‘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.

A crucial element of this constraining characteristic of constitutions, is that they typically provide for a specific amendment procedure that governs precisely how the constitution itself may be altered or revised. Such procedures typically make it difficult, but not impossible, for limits on government action to be changed in the future.

The Constitution of Japan conforms to this model. The Constitution is the supreme law of the land (Art. 97-99), and an independent judiciary, in particular the Supreme Court of Japan, is charged with the authority to interpret and enforce this supreme law (Art. 76 and 81). The Constitution explicitly provides for an amendment procedure (Art. 96), which requires that amendment proposals be initiated in the Diet and voted for by a two-thirds majority in each chamber, and approved by a majority vote of the people in a referendum.

Art. 9 of the Constitution of Japan is relatively unique in the world as a pre-commitment against government involvement in war. In its first clause it renounces war as a sovereign right of the nation, and the threat or use of force as a means of settling international disputes (Art. 9(1)).

From shortly after the time Japan re-emerged from the war as a fully sovereign state in 1952, this has been consistently understood to prohibit Japan from engaging in any use of force beyond the minimum necessary to defend Japan itself from armed attack. In other words, it permits individual self-defense, but prohibits collective self-defense and participation in U.N. collective security operations, even though these would be sovereign rights under international law.

Many within the ruling Liberal Democratic Party (LDP) have sought to amend Art. 9 for decades. This has proved impossible for political reasons. The myth has thus arisen that the formal amendment procedure in the Constitution is simply too difficult, and that other means of revision are thus justified. But this is untrue. Recent comparative analysis of the relative difficulty of constitutional amendment in many democracies has found that at least eight constitutions, including that of the United States, are more difficult to amend than that of Japan, and yet they have been amended many times.

Turning to the rule of law, the primary principle at the foundation of the rule of law is that no person or agency is above the law. Its very essence is the idea that there is one set of laws to which every person and entity is subject, and which is applied equally to all. Thus, not only is the government subject to the law, but government power must be exercised through and in accordance with the law, and not through the use of discretion or arbitrary fiat.

A further and important aspect of the rule of law is that the law must be generally accessible and intelligible, meaning that laws are sufficiently clear, precise, and predictable. Laws must also be susceptible to change, but only in accordance with established mechanisms, and in conformity with democratic principles.

The formal amendment procedure for a constitution is thus a fundamentally important component of the principles of both constitutionalism and the rule of law. This is not to say that constitutions do not evolve over time, and in ways that do not involve formal amendment. But to the extent that interpretations of constitutional provisions evolve, they do so incrementally and gradually, typically through a series of constitutional decisions of superior courts.

The Cabinet Legislation Bureau (CLB), the government agency that advises the executive on the constitutionality of laws, played a role in defining the initial understanding of Art. 9 in the early years; but it is the courts in Japan, as in in most democracies, that are charged with the authority to enforce and interpret constitutional provisions and the constitutionality of laws. The Supreme Court of Japan has, in the Sunagawa judgment of 1960, affirmed that Art. 9(1) does not deny Japan the right of individual self-defense, but it has never endorsed the view that Art. 9(1) could allow collective self-defense or involvement in collective security operations. Indeed, the Nagoya High Court in 2008 opined that Japanese involvement in the occupation of Iraq after 2004 was a use of force in violation of Art. 9(1).

It is in relation to these principles that one must assess the efforts of Prime Minister Abe to “re-interpret” Art. 9. Mr. Abe, beginning during his first term as Prime Minister in 2007, decided to make revision of Art. 9 one of his primary objectives. He paid lip-service to the ongoing efforts at amendment in accordance with the formal amendment process, but he also set out to subvert that legitimate procedure if necessary.

First, in order to undermine the formal amendment process, Mr. Abe attacked the amendment procedure of the Constitution itself. He proposed to amend Art. 96 so as to effectively reduce the Constitution to little more than a normal piece of legislation, which can be amended by bare majorities in each Chamber of the Diet. This was transparently a precursor to then amending Art. 9. But it would also have undermined the Constitution’s status as supreme law with effective constraints on government power.

