Monday, November 21, 2016

Security and the meaning of Japan’s constitution

This new political circumstance allows Abe to propose a national referendum to revise the constitution. The LDP presented a draft for constitutional revision in 2012 and will lead the coming debate because of its strength in the Diet.

Some pro-revisionists say that the constitution was imposed by the United States and that Article 9 should be revised to allow for a Japanese military force. Others simply point to the lack of revision since 1947 and argue that Article 9, which does not refer to the Self-Defense Forces (SDF) directly, is worded incorrectly. But this constitutional revision will affect two substantive issues which have been touched on far less in the public debate: Japan’s security posture and the meaning of Japan’s constitution as a higher law.

The 1947 constitution was created during the Allied Occupation of Japan. Article 9 renounces the right to initiate war and maintain a standing military force with war potential, and the Preamble declares an irreversible Japanese commitment to the non-use of force and the elimination of war in international politics. Liberal democracy and peace have become part of Japanese identity and have guided its postwar security policy.

Constitutional revision was first placed on the political agenda in the 1950s, but to no result. The desire among part of the political elite to revise the constitution was renewed in the late 1990s. A consensus on starting the revision was reached among Japan’s mainstream political parties excepting the Social Democratic Party and the Japan Communist Party. The first Abe government (2006–7) enacted a law for a national referendum but the political mood disappeared after Abe’s resignation. Only with the advent of the second Abe government in December 2012 did the question of constitutional revision return to Japanese politics.

The LDP’s draft revisions published in 2012 reflect the party’s fundamental position on constitutional revision, though some concessions might be expected in the coming debate. New articles for national responsibility for the environment, government accountability, intellectual property rights and crime victims were also included. But two contentious issues underlie this draft: Japan’s strengthened military commitment and the inclusion of conservative ideology.

The 2012 LDP draft makes clear that Article 9, which lacks a direct reference to the SDF, will be considerably revised to constitutionalise a military force. Article 9-1 which renounces war will be kept intact, but Article 9-2 will allow for a wide range of exceptions under the concept of self-defence. The concept of self-defence is inherently ambiguous and historically was used to justify a war of aggression in more than a few cases.

The LDP draft also includes a separate article for ‘territorial defence’, and its preamble asserts the Japanese people’s responsibility for the defence of their country with ‘pride and high spirit’. It also intends to create a military tribunal, which is prohibited under the present constitution, and to stipulate articles for national security contingencies in which the constitution could be temporally suspended.

Komeito and the main opposition Democratic Party (DP) may agree to write the SDF into the constitution directly, but they will likely have different views over the extent to which the constitution should constrain Japan’s use of force.

The revision of Article 9 can clarify the SDF constitutionally, and may enhance US–Japan defence cooperation, but even this political move may be perceived by China as a message that Japan will renounce its pacifist security policy. This may worsen Chinese perceptions of Japan in the current security environment unless diplomatic efforts are made to moderate them. The revision of Article 9 should be managed cautiously because of its potential external impact, but pro-revisionists pay little attention to this security problem.

On the other hand, in a liberal democracy, the constitution as a higher law should be above different party ideologies. But the inclusion of nationalistic and conservative ideology in the 2012 draft might challenge this notion. The draft attempts to resurrect Japanese traditional statism in political and social relations, and to weaken the liberal democratic posture of the pacifist constitution. Its preamble includes nationalistic phrases on such questions as the preservation of Japanese traditions and emperor worship. It also mentions the Japanese people’s responsibility to respect the national flag and anthem, and inserts the notion of ‘public order’ to qualify such rights as freedom of speech.

Its drafters point to what they claim is moral degradation in contemporary Japan, and seek to restore a stronger role for the state as a remedy. But these conservative ideas are only shared within rightist groups and do not reflect Japan’s present ideological map. Left-to-centre Komeito and the DP will not support this, and may seek a liberal democratic posture in line with the present constitution.

The LDP draft also seeks to lower the bar for a national referendum for constitutional revision, from two-thirds to a simple majority of both houses of the Diet. This means that any new constitution will become vulnerable to contingent political contexts and may change with the political winds.

While it is unlikely that the DP will agree to the 2012 draft, constitutional revision has gained irreversible momentum in Japan’s domestic politics. Yet what supports Japan’s constitutional revision is the mood among political elites, not practical needs from the public. The accumulation of different legal interpretations has bridged the gap between the written articles and Japan’s practical needs. Constitutional revision is not mandatory for these purposes. The pro-revisionists, full of ambition, have a short-sighted view of the impact of changing the wording of the constitution in terms of Japan’s security and the higher law.

While the political elites support constitutional revision, a majority in a national referendum is also required to amend the constitution. Abe will soon start a campaign to obtain public support. The Japanese public’s attitudes to constitutional revision are still ambiguous. A majority have a positive opinion of constitutional revision in general, but oppose the revision of Article 9. The success of the Abe-led constitutional revision will rest upon political elites’ campaigns to persuade the public.

Constitutional revision may mean re-inventing Japan but if it does, it will need to be based upon a shared public vision of Japan’s future. Otherwise it will be a ‘play of words’ by political elites heralding the beginning of a decade of drift, taking attention away from the economic and social problems that confront Japan today and will continue to.

Toshiya Takahashi is an associate professor of Shoin University, Japan and a PhD Candidate at National Security College, The Australian National University.

This article appeared in the most recent edition of the East Asia Forum Quarterly, ‘Reinventing Japan’.


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