A full-scale battle has broken out between lawmakers and constitutional scholars over security reform, revealing an unbridgeable gap between the worlds of politics and academia.
The debate has already dealt an unexpected and humiliating blow to Prime Minister Shinzo Abe. As of Friday, 225 constitutional scholars had signed a joint statement condemning his reinterpretation of the war-renouncing Constitution as unconstitutional, and urging the government to withdraw any security bills from the Diet that are based on it.
The right of collective self-defense, as defined under the United Nations charter, allows a country to use force to come to the aid of an ally under attack, even if the country itself is not being attacked.
Article 9 of the Constitution had long been interpreted by the government as limiting Japan’s use of force strictly to self-defense, and as banning the use of collective self-defense.
But Abe has declared this interpretation defunct. After he and his Cabinet reinterpreted Article 9 last July instead of trying to amend the Constitution, he submitted bills to let the Self-Defense Forces engage in joint operations to defend the military of an ally, presumably the United States.
“Ninety-nine percent of (constitutional) scholars consider (the bills) unconstitutional, at least as far as collective self-defense is concerned,” Yasuo Hasebe, professor of constitutional studies at Waseda University, told the daily Kochi Shimbun in an interview.
But government officials and ruling coalition politicians are confident the security legislation is constitutional.
Abe’s government is determined to ignore the scholars because it is the job of the Supreme Court to adjudicate the constitutionality of an enacted law.
Unlike its counterparts in the United States and other developed countries, Japan’s Supreme Court has been reluctant to pass judgment on highly political issues, particularly those involving the Self-Defense Forces. This apparently encouraged Abe’s Cabinet to forge ahead with the security bills despite the chorus of academic opposition.
“The number doesn’t matter,” Chief Cabinet Secretary Yoshihide Suga said at a Diet session Thursday. “It is the Supreme Court that is the watchdog of the Constitution.”
If there is one thing the government and LDP appear to be in agreement on, it’s that constitutional scholars acquired a bad reputation for rigid adherence to theory during the Cold War.
“Scholars don’t understand security issues at all,” one high-ranking government official close to Abe said, speaking on condition of anonymity.
During the Cold War, an apparent majority of constitutional scholars interpreted war-renouncing Article 9 as banning Japan from possessing any military forces. This, they argued, meant the SDF itself was unconstitutional.
Article 9 reads: “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.
“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.”
But the LDP, which has run Japan nearly uninterrupted for nearly six decades, ignores the scholars. It says it is only natural to assume that the Constitution, despite Article 9, does not deny Japan the right to self-defense inherent to any sovereign state and thus the SDF and the Japan-U.S. military alliance are constitutional.
A majority of the public and diplomacy experts, at least in hindsight, would agree that the LDP’s interpretation of Article 9 helped Japan enjoy peace and prosperity during the Cold War, thanks to the SDF and Japan’s military alliance with the United States.
“Sixty years ago, when the SDF was established, most constitutional scholars said the SDF was unconstitutional,” LDP Vice President Masahiko Komura told reporters Tuesday. “If we had followed what they said, we wouldn’t now have either the SDF nor the Japan-U.S. security treaty.”
“It is highly doubtful that the peace and stability of Japan would have been maintained,” he added.
To justify the legislation, Prime Minister Abe has explained that Japan is facing an increasingly severe security environment, and that the self-imposed ban on exercising the right to collective self-defense should be lifted to remove a potentially critical weakness in the alliance.
Under the bilateral security treaty, the U.S. is obliged to defend Japan if Japanese territory is attacked by a third party. But under the government’s previous interpretation of Article 9, the SDF cannot defend the U.S. military by attacking a common enemy unless Japan itself is already under attack.
Abe argues that that would damage the trust between the allies and that the alliance itself could collapse if Japan refused to defend U.S. forces.
Therefore, in July, Abe and his Cabinet declared a new interpretation of Article 9 that potentially grants Japan the modest use of collective self-defense. Based on that reinterpretation, he had security bills drafted to allow the SDF to participate in U.S. military operations here and overseas.
In a bid to give the appearance of consistency with past government views, Abe now argues Japan is still not allowed to fully use collective defense.Abe maintains his reinterpretation is based on the Supreme Court’s landmark ruling in 1959 on the Sunagawa Incident.
That ruling said the nation is permitted to take “measures for self-defense” to “maintain the peace and security of Japan and ensure its survival,” despite war-renouncing Article 9.
Thus, according to Abe’s theory, Japan is allowed to use collective defense if the nation’s “survival” is at stake and the use of force is limited “to the minimum necessary level.”
But Abe’s definition of the key phrases “survival” and “minimum necessary level” have not been clarified. This has aroused serious concern among liberal politicians and pundits.
Yoichi Higuchi, professor emeritus of constitutional studies at University of Tokyo, said he believes Abe is trying to remove the key constraints limiting the SDF from engaging in joint missions with the U.S. military.
“Abe probably just wants the name of ‘collective self-defense.’ Once politicians secure (the term), they will later expand” its concept, he said. “That’s their favorite trick.”
Higuchi said he believes Abe is casting off the long-established rules of constitutional practice just to achieve his own political goals.
He pointed out that the Sunagawa lawsuit hinged on whether the existence of U.S. military forces in Japan violates Article 9 or not, and that the Supreme Court’s ruling did not pass judgment on the constitutionality of the SDF itself.
Echoing the opinions of mainstream scholars, Higuchi also pointed out that the ruling does not explain what the phrase “measures for self-defense” specifically means and cannot be interpreted to include the right to collective self-defense.
He also maintains that Japan has not directly engaged in any wars involving the United States in the postwar era, including the Vietnam War and the Iraq War, thanks to the legal constraints in war-renouncing Article 9.
“Without Article 9, Japanese politicians would not be able to say no (to the Iraq War), just as France and Germany did,” Higuchi said.
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