The “Yanai Report” on Art. 9 of the Japanese Constitution

In June of this year the “Panel for the Reconstruction of the National Security Legal Foundation”, known informally as the Yanai Committee after the name of its chairman, filed its report with the government of Japan. The report called for a re-interpretation of Art. 9 of the Constitution so as to permit Japanese participation in collective self-defence and collective security operations. Both are currently understood to be prohibited by Art. 9.

Prime Minister Fukuda showed no interest in the report or the issues, and the report has received little public attention. With a new Prime Minister soon to be elected, and with emerging evidence that the Yanai Report is having more significant influence within the bureaucracy, it warrants more careful attention.

Over the next little while I will be posting entries here providing a detailed examination of the report. Since the report is not yet available in English (the original is available here), I will first provide an overview of the substance of those aspects of the report that I think are at least important for the analysis I wish to engage in. The substance should be reviewed in two posts, following which I will provide a segment with an analysis of the report – first criticizing its overall approach, and focusing on some of the interpretive errors that, in my view, the panel made; and then examining some of the limitations that it recommended be placed on the exercise of force, that may be useful for considerations of what a nuanced amendment might look like.

Background

Prime Minister Abe convened a “panel of experts” back in April 2007, to consider whether it was necessary to “revise the current interpretation of the Constitution”, in order to allow Japan to participate to a greater extent in international security activity. In particular, the panel was to consider four specific scenarios that highlighted the ramifications of the constitutional prohibition on collective self-defence and collective security operations.

The panel was comprised of thirteen people, mostly academics specializing in political science, foreign relations, and defence studies, and former government officals from the Ministry of Foreign Affairs and the Defence Agency. There was only one constitutional scholar among them, and only three legal specialists in total. The media was critical of the panel when it was announced for being a group with a public record of being hawkish on national security issues and of being critical of the constitutional constraints on Japan’s defence policy.

I wrote at the time (The Case Against “Revising Interpretations” of the Japanese Constitution ) that the exercise of using an extra-constitutional body to advance a “revision” of the interpretation of the Constitution, was illegitimate on a number of levels, the most important being that it was an end-run around the amendment provisions in the Constitution. The Report tends to confirm those concerns.Read more…

Japan Opens Up Way For Military Use of Outer Space

(Written for and appearing in Foreign Policy Digest)

Developments:

Japan’s Diet (legislature) passed a new Basic Law on Space on May 21 (the bill can be found in the index on-line here, and in pdf here ), which will permit Japan for the first time to use space for the purposes of contributing to national security. This constituted a marked departure from an almost 40 year old policy of strict non-military use of outer space.

While the passing of the law received some passing coverage in the Western press , the significance of this development remains largely unexplored. The move is important in two respects – the first being its place in a systematic widening of the scope of Japanese military activity notwithstanding constitutional constraints, and the second is the extent to which it may contribute to an escalation in the militarization of space among East Asian countries. This article focuses on the first aspect.

Background:

To put all of this into context one has to begin with the Japanese constitutional constraints on the use of force and maintenance of armaments. Article 9 of the 1947 Constitution provides that Japan forever renounces war and the threat or use of armed force for the purposes of settling international disputes. It also, in Art. 9(2), declares that it shall never maintain land, sea, or air forces or any other war potential, and that the rights of belligerency will not be recognized. … Read more…

Permanent SDF Deployment Law and Democracy

(Initially published in the Japan Times, May 21, 2008)

The Japanese government wants permanent legal authority to send military forces overseas. Letting it have it would be a mistake for many reasons, but one seldom raised is the impact the move would have on the nature of Japan’s democracy. A law conferring permanent authority to deploy troops would eliminate important institutional checks and balances on the government’s use of the military, causing a further weakening of the separation of powers in Japan.

It would also run counter to the recent trend in other democracies to increase accountability in the process of deciding to use armed force.

As it stands now, the government (meaning the executive branch, the Cabinet) has to have specific legislation passed by the Diet, such as the Anti-Terrorism Special Measures Law (the ATSML), to obtain the required legal authority to deploy troops outside of Japan. A new law is required each and every time the government wants to dispatch the Self-Defense Forces (SDF), whether for the purpose of U.N. peacekeeping or to provide humanitarian support for collective security operations such as those in Afghanistan. … Read more…

Rule of Law Under Fire in Japan

(Initially published in the Japan Times, May 3, 2008)

The government’s reactions to the Nagoya High Court’s April 17 decision that Japanese operations in Iraq are unconstitutional, raise profoundly disturbing questions about the rule of law and the democratic separation of powers in Japan.

Representatives of the government, and of the military, have made public statements contradicting the findings of the court, rejecting its conclusions, and dismissing the relevance and significance of its constitutional interpretation. The prime minister has stated that the judgment will have absolutely no impact on the government’s continued use of the military in Iraq.

This response by the executive branch of government to a judicial decision in a constitutional democracy is difficult to comprehend. It raises questions about the extent to which the rule of law is respected. It provokes concerns about the continued normative power of the Constitution. It creates serious doubts about the proper distribution of power among the three branches of government within the democratic structure of the state. … Read more…