“Taking Japan back”

The constitutional reform debate completely faded away while the DPJ was in power and the LDP was in the political wilderness for three years between sum­mer 2009 and winter 2012, but two crucial developments took place under the surface.

On the one hand, through the vagaries of party realignment that unfolded in the post-Cold War era, Ozawa was by then a central figure in the DPJ gov­ernment with huge influence on its policy stance. As was touched upon earlier, ever since he was still in the LDP, Ozawa took the view that Article 9 did not prohibit Japan's participation in UN-sanctioned collective security arrangement, including a role in its peace-building and -keeping operations, and also that it was wrong for the official government interpretation of the constitution to be deter­mined by the CLB, which has been shielded from political control by the elected politicians. The latter view was very much part of Ozawa's strong belief in the virtue of a strong political leadership in the British-style majoritarian democracy - the largely unrestrained exercise of power subject only to the check provided by the prospect of a regular change of government in a two-party system based on the first-past-the-post electoral system.

In fact, Ozawa has been a remarkably consistent promoter of these views as he led or belonged to different political parties through the 1990s and the 2000s. He also consistently disagreed with the lifting of the ban on the exercise of col­lective self-defense under US pressure. Between 1998 and 2000, Ozawa led the Liberal Party into a coalition with the LDP, and during that time, he advocated that the government change its interpretation of Article 9 to allow for Japan's fuller participation in UN operations, while he opposed the position that Article 9 permitted the exercise of collective self-defense. He also unsuccessfully tried to force the LDP to agree to ban the CLB representing the official government interpretation of the constitution and the laws in the parliamentary exchanges.

After having left the coalition government with the LDP, Ozawa took his party and joined the DPJ in 2003 and became its leader in 2006. As a matter of fact, he was the mastermind behind the electoral success that propelled the DPJ to power in 2009, even though by then he ceded the top post to be its chairman in response to the allegation of campaign finance irregularities that was dogging him and the party. As the very powerful chairman of the ruling DPJ, Ozawa sought to legally ban the CLB chief from representing the government's official legal and constitutional interpretation in the Diet, but stopping short of new leg­islation, he still managed to sideline the CLB and a cabinet minister was assigned

that role in the DPJ government for as long as Ozawa retained strong influence in the party.

What is absolutely crucial, in retrospect, is the precedent that this move cre­ated in placing the CLB under the political control of the ruling party. Even though the issue of the official government interpretation of the constitution (and of Article 9, in particular) did not surface during the DPJ government, the CLB was no longer as autonomous as it has been in the postwar period. This was to be abused by Abe upon return to power.

On the other hand, deprived of access to pork barrel politics, the LDP drifted further to the right while in opposition as ideological extremism took over as the party was freed from the burden of responsibility in office.

Only five years after the LDP revised its party platform for the first time in 50 years, it once again revised it to place on the top of its fundamental policy ideas that “We shall aim at the enactment of a new constitution that would show Japan at its most Japanese and would allow it to contribute to the world.”^[105]

Furthermore, as it revised also its proposal for constitution revision, the SDF was to be renamed the National Defense Military, the emperor would be desig­nated as the head of state, and family members were to be obligated to mutu­ally support one another - all these reactionary ideological positions that were rejected as the LDP put together its proposal in 2005 were now adopted.

In other words, the neoliberal reformist approach to the issue of constitution revision receded to the background as the reactionary, revisionist view became dominant in the LDP, and it was precisely at that juncture that the DPJ govern­ment imploded and the LDP regained power with Abe as the prime minister sup­ported by an overwhelming two-thirds majority in the Lower House. Ironically for Ozawa, because his much-cherished vision of a competitive two-party system was now in ruins, there was no remaining brake on the winner-takes-all system that the years of neoliberal political and administrative reforms have left behind, and Abe faced no serious opposition to speak of in the entire political system.

