constitutional amendment

The Danger in Abe’s Constitutional Amendment Proposal

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(Published in The Japan Times, Aug. 5, 2019)

Prime Minister Shinzo Abe has demanded that the Diet move forward with debating his Liberal Democratic Party’s proposal for amending Article 9 of the Constitution, with a view to possibly having a vote on the issue in 2020. Having failed to retain a two-thirds supermajority in the Upper House election on July 21, he will need to sway some members outside of his coalition to win approval of any such amendment, and thus the debate will be more meaningful, its consequences more significant.

Many observers will be struck by how modest the new amendment proposal seems, and thus may be lulled into thinking that there is little to fear from it. This is a grave mistake. Once analyzed in its broader context, the ramifications of the proposal look much more dangerous.

To begin, it will be recalled that Article 9 has two paragraphs. The first provides that Japan renounces war and the threat or use of force as sovereign rights of the nation. The second, which has been more controversial and far less effective, has two clauses: first, a prohibition on the maintenance of land, sea or air forces or other war potential; and second, a denial of the rights of belligerency. While many legal scholars view the existence and size of the Self-Defense Forces as being patently inconsistent with this provision, that is not the official view.

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Japan’s Dilemma in the Persian Gulf

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(Published in Australian Institute of International Affairs: Australian Outlook, Jun. 26, 2019; re-published in Opinio Juris, Jul. 5, 2019)

In the wake of the recent attacks on shipping in the Persian Gulf, there has been considerable discussion about Europe’s difficult position amidst the escalating tension between the United States and Iran. There has been far less discussion of Japan’s situation. Yet one of the ships was Japanese-owned, and Prime Minister Shinzo Abe was in Tehran at the time of the attack, specifically trying to dampen those tensions. Nonetheless, Japan distanced itself from the American accusations of Iran’s role in quite surprising and uncharacteristic fashion.

Why was that? Like the EU, Japan appeared to be on the horns of a dilemma, but the nature of its dilemma seemed far less clear. One explanation may lie with the Japanese government’s 2014 so-called “reinterpretation” of the war-renouncing provision of the Constitution. The current situation in the Gulf dovetailed with that “reinterpretation” in manner that created a dilemma with huge risks for the government.

Japan’s Surprising Response to the Crisis

Most readers would be familiar with the increasing tensions between Iran and the United States, from the American withdrawal last year from the Joint Comprehensive Plan of Action (JCPOA), the American tightening of sanctions since then, through to the recent U.S. deployment of forces to the region, followed by the two separate attacks on tankers in the Gulf of Oman. This timeline is a good refresher.

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Why and How to Amend Article 9 of Japan’s Constitution

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Ritsumeikan-webIn April I published an article on why supporters and defenders of Article 9 of the Japanese Constitution, the war-renouncing provision, should be developing proposals for how to amend the provision. The article was published in the Ritsumeikan Journal of Peace Studies, in both English: Change It to Save It: Why and How to Amend Article 9, 18 Ritsumeikan J. Peace Studies (2017), and in Japanese: ??9??????????????????????9????????????????????????). The abstract in English is as follows:

Defenders of Article 9 of the Constitution of Japan, which renounces the use of force and prohibits the maintenance of armed forces, have consistently worked to block any and all attempts to amend the provision. The government of Japan, having purported to “reinterpret” the provision in 2015, is now well positioned to finally achieve its goal of forcing some form of amendment. This article argues that the champions of Article 9 must, in order to save its most successful and core features, begin to develop alternative proposals for its amendment.

The article begins with a review of the meaning and operation of Article 9. It notes that the first paragraph, Article 9(1) (which is the prohibition on the use of force), is a clear constitutional rule that has effectively constrained government policy, but that the second paragraph, Article 9(2) (which prohibits the maintenance of armed forces and denies the rights of belligerency), has been transformed into an ambiguous standard that has been increasingly ineffective, and has given rise to a dangerous gap between norm and reality.

In arguing why Article 9 should be amended, the article explains the weaknesses in the provision that arise from the ambiguity and ineffectiveness of Article 9(2), analyzes the significant dangers inherent in the government amendment proposals, and the harm that will be done by the “reinterpretation” if it is not replaced by way of amendment. In explaining how to amend Article 9, the article provides draft language as a starting point for debate. It is designed to preserve and clarify the constraints on the use of force; eliminate the harmful gap between the current reality and the constitutional language, and establish civilian control and clear separation of powers in national security decision-making; and clarify the role of judicial review in enforcing the provision.

Questioning U.S. Support for Japan’s National Security Moves

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(Published in JURIST – Forum, Sept. 2, 2015)

AbeKerry-smallOn August 30, tens of thousands of Japanese citizens demonstrated outside of the Diet (parliament), and in other cities across Japan, protesting against draft national security legislation that would expand the permissible operations of the Self-Defense Forces (SDF). The bills are the culmination of an effort by Prime Minister Shinzo Abe to expand Japan’s role in international collective security efforts. To do so, however, the government has sought to “reinterpret” Japan’s constitutional limits on the use of military force, in a manner that circumvents the formal constitutional amendment process, and thereby undermines the rule of law and constitutionalism in Japan.

It is this process as much as the substance of the bills that has provoked the protests and triggered a constitutional crisis in Japan. Yet these developments have been largely welcomed in US policy circles. The objectives may be in America’s short-term interest, but a deeper understanding of the issues and a longer-term perspective would caution against US endorsement of this illegitimate process.

Constitutional Background

To understand the issues one has to begin with the constitutional limits. Article 9 of the constitutionrenounces war as a sovereign right of the nation, and the threat or use of force for the settlement of international disputes (Art. 9(1)). It also prohibits the maintenance of armed forces or other war potential (Art. 9(2)). These provisions have been consistently interpreted by the Cabinet Legislation Bureau (CLB) (which is loosely analogous to the US Office of Legal Counsel) and successive governments since the early 1950s, as meaning that Japan was entitled to use force for individual self-defense in the event of an armed attack on Japan; and that Japan was thus entitled to maintain a minimum level of armed forces necessary for such defense. This understanding was also implicitly confirmed by the Supreme Court in the Sunagawa decision, the only decision it has rendered on the issue. But the CLB has also clearly maintained that Art. 9(1) means that Japan is prohibited from any participation in collective self-defense as authorized by Article 51 of the UN Charter, or other collective security operations as authorized by the UN Security Council under Articles 39 and 42 of the UN Charter.

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