2014: Constitutionalism in Jeopardy
Die Verfassung Japans. Artikel 9 der Friedensverfassung
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CONSTITUTIONALISM IN JEOPARDY
In recent weeks, Prime Minister Abe Shinzo has accelerated the pace of his efforts to change Japan’s security policy, notably by pushing forward with the re-interpretation of war-renouncing Article 9 of the constitution, which comes in the way of Japan exercising the right to collective self-defense. He has also announced that defense expenditures will increase, for the second consecutive year, to about 5 trillion yen, and made significant moves towards relaxing the country’s longstanding arms-export ban. These moves have attracted much criticism from the Japanese public and political figures, even in Abe’s own camp, and abroad.
On February 21, the government-appointed Advisory Panel on Reconstruction of the Legal Basis for Security held a news conference at the Japan National Press Club in Tokyo. Outlining preliminary conclusions of the panel’s report, Deputy Chairman of the advisory panel Kitaoka Shinichi presented some of the recommendations that will be submitted to Prime Minister Abe in the final report.
Panel’s five conditions
Laying out circumstances that it considers would allow circumventing the restrictions imposed by Article 9, the panel lists five conditions deemed necessary for the exercise of the right of collective self-defense. Those are:
1) that a nation with close ties to Japan comes under attack;
2) that the nation under attack makes a clear request to Japan to exercise its right of collective self-defense;
3) if operations necessitate to pass through the territory or territorial waters of third parties, those grant explicit permission for the same;
4) that Japanese security would be put in jeopardy if action were not taken; and
5) that the Cabinet obtains Diet approval (preferably before exercising the right, but if not possible beforehand, later approval would be acceptable too.)
In addition, the report will propose that parts of Article 9 be re-interpreted, notably the prohibition to use “the threat or use of force as means of settling international disputes.” Kitaoka said the panel would seek to change the meaning of the phrase, so far understood to mean all international disputes to signify “those in which Japan is involved”. The report will further call for relaxing restrictions on arms exports, and for Japanese forces in UN-led peacekeeping operations to be allowed to use force in a broader range of situations.
Constitutionalism in jeopardy
The advisory panel is scheduled to release its report in April. Abe has indicated that his Cabinet will then endorse the change of interpretation before June 22, when the current Diet session ends.
In his efforts to hasten the process, Abe has, on several occasions, suggested that he intends to go ahead with re-interpretation, be it in disregard of constitutional processes and lack of public and political support. He has further suggested he intends to reshuffle his Cabinet and Liberal Democratic Party leadership positions before then, presumably as a way to free his hands from those in place who oppose his move.
“Ultimately, the Cabinet will approve the reinterpretation,” Abe announced at a February 12 session of the Lower House Budget Committee. “And I am the one who is ultimately responsible for the Cabinet,” he controversially added.
Abe’s comments are not only ignoring the constitutional procedure outlined by Article 96 that requires a two-thirds majority in both houses of the Diet and must be ratified by a public referendum. It is also in complete disdain for years of Diet debate and successive opinions of the Cabinet Legislation Bureau that have over and again concluded that amending the constitution is necessary for Japan to engage in collective self-defense.
Facing much criticism from opposition and the media for these comments, Abe has later claimed he never intended to say that he, alone, has the power to make the final decision.
However, Abe and his administration seem nonetheless determined to go ahead with changing the government’s interpretation of the Constitution despite the lack of public and political support.
According to a nationwide telephone survey carried by Kyodo News on January 26, more than half of the respondents (53.8%) are against Japan exercising its right to collective self-defense, while only over a third (37.1%) favors it. Another survey, conducted by NHK on March 7-9 and published in the Wall Street Journal, indicates that 33% of those polled oppose Abe’s position to reinterpret the constitution to allow collective self-defense against 17% who approve it, with 43% undecided.
Echoing popular skepticism, a number of media, public and political figures, both in the opposition and within the ruling coalition, have publicly expressed their concerns – and in some cases even strong sense of disagreement – about moving forward with constitutional reinterpretation, as well as about the way Abe is handling it.
In an editorial, the popular Asahi Shimbun qualifies Abe’s rush toward collective self-defense as “unacceptable”, stating that “allowing Japan to exercise its right to collective self-defense actually means making Article 9 a dead letter. It would undermine the foundation of Japan’s pacifism.”
A number of critical voices have come forward regarding the way Prime Minister Abe is pushing for the move. Among them, head of the LDP Upper House caucus Mizote Kensei criticized Abe’s advisory panel for “ appear[ing] set to reach an expected conclusion” and expressed concern that it “should not be taken as the government’s view.”
More generally, former Cabinet Legislation Bureau Director General Akiyama Osamu has cautioned that “if exercise of the right is allowed, it would set a precedent that would let those in power freely change interpretations of the Constitution.” He added: “The Constitution also contains such fundamental elements as respect for basic rights, freedom of expression and separation of state and religion. What is most worrisome is that administrations could move toward unilaterally changing the interpretation of such elements as well.”
Veteran LDP lawmaker Murakami Seiichiro even referedto one of the darkest time in history: "In the same way that the Nazis passed a law and twisted the Weimar Constitution, there is a danger that Japan could again tread a mistaken path."
For his part, Assistant Chief Cabinet Secretary Yanagisawa Kyoji warned: "Gaining the understanding of the public and going through the proper process (of amending the Constitution) is the basis of democracy", adding that "to ignore that for expediency's sake is tantamount to saying the public's good sense can't be trusted, that democracy has failed."
Other officials who added their voices in cautioning Abe include Justice Minister Tanigaki Sadakazu, Secretary-General of the ruling the Liberal Democratic Party Ishiba Shigeru, Chairman of the junior coalition party Komeito’s Diet Affairs Committee Urushibara Yoshio, LDP Lower House member Murakami Seiichiro, and Secretary General for the LDP caucus in the Upper House Waki Masashi, among others.
At the international level, the New York Times’ editorial board dedicated an unusually critical opinion piece on the issue. Entitled “War, Peace and the Law”, the piece accused Abe of “getting dangerously close to altering a cornerstone of the national Constitution through his own reinterpretation rather than by formal amendment” and qualified his methods of reflecting “an erroneous view of constitutionalism.”
Repercussions in East Asia
At an unusual informal LDP informal General Council meeting held on March 17, Lower House LDP member Noda Takeshi questioned: ““I wonder how Japan’s neighbors will look at the change?”
Indeed, in a tense regional climate referred to by Abe as similar to the one preceding World War I, Japan’s moves are raising alarms among its neighbours, who perceive a change in interpretation as yet another step towards remilitarisation of Japan.
As a matter of fact, China’s Foreign ministry spokeswoman Hua Chunying has already qualified Japan “a de facto trouble-maker harming regional peace and stability", while South Korea's Foreign Ministry Spokesman Cho Tai-young has called on Japan to conduct the debate over collective self-defense in a way that adheres to its peace constitution and addresses its neighbors' skepticism.
In an editorial, Japan Times confirms their assessment, writing that “Abe’s attempt will only increase tension in the region, thus worsening the security environment of Japan rather than improving it.”
“The changing security environment in Northeast Asia makes it all the more important for Japan to work out a diplomatic strategy based on the spirit of Article 9 that would allow it to work to reduce regional tensions. The basis of this effort should be strict self-restraint on the use of force and a firm determination not to provoke any nation,” concludes the piece.