Japan facing Achilles' heel of article 9 of the constitution

[This was published in Bogota Free Planet (Columbia) on 15 April 2015 and part of it was also brought out in Dhaka Courier(Bangladesh) on 23 April 2015]

Interestingly enough, Japan is now seriously faced with the load and odds of the Article 9 of the constitution, a clause in the National Constitution of Japan outlawing war as a means to settle international disputes involving the state. The Constitution was promulgated on November 3, 1946, and came into effect on May 3, 1947 and it came into effect on May 3, 1947, following World War II. It also goes by the name of ‘Peace constitution’ since its aim was limited within the jurisdiction of no-war and armaments and ‘MacArthur constitution’ as this very US General Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP) was its main architect.

The official English translation of the article is:

(1)Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.
(2) To accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

This Article 9, which renounces war, is considered unique.  Japan is allowed Jieitai, the Self Defense Forces (SDF):  the Air SDF, the Maritime SDF, and the Ground SDF.  They cannot be called land, sea and air forces (gun) because article 9 prohibits Japan from maintaining military forces.  However the SDF were named, many have believed the SDF is military and the existence of the SDF is, in essence, unconstitutional.  Of course, the government has interpreted the Constitution in a manner in which the SDF would not be unconstitutional.

The Constitution of Japan is known as the pacifist Constitution.  Both its Preamble and article 9 express principles of pacifism.  The Preamble of the Constitution proclaims:

We, the Japanese people, … resolved that never again shall we be visited with the horrors of war through the action of government…. 

We … desire peace for all time … and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world.

It is further to be noted that the Supreme Court of Japan had made a historic decision that it would not get involved in interpreting the article 9 since it is a matter of political issue that should rather be settled by the state otherwise. The Supreme Court has not yet decided directly whether the SDF is constitutional though many lawsuits have been filed regarding the SDF and the Constitution.  Article 81 of the constitution states that the Supreme Court has the “power to determine the constitutionality of any law, order, regulation or official act.”  It is legally possible, therefore, for the Supreme Court to examine the legislation relating to article 9.  However, it appears that the Supreme Court is determined not to render an opinion on article 9 of the constitution. Courts have established the so-called “judicial negativism” custom, influenced by the Ashwander rules, rules shown in Justice Brandeis’ concurring opinion in Ashwander v. TVA in the United States.

 

In the so-called Keisatsu yobitai iken soshō (Constitutionality of the National Police Reserve case), a member of the Diet and the Socialist Party filed a lawsuit to confirm that the establishment of the National Police Reserve under the National Police Reserve Order was unconstitutional.  The Supreme Court dismissed the case in 1952, reasoning that it could not determine the constitutionality of a law or an official act in the abstract and in the absence of any concrete legal dispute.  In the so-called Sunakawa case, the Supreme Court held in dictum that Article 9:renounces the so-called war and prohibits the maintenance of the so-called war potential, but certainly there is nothing in it which would deny the right of self-defense inherent in our nation as a sovereign power.  The pacifism advocated in our Constitution was never intended to mean defenselessness or nonresistance.

[http://www.loc.gov/law/help/japan-constitution/article9.php]

Centering, therefore, the interpretations, the ongoing views can be clearly organized into four categories:

The current pacifists believe in maintaining Article 9 and claim the SDF (Self-defense forces) is unconstitutional, and would like to detach Japan from international wars.

The mercantilists have divided opinions about Article 9 although the interpretation is broadened to include the SDF, and believe that the SDF’s role should be retained to activities related to the United Nations and for non-combat purposes. They advocate minimal defense spending, and emphasize economic growth.

The normalists “call for incremental armament for national defense and accept using military force to maintain international peace and security”. They support the revision of Article 9 to include a clause explaining the existence and function of the SDF.

The nationalists assert that Japan should remilitarize and build nuclear capabilities in order to regain pride and independence. They also advocate revision of Article 9 to promote armament.

