from Asia Unbound and Will the Japanese Change Their Constitution?

Will the Japanese Change Their Constitution?

July 7, 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 the first in a series entitled Will the Japanese Change Their Constitution?, in which leading experts discuss the prospects for revising Japan’s postwar constitution.

In 1947, Japan adopted a new constitution, and it stands today without amendment as the organizing principle of Japan’s postwar democracy. But there are some in Japan (including the prime minister) who think the time has come to amend it.

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Drafted under occupation, this document has long divided Japan’s right and left. For the right, it was dubbed “MacArthur’s Constitution,” a reference to the American general who led the allied occupation of Japan after World War II. For the left, it became known as the “peace constitution,” the document that eradicated the prewar military’s hold on the Japanese state and committed Japan to a path of peace with its neighbors in the wake of a failed experiment with imperial conquest.

Article Nine, the famous “no war” clause that limits the purpose of the postwar military to the defense of their nation, remains the defining statement of Japan’s postwar international relations.

Article Nine. 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. In order 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.

Much ink has been spilled on whether Article Nine has been implemented faithfully or not. Implicated in these differences, however, was not simply the military’s mission but also a lesser known article’s call for the firm establishment of civilian control over postwar state.

Within Japan, the 1947 constitution means far more. Replacing the Meiji Constitution of 1889, Japan’s first attempt at designing a modern state, the current Japanese constitution introduced the notion of popular sovereignty, removed the last vestiges of power from the oligarchs and the institutions that supported them, and placed the future of the Japanese nation in the hands of the people. The Emperor would nominally be the head of state but gone were the days when the country would be ruled in his name. Instead, Japan’s bicameral parliament, its ties cut from the aristocrats who held sway over one chamber, would be fully accountable to the people for governing their country. Also embedded in the new constitution were changes in the economic and social foundations of that Meiji state, including reform of land ownership and the equal rights of women. By stripping power from the elites that led Japan to war, and empowering those whose voices had been silenced as the military expanded its sway in the 1930s, the constitution was designed to alter the balance between the authority of the state and rights of Japanese citizens.

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Three generations later, this foundational document is attracting considerable attention. With each election, the prospect of a national debate on revising the constitution seems closer at hand. In a few days, Prime Minister Shinzo Abe, himself a conspicuous advocate of revision, will lead his party to the polls for the Upper House. His Liberal Democratic Party (LDP) has had constitutional revision in their platform since inception, and has recently presented several drafts of a revised document for voter consideration. If Abe can wrestle enough votes from the anti-revision opposition parties and persuade some independents to join him, this Upper House election could turn this longstanding conservative dream into a legislative reality.

Today, there are newer parties that also feel the time has come to consider the opportunities that could accrue from revision. Cross party deliberations began in earnest when the Lower House formed the Research Commission on the Constitution in 2000. The result was an 850+ page catalogue of ideas [PDF] ranging from privacy and environmental protections to a wholesale restructuring of Japan’s highly centralized government. For example, the Japan Innovation Party (now merged with the former Democratic Party of Japan) came into politics arguing for a reconstitution of central-local authority, claiming that greater local autonomy was the solution to many of their country’s governance problems. Other smaller parties have suggested that while Article Nine should remain protected, other aspects of reform require a serious look at the 1947 document.

To date, the main hurdle has been meeting the high standards set forth in the constitution for revision. Chapter IX, Article Ninety-six of the Japanese constitution outlines the procedures for revision:

Article Ninety-six. Amendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify. Amendments when so ratified shall immediately be promulgated by the Emperor in the name of the people, as an integral part of this Constitution.

For years now, Diet members have been hard at work in crafting a national referendum law. A subcommittee was formed to study the experiences of other democracies and procedures for constitutional amendment. The first law passed in 2007 during the first Abe cabinet and was updated again in 2014 to allow eighteen-year-olds to participate. Japan had only allowed those twenty or older to vote in elections, and thus the National Referendum Law opens elections to eighteen-and nineteen-year-olds. This upcoming Upper House election will be the first national election for this age group.

All that is needed now is the requisite two-thirds majority in each of the Diet’s two chambers to begin deliberations on whether (and how) to amend the 1947 document. The LDP and its coalition partner, Komeito, comprise a two-thirds majority in the lower house of parliament, a comfortable margin for passing any legislation, but gaining a similar majority in the Upper House has long been difficult. In the 2013 Upper House campaign, this prompted Abe and others to flirt with the notion of revising Article Ninety-six to bring the threshold down to one half of the members of both houses, yet this was roundly criticized and the prime minister dropped the idea. This Sunday will be Abe’s second chance to initiate formal deliberations on revision, realizing the LDP’s long held ambition to remove what many conservatives criticize as the last vestige of Japan’s postwar identity.

