Undermining the Rule of Law – Tokyo Shinbun Interview

(Interview with Yoichi Takeuchi, in the Tokyo Shinbun, Jun. 30, 2014)

Martin-TS.Interview-Jun.2014

法の支配揺るがす ≪解釈改憲≫ 米の法学者はこう見る(東京新聞6月30日)

安倍政権は集団的自衛権の行使容認に向け憲法9条の解釈変更を7月1日にも閣議決定しようとしている。米政府や識者の多くは日本に集団的自衛権の行使容認をかねて働き掛けており、支持している。だが、政府の独断による解釈改憲は「日本の法の支配を揺るがす」と異を唱える法学者もいる。米中西部カンザス州のウォッシュバーン大学法科大学院のクレイグ・マーチン准教授(53)に聞いた。(アメリカ総局・竹内洋一)

-第1次安倍内閣の当時から解釈改憲には反対を主張してきた。その理由は。

「解釈改憲は憲法の改正規定を犯している。時の政権が不都合な条項を思い付きで簡単に変えられるなら憲法はもはや最高法規ではなくなる。『法の支配』を支える最も基本的で本質的な原則にも反している。法の下の平等だ。改正手続きを無視して解釈改憲を閣議決定すれば、内閣を法の上に置くことになる」

-閣議決定までの手続きも有識者会議や与党協議だけだった。

「憲法に定められた国権の最高機関である国会、違憲審査権を持つ最高裁には諮られていない。内閣の独断で改憲を宣言するのは、完全に違法で無効だ。憲法改正には国会での審議が必要だ。選挙に勝利した与党の協議でも、違法な手続きは正当化されない」

-安倍政権は「日本を取り巻く安全保障環境の変化」を憲法解釈を変える理由の一つに挙げているが。 … Read more…

‘Reinterpretation’ of Article 9 Endangers Rule of Law in Japan

(Published in the Japan Times, June 28, 2014, opposite and as counterpoint to an article by Prime Minister Shinzo Abe in defense of the policy)

Prime Minister Abe is expected to continue to press for Cabinet approval of a “re-interpretation” of the war-renouncing Article 9 of the Constitution of Japan. His goal is to relax the constitutional prohibition on Japan’s use of force for purposes of both engaging in collective self-defense actions and participating in U.N. collective security operations. There may be good reasons for Japan to consider relaxing the constraints of Article 9, but this so-called “re-interpretation” is entirely illegitimate and poses dangers to Japan’s democracy.

To be clear on what this so-called “re-interpretation” means, the Prime Minister is seeking to circumvent the constitutional amendment procedure mandated by the Constitution itself, and to dictate a radical change to the meaning of fundamental principles in the Constitution by way of Cabinet fiat, with no Diet debate or vote, and no public approval. The very process violates fundamental principles of constitutionalism and the rule of law, while the substance of the proposed “re-interpretation” does further violence to these principles.

To fully appreciate why this is so, we need to review briefly the relevant aspects of constitutionalism and the rule of law. Constitutions in democracies are typically the highest law of the land. They define and distribute authority, enshrine individual rights, and serve to limit the government’s power in important ways. Indeed, in this function of limiting the exercise of government power, particularly in moments of crisis, constitutions serve as “pre-commitment devices”. They constrain future generations to abide by the principles, rights, and power structures envisioned by the founders. … Read more…

How and Why Japan Should Amend its War-Renouncing Article 9

(Published in The Japan Times, Aug. 4, 2012)

The pressure is mounting to either amend Article 9, the war-renouncing provision of Japan’s Constitution, or to increasingly disregard it and so make it irrelevant. In April the Liberal Democratic Party (LDP) published its proposal for amending the Constitution, and the dangers it posed for Article 9 was analyzed here on June 6 (“LDP’s dangerous proposals for amending antiwar article”). But the response to such amendment proposals by the supporters of Article 9 continues to be one of complete denial — that is, a categorical argument that Article 9 should not be amended at all.

This position is misguided. There are both strategic and legal reasons why the left must develop realistic alternative amendment proposals that would preserve and strengthen the core elements of the provision, but eliminate those elements that undermine it. In a chapter in the book “A Time for Change? Japan’s ‘Peace’ Constitution at 65,” published last month by the Woodrow Wilson Center for International Scholars (the chapter is available online: http://bit.ly/MWGF8T), I explain why Article 9 should be amended, and provide draft language that can serve as a basis for beginning a discussion on alternate amendment proposals.

Flat out rejection of any and all possible amendments to Article 9 is dangerous as a strategic matter. The national security environment of Japan has shifted in the last couple of decades, with the emergence of a nuclear-armed North Korea, and the growing military strength of China. In addition to these perceived threats, there is an increasing sense that Japan should be doing more to fulfill its international responsibilities. Moreover, the Japanese Self-Defense Force (SDF) has participated in non-combat roles in such conflicts as Afghanistan and Iraq with no adverse consequences. … Read more…

Japan is Failing in Sri Lanka

(Initially published as a blog-post at Sri Lanka Campaign for Peace & Justice, Nov. 10, 2010)

Since the end of the Cold War, and through the era of the so-called “Global War on Terror,” Japan has struggled to define and develop a meaningful role for itself in the world of international politics. Constitutionally constrained from participating in collective security operations that involve the use of force, it has sought to cast itself as something of a “power for peace.”(1) In its handling of the crisis in Sri Lanka, however, it appears to be losing its way. While providing a great deal of aid to Sri Lanka, Japan is failing to exercise its considerable influence to help reduce the causes of further conflict, and risks not only undermining its own ambitions but also significantly harming the chances for peace and justice in Sri Lanka.

Almost exactly twenty years ago, the run-up to the Gulf War of 1991 created a major crisis within Japan that has had an enduring impact on the country’s politics and policy. The Japanese government came under enormous pressure to contribute to the international effort to resist the aggression of Iraq, in a region from which Japan obtained most of its energy supply. But Japan was constrained by its Constitution from any involvement in the military operations. It ended up providing support in other ways, including giving US $13 billion to the effort, more than any other country. Yet it was scorned (unfairly) for its “cheque book diplomacy,” received little gratitude for its help, and came out of the crisis with a deep sense that it would have to find more meaningful ways to contribute to the international community – particularly given that it continued to nurture ambitions to obtain a permanent seat on the United Nations Security Council.

Japan turned to limited involvement in U.N. peacekeeping, participation in the development of such concepts as “human security” (2), and perhaps most important, the use of foreign aid, particularly in areas of ongoing or potential conflict, to increase its influence and shape its identity as a “power for peace.” With respect to Sri Lanka, in 2003 Japan tried to take a leading role by hosting the Tokyo Conference on Reconstruction and Development in Sri Lanka and it played an important role in the Norway-led peace talks that continued in the period that followed. Japan’s foreign aid to Sri Lanka, in the form of loans, grants, and the provision of technical assistance, has been part of that effort, and Japan has given far more foreign aid in the last ten years than any other country (3). In the 2007-2008 period alone, Japan provided US $ 288 million, more than three times the amount given by each of the U.S. and the E.U. (4), and Sri Lanka was tenth on the list of Japan’s top aid recipients (5). The benefits to Sri Lanka from such aid should not be minimized, and it will no doubt contribute to the economic growth and stability essential to (while of course not sufficient for) the post-war peace process in Sri Lanka. … Read more…