The Current State of the Discussion on Constitutional Amendment in Japan

• CISS
• 12. August 2013

Once again, the issue of constitutional amendment is flaring up in Japanese political discourse and gaining much attention in Northeast Asia. Why could the current situation actually be more favorable for a revision and which factors come into play when Prime Minister Shinzo Abe makes his decision for or against political action?

1. Introduction

Since the landslide victory of the LDP-led coalition at the general elections in December 2012, the major focus of international reports on Japanese politics has been the ambitious agenda of fiscal, monetary and structural reforms, referred to as ‘Abenomics’. Yet, although much less discussed outside of Japan and its regional neighborhood, the second most important point on the official agenda of the new government in Tokyo is a reform of Japan’s constitution, which is a matter of highest relevance both domestically and internationally.

After its defeat in the Second World War, where under a strong emperor and a militarized society Japan had become a forceful empire in East Asia, it was under the lead of the occupying US forces that a document was enacted in 1947 which turned the mighty emperor into a symbolic figure and laid the ground for a pacifist post-war history by stating in its Article 9:

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. (2) 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.

However, ever since Japan returned to independence in 1952 and especially when the Japanese Self-Defense Forces were established in 1954, it has been discussed whether some parts of the constitution – mostly with special reference to Article 9 – had to be changed or even a completely new, genuinely Japanese document should be drafted.

2. Why Article 9 could finally be changed

The most obvious reason for why an amendment of Article 9 could be deemed necessary certainly is the existence of the Japanese Self-Defense Forces (JSDF). Although Japan has imposed on itself the restriction to not spend more than 1% of its GDP on the defense budget, the equipment and expertise of the JSDF exceeds those of most ‘normal’ armed forces and makes them one of the most capable security actors in the region: For example, Japanese maritime security experts suggest that the Japan Maritime Self Defense Forces still clearly outperform the People’s Liberation Army’s naval forces both in terms of armament and training. Nevertheless, the Japanese Diet officially argues that as long as the JSDF remain focused on defense capabilities and only dedicated to defending the Japanese people and territory, their existence does not contradict the constitution which is only denying the maintenance of “war potential”. Still, behind closed doors, even members of that same Diet can hardly name a difference between the JSDF and common armed forces, and subsequently admit a factual contradiction with Article 9.

Another argument claims that Article 9 was preventing Japan from answering the calls of both its domestic security experts and (potential) allies by becoming a truly reliable and trustworthy partner in bi- and multilateral security cooperation, as the JSDF could not be used to defend other nations’ personnel or infrastructures. As an example it is asserted that Tokyo could not even decide to bring down a North Korean missile heading for the United States to assist its closest ally and must therefore be deemed unable to contribute to any kind of collective defense. JSDF and Ministry of Defense representatives themselves often excuse Japan’s reluctant engagement in international cooperation with their “constitutional restrictions” and tangible effects on foreign policy making became clearly visible in the first Gulf War: Japan together with Germany had to face repeated allegations of checkbook diplomacy.

While those reasons for changing Article 9 have been heard for a long time, what could make the current situation more favorable for actual change is the undeniable acceleration of the Rise of China and the recent developments on the Korean Peninsula. Many words have been said about how much China has achieved economically during the last 20 years and most people dealing with International Relations and security policy in East Asia in particular are well aware that the economic rise goes hand in hand with a significant increase in the PRC’s military budget. Again, it is often suspected that the official numbers for that increase given by the government in Beijing are even understating realities. Therefore, doubts are raised whether the Rise of China could really be called peaceful or whether Chinese behavior in the South and East China Sea is not showing or at least predicting for the very near future a much more assertive Middle Kingdom.

In addition, the recent leadership change in Pyongyang after the death of Kim Jong-Il has lead to a row of incidents and edge-of-war situations in the direct vicinity of Japan. Japanese territory seems now exposed to a more or less permanent threat by North Korean missiles. Many security experts in Tokyo therefore reiterate their plea to the Americans and Europeans in particular to not neglect those traditional threats in the Northeast Asian security environment. Very conservative voices go as far as stating that Japan should prepare its constitutional framework for a nuclear arms race in the region. And from the viewpoint of any Japanese politician or policy adviser following the ideas of realism, both North Korea and China could be considered to necessitate a resolute signal of strength and an enhancement of foreign policy options in the national interest of Japan.

Since, eventually, political decisions are made by the people actually in power, a closer look at Prime Minister Abe seems worthwhile. During a previous term from 2006 to 2007, Shinzo Abe gained most attention by his reluctance for economic reforms on the one hand and his nationalist tendencies expressed by making ceremonial offerings to and possibly even visiting himself the disputed Yasukuni Shrine in Tokyo, where about 2.5 million people who died in service for the Japanese emperor since 1867 are commemorated – also including 14 class A, and approximately 1054 class B and C war criminals from the Second World War. While obviously, Abe has changed some of his views with regard to economic policy, the fact that an amendment of the constitution was named second on the party and government agenda at least gave the international media sufficient reason to continue characterizing him as a right-wing conservative and even hawkish nationalist. Furthermore, informed sources reveal that until the very day before the LDP manifest for last year’s election was published, the constitutional reform had actually been on top of the agenda and re-prioritizing took place unsupported by party leader Shinzo Abe. It was further added that his motivation, rather than thinking about collective defense, was to create a truly Japanese spirit in the constitution. For whatever reasons, Abe seems personally determined to finally realize an amendment during his second term as Prime Minister.

