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Japan's constitutional
bind
By Bennett Richardson
TOKYO - Japan waited a long time before
deciding its constitution needed amending. But now
it may have to wait a little longer.
After
five years of intra-party discussion on revising
the charter and the release of draft research
reports from the upper and lower houses in April,
a key procedural bill that calls for a national
referendum on the matter was shelved last week
amid a growing sense that the reform process
lacked direction.
While proposed revisions
currently run the gamut from allowing for a female
emperor to guaranteeing protection of the
environment, the debate surrounding constitutional
reform has focused squarely on Japan's military
capability and its appropriate limits as Tokyo
moves to lift its security profile on the
international stage.
The current
constitution, drafted over a few days in 1946 by a
hodgepodge of young legal and clerical workers
under the direction of the US occupation's General
Douglas MacArthur, famously prohibits Japan in the
first clause of Article 9 from resorting to war as
a means of resolving international disputes, and
states in its second clause that armed forces will
never be maintained.
The ruling Liberal
Democratic Party (LDP) says it hopes to re-open
discussions on the referendum bill in an
extraordinary session of parliament this autumn,
as part of a drive to finalize a draft
constitution by November. But the timetable is
looking increasingly unrealistic due to the sheer
variety of opinion on what the scope of Article 9
should be.
"The study reports released by
the upper and lower houses don't set out a basic
direction for reform," says Masahito Tadano, a
professor of constitutional law at Hitotsubashi
University in Tokyo. "Even if a consensus can be
reached centering on Article 9, I think it may end
up being a comparatively minor amendment."
The war-renouncing first clause of Article
9 is unlikely to be altered, and it remains
unchanged in initial LDP drafts. Underscoring the
legacy of pacifism created by the devastation of
World War II, polls show 60% of the public favor
keeping the status quo on that section.
"But the second clause may be revised to
explicitly allow a right to self-defense and to
keep armed forces for defense purposes," says
Tadano. Surveys show support for changing this
section - around 58% among the public and 75%
among lawmakers; well over the two-thirds majority
needed to pass constitutional revisions. Tadano
says another possibility on the drawing board is
the introduction of a new clause in Article 9 to
allow Japan's Self-Defense Forces (SDF) to be sent
overseas for the purposes of making military
contributions in multinational efforts.
The fact that changes to Article 9 are
being discussed at all marks something of a
watershed for Japan. For 60 years, there has never
been the political will or public support for
changing the constitution. The SDF, created in
spite of Article 9 as a response to the unstable
regional situation during the Korean War, has
existed in a legal no-man's land for more than 50
years. Even as Japan expanded the role of the SDF
to international peacekeeping operations in the
1990s, and more recently to logistical support in
Afghanistan and non-combat duties in Iraq, both
clauses of Article 9 have remained intact; and
their interpretation increasingly untenable.
"Over the last 10 years the wording and
the interpretation of the clauses have moved
further and further apart. If we continue in this
direction, the interpretation and the actual
essence of the constitution will become completely
disconnected," says Yukio Edano, who heads the
opposition Democratic Party of Japan's Committee
on Constitutional Reform.
Indeed, Japan is
sometimes accused of putting the cart before the
horse as it has moved to expand its security
profile on the world stage without changing the
constitution. "The existence of the SDF must be
acknowledged [in the constitution] ... unless that
occurs, the reality of the SDF makes a nonsense of
the law," says Edano, a former lawyer.
LDP
lawmakers say the current reform process is part
of an effort to fix that problem and will help lay
the groundwork for a more practical security
policy in the future.
"Japan has taken on
a lot of new obligations, not only to defend its
own territory, but also to help contribute to
world peace," says Taro Kono, a deputy secretary
general of the LDP. He points to efforts in Iraq,
the more frequent need to douse security
brushfires around the world since the end of the
Cold War, and the emergence of non-state threats
such as al-Qaeda. "We need to think about how
Japan can respond to this new world, to these new
concepts."
Polls show that pro-revision
sentiment is strongest among those in their 30s
and 40s and weakest among the elderly. While the
post-September 11 political atmosphere and anxiety
over North Korea's nuclear program has created the
momentum for limited changes to Article 9 among
ordinary Japanese, international pressure is
mounting from some quarters for Japan to do even
more to free up its military resources for use in
regional hot spots.
The US has long advocated
that Japan make its constitution more contemporary
and has quietly been pushing for changes to
Article 9 so Tokyo no longer views it as a
prohibition to the UN requirement that all members
contribute to collective security. Last week,
Washington reportedly balked in negotiations over
providing missile-launch data directly from
early-warning satellites to Tokyo due to Japan's
position that it would only be able to use the
missile system to defend its own territory but not
that of another country.
The Japanese
public is against Tokyo having an explicit right
to engage in such collective defense actions as
many fear such a right would become an obligation
that could drag the country into an unwanted war
if China were to attack Taiwan.
"The role
of Article 9 in legally circumscribing SDF actions
and dispatches overseas is very important ...
because it allows the government to decide such
matters on a case by case basis," says Tadano, the
law professor.
Others are worried that the
more confrontational military stance of the George
W Bush administration will come back to haunt
Japan. "What would Japan's position be under
collective defense if the US launched a
pre-emptive strike?" asks Kiyomi Tsujimoto, a
non-profit organization coordinator. She says now
is a poor time for any controversial changes
concerning Japan's military given the recent
anti-Japan sentiment in China.
"We will
have to take part in America's wars. I can't agree
[that Japan should have the right to collective
defense] - diplomacy is a better option."
But as Tokyo eyes a permanent seat on the
UN Security Council and seeks to expand its
political influence in Asia, more lawmakers may
consider the possibility of broader constitutional
change in line with US wishes. One recent poll
showed that as many as 65% of upper house
lawmakers favor Japan having the right to defend
other nations.
Bennett
Richardson is a Tokyo-based freelance
journalist with a special interest in Japanese
defense policy, politics and modern history.
(Copyright 2005 Asia Times Online Ltd.
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