Commentary / Japan

The danger in Abe's constitutional amendment proposal

by Craig Martin

Contributing Writer

Prime Minister Shinzo Abe has demanded that the Diet move forward with debating his Liberal Democratic Party’s proposal for amending Article 9 of the Constitution, with a view to possibly having a vote on the issue in 2020. Having failed to retain a two-thirds supermajority in the Upper House election on July 21, he will need to sway some members outside of his coalition to win approval of any such amendment, and thus the debate will be more meaningful, its consequences more significant.

Many observers will be struck by how modest the new amendment proposal seems, and thus may be lulled into thinking that there is little to fear from it. This is a grave mistake. Once analyzed in its broader context, the ramifications of the proposal look much more dangerous.

To begin, it will be recalled that Article 9 has two paragraphs. The first provides that Japan renounces war and the threat or use of force as sovereign rights of the nation. The second, which has been more controversial and far less effective, has two clauses: first, a prohibition on the maintenance of land, sea or air forces or other war potential; and second, a denial of the rights of belligerency. While many legal scholars view the existence and size of the Self-Defense Forces as being patently inconsistent with this provision, that is not the official view.

Article 9 has been consistently interpreted by every branch and relevant agency of government since 1954 as meaning that Japan has the right to use force only for individual self-defense, and thus also has the right to maintain the minimum level of armed forces necessary to provide such defense. Crucially, this meant that Japan had renounced the sovereign right to use force for either collective self-defense, or for collective security operations authorized by the United Nations Security Council — and this provision has effectively constrained Japanese policy ever since.

Abe has been trying to amend Article 9 in various ways since his first term from 2006 to 2007. In 2012, the LDP, during its brief time out of power, announced an extensive formal amendment proposal. This amendment would not only have legitimated and expanded the role of the SDF, through extensive revisions of paragraph two and adding entirely new paragraphs, it would have very subtly but effectively gutted the prohibition on the use of force in paragraph one of Article 9. But this amendment proposal was politically impossible to move forward, and so Abe then attempted to achieve many of the same results through a “reinterpretation” of Article 9, through a Cabinet decision issued in 2014, followed by its implementation through the national security legislation enacted in 2015.

Most readers will recall that this reinterpretation effort was highly controversial. The vast majority of constitutional scholars in Japan, along with several former Supreme Court justices and former directors of the Cabinet Legislation Bureau, publicly claimed that the reinterpretation was illegitimate and unconstitutional, and tens of thousands of people protested against it on in the streets.

This was based on grounds of both process and substance. That is, the process was illegitimate because it deliberately and cynically circumvented the constitutional amendment procedure provided for in Article 96 of the Constitution. The executive branch of government cannot simply reinterpret by Cabinet fiat provisions of the highest law of the land. This is all the more so for provisions that are specifically designed to constrain the power of the executive branch.

Substantively the reinterpretation was also impossible to reconcile with the text, original intent, long established interpretation and historical operation of the provision. Under any established canon of constitutional interpretation, the reinterpretation was unreasonable.

Most controversially, while Article 9 paragraph one was specifically interpreted by the Cabinet Legislation Bureau and the Supreme Court, and has always been understood by successive governments, to renounce the “sovereign right” of engaging in collective self-defense, suddenly the reinterpretation stated that Japan could now engage in collective self-defense. The very thing that was prohibited by the provision was now permitted, and the renunciation of sovereign rights in Article 9 paragraph one, was rendered virtually meaningless. Worse still, “collective self-defense” was defined in an ambiguous manner that was entirely inconsistent with the meaning of the concept in international law.

It is in this context that Abe’s more recent and very modest amendment proposal has to be understood. Now the LDP simply wants to revise the language in Article 9, paragraph two, so as to formally recognize and validate the existence and role of the SDF. It is one aspect of the 2012 amendment proposal that was not included in the “reinterpretation.” It seems to merely close the gap between the text, which apparently prohibits the maintenance of any armed forces, and the reality of Japan’s sophisticated and powerful military forces.

I have argued elsewhere that Article 9 should be so amended, and that those wanting to defend the spirit of Article 9 should actually embrace this idea of validating the SDF in their own amendment proposals. I still think so. But doing so now, in this context, and with only the single amendment proposal intended by the LDP, would be dangerous. To begin to understand why this is so, one has to begin by asking why the LDP proposal is now so modest.

The answer is that it is a Trojan horse that would actually smuggle in all of the LDP’s original 2012 objectives under the guise of minor change. One has to consider, first, the motives, methods and objectives of the now-governing LDP that were revealed by the 2012 amendment proposal as it related to Article 9.

The 2012 amendment proposal would have had the effect of radically undermining the prohibition on the use of force in Article 9, but this effect was disguised by the employment of very subtle and superficially minor changes to the language of paragraph one, the effect of which only a lawyer would understand. In short, the proposal revealed that the now-governing LDP’s objective was to gut the limitations on the use of force, but to deliberately hide this purpose from the public.

Second, when the LDP recognized that the 2012 proposal was not politically viable, Abe sought to change Article 9 through the reinterpretation. This reinterpretation significantly undermined the effective constraints on the use of force imposed by Article 9, consistent with the objectives of the 2012 amendment proposal. And while the reinterpretation was widely considered illegitimate and unconstitutional, the longer it remains in place, the more the passage of time will effectively legitimate and validate the changes as a de facto informal amendment to the Constitution.

There are some ongoing court challenges to the 2015 national security legislation, and thus the reinterpretation of Article 9. There may be more such challenges as various elements of the reinterpretation are operationalized in deployments and actions of the SDF. There is, therefore, some chance that aspects of the reinterpretation could be found unconstitutional by the courts. While the media have often treated the reinterpretation as a fait accompli, this is not yet the case legally or constitutionally. But herein lies the real danger of the new modest amendment proposal.

The current Trojan Horse amendment is designed to avoid controversy and debate, but it would serve to effectively lock in the reinterpretation as a de-facto informal amendment to the Constitution. Informal constitutional amendments, even those that are widely deemed to have been illegitimate and invalid, tend to be legitimated by both the passage of time and the enactment of subsequent laws and amendments that are built upon them. In subsequent litigation, or any political debate over the validity of the reinterpretation, the new modest formal amendment of the Constitution, approved as it must be by a public referendum, could be pointed to as evidence that the public had accepted and even endorsed the earlier reinterpretation.

Seen through this lens, the drastic lowering of Abe’s amendment ambitions, and surprising modesty of the current proposal, may be seen as a disingenuous effort to disguise the extent of constitutional change that is actually at stake, in line with the now-governing LDP’s methods in its 2012 proposal. It seeks to surreptitiously solidify and entrench the reinterpretation.

It should not be allowed to do so. If the Japanese people actually agree with the substance of the reinterpretation, they should be allowed to openly so decide in a formal amendment process, in accordance with Article 96 of the Constitution. If there is to be any amendment, the substance of the reinterpretation should be made part of the proposal or withdrawn entirely.

Craig Martin is a professor of law, and co-director of the International and Comparative Law Center, at Washburn University School of Law. He is also a graduate of, and frequent visiting lecturer at, Osaka University Graduate School of Law and Politics.