Abe has commissioned a Council on Security and Defense Capabilities to develop a proposal for a new interpretation of Article 9. He will seek approval from his cabinet members once the council develops a proposal. But there has been strong opposition — even from his own Liberal Democratic Party members and his coalition party — over concerns that if his approach establishes a precedent, any future prime minister can come up with a new interpretation without changing the Constitution.
It is important to remember that the prime minister himself handpicks all the council and cabinet members.
After facing criticism from his coalition party leader and his own party members, the prime minister recently said that he would take the proposal for ‘collective self-defence’ to the Diet. His party is trying to build a consensus within the party on the matter, but no matter what interpretation of the law they come up with, fundamental questions remain. Firstly, is the reinterpretation of law equivalent to writing a law? Under the three branches of government principle, only the Diet plays a legislative role and the court interprets the law. If the executive arm of government authoritatively interprets law, it undermines this fundamental principle. This leads to the question, is Abe undermining Japan’s democratic principles?
Last year, Abe argued for his idea of changing Article 96 of the Constitution, which would make it easier to amend the Constitution. Article 96 dictates that to amend the Constitution two-thirds of Diet members must vote affirmatively and 50 per cent of the Japanese people must support the change through a national referendum. Abe might have concluded that the hurdles presented by Article 96 are too high — so he is now trying an innovative approach to implement ‘collective self-defence’ within the meaning of the Constitution.
Abe’s concept of ‘collective self-defence’ contemplates a situation where the United States is attacked by North Korea and Japan’s Self-Defense Forces act to defend the US armed forces. But how would the Japanese people feel about participating in a war on the Korean Peninsula? The truth of the matter is that national debates have not even started yet on the concept of ‘collective self-defence’. So, the Japanese people have not thought through what it means to them and how it would work in the real world.
Abe argues that inaction by Japan at a time of military attacks against the US armed forces would undermine the very foundation of the US–Japan alliance. For the past 50 years, it has been understood that the Constitution of Japan does not allow self-defence actions unless enemies directly attack Japan. After World War II, the US crafted this constitutional restraint on Japan to prevent future military aggression.
Given this legacy, there are still constraints on how much assistance Japan could offer even if collective self-defence was permitted. Japan’s current military spending is approximately 8 per cent of US military spending, and is limited to 1 per cent of GDP (which has decreased by 3.4 per cent since 2003 through 2012). This is in contrast to South Korea’s spending which accounts for close to 3 per cent of its GDP, (which has increased by 44 per cent since 2003 through 2012), and China’s spending is 2 per cent of GDP (which has increased by 175 per cent since 2003 through 2012).
Abe also seems to be bypassing democratic norms when last year his government passed Japan’s new security law in the upper house without amending its original lower house bill. The Abe administration cut short upper house debates on the bill — effectively nullifying the bicameral safeguards of the Diet. But the passage of the new security law has given Abe confidence in managing the Diet in addition to his handling of the economy. Despite public demonstrations against the new security law in front of the Diet building last year, Abe has been able to maintain a domestic support rate of above 50 per cent.
Economic success is critical for Abe. Unless the economy starts growing, he will not be able to maintain support for his government. There is a limit to fiscal spending in Japan, and there is also a limit to labour productivity growth, even if more female workers participate in Japan’s labour markets. So in order to stimulate consumer spending, the government has lobbied Japanese corporations to raise the salaries of their employees. The reallocation of money from corporations to employees is an important aim for the prime minister.
But is his new approach to the concept of collective self-defence constitutionally viable? And will he ‘sincerely and succinctly explain’ the passage of the new security law to the public? There have been no congressional hearings on these important issues: Abe must not ignore the will and power of the people.
Takanori Sonoda is a Senior Fellow at the Maureen and Mike Mansfield Foundation and was previously a vice president of government relations for Honda North America based in the company’s Washington DC, office. The views expressed in this essay are his own.
Thank you for an interesting article.
The reference to the separation of powers in this article (as the author writes: “the three branches of government principle”) does not seem to be mentioned often in (at least English) commentary on this topic. Without having studied Japanese public law, I have often wondered why. It would seem that the separation of powers is a much smaller part of Japanese public law compared to, for example, Australian or US legal systems. For example, the Cabinet Legislative Bureau is clearly part of the executive arm of government. Yet, as I understand, in practice it authoritatively interprets the Japanese Constitution (even if its interpretations are not, strictly speaking, legally binding). This would seem to be an executive body exercising something very similar to judicial power, and therefore a breach of the separation of powers. The fact that the courts have allowed the CLB to function like this (I don’t know if any legal challenges to the CLB’s functions have been made) suggests to me that the separation of powers has minimum application under Japanese constitutional law.
If the separation of powers were a legally binding requirement under Japanese constitutional law, then I would think that Abe’s current attempts to “reinterpret” the Constitution would be impossible, as this would clearly be a usurpation of judicial or legislative power by the executive. (Perhaps the judiciary has chosen to give the executive wide discretion when it comes to matters of defence, however.) Still, if a major concern is that a precedent for reinterpretation of the Constitution by the executive will be developed by Abe’s actions (as the author states), then what about the courts? If the separation of powers is a legal principle in Japanese constitutional law, then why can the judiciary not be relied upon to protect against reinterpretation?
Under the Article 41, the Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State. Therefore, I would argue that the separation of powers is a legally binding principle in Japan.
Historically, Constitution of Japan was virtually written by the Occupation Army after the war. Japan regained its independence through the San Francisco Peace Treaty in 1952. When it became independent, Japan could have declared that it would adopt a new constitution on its own. However, it did not. In stead, I assume that Japan’s former administrations have used carefully a method of “limited interpretation” of the law in a self-imposed restricted manner to avoid constitutional debates. The Abe administration is muddling through to reinterpret the law in an aggressive manner.
[Addition] Please also note Article 81: The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.