Previously, Abe sought to change the interpretation of Article 9 to enable the exercise of collective self-defense when he was in power in 2006 but was unsuc­cessful as his premiership was short-lived and he stepped down in a year. He picked up the issue again soon after he returned to power in December 2012, however. It can be said that Abe had a two-pronged strategy - expanding the

Constitutional amendments in Japan 37 scope of what Japan may do through the changes of the interpretation of the constitution while also seeking to formally revise the text of the constitution.

Initially, Abe toyed with the idea of revising first Article 96 of the Constitution, but he immediately faced a rather strong public reaction. The opposition to the move was led by a group of constitutional law scholars, political scientists, and other academics that included but also went beyond the familiar defenders of Article 9, called the Article 96 Association.^[107] The Association was headed by Japan's foremost constitutional law scholar, Yoichi Higuchi, and a range of the nation's top constitutional experts, including Setsu Kobayashi, the most promi­nent advocate of the revision of Article 9 previously.

In its founding statement issued on May 23rd, 2013,^[108] the Article 96 Association pointed out that the LDP was seeking to lower the constitutional hurdle to insti­gate the national referendum for the amendment of the Constitution to a simple majority in both houses of the Diet with an eye to more easily amending funda­mental principles of the Constitution that are embodied in the preamble, Article 9, and Article 13, among others, that stipulate respect for the people as indi­viduals and their basic rights and liberties. According to the statement that was drafted by Higuchi and signed by its members, the attempted revision of Article 96 was not merely a technical problem, but a grave issue that concerned the very principle of constitutionalism that centers around the role of the constitution as a brake on power.

The gerrymandering that has been left by the ruling parties, in spite of several court rulings that deemed the existing state of affairs unconstitutional, meant that there was serious doubt as to whether incumbent members of the Diet were con­stitutionally qualified to debate the amendment of the Constitution, the state­ment argued. Moreover, Article 96 requires thorough debate and deliberation by the legitimately elected members of the Diet before asking the Japanese people to make a decision that is conferred upon “this and future generations in trust” (Article 97). For the majority party to abuse its inflated majority in the Diet to ram through an amendment of Article 96 is tantamount to a challenge against the raison d'etre of the Constitution. It was contended that this move jeopard­ized the legitimate exercise of the amendment of power of the Constitution by the people.

In the event, in face of strong public opposition in the run-up to the Upper House election in July 2013, Abe quickly gave up on the idea of formally amend­ing Article 96 first to make other formal amendment easier and more feasible, and instead, opted for the informal and backdoor route to constitutional amendment.

revise the Constitution without a big fuss. Thus, Abe took control over the CLB the following month.

According to postwar convention, the appointment of the head of the CLB was entrusted in the hands of the bureaucrats. The CLB itself does not recruit fresh college graduates, but it consists of bureaucrats who were transferred to it in mid-career. As a rule, CLB cadre originally from either the Ministries of Home Affairs, Finance, Justice, or Trade and Industry took turns in assuming the top position. The term of the CLB head was also unrelated to the term of a cabinet or prime minister. As such, it was not a politically appointed position.

Having come to power for the second time, when the opposition was all but wiped out from the Diet, Abe took a step further than Ozawa had ever managed to do and appointed a diplomat, Ichiro Komatsu, from the Ministry of Foreign Affairs, with no previous experience in the CLB and with no expertise in domestic law. The point, for Abe, was that Komatsu was a known advocate for lifting the ban on the exercise of collective self-defense. In February 2013, Abe also revived an ad hoc government council on security legislation that he initially set up dur­ing his first stint in power (but which had been left inactive since) with the exact same members - all of whom were known proponents of the exercise of collec­tive self-defense. Moreover, the council merely operated in a “private” advisory capacity to the prime minister because it did not have any legal basis. Komatsu served in the secretariat of this government council previously, and now they were both placed in positions to lead the change of the government interpreta­tion of Article 9.

On an issue as important as this, the government would normally set up a gov­ernment council of experts, which is both founded on a legal basis (and therefore becomes an “official” council) and composed of a broader range of views on the controversy.

