Constitutional Law

Undermining the Rule of Law – Tokyo Shinbun Interview

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

Martin-TS.Interview-Jun.2014

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

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(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.

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

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(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.

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LDP’s Dangerous Proposals for Amending Antiwar Article

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(Published in The Japan Times, June 6, 2012, and in Comparative Constitutions blog, June 11, 2012)

The Liberal Democratic Party (LDP) published its new draft constitutional amendment proposal in late April. The draft reflects a number of significant changes above and beyond those advanced in the proposal unveiled by the LDP in 2005. The proposal includes a complete overhaul of Article 9, the war renouncing provision of Japan’s so-called Peace Constitution. These changes to Article 9 are important, and on balance, dangerous. The nature of these proposed revisions, and how they would likely operate, deserve to be examined in some detail.

Before addressing the changes, it is helpful to recall the meaning of the current provision. Article 9 has two paragraphs, which contain three essential elements. Paragraph one provides that the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes. This represents an incorporation of international law principles on the use of force into the Japanese constitution, to constrain future governments of Japan from ever again dragging the nation into a disastrous war of aggression.

Paragraph two contains two clauses. The first provides that Japan will never maintain land, sea, and air forces, or any other war potential. This is a unique provision, purporting to prohibit the maintenance of any military forces, and was designed to reinforce the prohibition on the use of force by making such use of force impossible. The second clause of paragraph two, which provides that the rights of belligerency will not be recognized, is even more novel. This was the incorporation of principles of international humanitarian law relating to belligerency, to further ensure that as a matter of constitutional law Japanese forces would not enjoy the rights and privileges of combatants in armed conflict.

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