Piracy and the Constitution

(Initially published in the Japan Times, March 26, 2009)

Once again the issue of Japanese contributions to international security efforts is the subject of tortured debate. And once again the proposed government policy, and aspects of the debate itself, reveals fundamental misunderstanding of the relationship between Article 9 of the Constitution and the relevant principles of international law.

This time, the issue relates to maritime piracy off the coast of Somalia, and the proposed deployment of Japanese naval vessels to the area. Predictably, the issue has triggered debate over the effect of the war-renouncing provision of the Constitution. A careful analysis, however, would suggest that the Article 9 prohibition on the use of force would not apply to the deployment of naval forces, or their use of weapons, to protect shipping from pirates in international waters.

Yet, it is clear that the government policy is being formulated under the shadow of Article 9. While the ships are initially being deployed under the authority of Article 82 of the Self-Defense Forces Law, the government has drafted and submitted to the Diet a permanent anti-piracy law, and it is around this bill that debate has focused. … Read more…

The “Yanai Report” on Art. 9, Part 3

Continuing from the last post, this posting examines Part III of the Yanai Report, which is the heart of the argument on the actual interpretation of Art. 9. While the earlier posts were summaries combined with some select segments being translated almost in full, this posting is less a summary and more a full report on the substance of this part of the report. There is much to criticize here, but the analysis is left for the fourth and final posting on the report.

Part III, Section 1 – Opinions and Their Premises Regarding the 4 Scenarios: the panel returns to the question of constitutional interpretation, this time explaining “The Panel’s Fundamental Understanding of Art. 9.” In section one of this part, the panel outlines its opinion and its underlying assumptions with respect to the four problems. After rehashing the changes in threats already discussed above, it articulates the two assumptions that underlie its recommendations for the minimum necessary changes to the interpretation of the Constitution. These are i) that there must be continued maintenance of pacifism and international cooperation as fundamental principles of the Constitution; and ii) even where there is the exercise of collective self-defence or collective security operations under a new national security policy, it cannot be without limits. The panel indicates that the specific limitations will be discussed in Part IV.

Part III, Section 2 – The Interpretation of Art. 9: The panel turns next to its own interpretation of Art. 9. It again summarizes the government interpretation, then begins its discussion with the assertion that in interpreting laws and the Constitution, while it may be natural to interpret the text of each provision, it is also necessary to examine the entire context of the law in its entirety, the history of its formation, the country’s national strategies, the society as a whole, the economy, and other related circumstances. Read more…

Reinterpreting the Constitution of Japan

(Initially published in the Japan Times, October 5, 2008)

The report of the “Panel on the Reconstruction of the National Security Legal Foundation,” commonly known as the Yanai Report, argues that a reinterpretation of Article 9 of the Constitution is necessary to permit Japan to participate in collective self-defense and collective security operations. Both activities are currently understood to be prohibited by Article 9, Section 1. The report reveals, however, a fundamental flaw that entirely undermines the legitimacy of the panel’s analysis.

The panel was created in April 2007 by then-Prime Minister Shinzo Abe to consider the need for a “reinterpretation” of the Constitution. The panel was composed of 13 prominent academics, former diplomats and government bureaucrats who were predominantly experts in international relations, politics and national security. It included only one constitutional scholar. The panel was criticized for being dominated by policy hawks who were on record as favoring constitutional revision. The chair, Yanai Shunji, a former ambassador to the U.S. and now a professor of Chuo University, submitted the panel’s report to the Cabinet in June. … Read more…

The “Yanai Report” on Art. 9, Part 2.

Continuing from the last posting, this segment reviews the substance of Part I and Part II of the report, with particular emphasis on Part I. It will be recalled that Part I was entitled “The National Security Environment of Japan and the Need for a Reconstruction of the Legal Foundation”.

Part I, section 1

It begins by establishing the premise that it is necessary for the national security policy of Japan to adapt to changes in the international environment. Moving from that premise, the report then establishes that as a country governed by the rule of law, the national security policy must be constructed on a foundation of clearly defined laws. However, it argues that this foundation must constantly be re-examined so as to accord with the reality of shifts in the national security threats. It asserts that while the legal foundation as it now exists is based in part on the Constitution, it also reflects the historical reality, both in political and in strategic terms, that existed at the time of its formation. Since those circumstances have changed, it is appropriate to re-examine and reform the legal foundation to ensure it complies with today’s realities.

This conclusion is followed by several qualifiers, regarding the degree of change in the threat environment that makes such reform necessary, and the assertion that “it goes without saying that the interpretation of law cannot simply be a convenience to be adjusted in conformity with the circumstances. But nor does it mean that looked at legally, the interpretation that has been maintained until now is the only possible rational interpretation.” It then goes on to criticize the government interpretation of Art. 9 as being excessively complicated and inconsistent with international law.Read more…