Contesting the Japanese Constitution
Volume 6, Issue 2 (Book review 5 in 2006). First published in ejcjs on 7 December 2006.
Hook, Glenn D. and Gavan McCormack (2001), Japan's Contested Constitution: Documents and Analysis, London: Routledge, ISBN 0415241006, paperback, 212 and xii pages.
New Constitution, New State
The 'fundamental question of Japanese democracy', according to Japan's Contested Constitution: Documents and Analysis, lies in whether the Japanese people can 'decide what they wish to offer to the new millennium' (page 44). By this, the authors, Glenn Hook and Gavan McCormack, mean the Japanese must make a decision on what kind of constitution they wish for their state and what kind of state they wish for the world. Japan's great ongoing constitutional debate is thus 'an important window onto the way that the Japanese people think of themselves, and how they would like to be seen by the world' (page 44).
Contested Constitution was published in 2001, a year after Research Commissions on the Constitution were established in the two houses of the Diet. Both commissions submitted their reports in 2005. In 2006, a Special Committee for Research on the Constitution of Japan was established in the lower house but not immediately in the upper house (Nabeshima 2005). With the debate very much alive, therefore, Contested Constitution remains a highly valuable contribution to both academic and wider discussions on this process. Considering the debate's focus on Japan's international role, especially on security, the book's analysis of Article 9 is especially relevant for an era being shaped by the 'war on terror', nuclear proliferation and a new revisionist Japanese prime minister.
The book is divided into three parts. The first part, 'Analysis', examines the 'evolution of constitutional government in Japan and Åc differing interpretations of key clauses in the constitution' (page v) in a chapter entitled 'Parchment and Politics: Japan's Living Constitution'. The second part, 'Documents', presents translations of four key proposals for constitutional reform from the 1990s. These are the proposals made by the Yomiuri (pages 55–91) and Asahi newspapers (pages 129–60), the Iwanami publishing house (publisher of Sekai, pages 92–128) and Ozawa Ichirō, a former Liberal Democratic Party (LDP) politician, political writer (Ozawa 1994) and current leader of the Democratic Party of Japan (DPJ) (pages 161–76). The book concludes with the third part, 'Constitution Texts', which presents the texts of Japan's two constitutions, The Constitution of the Empire of Japan (the Meiji Constitution of 1889) and The Constitution of Japan (1947).
From Parchment to Politics
Given its difficult birth and changing life, 'it is perhaps more remarkable that the constitution has survived intact as long as it has, than that its revision is now being seriously contemplated' (page 3). As Hook and McCormack point out, however, while it is one thing to declare things on paper, it is quite another to make them work in reality. The recasting of Meiji Japan was no easy task for post-war authorities (see Dower 1999), and so, in any new order set out (on paper) after the Second World War, 'the stipulations and guarantees of the constitution were often contested' (page 9). The differences between parchment and politics have provided great scope for ongoing argument.
It is with this in mind that the first chapter of Contested Constitution looks at these debates from the almost 60 years since the constitution's proclamation. Hook and McCormack take the reader through the Cold War and then Post–Cold War periods, detailing the emergence and evolution of political and scholarly contests over the role of the 'symbolic emperor', popular sovereignty, state pacifism, and human rights. The debates, they argue, involve three issues 'which may be described as "classic" in constitutional theory' (page 4). These are the 'location of sovereignty, division of powers, and definition of the rights and duties of citizens and state' (page 4).
Contested Constitution touches on all these issues at different stages. However, as the authors argue, 'What is distinctive if not unique about the Constitution of Japan Åc is that it also involves a fourth issue, the declaration of state orientation' (page 4). This refers to Japan's commitment, through Article 9 of the constitution, to a pacifist or antimilitarist orientation in world affairs. Famously, Article 9 states: 'Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes' (page 191). The Article's second clause goes on to state that war potential (including a military) will not be maintained and the right of belligerency 'will not be recognized' (page 191). 'Much of the debate', therefore, 'has revolved, and still revolves, on this matter' (page 4), that is, the use of—and the right to possess the means for—war.
Much of Contested Constitution, including both the Analysis and the Documents sections, also concentrates on this remarkable feature of the constitution. This approach, from the viewpoint of a legal scholar, might be seen as a weakness. However, it is a feature that also makes Contested Constitution more interesting and valuable to a wider audience. Hook and McCormack do link their study of this 'unique' feature in well with their treatment of these other 'classical' issues. Especially topical, in view of current moves in education policy under the Abe administration (e.g. the expectation that children receive a 'moral' education), is the issue of the national flag and anthem. The Hinomaru and Kimigayo controversy highlights the diluting of two constitutional pillars—sovereignty of the people and the right to freedom of speech—and comes as part of the move to 'normalise' Japan, which is also reflected in the nation's changing security policies. Nevertheless, for this reader, what dominates the book is the issue of Article 9.