In an attempt to further reinforce Japan's military alliance with the US, Abe also established Japan's National Security Council (NSC) in December 2013. It was supposed to work closely with its original American counterpart, and enacted the much-criticized State Secrets Law, which was widely seen as a serious blow to press freedom and the principle of open and accountable government with little check on government abuses.

In further concerning developments, in January 2014, the Abe government officially modified the school textbook authorization standards (in Japan, the school textbooks need government panel approval) so as to require the inclu­sion of reference to the Japanese government position on issues of modern and contemporary history in the texts. Also, in the same month, the newly appointed president of the Japanese public broadcaster, NHK, stated in his first press conference following government nomination: “We cannot say ‘left' when the

Constitutional amendments in Japan 39 government says ‘right.’” This statement indicates that he did not grasp the basic concept of press freedom.^[109] In April 2014, the government replaced the so-called “Three Principles on Arms Exports and Their Related Policy Guidelines” that put severe limits on arms and arms-related exports with a new “Three Principles on Transfer of Defense Equipment and Technology” which, as the name shows, was intended to lift the ban and facilitate arms export of Japanese companies.

On April 18 th, much of the same group of scholars as the Article 96 Association launched a new Constitutional Democracy Association (CDA) in order to coun­ter the “aggressive campaign to transform the fundamental principles underlying Japan’s Constitution and democratic politics” by the Abe government, including its attempt to lift the constitutional ban on the exercise of collective self-defense through a change of the government interpretation of the same, unamended text.^[110]

In its founding statement, the CDA noted that “The various restraints imposed in a constitutional democracy serve to protect the people from the reck­less actions of the government of the day that may show little regard for indi­vidual dignity and freedom,” but that, steeped in a sense of its own omnipotence after two national election victories, the Abe administration

has justified as “political leadership” its attempts to impose a partisan orien­tation upon organizations—including the Bank of Japan, CLB, NHK and other broadcasters, research and educational institutions—that ought to play an important role in imposing checks and restraints upon the exercise of the majority will.

The CDA further noted,

Abe is attempting to change the existing interpretation of the Constitution by cabinet decision so as to approve Japan’s right to collective self-defense, effectively rendering Article 9 of Japan’s Constitution meaningless. If the Abe administration is allowed to do as it pleases, the issue of revising Article 96 will be raised again, and the Constitution may no longer be able to restrict the reach of government.

It added,

What is essential now is that we first return to a politics rooted in the Constitution, setting aside differences over specific policies. This means a revival of constitutional government, with its rules limiting the reach of

whatever party happens to hold a parliamentary majority, and specification of the areas into which government may not intrude. This also means reviv­ing the Diet's functions as not merely the site of majority-based decision­making, but also of substantive debate and administrative oversight.

The CDA concluded that it intends on joining and expanding the civic opposi­tion against arbitrary, unaccountable government “in order to restore constitu­tional democracy to Japan.”

As was expected, the prime minister's council on security legislation issued its report the following month to recommend the change of the government inter­pretation of the Constitution in order to lift the ban on the exercise of the right of collective self-defense.^[111] The panel argued that the security environment sur­rounding Japan has changed dramatically and an adherence to an old-fashioned interpretation of the Constitution that only granted the exercise of individual self-defense for the country was both unnecessary and dangerous. According to the report, the first paragraph of Article 9 should be interpreted “as not prohibit­ing the use of force for the purpose of self-defense, nor imposing any constitu­tional restriction on activities that are consistent with international law, such as participation in U.N. PKOs etc. and collective security measures.” Similarly, para­graph 2 of Article 9 should be reinterpreted in such a way to include the exercise of the right of collective self-defense within the limit of the right of self-defense at the minimum extent that is necessary and constitutional, it contended.

