Commentary / Japan

On the security bills, let me keep out of it

by Patrick Harlan

Special To The Japan Times

Despite polls showing vast public disapproval, ongoing protests on a scale not seen in decades, and scores of scholars disputing its constitutionality, Prime Minister Shinzo Abe’s signature security legislation has passed both houses.

Before I go on, a caveat: I understand why Japanese people might object to an American speaking up about their country’s security issues. After all, it was Americans who wrote Japan’s Constitution and now it is Americans calling for rewriting the policy they produced. Clearly, some might prefer we Americans just keep out of it.

So I will. Though writing about the security bill, I will not mention my own opinion. I am, in fact, opposed to the oxymoronic approach called “collective self-defense,” but I will not tell you so. Similarly, I will not explain my reasoning. For example, “Japan has few enemies. Active military collaboration with a country with many enemies like the U.S. only increases Japan’s peril” is something I will not write. Furthermore, “If Japan wishes to increase its military strength to preserve the balance of power, will it not have to develop nuclear capabilities to contain a nuclear armed opponent?” is exactly the kind of pointed question I will not ask.

Now that we have established my impartial neutrality let’s proceed.

Once again we are hearing the term kyokosaiketsu, meaning “forced passage,” applied to the ruling party’s passing the security bill through the strength of numbers. This designation sometimes raises eyebrows. A few weeks ago, former U.S. diplomat Kevin Maher even asked on a certain TV show why the term was used when “majority rules” is just the democratic legislative process in action.

He’s right, of course, from an American’s perspective. But the Japanese system is somewhat unique. Understanding the system will help you understand the emotional response that lies behind the phraseology. I wanted to explain all this to Kevin, but his question came at the end of the show and there was no time. Also, I was not on the show. Also, I don’t know Kevin.

Anyway, it is a good question. So let’s all take a moment to think about the peculiarities of Japanese Politics.

Constitutional democracies constrain the abuse of power by subjecting the government to two authorities, the constitution and the will of the people. By design, these two serve as “braking mechanisms,” yet they both seem to be out of order in Japan. Why is that?

First, the Constitution clearly restricts the government’s use of military force, on paper at least. Prime Minister Abe originally set out to revise Article 9 of the Constitution, which renounces war and, traditionally, military action outside self-defense. When Abe found revision of Article 9 too difficult, he then tried to the rewrite Article 96, which would make future amendments to the Constitution easier. Finding resistance too strong once again, he abandoned revising the Constitution and simply asserted the right to reinterpret it to allow for military action deemed “collective self-defense.” (To me, this seems like a husband suddenly asserting the right to reinterpret his marriage vows to allow for adultery, but that personal opinion will have to go unmentioned.)

Of course, if the security law is unconstitutional it will be thrown out, right? Maybe not. This is where Japan’s unique system comes into play. Unlike many countries, Japan does not have a constitutional court and Japan’s Supreme Court cannot examine a bill on principle alone. It must have a specific case with an actual injured party as the plaintiff. If some time in the future, the Self-Defense Forces were deployed overseas in the name of collective self-defense and a Japanese soldier is killed, the bereaved family could then file a claim that might eventually make it to the Supreme Court. But until something like that happens, the courts will remain uninvolved. Even if such a case arises, in the past the Supreme Court has generally treated most security laws as “high government decisions” and not ruled on their actual constitutionality. One of the brakes is broken.

What about the will of the people? In principle, in a democracy, fairly elected officials legislate in accord with the people’s wishes. But the current administration has pursued a series of policies contrary to public opinion, including passing the Special Secrecy Law, restarting nuclear power plants, relocating U.S. bases within Okinawa, and revising the worker dispatch law, just to name a few. In regard to the security bill, decisions to stop restricting SDF activities to non-combat zones, and areas surrounding Japan, and removing requirements for notification of parliament before deployment were also highly unpopular. The polls were quite clear on this beforehand, but opinion had no effect on policy. In fact, Abe recognized this saying, “It is true that the nation does not accept/understand the bill,” on the very day his party passed it in the lower house.

How can this go on? Once again, the answer lies in an idiosyncrasy in Japan’s system. Legislative power is concentrated in the lower house; with two thirds of the votes, any bill can be passed, even overruling a rejection in the upper house. Sixty-seven percent may seem like a high threshold, but because the entire house is dissolved and all seats put up for election simultaneously, temporary factors can lead to overwhelming victories. Last year’s general elections, called by Abe when the opposition was in disarray, seem a perfect example of this type of canny electoral opportunism.

In contrast, a bill in America needs to be passed by both houses and signed by the President, and it is uncommon to have all three held by one party. A few years ago Japan’s houses were split in the rare nejirekokkai (twisted parliament), but Congress and the presidency being split between parties is business as usual in America. We’re nothing if not twisted. Of course, the senate can pass a bill over the President’s veto with two thirds of the vote. However, since elections for the seats are staggered, not simultaneous, it’s very difficult for one party to get such an overwhelming majority. On the contrary, thanks to the filibuster, holding a mere 41 seats is enough for the opposition to stop any bill. The brakes may be broken in Japan, but the wheels often seem locked in America.

Another factor to consider is Japan’s de facto one-party system. In countries where control of the government regularly changes hands, the ruling party must be on its toes. Precisely because the opposition is waiting, prepared to assume control, the ruling party must be attuned and responsive to public opinion. In 70 years since World War II, Japan has had 27 prime ministers, but the LDP has been out of power only twice, and only shortly. With no serious danger of defeat, the ruling power has little motivation to follow public opinion. (Why treat your spouse with respect if they are never going to leave you, right?)

The constitution left unconsulted, the will of the people ignored. Once you understand how the braking mechanisms are broken, it’s easy to understand the national resistance that denigrates the legislative process even with inaccurate terminology. As Kevin points out, it’s not really “forced passage.” It’s just the ruling party passing a history-reversing, possibly unconstitutional bill contrary to the will of the people. No cause for alarm, really.

Patrick Harlan, a Colorado native who is known as Pukkun in Japan, is a member of the comedic duo Pakkun Makkun.

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