appointing experts from within the CLB, and was a cynical and transparent effort to ensure the CLB’s blessing of any reinterpretation.

The advisory panel issued its updated report in May, and now, on the basis of these “recommendations,” Abe stands poised to use a “Cabinet approval” as the mechanism for trying to unilaterally change the meaning of Article 9.

This is profoundly wrong for two reasons. The first is that this process of trying to change the meaning of the Constitution, by its very nature, is invalid. It not only stands in direct violation of the explicit constitutionally mandated amendment procedures, but it also violates democratic principles, given that the Diet and the public are cut out of the process.

Moreover it subverts the notion that the Constitution is the supreme law of the land, and that the law applies equally to all. The executive, in this process, is placing itself outside of and above the supreme law, and is acting through arbitrary discretion rather than valid legal authority.

A change to fundamental provisions of the Constitution would thus be made with less legal authority, and be subject to less democratic process, than an amendment to the nation’s traffic law.

The second reason is that the substance of the proposed reinterpretation compounds the problems. The advisory panel recommendations suffer serious flaws on many levels, but the most serious problem is that they reflect a result-oriented analysis that is driven by national security imperatives rather than constitutional law principles.

The advisory panel argues that the strategic environment surrounding Japan has changed such that greater latitude in the use of force is necessary, therefore the Constitution must in fact mean that such use of force is permissible. Changed circumstances may provide good reasons to amend the Constitution, but they are no basis for arguing that the meaning of existing provisions has actually changed.

In addition to the invalid form of the argument, the advisory panel’s central legal recommendation is to effectively add the qualifying words “to which Japan is a party,” to the end of the clause in Article 9(1) “… threat or use of force as a means of settling international disputes.” In this way it is suggested that Japan actually may use force for purposes of collective self-defense and for U.N. collective security operations, since these would not be “international disputes to which Japan is a party.”

As a matter of international law that conclusion is simply wrong. But as a matter of constitutional law, it would mean that Article 9 no longer renounces any sovereign rights relating to war, notwithstanding its explicit language to the contrary.

Moreover, the idea that the executive branch could unilaterally and informally add qualifying words to a constitutional provision to radically change its meaning in this way is absurd.

The government has suggested that it would not actually interpret Article 9 as permitting all rights of collective self-defense as understood in international law, but only a more limited and selective right of collective self-defense. But the conditions and criteria for this selective right of collective self-defense are incomplete and ill defined.

Examples of when force could be used have been given, but government representatives have stated that not all criteria determining the permissible use of force would actually be disclosed by the Cabinet. The ambiguity and uncertainty created by this reinterpretation, with hidden criteria to be applied by Cabinet at its discretion, makes a constitutional provision inaccessible and entirely unintelligible. How could a court of law possibly enforce such a “reinterpreted” provision in a concrete case?

If the government is able to reinterpret Article 9 in this way, arbitrarily adding limiting clauses to the language, interpreting words in ways contrary to their ordinary meaning, and creating unique new concepts that are not only ambiguous, but elements of which are actually secret, what is to stop it from similarly “re-interpreting” other provisions? Thus Article 21 could easily become: “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed … within the limits of the law”; and be subject to certain undisclosed and secret Cabinet criteria for what actually constitutes “the limits of the law.”

It makes a mockery of constitutional constraints on government power if governments can, through executive decree, reinterpret those constraints away. To permit such a reinterpretation of Article 9 would throw into question the integrity and meaning of all other provisions of the Constitution, and thus undermine the normative power of the entire Constitution.

And of course this particular reinterpretation would gut one of the three pillars of Japan’s constitutional order. In short, it poses a serious risk to the rule of law and principles of democracy in Japan.

Craig Martin is an associate professor at the Washburn University School of Law. He specializes in international law and the use of armed force, and comparative constitutional law. He can be contacted at the following email address: craigxmartin@gmail.com.

  • A.J. Sutter

    While I share Prof. Martin’s gut feeling that there’s something wrong with the Cabinet deciding on how to interpret the Constitution, I’m not sure the problem is so unique.

    First of all, in many countries constitutional interpretations are changed all the time by courts and political actors, such as, in the US, state legislatures, Congress and the President. (Mark Tushnet of Harvard talks about this in “The Constitution of the United States of America: A Contextual Analysis” (2009) @ 242f.)

    Second, in both Japan and the US, judicial review can only be concrete — i.e., there must be an actual controversy before a court can rule. As a result, political actors wanting to do something new have an incentive to act first and apologize later. In the US, one sees this in the form of signing statements and other actions taken to expand the scope of Presidential authority. President Obama in particular is wont to make pronouncements about not needing to consult with Congress before doing things that would make most Nobel Peace laureates blush, at least.

    Ironically, if such a controversy came before the Japan Supreme Court, the odds are quite high that it would support the Government, judging by previous history. Or else it might find a way to invoke the “political question” doctrine, by which it declines to step into the middle of such a difficult question. The Japan Supreme Court may be the world’s most conservative, but it has shown considerable ingenuity in splitting hairs and overlooking constitutional violations in order to let the government and Diet do what they want — even when lower courts have been more stringent.

    Part of the problem is that the Supreme Court itself ignores the Constitution, which says that any act of the Diet or government inconsistent with the Constitution is void (a/k/a “strong” judicial review). Instead, the Court has fashioned a “weak” form of judicial review, and come up with mind-boggling results like saying an election was “in a state of unconstitutionality” but refusing to overturn it. This Court is complicit in allowing an unconstitutionally elected Diet and government to be in power in the first place; should we really have faith in them to constrain those illegitimate bodies?

    I think the real problem here is a *political* one, in that the government is stifling debate and riding roughshod over all reasonable objections from the public. Not only is it undemocratic, it *looks* like it is, too. The rule of law argument is a much more dubious case, especially if one judges by time-honored US practice, and by the likely outcome were the matter to come before Japan’s highest court.

    • zer0_0zor0

      Since you admit that

      Part of the problem is that the Supreme Court itself ignores the Constitution

      the “rule of law” question is not at all dubious, though you have deftly demonstrated to the benefit of all the political machinations behind the concerted surge to undermine the Constitution by the Japanese establishment over and against the will of the people.

      • A.J. Sutter

        Yes, that’s one way of looking at things: to say that the rule of law is already subverted in Japan because the constitution is ignored by Japan’s Supreme Court. But in that case there isn’t anything special about the collective self-defense issue.

        What I meant in the context of my comment was that the rule of law argument, that Abe is ignoring the legally appropriate methods for changing Article 9, might not be the strongest argument against what he’s doing — especially since constitutions are changed by similar means in many other countries, including the US, and those methods aren’t regarded as anything extraordinary in legal terms. My comment rests on a nuance of difference between law and politics; I think a better basis for objecting to Abe’s actions might be on political grounds (erosion of democracy) rather than strictly legal ones. That objection would remain even if someday the Japan Supreme Court were to say everything Abe is doing now is legally kosher.