To begin with, Contested Constitution highlights the early Cold War ambivalence toward the pacifist idea. '[S]carcely had the ink on the document dried and the constitution come into force than its contents were regretted, both by Japanese nationalists for its constrictions on sovereignty and by the US for its curtailment of a full Japanese role in the Cold War' (page 13). There was soon pressure to 'subvert' Article 9 and by 1950 Japan had a national police reserve, by 1954 a Self-Defence Force (SDF) (see also McCormack 2001). The authors wonder what, given these developments and Japan's incorporation within the 'global military (including nuclear) superpower strategy under the US-Japan Security Treaty' (page 14), Article 9 might forbid.
Article 9 is, of course, the source of several puzzles concerning Japan's actual, and (self-)perceived, international roles as well as its domestic politics. First, while the people overwhelmingly supported pacifism and Article 9, they also largely supported the existence of the SDF and the alliance system (see also Hook 1996). During the 1980s, according to the authors, as much as 80 per cent of the public supported the constitution (page 14); although research elsewhere by Hook (1996) shows that opposition to revision was in decline from the mid-1980s. Second, while the population supported the status quo, many in the Liberal Democratic Party (LDP) opposed it. The authors note how conservative politicians from the LDP, leaders such as Kishi Nobusuke and Nakasone Yasuhiro, actively promoted constitutional revision, especially of Article 9. Their political descendants, such as Koizumi Junichirō and Abe Shinzō, have also been pursuing this ambition. At the same time, others within conservative politics and the LDP supported or 'worked around' Article 9.
By the 1980s, this combination of public 'denial' and conservative 'radicalism' or subversion had led to a 'hollowing out of Article 9' (page 21). Hook and McCormack argue that, 'by incremental concessions, courts, governments, and bureaucrats swept aside constitutional objections and declared legitimate and proper the chain of military bases, the nuclear "umbrella," and the domestic force known as the "Self-Defense Forces" '(page 17). New policies such as Japan's increased participation in collective self-defence manoeuvres and the extension of areas surrounding Japan for defence (to a 1,000-mile sea lane) all emerged in the 1980s. Contested Constitution again emphasises the revisionist Nakasone, for declaring Japan an 'unsinkable aircraft carrier' and abolishing the military expenditure limit of 1 per cent of GNP. Yet the role of those who merely 'worked around' Article 9 is also important. Closer integration with the US had already begun before Nakasone became prime minister: it was the 'dove' Prime Minister Suzuki Zenkō who, perhaps unwittingly, committed Japan to the 1,000-mile sea lane policy in 1981 (Green 2001), and Fukuda Takeo who oversaw the adoption of the Guidelines for US-Japan Defence Cooperation in 1978 (Keddell 1993).
This is not to suggest that Article 9 did not make an impact. Indeed, Hook and McCormack make a point of highlighting (pages 20–23) how the constitution—and especially Article 9 on security policy—'provided a normative framework informing, constraining and to some extent molding the behavior of policy-making and other political actors' (pages 21–22). These worked together with 'semi-constitutional' understandings or taboos (Katzenstein 1996), and their effect is reflected both by the need for policy makers to work around Article 9 and by Japan's responses to world events. The 1 per cent ceiling, the ban on military exports, as well as the avoidance of direct involvement in Vietnam in the 1960s and 1970s and the Gulf War of 1990–91 were all policies shaped by these constraints (page 22).
After the Cold War, however, the public seemed to be losing interest in protecting the constitution. With the experience of the Gulf War (when Japan was criticised for failing to provide a human contribution), public attitudes, the domestic political system and the constitutional debate all shifted. The end of the Cold War, it seems, was difficult for everyone. For conservatives, the US alliance seemed to have lost its raison d'être with the demise of communism; for progressives, unarmed neutrality was losing its resonance in a post-ideological world. New demands to contribute to international security through such activities as peacekeeping certainly seemed to catch Japan off-guard. And the result was that 'revision by interpretation' (page 31) or 'virtual revision' was no longer enough.
Within a decade, there were many new revision proposals. Even anti-constitutional radicals produced a satirical version of the constitution that began, 'We, the Armed Forces of the United States occupying Japan Åc do proclaim that sovereign power does not reside in the Japanese people and do firmly establish this constitution' (reproduced in part on pages 26–29). Others took a more solemn tone. The proposals that make up the bulk of Contested Constitution (pages 55–176) were published between 1993 and 1999 and take two main approaches to revision, especially on Article 9.
