Japan’s Prime Minister Abe and the ruling LDP
are capitalising on their popularity and the deterioration in Japan’s regional security environment
to launch a reinvigorated campaign to amend the Japanese Constitution. In April
2012, the LDP released new draft proposals for revising the document, the most important legacy of
the US Occupation of Japan.
Despite the Abe cabinet’s 65 per cent approval rating, the
LDP does not necessarily speak for a national majority on the need for
constitutional change, let alone for the nation as a whole. The draft proposals
reflect its own version of desired constitutional reforms, while public opinion
polls reveal a nation divided on the proposed changes as well as on the broader
question of constitutional reform. A recent NHK poll revealed only 31 per cent
supported the need to amend the constitution (NHK News 7, 14th May
2013).
At the same time, some aspects of the current campaign
present a particularly strong challenge to the constitutional status quo.
First, Abe has taken aim at Article 96, which sets the legal
requirements for amending the Constitution: a minimum two-thirds majority in
both houses of the Diet and approval by a simple majority in a national
referendum. These represent a high political hurdle — but no higher, relatively
speaking, than in most other democracies with written constitutions — and may
help to explain why the Japanese Constitution remains unamended since its 1947
enactment, although equally, it may indicate insufficient support for change.
Abe wants to make amendment easier by lowering the bar to a simple majority of Diet members
in both houses. The referendum stage would remain.
Second, if Abe is successful in amending Article 96 the LDP
will be free to present its full draft of proposed constitutional amendments.
The change longest in the making is the proposal to amend the Constitution’s
‘peace clause’, Article 9. The LDP wants to convert the Self-Defence Forces
(SDF) into a National Defence Force,
thus granting, at a minimum, constitutional recognition to what has been
reality since the SDF Law was passed in 1954 — Japan’s possession of military
forces.
The need to change Article 9 has been exaggerated. Article 9
places no constraints on the capacity of the SDF to defend Japan. Nor does it
impose an insuperable barrier to Japan’s participating in collective defence.
The latter requires a change in the interpretation of Article 9, and would be
just another step in the process of ‘revision by reinterpretation’ that Article
9 has undergone over the years. The biggest constraint on Japan’s ability to
defend itself is the parlous state of government
finances, not the Constitution.
The price of formally amending Article 9 will be high,
particularly in terms of Japan’s foreign relations. China and South Korea will
‘over-interpret’ the move as signifying a dramatic change in the status quo and
the rise of a potential Japanese military threat. Moreover, Japan will no
longer be able to lay a strong claim to being a ‘ peace state’, which has been
an important source of its soft power. The proposal to revise Article 9 could,
therefore, have a destabilising effect in the region and come at the cost of
Japan’s international standing and soft power.
Third, other proposed changes in the LDP’s draft pose
dangers to the liberal democracy the Constitution guarantees. Two particular
changes stand out. The LDP’s draft adds a provision that prioritises ‘order’
and ‘the public good’ over ‘fundamental human rights’. For example, with
respect to ‘freedom and rights’ (Article 12), the draft has added the
provision, ‘[The people] must be aware that [freedom and rights] are
accompanied by responsibility and obligations, and must not go against the
public interest or public order at any time’. With respect to ‘freedom of
assembly, association, speech, press and all other forms of expression’
(Article 21), the draft has added, ‘The conduct of activities aimed
at harming the public interest or public order and associating with others for
the same purpose are unacceptable’.
Human rights in Japan are not absolute but are already
constrained by considerations of public order and safety. For example, there
are public order limits on rights of demonstration and association written into
Japanese law. So the point of this proposed change can only be to bring about a
major shift in the current balance between state power and individual rights.
What the LDP draft is proposing is anti-liberal and
potentially anti-democratic. Writing notions of public order and citizens’
obligations to the state into the Constitution has a highly conservative and
statist (kokka shugi) flavour. Moreover, by arguing on cultural grounds for these changes
— that concepts of universal human rights are ‘ill-suited for Japan’s
traditional culture and values’ — Abe and his affiliates in the LDP are
effectively saying that liberal democracy is incompatible with Japanese
culture. This puts them closer to cultural traditionalists in China (and even
the Taliban) in political ideology than to the United States and other liberal
democracies.
Abe’s agenda for constitutional change is one manifestation
of a broader agenda of historical revisionism, which is, in turn, an expression
of his particular brand of Japanese nationalism. This is why the constitutional
course that he is proposing is so perilous. It allows a group within the LDP,
and likely a minority at that, to justify constitutional change for reasons of
restoring national pride, rather than for reasons of improving the operations
of the government system itself.
The question is whether the majority of the Japanese people
even realise and accept the true import of the changes that are being proposed.
The voice of the ‘old left’ — the traditional protectors of the Constitution —
has been drowned out by those in the ‘old’ and ‘new’ right parties who mainly
appeal to voters on other issues.
If the proposed changes are successful, they will have been
driven from the top down by Abe and his backers without any groundswell of
public support. High approval ratings for the Abe cabinet are not for the prime
minister’s constitutional reform agenda but for Abenomics, his short-term fix
for the economy. He should not confuse the two.
Aurelia George Mulgan is Professor at the University of New South Wales, Australian Defence
Force Academy, Canberra.
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