3. Why it probably won’t

Despite those favorable conditions for a constitutional change in Japan’s security environment plus the apparently strong determination of the current political leader, no formal attempt for constitutional reform has taken place – more probably than not for the following reasons:

First of all, even if the JSDF contradicted the literal phrases of the constitution, their existence already is political reality. From an idealistic point of view, you might want to create a match between that reality and the fundamental law of your country, but, considering the last 60 years of history, there seems to be little reason for sudden hurry.

Secondly, it is also part of political reality that the JSDF are already getting increasingly involved in international operations despite the current constitutional framework: Japan is conducting defense cooperation and exchanges with several ASEAN countries, India and Australia, and JSDF personnel was dispatched to South Sudan and is participating in anti-piracy efforts in the Gulf of Aden. There are definitely a number of regulations and non-constitutional legal provisions that could be changed to improve the JSDF’s capacity to act in certain situations, but an amendment of the constitution seems not to be required.

On a side note, concerning the scenario of a North Korean missile attack on the United States, it might be questioned whether the provision of information would not be seen as sufficient support, whether both active intervention and information sharing could not take place at least with details being kept secret to the public, or even be justified with reference to a potential threat for Japanese territory and, after all, whether the US would really require Japanese assistance in such a case.

From an even more pragmatic perspective, additional reasons for hesitation can be found when considering the exact requirements for constitutional amendments laid out in Article 96:

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.

In December 2012 the LDP-led coalition indeed accomplished a two-third majority in the House of Representatives (HoR, lower house). However, it still held a minority in the House of Councillors (HoC, upper house), where a next election for one half of the members was scheduled to take place in July this year. For the following seven months, everyone, including probably Shinzo Abe himself, was waiting and speculating whether the Japanese voter would authorize a constitutional amendment by providing the government parties with a two-third majority. In the end, the LDP won 65 seats, the New Komeito 11, and added up to their seats in the other half of the chamber – 49 and 9 respectively – they gained a majority of 134 of the 242 seats: Although the long lasting division of the Diet was ended, the coalition was not able to achieve the qualified majority. However, there are other parties in the parliament, namely the Japan Restauration Party (HoR: 53, HoC: 9) and the Your Party (HoR: 18, HoC: 18), that have indicated their general support for constitutional amendments at several occasions and an ad hoc coalition with those two would provide sufficient numbers to make an amendment pass the Diet. But even if negotiations with those partly ultra-conservative opposition parties lead to a compromise that meets the diverse interests within the LDP, as well as those of the Buddhist-oriented New Komeito alike, the so far hardly discussed required majority in a public referendum would remain a huge hurdle.

Obviously, Shinzo Abe and his advisors had at least similar thoughts when, immediately after the elections, he announced that his government would remain focused on continuing ‘Abenomics’ – including among others negotiations for a Trans-Pacific-Partnership agreement as well as a free trade agreement with the European Union and related overdue changes in agriculture and other critical sectors, a restructuring of the labor market, quantitative easing by the Bank of Japan and probably a range of yet unannounced other structural reforms – which will most likely require much of the now available political capital. It seems therefore justified to assume that no attempt for an amendment of Artcile 9 should be expected soon.

Yet on the other hand, following an announcement on 6 August by Administrative Reform Minister Tomomi Inada to visit the Yasukuni Shrine on 15 August (the date of Japan’s surrender in the Second World War), Shinzo Abe reiterated that his stance on these issues had not changed and that every member of his cabinet was free to decide individually for or against a personal visit[1]: Having the Yasukuni Shrine and all the related baggage of history back on the agenda of the highest political leaders is not only a reminder of Abe’s first term in office, but further suggests that the idea of a revision of Article 9 is not vanishing entirely as both issues are directly linked to Japan’s war history and each other.

4. …but Article 96 should

As the last paragraph clearly shows, the discussion on constitutional amendment in Japan is not only too often limited to Article 9 but also unfortunately heavily overshadowed by the difficult international relations in the region, and urgently needs to be broadened and objectified.

Generally speaking, a constitution should certainly retain a special status and not be altered too easily, since it defines the fundamental structure of a nation. Consequently, every word should be well considered. Also, by updating the interpretation of single wordings, a text that might seem outdated on the surface can even cover social, technological or economic circumstances unknown at the time of its verbalization. However, the interpretation of a constitution cannot be extended infinitely: Beyond literal restrictions, actual text alterations will at some point become necessary. It is therefore a responsibility of political leaders to not make constitutional amendments impossible. The following data illustrates why legislators in Japan should give much more attention to changing the extraordinarily strict provisions of Article 96:

While the US Constitution (1787) has 27 amendments, the French Constitution (1958) was amended 18 times and in the German Basic Law (1949) 59 times, there has not been a single amendment to the constitution of Japan (1952).

Putting it in a nutshell, Japan maybe found good reasons to postpone a decision on Article 9, but it has to tackle the overprotection of its constitution as soon as possible.[2]

by Thomas Tartemann[3]

The author has intensively studied the East Asian region with a focus on International Relations and Japan and is now working for a think tank in Tokyo.