The revisionists, the Yomiuri and Ozawa proposals, both attempt to strengthen Japan's military capabilities, the former in a minimal way, with an eye strictly for defence, and the latter in a way that envisages a greater role for Japan in United Nations (UN) peacekeeping. The Yomiuri proposal replaces to 'renounce' (hōki) war as a sovereign right with 'never recognize' (mitomenai) it as a sovereign right, adds a clause on eliminating weapons of mass destruction and an article that explicitly enables a self-defence force. The proposal follows the Yomiuri view that 'Japan as an independent nation is naturally entitled to possess the necessary minimum force for self-defense' (page 88). Ozawa's 1999 proposal adds a third clause to Article 9, stating that the previous clause would 'not prevent the maintenance of military power for the purpose of exercising Japan's right of self-defense' (page 166). It also adds a new article that asserts Japan's role in 'participating in international peacekeeping activities' (page 166).
The anti-revisionists, the Sekai and Asahi proposals, seek to retain or strengthen Japan's commitment to pacifism. Both seek to protect Article 9 and, instead, address inconsistencies between theory and practice through supplementary legislation or 'semi-constitutional law' (page 93). The 1993–94 proposal of Sekai supports supplementing the current constitution with a 'Basic Peace Law', while the 1995 Asahi proposal recommends an 'International Cooperation Law'. Both proposals allow for a minimal defence force, encourage disarmament, and seek the abolition of the US alliance. Asahi calls for reductions to the size of the SDF, while Sekai does likewise but also argues that the SDF's size should be decided in consultation with regional neighbours. Sekai calls for an SDF that 'cannot engage in defense activities beyond the boundaries of Japanese sovereign air, sea or land space' (page 97), prohibits conscription, emphasises diplomacy, and reaffirms Japan's non-nuclear principles. Pre-emptive strikes are prohibited. Under the Asahi plan, a Peace Support Corps would be established for international peacekeeping, but no Japanese armed personnel would be despatched overseas. The UN would be strengthened.
Steadily Deepening Commitment
When they published Contested Constitution in 2001, Hook and McCormack suspected that this virtual revision would no longer be sufficient. Five years later, their suspicions seem well founded, though the issue is far from resolved. The Research Commissions on the Constitution, established in 2000, reported back to the Diet in 2005. While noting a range of views, the assessment of the House of Representatives regarding Article 9 was that the first clause should be kept but the second clause removed (Watanabe 2005; House of Representatives Research Commission on the Constitution 2005). Likewise, the House of Councillors supported the first clause of Article 9 but also expressed the view that Japan is entitled to the right of self-defence (House of Councillors Research Commission on the Constitution 2005). However, Watanabe (2005) suggests that for various reasons, including the need for a two-thirds majority in the Diet to amend the constitution, 'it is hard to predict when the Constitution will actually be amended, but there is a good possibility that it will happen within the next five years'.
Public attitudes in Japan seem to be shifting, even on Article 9. According to Watanabe (2005), 'unlike in decades past, the majority of Japanese who support amendment of the Constitution Åc do so Åc because they believe it is out of step with the times'. This majority, according to a Mainichi newspaper survey conducted in 2005, has reached 60 per cent (Watanabe 2005). Watanabe does point out that, as with the commission reports, most respondents only wish to change the second clause of the Article 9 (about maintaining a military) and are, therefore, still committed to renouncing war as a sovereign right. Nevertheless, this constitutes a significant shift from attitudes during the Cold War, and indicates perhaps how Japan's view of the world is changing.
This view has arguably been shaped by questions of whether the alliance system remains relevant, whether 'unarmed neutrality' and 'peace statism' still have any resonance and whether the 'peace state' can contribute to international security through the UN. First, despite expectations of a 'peace dividend', power politics remains a potent force in international politics, especially in the Asia Pacific. Although the Soviet threat has disappeared, new ones appear, and some old, mostly forgotten ones re-emerge. Global terrorism, Sino-American rivalry, and so-called 'rogue states' employing weapons of mass destruction (WMD)—in Japan's neighbourhood, North Korea—increase the perceived risks in the international environment and provide security hawks with reason to reinvigorate the US alliance and further extend the notion of self-defence (some would have it include pre-emptive strikes).
