2014-05: Collective Self-Defense covered by Article 9
Die Verfassung Japans. Artikel 9 der Friedensverfassung
Abe panel's report says collective self-defense already covered by Article 9
May 14, 2014. THE ASAHI SHIMBUN
A key advisory panel to Prime Minister Shinzo Abe is claiming Japan can exercise the right to collective self-defense because it falls under the minimum required level of defense that is already allowed by the Constitution's pacifist Article 9.
Legal scholars, aghast at the conclusion, said the panel seemed set on "destroying" the Constitution that has kept Japan in postwar peace.
The Asahi Shimbun obtained a copy of the panel's report that will be submitted to Abe on May 15. It was compiled by the Advisory Panel on Reconstruction of the Legal Basis for Security. Abe will hold a news conference the same day to explain how the government intends to proceed with discussions with the ruling coalition in implementing the panel's recommendations.
The report sets the stage for the government to explain that its decision to reinterpret the Constitution to allow for the exercise of the right to collective self-defense is based on the changed security environment around Japan. It points to the development of ballistic missiles by nuclear-capable North Korea and China's increased defense spending as factors that require the government to reassess how to respond to threats.
"If, despite the changes in the security environment, national security policy should remain inflexible due to a (particular) view of the Constitution, that could lead to a violation of the security of the people because of that constitutional view," the report states.
It goes on to criticize successive postwar administrations for sticking to the interpretation that Article 9 of the Constitution only allowed for the minimum required level of self-defense, and thus the right to collective self-defense could not be exercised.
"There has never been any demonstration of whether the survival of the people could be protected and the existence of the nation could be ensured within the limits of a minimum required level of defense," the report says.
It calls on the Abe administration to change the constitutional interpretation so that the right to collective self-defense could be included within the right to self-defense that allows for a minimum required level of defense under the Constitution.
The report also includes an argument that legitimizes changing the interpretation of the Constitution. Scholars have raised doubts about making the change on grounds it would leave the door open for future administrations to alter constitutional interpretations as they saw fit.
With regard to the long-held interpretation banning the exercise of the right to collective self-defense, the report says: "There are no clear provisions in the Constitution about the right to individual self-defense or the right to collective self-defense. The Japanese government allowed for the exercise of the right to individual self-defense through past interpretations of the Constitution."
Such rhetoric led to a sharp backlash from constitutional law scholars, some of whom claim the report--far from calling for changing the interpretation of the Constitution--actually seeks to destroy the Constitution and all that it stands for.
One point made by the report is that failure to act to change the constitutional interpretation places Japan at greater risk in today's security environment.
"The constitutional interpretation by the government, which exercises national authority, should not place the security of the people and nation at risk," it says.
The report goes on to argue that changing the constitutional interpretation would lead to safeguarding the important principles enshrined in the Constitution.
"The current interpretation of the Constitution will not allow for a proper response to maintain Japan's peace and security as well as bring about peace and stability in the region and international community," the report states. "The greatest mission of the nation is to protect the security of the people."
'HOLLOWING OUT' OF CONSTITUTION
However, scholars took exception with the argument that the people and nation could be protected by changing the constitutional interpretation to match the changing security environment.
Yasuo Hasebe, a professor of constitutional law at Tokyo's Waseda University, said, "In today's Japan, the only way to protect the nation is by conducting politics under the principle of constitutionalism."
Pointing to the long history of administrations sticking to the constitutional interpretation prohibiting the exercise of the right to collective self-defense, Hasebe said, "If the government itself should remove that framework, it would mean destroying the foundation of the Constitution that has created this nation."
Even some scholars who have argued for an amendment to pacifist Article 9 were critical of the report's recommendations.
Setsu Kobayashi, professor emeritus of constitutional law at Keio University, said: "It is true that international circumstances have changed. But if that is used to call for a change to allow for the exercise of the right to collective self-defense, the government should seek a constitutional amendment."
Kobayashi was also critical from the standpoint of constitutionalism, the view that the Constitution serves as a brake on abuse of authority by those in power.
"The Constitution, which calls for an exclusively defensive posture and bans the use of force abroad, is a framework that has been placed on those in power," Kobayashi said. "The Abe administration is seeking to take away the Constitution from the people and remove the 'anchor' that has been placed on those in power.
Changing the interpretation will lead to a hollowing out of the Constitution."
Hasebe also said that those who wrote the report did not understand how to interpret laws.
"The report was not written to convince others, but is nothing more than one that says 'we are correct,'" Hasebe said.
Describing the report as a "declaration to hijack the Constitution," Kobayashi said: "The report would remove all restrictions by Article 9 of the Constitution on the actions of the government. That would not be simply changing the constitutional interpretation, but a destruction of the Constitution."
A prime example of the rhetoric in the report is the claim that the exercise of the right to collective self-defense is included in a minimum required level of defense. Past administrations had stood by the argument that the exercise of the right to collective self-defense would go beyond a minimum required level of defense, therefore prohibiting its use.
With regard to that argument, Hasebe said, "The government used 'a minimum required level of defense' in order to argue that the Constitution allowed for the right to individual self-defense."
He also criticized the report's criticism of past administrations for failing to demonstrate "whether the survival of the people could be protected and the existence of the nation could be ensured within the limits of a minimum required level of defense."
Hasebe dug in his heels further by saying, "Since that interpretation has been well-established, if the argument is to be made that the interpretation was wrong, it is incumbent on those making that argument to provide the evidence backing their claim."
1959 VERDICT COMES INTO PLAY
The report also cites a Supreme Court verdict in 1959 on the so-called Sunagawa incident as the basis for allowing an exercise of the right to collective self-defense through a change in constitutional interpretation. The case involved the arrests of protesters at a U.S. military base in western Tokyo.
The verdict stated that the presence of U.S. military bases in Japan did not violate the Constitution. It then broached the issue of the right to self-defense by saying, "It is only natural that Japan is allowed to implement measures necessary for its self-defense in order to maintain its peace and security as well as ensure the existence of the nation."
The report uses that verdict to argue, "There is no differentiation between the right to collective self-defense and the right to individual self-defense within the right to self-defense held by Japan, so the verdict does not prohibit the exercise of the right to collective self-defense."
There has been strong criticism of the use of the Sunagawa verdict because it does not directly touch upon the right to collective self-defense. Moreover, the government at the time of the Sunagawa incident had not yet solidified its concept of the right to collective self-defense.
Hasebe said the Sunagawa verdict was simply about the right to individual self-defense, nothing more.
Even Natsuo Yamaguchi, the head of junior coalition partner New Komeito, has taken exception to the use of the Sunagawa verdict.
"At the time of the verdict, the Self-Defense Forces had just been established and there were many people who were arguing that the Japan-U.S. security arrangement was unconstitutional," Yamaguchi said. "I do not believe there was anyone at the time the verdict was issued who felt it also covered the right to collective self-defense."
(Masahiro Tsuruoka and Hitoshi Kujiraoka contributed to this article.)