from Asia Unbound and Will the Japanese Change Their Constitution?

Shinichi Kitaoka: Getting Rid of the Ghosts in Our Constitutional Debate

August 10, 2016

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Blog posts represent the views of CFR fellows and staff and not those of CFR, which takes no institutional positions.

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. 

Shinichi Kitaoka, a leading Japanese diplomatic historian, is currently the president of the Japan International Cooperation Agency. He has led various government advisory panels including the Advisory Panel on Reconstruction of the Legal Basis for Security [PDF], appointed by Prime Minister Abe to consider the legal and policy issues surrounding the right of collective self-defense,  and the Advisory Panel on the History of the Twentieth Century and on Japan’s Role and the World Order in the Twenty-first Century [PDF], a panel convened in advance of Prime Minister Shinzo Abe’s statement on the seventieth anniversary of the end of World War II.  

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Getting Rid of the Ghosts in Our Constitutional Debate by Shinichi Kitaoka

In Japan, the debate on revising constitution is back, stronger than ever. Yet few have a correct understanding of this issue. Abroad, even fewer understand the basics about the procedure for revision or the history of our constitutional debates. Why is this? Let me provide some of the basics.

To be fair, I want to first clarify my own position in the debate. I am a moderate pro-revisionist, which means I think it is better to revise the constitution but I do not think we must. However, I find those who are stubbornly pro-revision or anti-revision in today’s debate in Japan very troubling.

How Was It Drafted?

One of the arguments for revising our constitution is that the process by which it was enacted was inappropriate. This argument rests on a narrative that has General Douglas MacArthur, supreme commander for the allied powers (SCAP), ordering that a new Japanese constitution be drafted in February 1946 by a small group of his American staff in secret. Apparently, this took nine days.

The General Headquarters (GHQ) of the SCAP then asked Japanese authorities to announce that they had drafted it. The American occupation authorities threatened that if the Japanese government did not do this the position of the emperor could not be guaranteed. The Japanese government, which presumably placed the foremost importance on maintaining the position of the emperor (I will not debate this assumption here), accepted this demand, and after a few minor corrections, presented the constitution draft as their own.

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It is against international law for an occupation force to draft a constitution for a country it occupies. It also violated the terms of surrender set forth in the Potsdam Declaration, which determined that the future of the Japanese political system would be “established in accordance with the freely expressed will of the Japanese people.” The GHQ knew that it would be illegal for them to promulgate a constitution, and that is why they hid the fact that they drafted it and instead demanded that the Japanese government voluntarily drafted this.

Deliberations on the constitution began in the Japanese legislature in May. All of these discussions were translated and reviewed by the GHQ. The official premise was that Japan’s new constitution, adopted in November 1946 to come into force in May 1947, was made by the Japanese government.

Was It Forced Upon Japan?

Among supporters of the current constitution, some argue that this constitution was not forced upon Japan became most of the Japanese people welcomed it. The public’s welcome, however, does not mean that the constitution was not forced upon the country. Furthermore, some claim that the chief proponent of Article Nine, a focal point of contention since the constitution came into effect, was former Prime Minister Kijuro Shidehara. Yet there is no evidence that Shidehara advocated that Japan should give up all military forces. Shidehara negotiated over and over again with the GHQ staff on Article Nine, arguing that Japan be allowed to maintain a minimal military force, yet his argument was rejected.  Thus, it is impossible that Shidehara believed that Japan should completely renounce military force. Claims that the constitution was not forced upon Japan by the United States or that Shidehara was the real proponent of the Article Nine are mere historical fallacies.

I do, however, recognize that Japan’s postwar constitution overall is better than the Constitution of the Empire of Japan (the Meiji Constitution). First, it emphasizes basic human rights, pacifism, and internationalism. Second, the symbolic emperor system, rather than positioning the Emperor as a totalitarian monarchy as the Meiji Constitution did, is a far better fit with Japan’s social traditions. Third, a parliamentary cabinet system empowers the prime minister to a significant extent, and thus makes it clear where political responsibility lies, a marked improvement from the Meiji Constitution.

In addition, I do not think the constitution should be revised based on the unlawful process of its enactment. The constitution has been more or less accepted within Japanese society. Although it has never been revised, our postwar constitution has gained strong support with some reinterpretation over time. Even if we maintain our current constitution and continue to reinterpret it over time, I think we will survive.

But What About Article Nine?

Our biggest constitutional debate is over Article Nine. I would like you to look closely at the language of this article. It is comprised of two paragraphs: the first calls for peaceful resolution of disputes, while the latter calls for the renunciation of military forces. Of these two, the first echoes a universal principle established after World War II, a principle that is an essential part of the United Nations Charter. However, Article Nine’s second clause has no precedent in any other nation’s constitution. As a sovereign state, it is impossible not to maintain forces.