The formation of the openly revisionist lobby Nippon Kaigi in 1997 has by a long way accelerated the pressure on Article 9: this very powerful organization (289 of the 480 Diet members and 15 of the 19 members of the Shinzo Abe government are affiliated) favors and calls for the return to the fundamentals of Imperial Japan, counting monarchy, State Shinto, and militarism, and "Nippon Kaigi and its allies aim to revise the constitution, particularly Article 9 (which forbids a standing army

Importantly enough is that the Liberal Democratic Party has interpreted Article 9 as renouncing the use of warfare in international disputes but not the internal use of force for the purpose of maintaining law and order. The opposing party, the Democratic Party of Japan, tends to be of the same mind with the LDP's interpretation. At the same time, both parties have come forward and raised voice strongly for the revision of Article 9 by toting up an extra clause unequivocally authorizing the use of force for the purpose of self-defense against aggression leveled against the Japanese nation. The Japan Socialist Party, on the other hand, had considered the Japan Self-Defense Forces (JSDF) as unconstitutional and advocated the full implementation of Article 9 through the demilitarization of Japan. When the party joined with the LDP to form a coalition government, it reversed its position and recognized the JSDF as a structure that was constitutional. The Japanese Communist Party considers the JSDF unconstitutional and has called for reorganization of Japanese defense policy to feature an armed militia.

Truly speaking, four doctrines more or less deserve to be noted in the milieu of the interpretations of the article 9. They are: Yoshida Doctrine (1951) named after Prime Minister Yoshida, Fukuda Doctrine (1977) following the name of Prime Minister Fukuda, Koizumi Doctrine (christened by the premier’s aides, was based on Koizumi Junichiro’s January 14, 2002 speech in Singapore) originated from the name of Prime Minister Koizumi Junchiro and Abe Doctrine (2013) after the name of incumbent Prime Minister Abe.

The Yoshida Doctrine (1951) advocated economic recovery as a top priority, while leaving Japan’s military defense to the United States. However, free-riding on US commitments became more and more difficult. The dilemma was that in pursuing its goal of expanding trade and economic activities, Japan has become a competitor of the United States in the global market. During the US-Japan trade dispute in the 1980s, the Yoshida Doctrine became harder to sustain.

Following the Yoshida Doctrine, the Fukuda Doctrine (1977) symbolized Japan’s economic diplomacy. It assured Japan’s total abandonment of any future desire of becoming a military power and stressed Japan’s peaceful orientation in world affairs through economic aid and trade. As early as the 1950s, ODA was used as a political tool by the government to improve relations with Southeast Asia. In the Philippines and Indonesia, for example, ODA worked in a way to change the perception of Japan. Domestically, it was a political compromise – given the lack of military resources, aid became a form of Japan’s active engagement in Asia.

In the 1990s, on the other hand, Japan’s economic diplomacy began to decline due to a number of reasons: the decline of the Japanese economy; the economic growth of ODA recipients; and the suspension of ODA to China due to its military and economic rise. Domestically, following the LDP’s loss of power and split in 1993, the powerbase of the Tanaka-Takeshita faction in the party weakened while Seiwa Seisaku Kenkyūkai (Seiwakai) became dominant. Seiwakai advocated a retreat from government intervention in the market and a strengthened ideological commitment to nationalism and security issues. Externally, the rise of China was also a significant factor to policy change. For one, Chinese military build-up and the on-going disputes over the Senkaku Islands and the South China Sea, in addition to unresolved historical issues, has escalated tensions between China and Japan, resulting to mirror-imaging (i.e., the China Scare and the Japan Menace) that could very likely disrupt the fragile balance of power in the Asia-Pacific region.

Then turning a little bit or else, Koizumi Doctrine (christened by the premier’s aides, was based on Prime Minister Koizumi Junichiro’s January 14, 2002 speech in Singapore) created a kind of sensation and re-asking in the mind of the people of Japan. He unveiled the glorious past aimed at rejuvenating the nation in the context of time, space and dimension. The Koizumi doctrine was a up-to-the-minute diplomatic initiative but encompasses strands of ideas that were widely held in Japan since the 1990s. In his address entitled, “Japan and ASEAN in East Asia: A Sincere and Open Partnership,” Koizumi outlined the importance of cooperation between Japan and ASEAN, and reiterated his government’s commitment to further Japan’s ties with the region based on the Fukuda Doctrine. Continuing his mentor’s legacy, Koizumi stated that ... “Japan and ASEAN should strengthen their cooperation under the basic concept of ‘acting together, advancing together...” (Koizumi 2002). He also proposed closer security cooperation noting that Japan ... “realizes that one’s own security is at stake when a neighbor’s wall is ablaze ...” (Koizumi 2002). Underlining his commitment to economic reform at home and the inescapable phenomenon of economic interdependence, Koizumi noted that ... “when it comes to the global economy, rain does not fall on one’s roof alone” (Koizumi 2002).The Koizumi doctrine breaks new ground in that it is less “insular” in its orientation. In contrast to the Yoshida doctrine’s domestic focus that puts national development and growth above all other considerations, the new doctrine stakes Japan’s future with its neighbors. This paradigm shift compels Tokyo to take on an active regional, if not global role. Japan realizes that as a trading nation, its boundaries extend beyond its shores. The Koizumi doctrine revolves around three grand strategic goals. The first goal centers on institutionalizing Japan’s position in the international system by transforming its economic influence into structural power. The second goal of “national tranquility” serves to ensure social stability in the wake of reforms and change. The last strategic goal – maintaining “economic distance” – focuses on Japanese efforts to preserve their technological edge vis-à-vis competitors in order to sustain Japan’s competitive Edge.

