from Asia Unbound and Will the Japanese Change Their Constitution?

Adam Liff: Seventy Years of Shifting Goal Posts

Japan's Maritime Self-defense Force helicopter carrier Izumo leaves Yokosuka base (background) in Kanagawa Prefecture, southwest of Tokyo in this photo taken by Kyodo on May 1, 2017. Kyodo/REUTERS

Last updated May 10, 2017

Japan's Maritime Self-defense Force helicopter carrier Izumo leaves Yokosuka base (background) in Kanagawa Prefecture, southwest of Tokyo in this photo taken by Kyodo on May 1, 2017. Kyodo/REUTERS
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This blog post is part of a series entitled Will the Japanese Change Their Constitution?, in which leading experts discuss the prospects for revising Japan’s postwar constitution. Adam P. Liff is assistant professor of East Asian international relations at Indiana University’s School of Global and International Studies and associate-in-research at Harvard University’s Reischauer Institute of Japanese Studies and Fairbank Center for Chinese Studies.

Last week, Japan’s massive helicopter carrier Izumodeparted Yokosuka naval base to escort a U.S. Navy supply ship. Deceptively banal, this low-risk “asset protection” (asetto no bogo) deployment off the Pacific coast of Japan in fact carries historic significance. It is the first Self-Defense Force (JSDF) deployment of its kind since such operations were legalized under a major package of security legislation passed by Japan’s Diet in 2015.

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Defined in the 2015 U.S.-Japan Guidelines for Defense Cooperation [PDF] as “mutual protection of each other’s assets…if engaged in activities that contribute to the defense of Japan,” the nascent legality of such asset protection operations helps clarify longstanding ambiguities concerning the specific conditions under which JSDF can defend U.S. military forces. Significantly, it allows for peacetime protection missions, such as during bilateral exercises or training. Put another way, an “armed attack” is not a precondition.

As with most changes in Japan’s security posture over the past seventy years, associated policy shifts are usually deeply contentious domestically. Despite Article Nine’s never-revised text, its effective interpretation is ever-evolving yet continues to be subject to significant constraints.

Defending the controversial 2015 security legislation at the time, Abe referred directly to its implication for a “much stronger” U.S.-Japan alliance, stating boldly: “we can defend each other from now on.” The political and deterrent signal sent by an asset protection such as that conducted last week was undoubtedly on his mind. Yet, the precise circumstances under which Japan would actually use kinetic force in defense of U.S. forces is a bit more complicated, and hardly predetermined. Even with the new legislation and a July 2014 cabinet resolution “reinterpreting” Japan’s 1947 Constitution’s Article Nine “peace clause” to enable the “limited” exercise of the UN Charter-sanctioned right of “collective self-defense” now in effect, how the alliance—and the JSDF’s role within and beyond it—evolve in practice will depend on shifting domestic political winds concerning the constitution.

Article Nine Reinterpretation: A Postwar Tradition

In recent years a widespread narrative presents post-2012 changes to Japan’s security policy and Article Nine’s interpretation as fundamentally unprecedented and “All About Abe.” The reality, however, is that Japan’s security policy has been undergoing evolutionary, incremental reforms for decades—under both conservative and moderate Liberal Democratic Party (LDP) and opposition leaders. Practically significant, de facto change—albeit within remarkably “sticky” normative bounds so far—has occurred repeatedly in response to changing external threat perceptions and shifting domestic political winds.

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More fundamentally, though criticisms of Abe and his allies’ latest efforts as a violation of “constitutionalism” are widespread, often unrecognized is that their basic tactics are not without significant precedent either. Abe’s ruling coalition has exploited a fractious and disorganized opposition to decisively win four popular elections in a row, albeit with major caveats. His cabinet has exploited its remarkably high and stable support ratings and electoral victories to engage in kaishaku kaiken (“constitutional reform through interpretation”) to effectively “reinterpret” the meaning of Article Nine. A controversial alternative to (far more difficult) constitutional revision, kaishaku kaiken is facilitated by the Supreme Court’s 1952 ruling that “there is nothing in [Article Nine] 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,” coupled with its reluctance to challenge a landmark 1954 judgment by the Cabinet Legislation Bureau on the JSDF’s constitutionality.

In other words–the interpretation of Article Nine has always been subject to the vagaries of domestic politics and prime ministerial pressures. Accordingly, its effective meaning has changed repeatedly over the past seventy years. Indeed, throughout the post-1945 period the cabinet’s changing interpretation of Article Nine has directly shaped how its leaders develop and employ military power. After the Korean War, in 1954 the cabinet (re-)interpreted the “war potential” (senryoku) prohibited by Article Nine to allow “that which does not exceed the minimum necessary level for self-defense.” Defensive capabilities were thus deemed constitutional; offensive capabilities (e.g., ICBMs, strategic bombers, etc.) were not. So, while the Article’s actual text remains unchanged, its effective interpretation has long been contingent on the vicissitudes of external threats, weapon technologies, and shifting domestic political winds. What is considered the “minimum necessary level for self-defense” has never been interpreted in a strategic or political vacuum.

