which was heavy on national security expertise but light on the constitutional implications of what it proposes. As a result, the panel’s report, released in Tokyo on Thursday a week ago, has left many Japanese constitutional experts aghast at the constitutional imbroglio engineered by the security experts to justify a reinterpretation of Article 9 (the ‘peace’ clause in the Japanese constitution). Of particular concern is the logical tautology that Japan can reinterpret the constitution to allow for a broad-scoped exercise of the right to collective self-defence because it falls within the minimum necessary level of self-defence that is already permissible under Article 9.
While Japan has been fitfully moving towards a more ‘normal’ defence identity since the end of the Cold War, the movement on that path through the 1990s was accompanied by its breaking new ground on admitting to and apologising for wartime aggression and transgressions. Today, unfortunately, that context is lacking, significantly because of Abe’s psychological instinct to give rein to revisionism on wartime transgressions, greatly upsetting China and South Korea as well as the United States and others. While United States pressure on the Abe administration has brought the more outrageous, recent expressions of revisionism into check, things have clearly gone backwards and the steps taken to rewind the backwards steps have thus far been totally ineffectual.
Recent opinion polls suggest a public which is very cautious when it comes to constitutional change. While a plurality of respondents are undecided, support rates for and against changing the constitution are fairly evenly matched. But on the specific question of amending Article 9, a plurality don’t want any messing with the peace clause. This is in contrast to polling a year earlier while Abe was still riding his Abenomics honeymoon. Still, many thoughtful people in the policy community are aware of the legal inconsistencies and problems in the status quo.
The case for constitutional reinterpretation on the security clause, within the framework of Japan’s contributions to UN peacekeeping operations and alliance obligations in areas surrounding Japan, is persuasive. Hitoshi Tanaka argues that ‘the current interpretation of the constitution, stipulating that the exercise of the right to collective self-defence is not permitted, was established during the Cold War and fails to respond to the demands of the current security environment’. But this is not a case for change that eschews the ‘pacifist spirit’ of Article 9.
The problem is that constitutional reinterpretation without adverse security impact (not only for Japan but for the whole region) is inextricably linked with persuading Japan’s neighbours, including China and South Korea of its benign and limited intent. Proceeding otherwise would be hugely destabilising, especially under current circumstances.
Along the way to acceptable Japanese constitutional reinterpretation, which in any case needs to follow intensive debate internally and diplomacy throughout the region, Japan needs to consider how any change fits into a comprehensive US-Japan alliance strategy that stabilises the regional security environment. Otherwise change will exacerbate not ameliorate Japan’s security dilemma. As Tanaka says, both the United States and Japan need to ‘promote a comprehensive approach to alliance strategy that puts diplomacy at the centre of all policymaking and brings China into the fold as a responsible regional stakeholder by focusing on confidence-building measures, cooperation on trade and investment, rule building, and joint energy cooperation’.
In an important piece this week, Sourabh Gupta worries that the ‘exercise of this patrol and interdiction function [advocated in the Security Advisory Panel’s report], including the authorisation to launch counter-attacks in combat zones on state enemies of the Japanese government’s designated allies in an ‘out-of-area’ contingency — even when the home islands are not under attack — would constitute a breathtaking expansion of the scale and scope of the SDF’s responsibilities’.
Gupta concedes that while collective self-defence is a right, not an obligation (and Tokyo can take a policy decision not to exercise this right), to fail to do so, at a moment when US forces are under attack and Japan possesses the legal scope to intervene and assist, risks damaging the bilateral alliance in a similar way that American non-support in a Senkakus-related contingency would.
Gupta points out that Abe’s panel of security experts painted an anodyne scenario of MSDF minesweepers acceding to an American request to ensure safe passage through the Straits of Hormuz during an outbreak of hostilities, presumably with Iran — a mission the MSDF has hitherto been constitutionally barred from performing until belligerents have struck a truce. But nothing within the proposed legal framework would prevent Japan Self-Defense Forces from having to respond with an exchange of fire with a Chinese warship in the South China Sea, after having been called upon by a US warship to provide logistics and rear-area collective self-defence support in that designated combat zone. And he establishes that this scenario is not far-fetched.
‘Before Japan stumbles into a glide-path to confrontation with a formidable regional adversary in a geographic theatre that has hitherto lain beyond … the statutory scope of self-defence responsibilities’, Gupta concludes, ‘…the Japanese public deserves an explanation for the compelling reasons behind this potentially perilous misalignment between implicit obligation and interest. A fresh interpretation of Article 9, by contrast, which admits the selective exercise of the right to collective self-defence in areas — and waters — surrounding Japan would enhance, not degrade, deterrence’.
While Japan has to date prohibited itself from exercising collective self-defence as per Article 9, it is a right of all sovereign states recognised under the UN Charter. Thus there is a responsible appetite within the electorate for a carefully calibrated change to clarify the limited exercise of that right. There is no expression of Japanese public opinion, however, that comes remotely close to approving a broad-based scope for the exercise of this right, in the shape advocated by the Security Advisory Committee, by constitutional reinterpretation. The public mood appears entirely responsibly to insist that if it is to be done, it should be done in a procedurally proper way and for all aspects to be debated exhaustively and for any change to be voted upon — with cross-party consensus taken to a popular referendum on constitutional reform and a strong inclination to genuinely preserve the pacifist spirit of Article 9. Mr Gupta’s focus on just one of the Security Advisory Committee’s self-defence recommendations — but an incredibly important one — makes it abundantly clear why this is wise.
Peter Drysdale is Editor of the East Asia Forum.