Against this background, the Abe Doctrine was issued at the time when Prime Minister Abe visited Jakarta in 2013 (though he did not deliver this speech as he had to return to Japan for the Algerian hostage crisis). The key features of the Abe Doctrine entail (1) the demise of the economic diplomacy promoted by the Fukuda Doctrine (ODA became less central in Japan’s foreign policy); and (2) as geopolitical concerns become more important to Japanese foreign policy considerations, Japan has proactively identified itself as part of the Western international order, anticipating a coalition of governments that share the same views on human rights, the rule of law, free markets and democracy. By aligning itself closely with the West, Japan is affirming its position as an ally of the United States and as a responsible member of the “free world.” If analyzed closely, the present government’s foreign policy objective is not just about deterring China; it is, in fact, centered on domestic politics. The Abe Doctrine’s long-term goal is to re-assess the postwar regime that was established under US occupation, and to show that Japan is a strong nation. This would necessarily include revision of the constitution.

Why are such phenomenons taking place nowadays? Reasons are obvious and transparent on almost all counts. Reality is that imperial powers or great powers hardly recognize a defeat in the end. Japan cannot be away from such crude actuality. In the mid-19th century, Japan reappeared on the international stage after a two-century long seclusion during the Tokugawa period. Due to its victory in the Russo-Japanese War (1905), Japan was recognized as a great power, and has been an important international actor ever since. The only exception is a brief period following its defeat in the Second World War, which ended its status as a great power in military terms. Already at the end of the 1960s, it had regained its status as a great power economically, but not militarily, as it had been in the pre-war era.

This is on record that the parameters for Japan's modern foreign policy have been set by the fact that it is a resource-poor maritime nation, which, as such, has defined its national identity. Post-war foreign policy has been evolving in the wake of Japan's defeat in the war. As a trading nation, trade and aid are the backbones of Japan's international role and relations. Its technological and economic assistance have played a key role for the economic development of countries in the Asia-Pacific region, at the same time as history has left a heritage of territorial conflicts with a number of its neighbors. Having vast economic power but constitutional inhibitions for using military muscle for solving international conflicts, Japan is an "unbalanced" great power and behaves in ways different from traditional great powers basing their status on military might. The far-reaching transformation of Japan's regional and global environment emerging after the end of the Cold War, and the emergence of China and India as economic powers has eroded the foundation for its foreign and security policies. Moreover, Fall of bi-polar world dominated by USA and USSR and rise of Uni-polar would under the captainship USA, which is again leading to multi-polar dimension under various captions and attributes and shifting of global attention from the Western hemisphere to the Eastern hemisphere markedly centering and surrounding Asia have together no doubt added a new dimension and necessity for Japan as well.

The Constitution of Japan has an unusual legislative history.  It was enacted under unusual circumstances.  After the Second World War, the Allied Powers occupied Japan, which accepted the terms of the Potsdam Declaration upon its surrender to the Allies in August 1945. In September 1945, General Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP), urged the Japanese government to amend the Imperial Constitution of 1889 (Meiji Constitution).  In October 1945, the new Prime Minister, Kijūrō Shidehara, appointed Dr. Jōji Matsumoto as the chairman of the Constitution Research Committee (Kenpō mondai chōsa iinkai, hereinafter “Matsumoto committee”). While the Matsumoto committee researched the amendment of the constitution in closed chambers, many private constitutional research groups published the drafts of the new constitution. Though the Matsumoto committee kept their arguments and two drafts secret, even most of it from the General Headquarters of SCAP (GHQ), one of the major newspaper in Japan, the Mainichi newspaper, scooped and published one of the Matsumoto committee’s tentative drafts on February 1, 1946.  The scooped committee tentative draft did not meet the standards of the Potsdam Declaration.  The draft was based on the Imperial Constitution and amended, little by little, each of its articles.  General MacArthur directed his staff to draft a new Japanese constitution on February 3, 1946. Not knowing that MacArthur had given his staff this direction, the Japanese government requested and waited for a meeting with GHQ regarding the Matsumoto draft.  At the meeting on February 13, 1946, the Matsumoto draft simply was rejected and the GHQ draft was handed over to the Japanese for consideration.

