Abe’s route to revising Article 9 crosses minefield of legalese

Abe and LDP plot course to navigate contentious issue that could prove difficult for public to grasp

by Reiji Yoshida

Staff Writer

The ruling Liberal Democratic Party is now entering a critical phase of debate on what has been one of the most contentious political issues throughout the postwar years: whether and how the war-renouncing Article 9 of the Constitution should be revised.

Masahiko Komura, vice president of the LDP, has said he hopes the party will draw up a draft proposal to revise Article 9 and form a party consensus by March 25, when the party’s annual convention is scheduled to be held.

But technical discussions on the proposed wording of the article are very difficult for the general public to fully understand, and average Japanese voters probably don’t appreciate all of the detailed legal issues.

Why does Japan possess a powerful military despite Article 9? What are the possible implications of Prime Minister Shinzo Abe’s quest to revise the article? Today we explore these issues related to Article 9.

Article 9 stipulates that “the Japanese people forever renounce war as a sovereign right of the nation” and “land, sea, and air forces, as well as other war potential, will never be maintained.” But the Self-Defense Forces, which boast one of the largest defense budgets in the world, is in fact a potent military force. How is this legal?

It seems a simple question, but it’s not so easy to answer — and has produced a sharp split among constitutional scholars.

In fact many scholars regard the SDF as unconstitutional, while other experts and the central government have long argued to the contrary.

When the pacifist Constitution went into effect in 1947, both the government and a majority of scholars agreed that the Constitution literally banned any war potential, even that for self-defense.

But with the outbreak of the Korean War, Japan faced pressure from the U.S. to form an armed force to defend itself. When Japan set up the SDF in 1954, the government started arguing that self-defense is an inherent right for a sovereign state to “ensure its survival” and that possessing a “minimum armed organization” to uphold that right is not banned even by Article 9.

Article 13 stipulates that the people’s “right to life, liberty and the pursuit of happiness” shall be the supreme consideration. Given this, the Constitution cannot be interpreted as banning Japan from using the minimum force required for its defense when directly attacked and in the absence of other alternatives, according to the government’s interpretation.

But the second paragraph of Article 9 clearly stipulates “land, sea and air forces, as well as other war potential, will never be maintained.” Isn’t the SDF “war potential?”

According to the government, “the minimum armed organization required for self-defense” is less powerful and with more restrictions than the “war potential” as mentioned in Article 9. Thus the SDF does not violate Article 9, the government has maintained.

For example, Japan is not currently able to fully exercise the right of collective self-defense, although Article 51 of the United Nations Charter allows all member states to exercise the right to attack a third country if it assaults an allied nation.

Japan is also not permitted to own such powerful weapons as intercontinental ballistic missiles, long-range strategic bombers and attack aircraft carriers, according to the government.

Japan has also maintained “an exclusively defense-oriented posture,” meaning that Japan can use force only after having first been attacked — by another country, for example.

But didn’t Abe’s government change its interpretation of Article 9 so that Japan can exercise the right of collective self-defense?

Yes, but only partially, according to Abe.

Before 2015, the government had long argued that Japan was not allowed to engage in collective self-defense because defending another country would exceed “the minimum use of force” required for self-defense.

But Abe maintained that given recent changes in the international situation, an alliance with other country is now essential for Japan’s defense.

Thus Article 9 does not ban the right of collective self-defense if “Japan’s survival” is at stake and it is feared that “the people’s right to life, liberty and the pursuit of happiness is fundamentally overturned” due to an armed attack by another country, Abe has argued.

In other words, even under Abe’s 2015 interpretation, Japan is not allowed to engage in collective self-defense just to defend an ally if it is not also required to defend the fundamental rights of the Japanese people.

Those phrases are rather abstract. Specifically, in what kind of situations would Japan be allowed to engage in collective self-defense?

Abe himself has emphasized in particular the need to defend a U.S. military ship or aircraft involved in a joint operation to defend Japan.

If Japan does not try to defend U.S. military personnel risking their lives to defend Japan, it could critically damage the Japan-U.S. military alliance, Abe has argued.

Opposition lawmakers have argued that phrases on the conditions are in fact abstract, and that the SDF’s military operations could be greatly expanded to aid those of the U.S. military — Japan’s sole military ally.

They have argued that Abe’s interpretation and the 2015 security laws based on it thus violate Article 9.

What revisions to Article 9 are being sought by Abe now?

Abe and the LDP have long wanted Article 9 to be revised so that Japan can fully exercise the right of collective self-defense as defined under Article 51 of the U.N. Charter.

But apparently because of strong public preference for maintaining the existing status of the SDF, Abe is only planning right now to add a third paragraph to Article 9 that would clearly justify the legal status of the SDF.

Would it change the legal scope of the SDF’s military operations?

Abe has argued that it would not change any of the various legal restrictions currently imposed on SDF operations. His proposal is designed to put an end to the long-continuing constitutional debate over the status of the SDF, according to Abe.

Opinion polls have shown that a vast majority of voters already consider the SDF constitutional, in line with the position of central government, and that this is no longer such a contentious political issue.

But, as Abe has pointed out, many constitutional scholars still believe the SDF to be technically unconstitutional given the literal meaning of Article 9.

Is there any criticism of Abe’s proposal?

Many scholars and lawmakers argue that there is no need to have a national referendum over Abe’s proposal, because — according to Abe himself — it would not change the substance of the SDF’s operations.

Some critics believe Abe is pushing for a constitutional revision just because he wants to leave his name in history.

In addition, neither Abe nor the LDP has proposed any specific wording for revising Article 9 and instead are only holding fairly abstract discussions. This also raises concerns.

Scholars and opposition lawmakers have argued that depending on specific wording of the article, the revision could drastically widen the legal scope of the SDF’s activities.

For example, Masahiro Sakata, former head of the Cabinet Legislation Bureau, expressed such concerns in an article he wrote for the January issue of the monthly magazine Sekai.

If a third paragraph is added to Article 9 stating that “the Self-Defense Forces do not fall within the category of war potential” mentioned in the preceding paragraph, the general public may believe this will settle the constitutional debate over the legal status of the SDF without making any changes to that legal status.

But Sakata pointed out that, such a revision to Article 9 itself would in fact result in there being no restrictions on SDF’s activities, adding that the government and Diet would instead have new authority to decide what missions the SDF can perform.

“Such a graph only mean what is called ‘the SDF’ is not war potential. … As long as it’s called the SDF, it can be constitutional regardless of whatever scope of missions or weapons it might have,” he wrote.

Some LDP lawmakers want the second paragraph of Article 9 dropped so that Japan can fully use the right of collective self-defense. Why?

According to their interpretation, the first paragraph only obliges Japan to renounce the right to engage in war “as a means of settling international disputes” and that Japan is not prohibited from engaging in war for “self-defense” — including that which involves use of the right to collective self-defense as stipulated by Article 51 of the U.N. Charter. Under this interpretation, it is only the second paragraph of Article 9 that fundamentally restricts Japan’s use of force because it bans Japan from possessing any war potential “in order to accomplish the aim of the preceding paragraph.”

Thus deletion of the second paragraph would allow Japan to fully engage in the right of collective self-defense, they argue.