NEWS FROM JAPAN - WILL THE DIET BURY ARTICLE 9?
On May 26, Japan’s Diet started deliberation on a set of security bills that would, if adopted, result in a drastic shift away from the country's exclusively defense-oriented security policy and significantly depart from what has been authorized to date under war-renouncing Article 9 of the Japanese constitution.
The legislation package consists of two bills: the first one seeks to revise 10 existing security-related laws, including on how to deal with armed attacks, international support to the forces of other countries operating overseas, and participation in United Nations-led peacekeeping operations. The second one is a brand-new permanent law that would allow Japan to provide logistic support to a foreign force engaged in armed combat.
The legislation seeks to codify Prime Minister Abe Shinzo’s contentious July 2014 Cabinet decision that reinterpreted the Constitution to allow Japan to exercise the right to collective self-defense and expand Japan’s security role around the world, under the doctrine of “pro-active pacifism”.
Its adoption is also necessary to put the newly revised guidelines on Japan-U.S. defense cooperation into effect. Formally revised for the first time in 18 years in late April, the new guidelines eliminate restrictions on deployment and the use of military forces, and envision expansion of the scope of SDF operations far beyond what previous governments have allowed in the rhetoric on self-defense for decades.
Addressing the US Congress during his much-hyped visit to the United States in April, Abe commended the security legislation and guaranteed it would be approved by summer: “This reform is the first of its kind and a sweeping one in our postwar history. We will achieve this by this coming summer.”
Heated debate in the Diet
Yet, although the ruling coalition holds the necessary majority in both Diet chambers to pass the bills, a heated parliamentary debate is under way. So much so that some already foresee that the current session that runs until June 24 might be extended until August.
A number of opposition parties fiercely oppose the legislation, in principle, on substance, and in the way it is being pushed forward.
According to an editorial of the Asahi Shimbun:“Enacting the proposed legislation amounts to de facto piecemeal revision of the Constitution by the legislature.” However, rather than following due process of constitutional amendment, the administration has chosen to present as many as 11 bills in total to the Diet as one package, in order to accelerate the debate and have the laws passed by summer. For most in the opposition, this is far too hasty a process for a legislation that would set forth a major turning point in Japan’s security policy.
On substance, there is a wide range of concerns, including regarding the fact that the bills leave many questions unanswered and fail to set clear limits and parameters on when the use of force would be allowed.
According to the text, the three conditions that allow for use of force are: when there is an armed attack against a foreign country that is in a close relationship with Japan and, as a result, threatens Japan’s survival and poses a clear danger to fundamentally overturn the people’s right to life, liberty and pursuit of happiness; when there is no other appropriate means available to protect the people; and when use of force is kept to a minimum extent.
Vaguely worded, the language of the conditions leaves much room for interpretation to determine if and when these criteria are met, leaving it to the judgment of the administration in place. “It’s tantamount to saying, ‘please leave it to the discretion of the government,’” Democratic Party of Japan’s Secretary-General Edano Yukio argued, highlighting concerns that the SDF’s activities abroad could be expanded without limits.
According to Abe, “deploying armed troops to the territory, territorial waters and airspace of other nations in general exceeds the minimum required level for self-defense and is therefore not allowed under the Constitution.” Yet, using the term “in general” clearly implies that there will be exceptions. Abe mentioned minesweeping operations in the Persian Gulf could be one of them – a scenario on which the ruling Liberal Democratic Party and its junior coalition partner, Komeito, are at odds.
Other major areas of concern are that the new legislation would increase the possibility of the SDF getting dragged into war (notably alongside the United States), heighten the likelihood of Japan becoming a target of terrorist attacks, and put SDF personnel at greater risk.
Bills declared unconstitutional
Following weeks of deliberations on the operational aspects of the bills, three of the most respected Japanese constitution lawyers, testifying in the Lower House Commission on the Constitution on June 4, brought the Diet debate back to the basics when they questioned the legitimacy of the July 2014 Cabinet decision and unanimous declared the security bills currently debated “unconstitutional”.
Their common position came as a surprise, given that one of them, professor of constitutional law at Waseda University Hasebe Yasuo, was recommended by the by the Liberal Democratic Party-Komeito ruling bloc, and the second, professor emeritus of constitutional law at Keio University Kobayashi Setsu, though backed by the opposition Democratic Party of Japan, has been known to be a long-time proponent of revising the constitution. The third expert is another Waseda professor, Sasada Eiji, who was recommended by the Japan Innovation Party (Ishin no To).
Usually, a party puts forward an expert who supports its own arguments. Yet, LDP-backed Hasebe declared that “allowing the use of the right of collective self-defense cannot be explained within the framework of the basic logic of the past government views” of the Constitution. “(The reinterpretation) considerably damages legal stability and violates the Constitution,” he stated.
Kobayashi also stated that the security legislation was unconstitutional. “Going to war abroad to help a friendly nation is a violation of Article 9,” he said, and “Paragraph 2 of Article 9 does not grant any legal standing for military activities abroad.”
Sasada denounced the legislation and Cabinet decision as well, on the ground that they “overstep the bounds of the definitions (of Article 9) that have been established by the successive LDP governments and the Cabinet Legislation Bureau.”
Government officials quickly rejected the view of the three experts, saying not all academics share their opinion - an argument to which Hasebe responded: “Ninety-nine percent of (constitutional) scholars consider (the bills) unconstitutional, at least as far as collective self-defense is concerned.”
Indeed, a growing number of academics and experts have publicly expressed concern over the government’s legislation package. More than 200 scholars have condemned, in a joint statement, the reinterpretation of the war-renouncing clause as unconstitutional and called on administration to withdraw the bills. Japan's Bar Association issued a similar statement.
The scholars’ position has energized the opposition in the Diet, and reinvigorated public mobilization in support of Japan’s peace constitution around an unprecedented sense of crisis.
Numerous protests and demonstrations denouncing the Abe administration’s pro-war policies and path to militarization have taken place over the past few weeks, with thousands of people taking the streets, rallying in front of the prime minister’s office or at the Diet building.
The largest brought together some 30,000 people on May 3, which celebrates the enforcement of the Constitution. On June 14, as many as 25,000 protesters surrounded the Diet building as a sign of opposition to the security bills currently being debated. More events are planned in the coming weeks.
Recent opinion polls suggest a majority of the public oppose Abe’s bid to enact the new security legislation, as many do not fully understand what the security legislation entails and oppose the administration’s effort to push the security bills through during the current Diet session.
According to a Jiji Press poll published on June 15, more than 68% of respondents want the security bills to undergo careful deliberation without sticking to Abe’s goal of passing them during the current Diet session, with 12% of the view they should be scrapped.
A Kyodo News survey carried out on May 30-31 found that over 81% of respondents consider the government’s explanations on the security legislation package “insufficient”, and 68% believed that passage of the new security legislation would increase the risk of Japan being dragged into an armed conflict. These results corroborate the findings of an earlier Asahi Shimbun survey, which also showed that a majority of respondents oppose allowing the exercise the right to collective self-defense, dispatching SDF troops abroad without enacting a special measures law or allowing the SDF to provide rear-echelon support to US forces around the world.
With a short time left before the current session of the Diet ends, Abe’s goal to have his controversial security package adopted seems compromised. The administration must take into account the widely shared criticism that the legislation violates the pacifist constitution, and listen to the growing popular mobilization in support of Article 9.