from Asia Unbound and Will the Japanese Change Their Constitution?

Keigo Komamura: The Unbearable Lightness of Our Constitution

August 17, 2016

Blog Post

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.

Keigo Komamura, a Japanese constitutional scholar, is professor of law and vice president of Keio University. He serves on the advisory council for the constitutional revision research project led by Helen Hardacre, Reischauer Institute professor of Japanese religions and society at Harvard University. His most recent publication is an edited volume with Satoshi Machidori, Kenpou kaisei no hikaku seijigaku [Comparative Politics of Constitutional Revision], published by Koubundou Press in 2016. 

The Unbearable Lightness of Our Constitution

by Keigo Komamura

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Japan

In July 2014, Abe changed the long-held government interpretation of the constitution to allow for the limited exercise of the right to collective self-defense, and in September of the following year, his government presented ten bills to the Diet to revise our security policy accordingly. In addition, the prime minister declared that by winning the Upper House elections this July, he will take concrete steps toward amending our constitution. Specifically, the prime minister seeks to introduce a contingency clause.

I believe that the Abe cabinet’s reinterpretation of the constitution to allow the collective self-defense and his introduction of a contingency clause are not only questionable in terms of their constitutionality, but they are not rational as policy choices either. Yet foreign experts, upon seeing these actions, may see these acts as justifiable and may not understand why so many in Japan have protested against the Abe cabinet’s approach, perceiving it as destroying the spirit of our constitution and even our constitutionalism. I do not reject the idea of constitutional revision as a whole, as I will describe later. However, I cannot be optimistic about the Abe cabinet’s constitutional policies. While for those who are interested in Japan or East Asia, each of these measures may seem commonplace at first glance, but to get at the real meaning behind his comprehensive effort at reforming Japan, reforms he describes as “breaking away from the postwar regime,” we scholars must explain why we are lamenting the “unbearable lightness of our constitution.”

To do this, we must look at the Liberal Democratic Party (LDP)’s overall effort to revise the constitution. The draft constitution announced by the LDP in 2012 is crucial. It is easily apparent from reading it that the LDP aims for full rather than partial revision of our constitution. But even this is not accurate. The draft does not simply want to revise or rewrite the language of our current constitution. It aims to replace it. In other words, the LDP draft breaks from the fundamental legitimacy of our current constitution, replacing it with a completely different document. It is not like a remake of an old movie like Batman that is premised on the same story. This is not a remake of our constitution—a Japanese constitution “returns,” or Japanese constitution “forever,” or a Japanese constitution “begins.” It is a completely different story.

So, what is so different about this LDP draft? If the LDP draft were to become the new constitution, three fundamental words in our current constitution would disappear. I will not go through the importance of each, but to be concise I will cut to the conclusion. These words are “individual,” “humanity,” and “universal principles.” These phrases of course represent the values at the core of freedom and equality, the two principles Western modern philosophy developed through an intense religious struggle. By recognizing that each of us has the ability to assert our rights, the “individual” was rescued from history and from the group. Beyond belonging to any one particular political collective or group, the way was opened for each of us to deliberate on our interests and policy preferences because we were given access to universal principles – we were part of a larger “humanity” and thus had a relationship through these universal principles to others who we may not even know. These are the values that have long been shared by the world’s constitutional democracies, and these are the values that are in danger of being banished from our constitution.

On the other hand, the LDP draft adds new phrases not found in our current constitution. These phrases include “our long history and unique culture (nagai rekishi to koyuu no bunka),” “to protect the country and homeland with pride and spirit (kuni to kyodo wo hokori to kigai wo motte mamoru koto),” “our beautiful land (utsukushii kokudo),” and “our good traditions (yoki dentou).” These concepts cannot be found in established legal tradition, at least not in modern [constitutional] law. If I dare to be more blunt, I would say that this language is no more than a narrative attached to a very specific community with a shared, unique culture.

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As you may have already understood, I believe Prime Minister Abe and the LDP’s goal for Japan is to discard the legacy of modern governance and to restore a very Japanese narrative [to our constitution]. It goes without saying that narratives, unlike the law, cannot find their legitimacy [in other universal example] nor can they be advanced through deliberation. People must simply choose whether they will share this narrative or not, and if they do not, they are deprived of the right to be part of the community.

