Abe's constitutional putsch and U.S. security cooperation

Prime Minister Shinzo Abe’s putsch involves bypassing constitutional procedures to revise the Constitution because he lacks sufficient support to win two-thirds approval in both houses of the Diet and a majority in a national referendum. Instead, Abe achieved by diktat what he could not gain democratically, asserting a Cabinet reinterpretation of Article 9 that allows for collective self-defense.

Is this what Deputy Prime Minister Taro Aso meant last summer when he suggested it was important to learn from the sly manner of the Nazis when they overturned the Weimar Constitution? Regardless, on July 1, 2014, with the stroke of a pen Japan’s postwar pacifist order was overturned, marking a major shift in national defense policy.

Abe justified doing so by invoking the need to protect U.S. forces in the event of an attack, but not many Japanese are keen to do so. The Yomiuri Shimbun, for example, on July 2 and 3 asked if respondents supported shooting down a missile headed for U.S. territory (Guam and Hawaii) and only 37 percent agreed while 51 percent opposed doing so. It’s worth noting that the Yomiuri has been an enthusiastic cheerleader for Abe’s reinterpretation of Article 9 to allow for collective self-defense and frames questions to elicit favorable responses. Thus it is remarkable that the Yomiuri found only 36 percent support the reinterpretation and 51 percent opposed, similar to the results of a Kyodo survey on July 1 and 2 in which 54.4 percent opposed while 34.6 percent expressed support. In the Kyodo poll, 73.9 percent said they expect that the scope of collective self-defense will expand, apparently unconvinced by Abe’s reassurances that it will not.

Kyodo also found that 61.2 percent said Japan is now more likely to get sucked into a war, rejecting Abe’s argument that collective self-defense will serve as a deterrent to conflict; on this issue only 34 percent agree with him.

Although Abe has unshackled the Self-Defense Forces, 73.2 percent of respondents in the Kyodo poll oppose dispatching the SDF to participate in collective self-defense initiatives involving the use of force. In both polls an overwhelming percentage of respondents said there has been insufficient discussion of Abe’s decision to unilaterally reinterpret Article 9. Only 13 percent in the Yomiuri poll agreed that there had been sufficient discussion, while in both polls more than 80 percent felt there had not been.

So across the political spectrum there is considerable disquiet about Abe’s unseemly haste in gutting Article 9 and not much support for collective self-defense.

Internationally, Washington welcomes Abe finally delivering what it has been pressuring Japan to do for the past half century. There appears to be little concern that Abe’s underhanded methods discredit his constitutional coup and demean democratic principles; the ends justify the means.

The regional reaction has been relatively muted as South Korea is under pressure from Washington to tone down its criticism of Japan. China, however, didn’t miss the opportunity to draw attention to Japan’s resurgent militarism and accuse Abe of fabricating a China threat and falsifying history. With considerable chutzpah, Beijing accuses Abe of steamrollering the opposition and hawkishness, this from a nation that stifles all dissent and has increased defense spending by double digits annually for two decades. Clearly, China has helped Abe advance his security agenda by acting like a plausible regional bogeyman with hegemonic ambitions, stoking an Arc of Anxiety from Tokyo to New Delhi.

Abe has announced that he will name a minister to shepherd national security legislation through the Diet that will create a legal basis for expanded activities by the SDF. It is expected that the government will introduce about 10 bills to create a legal framework for Abe’s reinterpretation of Article 9 allowing for collective self-defense. By creating a new ministerial post to take on this arduous task Abe signals that it is a top priority.

Japan’s security role will further expand later this year based on new guidelines for Japan-U.S. Defense Cooperation that will overhaul the 1997 accord. Dealing with a crisis on the Korean Peninsula is high on the agenda, a scenario for collective self-defense that curiously was not part of Abe’s public presentations. Wonks welcome Japan’s embrace of collective self-defense and a regional security role, but Tokyo doing so without having articulated a reassuring diplomatic vision or addressing South Korean concerns is roiling the waters.

Abe is also marginalizing the Cabinet Legislative Bureau (CLB) from the process, the bureaucratic entity that has long served as the arbiter on constitutionality and usually vets bills before they are submitted to ensure that legislation is constitutional before enacted, a quirk in the Japanese system that amounts to preemptive judicial review. In the past, ministers relied on CLB directors to explain arcane legal issues in Diet sessions, partly because most lawmakers would make a hash of things, but also because doing so provided political cover; inaction could be blamed on the CLB.

Since the early 1990s, however, the CLB’s role as an informal constitutional court has come under sustained attack by conservative politicians who feel that its dominance of constitutional debates is unconstitutional and ignores legislative prerogatives. According to Richard Samuels, a political scientist at the Massachusetts Institute of Technology, Japan’s neocons want to promote a more assertive security posture and have been frustrated by the CLB’s legalistic stodginess and respect for precedents. Back in the 1950s, however, the CLB was quite accommodating, ruling in 1954 that the SDF was constitutional. Prime Minister Junichiro Koizumi (2001-2006), however, sidelined the  CLB in dispatching Japanese troops to Iraq in 2004, mindful that it had blocked SDF deployment in the Gulf War 1990-91.

Oddly enough, on constitutional issues related to state power the Supreme Court is the dog that doesn’t bark or bite. Professor David Law of Washington University points out that justices are rigorously vetted throughout their careers, and any with liberal or unreliable inclinations are winnowed out.

In addition, judges are usually appointed close to mandatory retirement age, meaning high turnover and ongoing opportunities to tweak the composition of the court. Judicial review offers scant recourse on issues related to the state’s power because it is exercised so rarely, existing more in theory than practice, and the Supreme Court is impotent to impose its rulings. For example, numerous Supreme Court rulings that the existing electoral system is in a state of unconstitutionality have had little effect. Thus the current Diet that will enact legislation implementing Abe’s constitutionally dubious gutting of Article 9 by edict is itself skating on thin constitutional ice.

Nonetheless, Abe’s defiance of public opinion on state secrets, arms exports, collective self-defense and nuclear energy apparently carries few political risks because the opposition is in disarray and voters don’t have a viable alternative. The prospect of Banri Kaeda, the hapless leader of the Democratic Party of Japan, grilling Abe and his ministers in the Diet — the political equivalent of being savaged by a wet Pomeranian — will reinforce public perceptions about the dismal state of Japanese politics.

Jeff Kingston is the director of Asian Studies, Temple University Japan.