In addition, the first and second clauses contradict with each other. Our renunciation of war was based on the premise that if a situation arises, the United Nations will sanction an aggressor. But the United Nations does not possess its own forces, leading member nations to send their forces to operate under the UN flag. Thus, a UN member state is obligated to possess military power.

This deficiency in Article Nine’s second clause was perceived from the start. When the Korean War broke out in 1950 and again when Japan regained its independence in 1952, Article Nine was hotly debated. The Japanese government established an interpretation in 1954 that having a force to defend itself is the right of all sovereign states, and that maintaining the minimum necessary level of force for self defense does not violate the spirit of our constitution. The Supreme Court supported this interpretation in 1959. Thus, the current constitution’s official interpretation of Article Nine’s second clause is that a minimum necessary level of force is constitutional. The Japanese Self Defense Force (SDF) has developed based on this understanding, as has the U.S.-Japan alliance.

Nonetheless, critics and the Japanese media have held up Article Nine’s second clause as a clear prohibition against expanding the missions of the SDF. This was the case in 1960 when the Japanese government revised the U.S.-Japan security treaty, in 1972 when Tokyo and Washington negotiated the return of Okinawa to Japanese sovereignty, and in 1992, when the Japanese Diet pass the Peace Keeping Operation law (Act on Cooperation for United Nations Peacekeeping Operations and Other Operations [PDF]). Again last year, this critique was made against the Abe cabinet’s new security legislation allowing the SDF to exercise the right of collective self-defense.

In particular, the Diet’s passage of the new security bills was shockingly described as a violation of our constitution, a challenge to constitutional government, and the new laws were denigrated as “war bills.”

What is most disappointing is that the Democratic Party of Japan (DPJ), our second largest political party whose leaders governed Japan from 2009-2012, joined in this chorus of criticism.[1] Do they not accept the constitutional reinterpretation in 1954 that created the SDF? If they do, then they accept revising our constitution through interpretation. They cannot then argue that the bill is unconstitutional or suggest that our system of constitutional government is losing ground. If, however, they do not accept the 1954 interpretation of Article Nine, it means they do not accept [the constitutionality of] today’s SDF as well as of the U.S.-Japan security treaty. This would be quite far from what the Japanese people support. From 2009-2012 when the former DPJ was in power, these same leaders also contributed to the advancement of Japan’s national security policy. In 2010, they updated the National Defense Program Guidelines, the basis of  which was the 2012 guidelines drafted by the Liberal Democratic Party. Yet this once ruling party has now taken a far more fundamentalist position in its reading of our constitution.

The Japanese media that supports our current constitution, such as the Asahi Shimbun, often uses phrases like “Article Nine renounces war.” They advocate against revising this “war renouncing“ constitution. Most Japanese who support revising of Article Nine, however, are calling for a change in the Article’s second clause. It is rare to find a Japanese who supports revision of the first clause, the clause that indeed renounces the use of force to settle international disputes.

In academia, it is a taboo to bend the argument of others in order to strengthen yours. This is a vulgar way of justifying yourself. But most of the arguments of those who are “pro-constitution” seem to take this route.

China’s rapid military development and its expansionism in the East and South China Seas as well as North Korea’s development of nuclear arsenal force us, the Japanese, to consider how best to ensure the security of our country. Political leaders cannot avoid this reality, and must discuss our defense needs when considering the debate over our constitution.

An overwhelming majority of Japanese citizens support the SDF, the U.S.-Japan alliance, and the SDF’s participation in UN peacekeeping operations abroad. This is the result of successive governments’ willingness to reinterpret Article Nine’s second clause and to advance national security policies in a realistic manner. The 2015 security legislation too is an extension of this effort to ensure Japan’s security. If a popular consensus forms around these new laws, then Japan’s security policies will stabilize to a certain extent. But if the criticism against the 2015 security legislation persists, Japan’s national security policies will face very severe challenges in the years ahead.

The second clause of Article Nine is the root of the anti-revision argument put forward by those who want our current constitution to remain as is, untouched. Last year’s virulent criticism by opposition parties and the media only revealed how strongly the second paragraph of Article Nine is identified with anti-militarism. If this literal reading of the text of Article Nine continues, we must amend or delete this language from our constitution [if we are to adequately provide for our nation’s security.]

[1]  The DPJ in 2016 merged with a smaller opposition party, the Japan Innovation Party, to form the Democratic Party.

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