Kensuke Ueda outlines the context for the recent reinterpretation of Article 9 of the Japanese Constitution, which until now outlawed war as a means of settling disputes. He suggests the manner in which the changes were pushed through is worrying for Japanese constitutionalism.

On 1 July this year the Japanese Government passed the cabinet decision on the ‘development of seamless security legislation to ensure Japan’s survival and protect its people’. This new direction in national security legislation has attracted a great deal of attention because it contains a change in the interpretation of Article 9 of Japan’s 1946 constitution, which states that ‘the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes’.

‘Change of interpretation’

The conventional interpretation of Article 9 states that it prohibits military intervention. However in light of ‘the right to live in peace’, recognised in the preamble of the constitution, and Article 13, which guarantees the ‘rights to life, liberty, and the pursuit of happiness’ as worth supreme consideration in governmental affairs, Article 9 cannot be interpreted as prohibiting Japan from taking measures to maintain its peace and security and to ensure its survival. The ‘use of force’ abroad has thus been judged not permitted, but Japan has long maintained a Self Defence Force (SDF), which is not seen as unconstitutional as long as it is used purely for the purpose of self-defence.

Following this logic, the government has until now understood that the use of force is permitted only in the event of armed attack against Japan. However, the security environment surrounding Japan has been fundamentally transformed by shifts in the global power balance and the rapid progress of technological innovation since Article 9 was adopted. Many now feel that in the future even an attack occurring against a foreign country could actually threaten Japan’s survival, depending on its purpose, scale and manner.

It is on this basis that the cabinet decision recently reviewed the conventional interpretation.

As a result of careful examination in light of the current security environment, the government thus reached a conclusion that the use of force may be legitimate in the event of an armed attack against a foreign country that has a close relationship with Japan. If this is seen as posing a clear danger to the Japanese people’s right to life, liberty and pursuit of happiness, the use of force should be permissible under the Constitution as it remains consistent with the basic logic of the government’s line on self-defence.

Background to the cabinet decision

Prime Minister Abe has long been committed to amending Article 9. Last year he proposed a revision of Article 96, which defines the procedure for any change to the Constitution. According to Article 96, any amendment of the Constitution requires both the following steps:

1. A two-thirds majority in both chambers of parliament: the House of Representatives and the House of Councillors
2. A majority in a national referendum

Given the political balance in the present Diet (Parliament), it could not be guaranteed that the amendment of Article 9 would get two-thirds majority in the House of Councillors. Abe’s initial proposition was therefore to amend Step 1 by substituting simple majority for two-thirds majority. However, his proposal was heavily criticised because, in trying to make the amendment of the Constitution easier, he was concealing his real aim which was the revision of Article 9. In light of the political opposition, Abe abandoned his proposal to amend Article 96.

The change of interpretation can therefore be considered an alternative way of making the right of collective self-defence permissible under the Constitution. But there was another hurdle to clear: the Cabinet Legislation Bureau (CLB). This is responsible for the interpretation of laws, including the Constitution, by the executive. It advises the Cabinet on the interpretation of legislation and checks that all government bills conform to the existing legal order, the pinnacle of which is the Constitution. The CLB has a great deal of influence because there are issues of interpretation which the Supreme Court has not adjudicated. The interpretation of Article 9 is a typical example. So the conventional interpretation, originally made by the CLB, had de facto authority as the Government’s long-standing formal interpretation – and until recently it worked well as a constraint on ministers from building up and deploying the SDF.

Prime Minister Abe did two things to bring about change. First, he appointed a new Director-General of the CLB from the Foreign Office, a department which is sympathetic to the change of interpretation. This appointment broke from the convention of promoting the Director-General from within the CLB. Second, Abe set up an advisory group to discuss national security legislation. Almost all members of this meeting were supporters of the modification, so it was perhaps unsurprising that the report presented in May proposed the ‘change of interpretation’. July’s cabinet decision followed this report.

Conclusion

The cabinet decision has come under fire for undermining Japanese pacifism. However, even if this issue is put aside, I would argue the decision is worrying for Japanese constitutionalism. First, it is peculiar that a key constitutional principle designed to restrict government action has been so easily watered down by a cabinet decision. Certainly, the executive can interpret texts of the Constitution, and interpretation is subject to change over time. However, if the government wants to change long established interpretations such as that of Article 9, shouldn’t this trigger a formal procedure for constitutional revision? Second, there is some question over whether the reinterpretation is legal in that it seems to be based on expediency. The nature of the decision, and the fact that only one constitutional law expert was present at the advisory group, implies that the government is making light of legal principled interpretation.

Finally, it is strange that there has been so little debate over this reinterpretation in the Diet. This might be related to its structure and culture. Generally, the Diet seems to be considered simply as a legislature and its scrutiny function is not well recognised. Systems like select committees which act as safeguards in the UK have not developed in Japan – a Commission on the Constitution exists in both Houses, but its action is too sluggish.

It is perhaps difficult for foreign experts to understand why the Diet or the Supreme Court have not taken a more active role in this matter. The Government claims that discussion will happen when government bills on national security are debated, which is due to happen in the next year. The Supreme Court has also avoided adjudication on this issue up until now as it deems it a ‘political question’. This reluctance is unlikely to change easily. However, there is a possibility that the Supreme Court will step into this issue if an appropriate case arose following the forthcoming national security statutes.

Kensuke Ueda is Professor of Constitutional Law at Kinki University, Osaka, Japan.