It is in accordance with this interpretation that, faced with a changing external threat environment, successive Japanese administrations have made a series of de facto policy changes that they deem not to violate the basic “self-defense” spirit of Article Nine. How else could one explain the 1950s establishment of both the JSDF and the U.S.-Japan mutual security treaty, much less developments since the 1990s, including JSDF involvement in peacekeeping operations, their replenishment operations in the Indian Ocean and air transport operations in support of Operation Enduring Freedom, and anti-piracy operations in the Gulf of Aden—to name a few. All these shifts predate Abe’s cabinet.

Nor are practically significant shifts limited to the LDP. Indeed, during its three years in power (2009-2012) the erstwhile Democratic Party of Japan (DPJ) pushed through important policy changes—upon which Abe and the LDP have since built. Most significantly, the Socialist Party, for decades the leading opposition party and champion of a literal interpretation of Article Nine and “unarmed neutrality,” recognized the SDF’s “constitutionality” in 1994 and expressed support for the U.S.-Japan security treaty. The reason? Political expediency—namely, an opportunity to make its chairman the head of an anti-LDP coalition government. More recently, Japan’s Communist Party offered to “freeze” its calls to abolish the JSDF and the U.S.-Japan security treaty in order to be part of a “national coalition government” (rengo seifu) opposing the 2015 security legislation.

Thus, the Abe administration is hardly the first to play politics with constitutional interpretation. With the latest 2014 reinterpretation allowing for a partial exercise of collective self-defense, Abe has moved the goalposts further than his predecessors.

Though often uniformly—and in many cases, inappropriately—dismissed as “nationalist hawks,” many proponents see recent changes as necessary to either bring official interpretation in line with existing policies, or a necessary response to an increasingly dangerous regional security environment—or both. As Abe has argued repeatedly in defense of the 2014 Cabinet resolution allowing “limited exercise” of the right of collective self-defense, the vicissitudes of 21st-century regional and global conditions mean that “no one nation can defend itself on its own.”

One does not need to support any of these policy changes or procedural tactics, much less judge them “constitutional,” to recognize their inherently political nature.

Next Up: Constitutional Revision?

Even under the new security legislation, self-imposed limitations on JSDF capabilities, roles, and missions remain significant—at least by any international major power standard. Abe himself is on record as saying that more ambitious security policy reforms necessitate formal Article Nine revision. Unsurprisingly, he has stated that revision of Japan’s (never-amended) 1947 Constitution is next in his sights.

The impressive performance of “pro-revision” forces in last summer’s election made a longstanding hypothetical seem very real, and raised the question of what an LDP-led revision of Article Nine might look like. A 2012 LDP draft constitution [PDF] suggests where the Party might take things if given free rein. Key features include embrace of a basic principle of “pacifism” (heiwashugi), albeit in a form significantly different from that found in the 1947 original. Significantly, the 2012 draft deletes the original sentence prohibiting “land, sea, and air forces,” stipulates Japan’s right to self-defense (jieiken), renames the JSDF as a “National Defense Military” (Kokubogun), and refers explicitly to its mandate to defend Japan’s “sovereignty and independence.”

Yet even if the ruling coalition succeeds in moving forward on revision—by no means guaranteed—any proposal likely to overcome immense structural obstacles imposed by Article Ninety-six is almost certain to be subject to heavy domestic political contestation. Accordingly, its final form is sure to differ significantly from the LDP’s 2012 draft. And Abe and his conservative allies may not even get that far. Indeed, despite being the dominant political party for most of Japan’s postwar history and having constitutional revision written into its 1955 founding charter, not one LDP prime minister has succeeded.

Article Nine in particular has high valence among the Japanese public and remains popular—frustrating any attempt for an ambitious overhaul, which would be subject to a popular referendum. Even among those who wish to see constitutional revision, basic questions like what exactly to revise, and how to revise it, are far from settled. And as long as the LDP continues to depend on its junior coalition partner, the (lay Buddhist) Komeito, it is likely to be forced to accept significant concessions, as Abe’s cabinet did in the cases of both the 2014 resolution and 2015 legislation. The fact that the Diet resumed discussions on constitutional issues last year but has made little progress despite “pro-revision forces” holding two-thirds majority in both houses is revealing.

The stars may be more closely aligned today than ever before, but significant political headwinds persist.

This blog is based in part on the author’s forthcoming article in Asia Policy.

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