Article 9 controversy during the Cold War

The political controversy over Article 9 is as old as the Constitution of Japan, which took effect in May 1947 under the US occupation. The Postwar Constitution was formally an amendment of the Meiji Constitution, but with three radically different “pillars” supporting the whole structure: (1) popular sovereignty (with the emperor relegated to being “the symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power” (Article 1)), (2) fundamental human rights, and (3) pacifism.

At the time of the promulgation of the Postwar Constitution, the political bosses from the prewar period, including Nobusuke Kishi (Shinzo Abe’s grand­father) and Ichiro Hatoyama, were still purged from public office, and as soon as they were de-purged as the occupation drew to a close in 1952, they advocated the need for a wholesale revision of the constitution, which they criticized as an illegitimate imposition on Japan during their forced absence from the political scene. The argument of these reactionary advocates of constitutional revision was that an independent Japan needed an independent constitution. The anger of the revisionists was particularly targeted against Article 9, which stipulates as follows.

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.

The dominant postwar constitutional theory, however, has been the “limitation of constitutional amendment” doctrine that argues that (1) the principle of pop­ular sovereignty, (2) the principle of individual dignity and human rights, and (3) the principle of international peace should be considered to be beyond the realm of any legitimate constitutional amendment, though this does not mean that specific articles of human rights or the second paragraph of Article 9 cannot be amended.^[80]

To date, after more than 70s years since its adoption, the Constitution of Japan has never been formally amended - making it the longest surviving con­stitution in active use without a single amendment in the world.

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.

It has been pointed out by Kenneth Mori McElwain and Christian G. Winkler, however, that the Constitution of Japan is not uncommonly hard to amend, but that it has never been formally amended rather because (1) it is short and vague on matters that concern political institutions, leaving it to the laws to determine the specifics (thereby rendering constitutional amendment unnecessary in the first place), and (2) it is a very progressive constitution with regard to civil rights and liberties.^[81]

Despite the sweeping constitutional ban on war and war potential, the reality of the Japanese defense posture was rather more complex from the very begin­ning. At the time when the San Francisco Peace Treaty was signed to return sovereignty back to Japan, the US and Japan also signed the Security Treaty thereby placing Japan firmly under the US military umbrella during the Cold War. Moreover, under American pressure, Japan established the Police Reserve already in 1950, which was then reorganized as National Safety Force in 1952, and finally, as the Self-Defense Force (SDF) in 1954.

Political and scholarly contestation over its constitutionality accompanied the SDF from the moment of its founding, but the Japanese courts refused to rule over the issue while the government sought to justify it by arguing that Article 9 does not amount to a renunciation of Japan's right for individual self-defense, and contended that Japan can legitimately exercise it (1) when Japan is under military attack and invaded, (2) when there is no other means to get rid of the invading forces, and (3) as long as the exercise of force is limited to what is mini­mally necessary.^[82]

In terms of the institutional setup of the Japanese judicial system, these moves have been enabled by the passive, even conservative, nature of the Japanese courts that has been assisted by the existence of an active and authoritative CLB, an important organ in the executive branch that conducts a priori checks on the legality and constitutionality of bills and ordinances and that was initially mod­elled after the French Conseil d’Etat.^[83] The conservative political leaders of Japan relied on the CLB to construct legal arguments to interpret and reinterpret the Article 9, and the Supreme Court would tacitly endorse the government posi­tion by avoiding judgments on the constitutionality of government policies and legislations.

In the famous Sunagawa Case of 1959, when the constitutionality of the US- Japan Security Treaty was at stake after the Tokyo district court ruled it to be unconstitutional, the Supreme Court overturned the verdict, and instead argued that such a political question falls outside the scope of the constitutional review by the courts unless it is “extremely clearly unconstitutional and void at a glance.”^[84]

On the issue of collective self-defense, the government settled on its official interpretation of the Constitution, provided for it by the CLB, which the Kakuei Tanaka Cabinet submitted to the Diet in 1972 that (1) as a sovereign state, Japan owns the right of collective self-defense as defined by international law, but (2) the pacifist principle that underlies the Constitution does not allow for unlimited exercise of force for self-defense but only what is minimally necessary to protect the lives and rights of the citizens from foreign military attack, and thus (3) the exercise of collective self-defense in order to prevent military attack on another country is not allowed by the Constitution.^[85]

This government interpretation of Article 9 - that Japan, as a sovereign state, may minimally exercise its right of individual self-defense when attacked and when diplomatic means to end the invasion fails, can be a signatory to the US-Japan Security Treaty, and it retains but is constitutionally unable to exercise its right of collective self-defense - continued to be challenged by the opposition over the postwar decades.

According to the annual opinion polls over the constitution conducted by Asahi Shimbun newspaper, public opinion was equally divided between the pro­ponents of the revision of Article 9 and the defenders of the Article 9 with 31% in favor of revision and 32% opposed in 1952.^[86] The latter saw a large increase in support by November 1957 with 32% in favor of revision of Article 9 and as many as 52% opposed to it.^[87] By 1962, only 26% were in favor of revising Article 9 whereas 61% opposed,^[88] and by 1978, a mere 15% were in favor of revision compared to 71% against.^[89]

In the context of the Cold War, Japanese politics was characterized by a bipo­lar system pitting the conservative LDP against the progressive Japan Socialist Party (JSP). The US that initially implemented an ambitious set of democratiza­tion and demilitarization reforms in the immediate postwar had since reset its priorities to the pursuit of the so-called “Reverse Course” policies that sought to undo them as it set its eye on fighting the communist threat in East Asia. Kishi became a useful anti-communist collaborator for the US but was forced to step down from the premiership amidst huge protests against the revision of the US- Japan Security Treaty that he oversaw in 1960.

The popular backlash against the reactionary policies of Kishi strengthened the position of the moderates within the LDP, who thereafter emphasized eco­nomic reconstruction and growth while shelving controversial and divisive issues of constitution revision and security policy. As a result, the LDP succeeded in establishing itself as a “super catch-all party” that dominated the party system and ruled for 38 consecutive years until 1993. The LDP continued to have a minority stream within that strongly advocated the revision of the constitution, but as the cause was largely sidelined even with the party, there was no way that the condi­tions for the amendment as stipulated in Article 96 could be met.

Politically, the postwar pacifist principle that Article 9 symbolized became so entrenched that it practically became unamendable.

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