The most significant conclusion of the report was, thus, to recommend that the government lift the ban on the exercise of collective self-defense by replacing the existing three conditions for the exercise of individual self-defense with the following:

When a foreign country that is in a close relationship with Japan comes under an armed attack and if such a situation has the potential to significantly affect the security of Japan, Japan should be able to participate in operations to repel such an attack by using force to the minimum extent necessary, having obtained an explicit request or consent from the country under attack, and thus to make contribution to the maintenance and restoration of interna­tional peace and security even if Japan itself is not directly attacked.

Thus, the 1972 government interpretation of Article 9 as banning collective self­defense was thus reversed after over four decades.

In a press conference on June 9th, the CDA presented its criticism of the government's move from the standpoint of constitutionalism, the security risks involved, the fallacy of the notion of a “limited” collective self-defense, and

Constitutional amendments in Japan 41 international cooperation.^[112] As its opposition to Abe's rejection of constitution­alism and the rule of law, which the CDA described as “an exceedingly reckless act that moves well beyond the realm of constitutional interpretation. It is better described as a full attack on Japan's Constitution,” the CDA put forward the fol­lowing arguments:

For the more than half-century since the end of the Second World War, the Constitution has been interpreted to permit the SDF's exclusive dedication to self-defense under Article 9 and to prohibit voluntary attacks upon another country except in response to an act of foreign aggression. Changing this longstanding constitutional interpretation by the decision of a single Cabinet far exceeds the realm of decisions that should be made by the Cabinet, which owes an obligation to respect and to uphold the Constitution.

Prime Minister Abe has extolled “the rule of law,” together with liberalism and basic human rights, as the fundamental values of the democratic order to which Japan belongs, and criticizes countries still partially subject to the “rule of man.” However, if Abe succeeds in changing the existing constitutional interpretation of Article 9, the “rule of law” will be reduced to the arbitrary use of authority by the current administration—in other words, “the rule of man.”

The exercise of collective self-defense has never been conceived of as something authorized by the Constitution. The announced intention of the Abe government signifies a change to a fundamental principle of the Constitution. If such a major change is truly to be undertaken, then a sincere appeal to the citizens of Japan, careful national deliberation, and legitimate procedures for the revision of Article 9 must all be essential preconditions.

Nevertheless, on July 1st, 2014, both the National Security Council and the Cabinet approved this new interpretation of the Constitution that enabled lifting the ban on collective self-defense and vowed to enact new security legislation on the basis of the new government interpretation. In May 2015, the government submitted security bills to do precisely that. The bills triggered growing public criticisms and protests, and the demonstrations continued to gain in size and frequency not only in front of the Diet building in Tokyo, but across the country even after they passed through the Lower House in July.

An important moment in the popular protests against the security legislation took place on June 4th, 2015, at a meeting of the Commission on the Constitution of the House of Representatives.^[113] The subject of the discussion that day was the

stability and preservation of the constitution, including constitutionalism, the limitation to constitutional amendment, and constitutional review. Three promi­nent constitutional law scholars were invited as witnesses, Yasuo Hasebe, Setsu Kobayashi, and Eiji Sasada (Hasebe and Kobayashi are central members of CDA). Following their testimonies, a member of the opposition asked for their views on the constitutionality of the security legislation. All three witnesses, including Hasebe, who was nominated by the ruling parties, unambiguously replied that they considered it to be unconstitutional. The moment was captured and repeat­edly aired on television and on the internet, and thus, greatly enhanced popular mobilization for the protests and demonstrations.

Hasebe stated that lifting the ban on the exercise of collective self-defense was unconstitutional as it cannot be explained in the framework of the logic of the decade-long government interpretation of the Constitution, and thus, seriously disturbs the stability of the constitution. He further added that the exercise of col­lective self-defense would make it impossible to draw a line between the exercise of military power by a foreign military and the activities of the SDF. Kobayashi concurred with Hasebe, and argued that the exercise of collective self-defense, the act of waging war overseas in order to assist a friendly power, is a violation of Article 9, particularly its second paragraph. Finally, Sasada also agreed and stated that the limitation of legitimate interpretation of Article 9 was shown in the 1972 interpretation that the LDP government and the CLB crafted together, and the exercise of collective self-defense must be considered unconstitutional.