Japan is not alone in this retreat to national storytelling. Recent statements by politicians in our country as well as Korea and China all reveal a willingness to break with old taboos, and indeed find some sort of heroism in not being “politically correct.” Let’s think of this as the progression of the “Trump effect.” In this tense time, why do political leaders attempt to wrap themselves in national narratives? Is it not because of Japan’s adherence to universal principles that we have the dignity to openly challenge Chinese and South Korean assertions of their own national narratives? Is it not because of our belief in the universal principles of freedom and democracy that we can openly criticize the United States for imposing their laws upon us? (This is the premise of the LDP’s position on the occupation, isn’t it?) Japan cannot be making itself the cause of regional instability of northeast Asia by competing for leadership….or can it?

There are additional problems. Prime Minister Abe seems to be trying to weaken the law itself. Attempts to write the national narrative into the constitution is evidence of this. Legal scholars can all trace back to the days of Plato to find how strongly a national narrative appeals to popular sentiment. We are all aware of how easily this rhetoric can be combined and linked to nationalism.

Despite the role of law in taming the power of our national tales, the LDP’s draft constitution seeks to interweave law and narrative in one document. Furthermore, it is important for the law to remain relatively autonomous from politics. Institutions that guard this autonomy, both through their knowledge of the law and their interpretation of it, are critical. Prime Minister Abe changed this when he appointed a diplomat [rather than a legal expert] as the director general of the Cabinet Legislation Bureau. He changed the university system, allowing outsiders to intervene in the selection of the president. Recently, this intervention in our universities has gone so far as to affect curriculum as the government has suggested abolishing all humanities departments. Our media has taken less and less of a role as critics of our politics and society, and even Japan’s world-class public broadcasting station is now staffed with those favored by the government. Commercial broadcasters are becoming intimidated by the government’s focus on their program content. Minister of Internal Affairs and Communications Sanae Takaichi stated in a Diet session on February 8, 2016 [PDF] that if a broadcaster is becoming radical, [the government will] provide administrative guidance. She went onto say that if there is no sign of compliance, [the government] might take further actions.[1]

In a speech to a joint session of the U.S. Congress in April 2015, Prime Minister Abe emphasized the “rule of law” three times. However, we must not believe his words easily. A government that easily destroys the autonomy of the law and the autonomy of knowledge undermines its international credibility. Prime Minister Abe’s aim of “breaking away from our postwar regime” is, in short, a break with the current constitution of Japan. By breaking with our American made constitution, in other words, he is discarding the legitimate foundations of our shared [values] in the U.S.-Japan alliance. Yet our prime minister is like an acrobat, justifying these constitutional changes as a way to strengthen the U.S.-Japan alliance. Abe, in his books,[2] emphasized the need to rewrite the constitution from scratch. What this means is that he is willing to discard completely the carefully built legacy of Japan’s longtime ruling party, retaining neither good nor bad.

I am not opposed to constitutional revision. Revising the constitution when needed is a right granted to us in Article Ninety-six. Moreover, I believe constitutional revision is the only path available if we as a nation are to fundamentally rethink our national security and seriously transform our social awareness to be grounded in realism. But revisions should be considered only after fully appreciating the intellectual legacy that created postwar Japan. There is a euphoria among LDP politicians because of their electoral success, and this euphoria has led to a clamoring for the destruction of this intellectual legacy and support for the prime minister’s [rhetorical] acrobatics. In order to continue to be intoxicated by this euphoria, these politicians want to wrap Japan in a new national narrative. I cannot think of a more dangerous thing to do than revising our constitution in such a circumstance.

[1] Takaichi responded to a question asked by Souichiro Okuno from then-Democratic Party of Japan (now the Democratic Party) in a budget committee session of the House of Representatives on February 8, 2016.

[2] Prime Minister Shinzo Abe has written two books: Shinzo Abe, Atarashii kuni e [Toward a Beautiful Country] (Tokyo: Bungei Shunju Press, 2006), and Shinzo Abe, Atarashii kuni e: utuskushii kuni e kanzen ban [Toward a New Country: Complete Version of Toward a Beautiful Country], (Tokyo: Bungei Shunju Press, 2013).

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