Japan's New Conversation on Its Constitution

May 16 2014, 6:27pm CDT | by

On Thursday, the Advisory Panel on Reconstruction of the Legal Basis for Security presented Prime Minister Shinzo Abe with its long anticipated report advocating for loosening the restraints on the use of force by the Japanese military. The panel advocates a reinterpretation of the Constitution to allow the SDF to use force on behalf of other nations.

This call for an expansive review of existing policy on how the Self-Defense Force (SDF) currently operates, however, is not government policy. In his statement yesterday, Abe outlined a narrower ambition. Over the remainder of this year and into the next, we should expect to see an important debate in Japan over how to honor the spirit of the postwar Constitution while revisiting this question of when and how the Japanese military can use force.

Limiting the scope for Japan’s military to use force is deeply embedded in the postwar debate over Article 9, the famous “anti-war” clause. Article 9 explicitly renounces the “use of force as a means of settling international disputes.” But successive Japanese governments have interpreted Article 9 to allow for the right of self-defense, an inherent right of all nations according to the United Nations Charter.

Throughout the postwar era, government defense policy choices such as what weapons to buy, what missions were acceptable, and what cooperation was allowed with the United States were subject to parliamentary review, and an indispensable part of that review included a legal examination of whether policy complied with the Constitution. Over time, as technology evolved and the SDF grew into a more professional organization, Japan’s defense policy debate also adapted, and the kinds of issues that triggered concern over compliance with the Constitution also changed.

Today, the focal point of the Abe cabinet policy review is what is called the “right of collective self-defense,” a term created by Japanese legal scholars and policy practitioners in the early decades of the postwar era. Simply put, the Japanese cabinet and parliament have interpreted Article 9 to prevent the SDF from firing their weapons on behalf of others. This has affected the ability of the SDF to operate with the U.S. military in the alliance, and has limited the scope of SDF participation in UN Peacekeeping Operations (PKO) as well as the coalition effort in Iraq.

For many, this new effort to reinterpret Japan’s Constitution signals a sharp departure. Much of the criticism focuses on Abe himself, and his well-known desire to revise the Constitution. Critics see this debate on collective self-defense as simply a backhanded way of moving Japan further from its postwar commitment to renounce war. The New York Times went so far as to characterize this effort to reinterpret Article 9 as “an act [that] would undermine the democratic process,” a criticism that Japan’s ambassador to the United States, Kenichiro Sasae, roundly rejects.

To be sure, this debate over allowing Japan’s military to work closely with U.S. forces, and to participate more fully in UN PKO, will focus on one of the core tenets of self-restraint adopted by two generations of Japanese political leaders. Moreover, this debate in Japan comes at a time of significant regional tensions, and when anxiety within Japan over its ability to contend with a more lethally armed Pyongyang and a more challenging Beijing is running high.

Yet it is important to understand what is being undertaken, and to recognize the process by which Japanese consensus will be generated. The NYT editorial suggested that this is being done by the “whim of government,” but in fact there will be a full examination of the policies being considered. The legitimacy of the Abe cabinet’s choices will be scrutinized both at home and abroad, and a full and open process of legislative deliberation lies ahead.

Yesterday, Abe outlined his decision on how to proceed. The advisory report called for a wholesale review of the limitations on the SDF and its use of force, and argued for abandoning the premise that the SDF should only use the minimal necessary amount of force in its effort to defend Japan. Furthermore, the report argued the need for the SDF to be able to use its weapons when operating with others, such as the actual missions it faces in UN PKO and when operating with the United States to evacuate or transport Japanese nationals from a contingency.

But Prime Minister Abe in his remarks yesterday suggested a more circumscribed policy review than many expected. He outlined his government’s priorities going forward as follows: first, create a “seamless legal system” that will allow the SDF to cooperate with other forces; second, examine necessary legislation under the current interpretation of the Constitution related to two SDF requirements: strengthening responses to “grey zone” situations short of conflict and contributing to international cooperation on logistics and PKO; and, finally, examine specific situations where the right of collective self-defense might be permissible if an armed attack is conducted against other nations in a way that significantly affects the security of Japan.

What happens next will be a process of deliberation within the government, as well as within the Diet. Already, the LDP has had significant input from its coalition partner, the New Komeito, and many speculate that the prime minister’s more limited vision is a result of their influence. Electorally, the LDP and the New Komeito have a symbiotic relationship, and Abe would be hard pressed to move in a direction that the more cautious Komeito will not support, especially before next year’s local elections.

A full deliberation within the cabinet will be forthcoming, and in preparation for a cabinet decision, the Cabinet Legislation Bureau will be asked to review the government’s intended policy to identify areas of conflict with Japan’s Constitution. Here it is important to note that this oversight is required prior to drafting legislation for parliamentary deliberation. Leadership of the Cabinet Legislation Bureau has just changed, and this may introduce an added element of uncertainty into the process.

Once the cabinet decision is made (most expect this to happen before the end of the current Diet session in mid-June), legislation can be drafted, and any related laws amended. Should the right of collective self-defense be reinterpreted, ten to fourteen laws may need to be revised, and a package of bills will be presented to the Diet for the extraordinary session this fall or, if this process takes more time, the regular Diet session next spring.

This morning, Chief Cabinet Secretary Yoshihide Suga said in his press conference that the Abe cabinet would welcome discussion in the Diet even before the government concludes its deliberations. Discussions in advance of a cabinet decision are rare in Japan, and if any of the opposition parties take Suga up on this they would most likely happen in the Budget Committee or through a deliberative process among heads of parties.

It is too early to tell just how far the Abe cabinet will move on reinterpreting the right of collective self-defense. More important than the speculation over Abe’s motives, however, will be the way in which Japan’s parliament addresses the question of whether the time has come for the SDF to be allowed to work alongside U.S. and other militaries in collective military action.

The United States and Japan have initiated a defense review of their guidelines for military cooperation, largely in an effort to consider how and when the two militaries will cope with new regional scenarios, including dealing with a Senkaku Islands contingency. Japan’s conversation on its military and the parameters under which it can use force, therefore, will affect that alliance discussion.

For the next year, we will also have a chance to see how the Japanese people respond to this question of reinterpretation of the Constitution. If Japan’s SDF uses force, it will need to do so with the full support of its public. Likewise, if the Japanese public expects the SDF to defend their nation, they will need to give them the latitude to do so effectively./>/>

Almost seventy years after Japan’s defeat in 1945, Japanese society continues to balance carefully the role of the military in the exercise of national policy. The exercise of civilian control has been deeply entrenched in postwar Japanese policymaking, but the question of what the SDF might need to do to defend Japan has not been as deeply considered. Today, Japan’s military is being placed increasingly in situations where the use of force may be necessary. Mostly, these scenarios have been under the auspices of the UN.

But there are some troubling signs in Northeast Asia, where the basic mission of defending Japan comes into play. What limits should be placed on the SDF? What missions are they expected to undertake, and can they do so under the limits Japanese leaders imposed on themselves over half a century ago? This is the policy question under debate in Japan. It is not a question of whether Japanese democratic institutions are working. Rather it is a debate about allowing Japan’s postwar military to fulfill the missions it has been assigned alongside its alliance partner and other national militaries under UN command.

Over the next year, the Japanese people will need to consider carefully these questions, questions that were asked by their grandparents perhaps some fifty years earlier. Before we jump to condemn the discussion, we might want to take a closer look at what is being discussed and how the conversation already underway in Japan is evolving.

This article originally appeared on the Council on Foreign Relations’ Asia Unbound blog, which can be found here.

 
 

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