Prime Minister Abe has frequently articulated his discomfort with the origins of the constitution. In an interview on April 27, 2013 with the right-leaning Sankei Shimbun, the prime minister made his thoughts clear: “It is simply an illusion to argue that we, the Japanese, can take credit for opening a new, postwar era when we drafted it. In 1946, our constitution was made up by amateurs in the General Headquarters (GHQ) with no background in constitutional or international law in only eight days.” Last year, as the government defended its reinterpretation of the constitution to allow for the right of collective self-defense, a Democratic Party of Japan (DPJ) critic raised this disparaging evaluation of the nation’s constitution by its prime minister. Abe unabashedly retorted [PDF] that there was nothing wrong with the prime minister stating the facts.

The facts may be a bit more complex, however. The process of drafting a postwar constitution after World War II begun early in the occupation, and a Japanese drafting committee was formed. The initial draft however did not venture far from its predecessor, and General Douglas MacArthur, supreme commander of the allied powers (SCAP), began to lay down his thoughts on what concepts needed to be included. Charles Kades, head of the government section of the SCAP, later wrote of the intense interaction between Americans and Japanese in those initial debates. For over a year, this back and forth between the occupation staff and the Japanese Committee on the Bill for Revision of the Imperial Constitution led by Hitoshi Ashida, a prewar diplomat and a prominent figure in early political party formation after the war, wrestled over their respective visions of Japan’s postwar government. Perhaps the most important was Kades-Ashida negotiation over the text of Article Nine.

To be sure, Japan was an occupied nation, and the GHQ’s determination to “demilitarize and democratize” Japanese society drove the process. But the document that was promulgated by the Imperial Diet on November 3, 1946 and came into effect on May 3, 1947 took far more than eight days to draft, and Japanese and Americans were responsible for the document that has shaped Japanese governance for almost seventy years. Moreover, Kades and Beate Sirota Gordon, the twenty-two-year-old woman tasked with drafting the section on women’s rights, were admired by those Japanese who embraced the transformative power of Japan’s new constitution.

For younger Japanese, however, this question of ownership could have greater salience. Many praise Japan’s “peace constitution” for keeping Japan out of conflict in the seven decades since that cataclysmic war; yet a growing number seems tempted by the logic that “MacArthur’s Constitution” sits uncomfortably on their polity as an imported and imposed document.

Media polling suggests a complex landscape of opinion. Japanese remain divided over the wisdom of changing what has worked so well. Even those who are advocates of revision suggest it may be premature given these differences over what what needs to be changed. In the weeks running up to this Sunday’s election, Abe himself has sought to dampen expectations of sudden change to Article Nine. Protests against his new security legislation last summer reopened old fears about government tampering with Japan’s postwar commitment to peace, and some of the new contenders for seats in the Upper House emerged because of that political clash. Again this week, the vice president of the LDP, Masahiko Komura, reiterated his party’s position, arguing that “there is zero possibility” the LDP would touch Article Nine even if Sunday’s election went its way.

Outside of Japan, misconceptions about Japan’s constitutional debate abound, often driven by the headlines of the moment. To help understand the complexity of this Japanese conversation, I have invited fifteen guests to share their perspective, ten Japanese citizens and five non-Japanese analysts of Japan. Some have had–and will continue to have–a direct role in shaping Japan’s debate; all have an avid interest in understanding the currents and the consequences of what I see as a defining conversation for the people of Japan. For those of us outside the country, listening in, it is imperative that we understand the debate and learn more about the advocates and institutions that will shape it.

What would a Japanese designed constitution look like? What would remain of the current constitution? How would today’s Japanese seek to alter the balance of power between the individual and the state? What individual rights might be asserted–or altered?

This conversation on Asia Unbound will run through the rest of the summer with roughly two essays per week. I will return next Monday to assess the July 10 Upper House election results and what they mean for the prospects for revision.

Finally, while this series does not aim to advocate a position on the constitutional debate, it does seek to inform–and I hope you will share your questions or comments in the weeks that follow. You can share your thoughts on the public comments section that follows, or send me an email (ssmith@cfr.org) if you prefer to remain offline.

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