The fact that GHQ drafted the constitution of Japan without informing the Japanese government, and the contents of the draft itself, surprised the Japanese government. After some negotiations and discussions, on February 22, 1946, Matsumoto, then Minister of State, started to draft a constitution based on the GHQ draft. Although GHQ agreed that the translation of the final draft would be submitted to them by March 11, 1946, they demanded to see Matsumoto’s draft (the so-called “March second draft”), which had not yet been discussed in the Cabinet and not yet translated, on March 4, 1946. Most of the changes from the GHQ draft which had been made by Matsumoto were reversed by GHQ by the next day, March 5, 1946.  The draft (so-called “March fifth draft”), therefore, which GHQ approved, was very close to the original GHQ draft. GHQ strongly pressured the Cabinet to adopt the March fifth draft of its own volition.   Thus, the Cabinet did so.  The March fifth draft was released by the Cabinet and SCAP immediately.  After some adjustments in Japanese language, the draft was finalized on April 17, 1946.

Though the draft constitution was fundamentally different from the Meiji Constitution, it was submitted to the Imperial Diet as an amendment of the Meiji Constitution by the Emperor’s order. The Diet, whose members were elected by the first post-war general election in April 1946, discussed the draft intensively.  Both Houses established special committees to discuss and study the new Constitutional bill.  After intensive discussions, the bill was amended and passed by the Diet.  There have been legal questions on the legitimate genesis of the new Constitution:  1) there was interference by GHQ during the legislative process in drafting the Constitution, which violates article 43 of the Laws and Customs of War and Land (Hague IV), October 18, 1907 and item 12 of the Potsdam Declaration; and 2) the amendment was beyond the boundary of legitimate amendment of the Meiji Constitution, which had been based on the monarchy.  However, because Japan had accepted unconditional surrender, there was no way to reject a new constitution drafted by foreigners.  Despites these theoretical problems, the new Constitution of 1946 has been enforced since its date of effect.    

As it is understood from the facts of history that Japan’s post-Second World War constitution was born when Japan was occupied by Allied forces.  During the first stage of the occupation, the Supreme Commander of the Allied Forces and legislators of the constitution thought Japan would not have a military force again.  Article 9 of the Constitution renounces war and prohibits Japan from maintaining the war potential.  However, as the United States changed its policy of demilitarizing Japan, the United States asked her to share the burden of maintaining the security of Japan and, for the sake of international peacekeeping, Japan gradually increased its defense capability and developed a somewhat more technical interpretation of article 9.  Article 9 does not prohibit Japan from maintaining her defense capability.  Article 9 had been popular in Japan for a long time; but as the Japanese started to take their security more seriously, more people have begun to accept the idea of amending article 9 of the Constitution.  The ruling party, the Liberal Democratic Party, will bring the Constitutional amendment proposal to the Diet within the next few years.

Let us recall the public lecture titled ‘"Japan's Foreign Policy: From Yoshida to Abe’, 3 September 2014 by Kiichi Fujiwara, Director, Security Studies Unit, Policy Alternatives Research Center; Professor of International Politics, University of Tokyo, wherein he firmly held the view that ‘despite the recent changes in Japan’s security posture, Prime Minister Abe and the LDP are not about to start a war, or at least not eager to engage in one. The government’s decision on the reinterpretation of the constitution for the right of collective self-defense actually limits the scope of the Japan-US security alliance. The objective of reinforcing the Japanese security mechanism is still deterrence, and Abe, as a pragmatic politician, will proceed cautiously and try as much as possible to avoid a negative international backlash. At present, the primary goal of the Japanese government is still stability and economic growth’.