For the purpose of circumventing the procedure altogether, Mr. Abe had in 2007 initiated the “re-interpretation” process, establishing an ad-hoc Advisory Panel on the Reconstruction of the Legal Basis for Security (the “Advisory Panel”). This was a group with few lawyers, far less constitutional scholars, who were primarily selected for their hawkish views on national security. It was given a mandate to provide recommendations on how Art. 9 should be “re-interpreted”.

When the attack on Art. 96 failed, Mr. Abe revamped the Advisory Panel and had it update its work. He then made a political appointment of an outsider to the position of Director of the CLB . This was an unprecedented departure from a long-standing convention of appointing experts from within the CLB, and was a cynical and transparent effort to ensure the CLB’s blessing of any “re-interpretation.”

The Advisory Panel issued its updated report in May, 2014, and now, on the basis of these “recommendations”, Mr. Abe stands poised to use a “Cabinet approval” as the mechanism for trying to unilaterally change the meaning of Article 9 of the Constitution.

This is profoundly wrong for two reasons. The first is that this process of trying to change the meaning of the Constitution, by its very nature, is invalid. It not only stands in direct violation of the explicit constitutionally mandated amendment procedures, but it also violates democratic principles, given that the Diet and the public are cut out of the process. Moreover it subverts the notion that the Constitution is the supreme law of the land, and that the law applies equally to all. The executive, in this process, is placing itself outside of and above the supreme law, and is acting through arbitrary discretion rather than valid legal authority. A change to fundamental provisions of the Constitution would thus be made with less legal authority, and be subject to less democratic process, than an amendment to the nation’s traffic laws.

The second reason is that the substance of the proposed “re-interpretation” compounds the problems. The Advisory Panel recommendations suffer serious flaws on many levels, but the most serious problem is that they reflect a result-oriented analysis that is driven by national security imperatives rather than constitutional law principles.

The Advisory Panel argues that the strategic environment surrounding Japan has changed such that greater latitude in the use of force is necessary, therefore the Constitution must in fact mean that such use of force is permissible. Changed circumstances may provide good reasons to amend the constitution, but they are no basis for arguing that the meaning of existing provisions has actually changed.

In addition to the invalid form of the argument, the Advisory Panel’s central legal recommendation is to effectively add the qualifying words “to which Japan is a party”, to the end of the clause in Art. 9(1) “…threat or use of force as a means of settling international disputes.” In this way it is suggested that Japan actually may use force for purposes of collective self-defense and for U.N. collective security operations, since these would not be “international disputes to which Japan is a party.”

As a matter of international law that conclusion is simply wrong. But as a matter of constitutional law, it would mean that Art. 9 no longer renounces any sovereign rights relating to war, notwithstanding its explicit language to the contrary. Moreover, the idea that the executive branch could unilaterally and informally add qualifying words to a constitutional provision to radically change its meaning in this way is absurd.

The government has suggested that it would not actually interpret Art. 9 as permitting all rights of collective self-defense as understood in international law, but only a more limited and selective right of collective self-defense. But the conditions and criteria for this selective right of collective self-defense are incomplete and ill defined.

Examples for when force could be used have been given, but government representatives have stated that not all criteria determining the permissible use of force would actually be disclosed by the Cabinet. The ambiguity and uncertainty created by this “re-interpretation”, with hidden criteria to be applied by Cabinet at its discretion, makes a constitutional provision inaccessible and entirely unintelligible. How could a court of law possibly enforce such a “re-interpreted” provision in a concrete case?

If the government is able to “re-interpret” Art. 9 in this way, arbitrarily adding limiting clauses to the language, interpreting words in ways contrary to their ordinary meaning, and creating unique new concepts which are not only ambiguous, but elements of which are actually secret, what is to stop it from similarly “re-interpreting” other provisions? Thus, Art. 21 could easily become: “Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed…within the limits of the law”; and be subject to certain undisclosed and secret Cabinet criteria for what actually constitutes “the limits of the law”.

It makes a mockery of constitutional constraints on government power if governments can, through executive decree, “re-interpret” those constraints away. To permit such a “re-interpretation” of Art. 9 would throw into question the integrity and meaning of all other provisions of the Constitution, and thus undermine the normative power of the entire constitution. And of course this particular “re-interpretation” would gut one of the three pillars of Japan’s constitutional order. In short, it poses a serious risk to the rule of law and principles of democracy in Japan.