Japan’s constitutional millstone

BY BRAHMA CHELLANEY

The Japan Times, February 21, 2015

By underscoring Japan’s powerlessness to act or retaliate, the Islamic State group’s separate beheading of two Japanese hostages recently has brought Prime Minister Shinzo Abe’s cherished goal of reforming the U.S.-drafted Constitution back into national focus. No other country in the world is bound by the kind of constitutional restrictions that were imposed on vanquished Japan by occupying American forces in 1947.

The Constitution prohibits Japan from acquiring the means of war and bars its purely defensive military, called the Self-Defense Forces, from staging rescue missions or other overseas operations to free Japanese hostages. Indeed, to set up wholly defensive armed forces in the 1950s, Japan had to loosely interpret the Constitution’s force-renouncing Article 9, which says “land, sea and air forces, as well as other war potential, will never be maintained.”

Yet Japan has clung to that Constitution for 68 years without so much as carrying out a single amendment or changing even one word. Many other democracies regard their constitutions not as cast in stone but as open to change so that they stay abreast with new social, technological and economic developments. For example, India — whose constitution is almost as old as Japan’s — has incorporated 99 amendments thus far. There have been fewer amendments — 27 — to the U.S. Constitution since its enactment in 1787.

AbeNo constitution can be perfect. A constitution, like the democratic system it embodies, should be open to improvements. In this light, Abe has made an impassioned appeal for constitutional reform, suggesting that the time may have come to emulate the same kind of far-reaching change that allowed Japan to rise from the ashes of its World War II defeat. Addressing the Diet, he asked: “For the future of Japan, shouldn’t we accomplish in this Diet the biggest reform since the end of the war?”

Abe’s contention that the Constitution no longer reflects the realities now facing Japan and thus needs to be updated is strengthened by another fact: Germany, also defeated in World War II, has made 59 amendments to its Basic Law, or constitution, which it adopted when it was under Allied occupation.

Japan and Germany regained sovereignty from military occupation only after embracing constitutional guarantees against any future threats from them to peace. West Germany’s new constitution, while outlawing a war of aggression, authorized military force in self-defense or as part of a collective security agreement. However, Japan’s Article 9 went further, stating that “the Japanese people forever renounce … the threat or use of force as a means of settling international disputes.” By forcing Japan to renounce war as “a sovereign right of the nation,” the Constitution imposed stringent restraints.

The constitutional fetters were a punishment for the policies of Japan’s wartime government and designed to forestall Japan from ever again engaging in militarist expansion. Although the Constitution was readily embraced by a war-weary Japanese public and continues to enjoy popular support today, it will be unrealistic to expect its exceptional restraints to last forever.

Abe indeed has seized on the terrorist beheadings to refocus on constitutional revision, signaling that he would push in that direction after elections to the Diet’s upper house, scheduled for the summer of 2016.

Cementing his grip on power after his party’s victory in a snap national election in December, Abe wants to reshape Japan by helping it to break free from the fetters of the past and by making it more competitive. He has tied his constitutional-reform agenda to Japan’s “normalization” as a nation at a time when the ascent of an increasingly muscular China has exacerbated the regional security environment, posing a direct challenge for Tokyo.

Abe has already reinterpreted the Constitution on “collective self-defense,” a step that would allow Japan to come to the aid of its allies. The move has been criticized by some in Japan as well as by Beijing, which frets about potential recrudescence of militarism in Japan, although it is China’s own military buildup and pressure on Tokyo that is prompting the Japanese government to reappraise national defense.

The United Nations charter recognizes individual and collective self-defense as an “inherent right” of nations. The Abe Cabinet’s U.S.-supported constitutional reinterpretation of the “collective self-defense” issue last July actually amounts to little more than a tweak — permitting Japanese forces, for example, to shield an American warship defending Japan but without arming Tokyo with the right to initiate offensive attacks or participate in multilateral military operations. Legislation to put this reinterpretation into practice is to be submitted in the current Diet session, which will last up to June.

Abe’s larger constitutional reform push, however, faces major obstacles at home. For one, the Constitution places a high bar to the enactment of any amendment, making it among the hardest in the world to revise. Any amendment must win support of two-thirds majorities in both chambers of Diet and be ratified by more than half of voters in a public referendum. For another, the majority of citizens, including most of the young, remain comfortable with the present Constitution. After all, pacifism remains deeply ingrained in Japanese society, in part because of the painful legacy of Japan’s prewar militarism.

Indeed, a poll by the World Values Survey last year revealed that Japanese rank the lowest in their “willingness to fight for the country,” with only 15.3 percent of Japanese — and just 9.5 percent of Japanese under 30 — expressing readiness to defend their nation, compared with 74.2 percent of Chinese and 57.7 percent of American.

In an extension of this attitude, many Japanese regard the Constitution as sacrosanct and unchangeable. Such constitutional sanctity zeal in Japan is virtually akin to the religious fundamentalism sweeping elsewhere in the world. To regard every word or provision in the Constitution as sacred is like defending the literal truth of a religious scripture.

Given such entrenched attitudes, the Abe government took recourse to reinterpreting Article 9 on the collective self-defense issue. However, any actual amendment of Article 9 does not seem feasible at present, especially as long as the small Komeito party remains part of the ruling coalition.

In fact, such are the current obstacles to constitutional revision that what Abe can hope for in his term is effecting, at best, a relaxation of amendment procedures, leaving Article 9′s modification to a successor government. Yet accomplishing even that limited goal remains uncertain. Given the strongly pacifist sentiment in society and the power of constitutional fundamentalists, it is an open question whether any proposed amendment of Article 96 to lower the revision bar — even if it were to clear both houses of the Diet with two-thirds majority — would win public support in a referendum.

If there is one factor that can make a meaningful difference, it is American support. Abe must lobby President Barack Obama’s administration to lend support to his constitutional reform agenda. U.S. support for constitutional revision will not only blunt Chinese criticism but also assuage many Japanese that amending the Constitution will not mean repudiating the postwar order that America established in Japan or abandoning pacifism.

Japan is the only power that can block China from gaining ascendancy in the region. America’s Japan policy, however, remains more geared to keeping that country as a U.S. protectorate than allowing it to directly aid the central U.S. policy objective in the Asia-Pacific — a stable balance of power.

U.S. security interests would be better served by a more confident and secure Japan that assumes greater responsibility for its own defense and for regional security. In the way America backed Abe’s reinterpretation of the collective self-defense right, it ought to support constitutional reform in Asia’s oldest liberal democracy that has an enviable record: Japan has not fired a single shot against an outside party since World War II and has been a major donor of economic and humanitarian aid and promoter of global peace.

Meanwhile, Japanese must engage in an open and free debate on their Constitution. Such a debate should focus on what provisions in the Constitution need to be updated, improved, upgraded or expanded given new security, economic, social and political realities. Only such a debate can set the stage for reform that helps Japan to free itself from its constitutional millstone.

Brahma Chellaney is a geostrategist.

© The Japan Times, 2015.

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