Concluding remarks
The controversy over the informal amendment of Article 9 of the Constitution of Japan that lifted the ban on the exercise of collective self-defense presents a curious case in the debate over unconstitutional constitutional amendments.
The change is widely seen as unconstitutional by constitutional scholars, legal professionals, and the general public, but not because of the inherent unamendability of Article 9 or judicial activism in the Japanese Supreme Court. In fact, even mainstream scholarly proponents of the doctrine of limitations of amendment to the Constitution of Japan take the view that the second paragraph of Article 9 may be a legitimate subject of an amendment. The passive and conservative Supreme Court has long adhered to an extreme version of the political questions doctrine, has opted to eschew controversial political issues, including Article 9, and has thus tacitly condoned the government’s near free hand on these matters.Rather, the move is considered unconstitutional because it has surpassed the limits of informal constitutional amendment. Strong popular support for Article 9 has rendered it politically and practically unamendable in formal terms, and the government has therefore resorted to informally amending it through the change of the interpretation of the constitutional text. Not all informal constitutional amendment is considered unconstitutional or illegitimate. This particular case of informal amendment has been denounced and resisted as unconstitutional - and a clear breach of the principle of constitutionalism - by a large coalition of constitutional law experts and civic activists,[119] and while some object to the informal amendment on substantive grounds that are based on the belief that pacifism is an unamendable feature of the Postwar Constitution, the mainstream criticism comes from a procedural perspective against the exercise of arbitrary power, reviving a tradition that dates back to the Taishb era in prewar Japan.
Prime Minister Abe, who persistently sought to formally amend the Constitution even after the enactment of the security legislation, resigned in September 2020 amidst the coronavirus pandemic, having failed to accomplish his lifelong dream that would have finally cemented his informal amendment of Article 9.
Ironically, shortly after Abe stepped down, for the first time since 2015, an Asahi newspaper poll in November 2020 found more respondents in support of the security laws than those who opposed them - no doubt a reflection of the rising tension between the US and Japan on one hand and China on the other hand.[120] It seems fair, however, to say that the broad consensus of scholars and legal professionals on the unconstitutionality of the security legislation that lifted the ban on the exercise of collective self-defense remains intact, and that the LDP government shall continue to face strong criticism for having rammed through laws that are unconstitutional using unconstitutional means.3