Over the summer, the security legislation ignited an historic protest move­ment from civil society that included scholars, the youth, labor unions, and concerned mothers, among others. The CDA was joined by a new, if partially overlapping, group of academics in the opposition to the security legislation in June 2015 with the establishment of the Association of Scholars Opposed to the Security-Related Bills (the Association of Scholars). It included some key members of the CAD, but was led by an education studies scholar, Manabu Sato, with a much broader range of top academics, many of whom were colleagues of Sato's from the Science Council of Japan, the country's national academy.^[114] In its founding statement, the Association of Scholars denounced the security bills as a clear violation of Article 9 that would enable Japan's SDF to cooperate and take part in overseas military activities in another country.^[115] Mindful of Japan's history as an aggressor - and of the fact that the professors sent their students to fight overseas during wartime - the statement sounded the alarm that the arbitrary change of the decades-long government interpretation created the pos­sibility of Japan taking part in a war of aggression waged by the United States. By the time the bills were rammed through the Diet, some 14,120 scholars and 30,957 citizens signed the statement, and over 140 universities nationwide and allied scholarly groups were taking part in the protest movement.

In an Asahi newspaper survey that was conducted with 209 constitutional law scholars in June, out of 122 who responded 104 considered the lifting of the ban on collective self-defense to be unconstitutional (with another 15 noting that it was possibly unconstitutional). Moreover, 116 responded that the Cabinet deci­sion to reinterpret the Constitution in July 2014 was inappropriate (with a mere 6 offering no answer). Similarly, in an NHK survey of an even larger number of constitutional law and other law scholars, 377 out of the 422 respondents deemed the security bills to be either unconstitutional or likely to be unconstitutional.

The Japan Federation of Bar Associations (JFBA) also took a clear stance against the security legislation following the passage of a “resolution oppos­ing the approval of exercising the right to collective self-defense” on May 31st, 2013.^[116] The central argument of the JFBA resolution is as follows:

The JFBA believes that the government’s interpretation, which has been established as being that, “the use of the right to collective self-defense is not permissible when Japan is not under direct attack” should not be changed or meddled with so easily by Ministers of State or by members of the Diet, on whom the obligations to respect and uphold the Constitution are imposed as stipulated in Article 99 of the Constitution. Moreover, any change in the interpretation of the Constitution by way of laws which are inferior to the Constitution should simply never be allowed because this would go against the principles of Constitutionalism wherein the Constitution i) takes prec­edence over any law or other act of government which are contrary to the provisions of the Constitution, and disallows such laws to have legal force or validity (Article 98 of Constitution), and ii) limits the power of the govern­ment and the Diet.^[117]

Even among more conservative legal professionals, four former Supreme Court justices and five former directors of the CLB publicly expressed their view that lifting the ban on collective self-defense through a reinterpretation of the Constitution was unconstitutional. A representative view from these top legal professionals was expressed by Kunio Hamada, former Supreme Court Justice, at the public hearing in the run-up to the final vote on the security legislation at the House of Councilors on September 15 th, 2015.^[118] He noted the crucial role played by the CLB in postwar Japan in providing constitutional stability in the absence of an active Supreme Court. The fact that the Cabinet simply took away its autonomy and imposed a new interpretation on it meant that the constitution­ality of the legislation was highly dubious, particularly because the arguments that were put forth by the government to justify the new interpretation relied on some of the arguments cited from the Sunagawa verdict and the 1972 government interpretation, neither of which had to do with, much less approved the constitu­tionality of, the exercise of collective self-defense. Various opinion polls indicated also that a large majority of the general public considered collective self-defense unconstitutional as well.

Nevertheless, the big businesses as well as Yomiuri, Nikkei, and Sankei news­papers, and of course, the US supported the bills, and they were finally enacted on September 19th, 2015, as the government rammed them through the Upper House.

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