Similarly, these current trends in international politics, and the Japanese view of them, may explain why the neutrality and peace-state ideas are losing ground. When a neighbouring country sets off a nuclear test and makes threats of war, people look to see how their security is being provided. During the Cold War, and particularly with the Soviet threat of the 1980s, the neutrality idea competed with pro-alliance arguments by asserting that Japan would be safer if it avoided entanglement in the great ideological struggle. In a world of asymmetrical threats and terrorism, however, a rational global framework to underpin such thinking is even less plausible. And Japan itself is more nationalistic, likely to respond to global threats not with calls for international peace and a stronger UN but with unilateral statements of condemnation. The often marginalised UN, the emphasis on hard power politics, the use of violence in international affairs, by both state and non-state actors, give the security-policy solutions of Sekai and Asahi an unfortunate look, much like that of the utopianism of the inter-war period so criticised by E. H. Carr. Like inter-war utopians, Sekai and Asahi seek to shape the world through 'pure aspiration' alone (Carr 1964, 9).
For all that, it is mistaken to think that the focus of the debate shifted suddenly from unarmed neutrality to collective self-defence. The movement was slow and gradual. On this count, of all the 1990s' proposals for constitutional revision, it is Ozawa's that has been the most influential. It was Ozawa who gently pushed on the constitutional door in such a way that it would soon blow wide open. At the heart of his proposal was the accusation that any pretension to 'unarmed neutrality' on the part of Japan was in fact 'free riding' and selfish (page 39). The impact of the Gulf War in this context has been long-lasting, and Ozawa touched 'a deep nerve' (page 39), most importantly, in this reader's view, by linking domestic circumstances (self-defence) with international obligations (collective security). As Watanabe (2005) notes, 'Those who follow Japan's defense and security policy closely are aware that a steadily deepening commitment to international security is one of the most striking trends in the evolution of that policy over the past decade or so'.
Ozawa, by pursuing his 'free rider' argument and emphasising Japan's international obligations, put Japan at the top of this slippery slope of 'steadily deepening commitment'. In other words, if it is reasonable for Japan to participate more fully in collective security, such as in international peacekeeping, is it not also reasonable to expect Japan to participate in collective self-defence with allies? This long-held US position now has considerable traction in terms of both Japan's domestic politics and its regional environment. Accordingly, in 2006, the main constitutional contest is shifting away from the debates highlighted in Contested Constitution. The door is open and the new debate turns not on whether Japan has the right to self-defence, but on what kind of self-defence Japan should choose. It seems that this is today's question for the Japanese as they redesign their state for the new millennium.
Analysis, Documents and Constitution Texts
'Parchment and Politics: Japan's Living Constitution', pp.3–52.
'Yomiuri Shimbun, "A Proposal for the Revision of the Text of the Constitution of Japan" (1994)', pp.55–91.
'Sekai, "Peace and Regional Security in the Asia-Pacific: A Japanese Proposal" (1993–4)', pp.92–128.
'Asahi Shimbun, "International Cooperation and the Constitution" (1995)', pp.129–60.
'Ozawa Ichirō, "A Proposal for Reforming the Japanese Constitution" (1999): Breaking a Post-war Japanese Taboo, a Current Japanese Politician Rewrites its Provisions", pp.161–76.
'The Constitution of the Empire of Japan (Meiji Constitution, 1889)', pp.179–88.
'The Constitution of Japan (1947)', pp.189–203.
Carr, E. H. (1964), The Twenty Years' Crisis, 1919-1939, First Harper Torchbook edition, New York: Harper and Row.
Dower, John W. (1999), Embracing Defeat: Japan in the Wake of World War II, New York: W. W. Norton & Co.
Green, Michael J. (2001), 'The Search for an Active Security Partnership: Lessons from the 1980s', in Akira Iriye and Robert A. Wampler (eds), Partnership: The United States and Japan, 1951–2001, Tokyo: Kodansha International, pp.135–60.
Hook, Glenn D. (1996), Militarization and Demilitarization in Contemporary Japan, London: Routledge.
House of Councillors, Research Commission on the Constitution (2005), Handbook on the Research Report on the Constitution of Japan, (22.11.2006).
House of Representatives, Research Commission on the Constitution (2005), Final Report, April, (16.11.2006).
Katzenstein, Peter J. (1996), Cultural Norms and National Security: Police and Military in Postwar Japan, Ithaca: Cornell University Press.
Keddell, Joseph P. Jr. (1993), The Politics of Defense in Japan: Managing Internal and External Pressures, Armonk: M. E. Sharpe.
McCormack, Gavan (2001), The Emptiness of Japanese Affluence, revised edition, Armonk: M. E. Sharpe.
Nabeshima, Keizo (2005), 'Toward a New Constitution', The Japan Times Online, 17 October, (15.11.2006).
Ozawa, Ichiro (1994), Blueprint for a New Japan, Tokyo: Kodansha International.
Watanabe, Akio (2005), 'Revising the Constitution and Reforming the UN: Japan's Parallel Agenda', Japan Echo, vol.32, (15.11.2006).
Article copyright H. D. P. Envall.