Contrary to what the English-speaking media would have you believe, the biggest issue with the so-called "war bills" that got passed into law less than a day ago is not about Japan's national security or about war and peace. The English-based media outlets have been focusing on the "historical" nature of the new laws that would now allow Japanese military engagement overseas for the first time since World War II. And I am not denying that it is this aspect of the law that has been controversial and the focus of protests by the "peace-loving" Japanese people who have not exactly been known for their political activism. But this focus has had the unfortunate effect of masking an even bigger problem that every person who believes in democracy and the rule of law should find disturbing.
Both the media's and the Japanese people's focus on Article 9 (the reason that the Japanese Constitution is often called the "peace constitution" or "pacifist constitution") has driven the discussion away from the fact that Prime Minister Abe and his Liberal Democratic Party (LDP) achieved the effect of a constitutional amendment by mere legislation. This travesty does not even reach the question of whether Japan should have a greater ability to engage in military operations. We should be talking about whether Japanese political leaders truly respect the rule of law and the democratic structure provided for by the Japanese Constitution. But all the media and even the Japanese people (other than constitutional scholars and legal experts) want to talk about is Article 9 and whether or not the law violates that particular provision.
Article 9, the most famous provision of the Japanese Constitution, goes like this:
"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. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized."
Article 9 has been stretched and bent over the years. (To begin with, Japan has had "war potential" since the the early 1950s, and the Constitution came into effect in 1947.) Over the years, Japan's effective military strength has grown, although Japan has done little to assert itself as such. The U.S. had taken upon itself to carry Japan's security burden in the wake of the Cold War after neutering Japan's military strength after World War II, but it became apparent that this was a frustrating arrangement for the U.S. which itself (other East Asian countries are a completely different story) no longer distrusted Japan to abuse its military powers. So, little by little, Japan built up its military strength but was constrained in the use of that strength by the now-iconic provision that was given to Japan by the United States along with the rest of the Constitution.
To be sure, Article 9 is long due for one of two things: some form of formal revision or serious re-commitment to its basic principles. A refresher course on what Article 9 actually means and does--as well as what "pacifist" means--may be necessary for the Japanese people as well. However, none of this gives lawmakers the right to ignore the constitutional procedure to amend a constitutional provision (clearly laid out in Article 96) or to call what is effectively a constitutional amendment a legislation and proceed without the required votes by the legislature and by the people.
A majority of constitutional scholars and other experts agree that these bills as written violate Article 9. Passing them as legislation and calling it the law of the land is the equivalent of amending the Constitution without going through the proper procedures. Prior to the bills being passed into law, 75 former judges sent an opinion letter to the speaker of the upper house expressing that concern that the bills were "unconstitutional" and "in violation of the fundamental principles of democracy;" this move was unprecedented for Japanese judges who are expected to not make political statements, even after retirement. The fact that a majority of the Japanese people (by a large margin) oppose the legislation just adds insult to injury since they have always been entitled by the Constitution to vote on a constitutional amendment. After all, even those who support the substantive contents of the new law believed sufficient debates had not taken place for the bills to be passed into law.
Whether and how Article 9 should be revised should rightly be up for discussion. It is a complicated matter that requires the Japanese people to think critically about Japan's history with war, the current geopolitics in East Asia and around the world, and the vision of where Japan should be headed as a country. Moreover, many Japanese people are more anti-war than pro-peace, meaning that they have more of an isolationist mentality than a proactive idea of peace in a globalized world. They believe that keeping Article 9 as is is the best and only way to ensure peace in Japan. This idea likely requires some examination, even if one ultimately concludes that keeping Article 9 is the answer.
But the point is that the drastic change to Japanese national security law in violation of the Constitution should have been presented to the people so that they, in accordance with constitutional procedures, could have determined the fate of Article 9. Instead, Abe and his party decided that it was perfectly acceptable to ignore the Constitution and the right of the people under it. They demonstrated their disdain for the Constitution, rule of law, and basic principles of democracy.
The Internet is a wonderful thing. Halfway across the world, I got to stream the final vote online. I got to witness what felt like the death of rule of law in Japan. But the social media posts of my friends who are in Japan--including a photo my friend posted from the massive protests outside of the Diet (parliament) a couple nights ago--give me hope that Japanese democracy just may have been given a new breath of life.
Both the media's and the Japanese people's focus on Article 9 (the reason that the Japanese Constitution is often called the "peace constitution" or "pacifist constitution") has driven the discussion away from the fact that Prime Minister Abe and his Liberal Democratic Party (LDP) achieved the effect of a constitutional amendment by mere legislation. This travesty does not even reach the question of whether Japan should have a greater ability to engage in military operations. We should be talking about whether Japanese political leaders truly respect the rule of law and the democratic structure provided for by the Japanese Constitution. But all the media and even the Japanese people (other than constitutional scholars and legal experts) want to talk about is Article 9 and whether or not the law violates that particular provision.
Article 9, the most famous provision of the Japanese Constitution, goes like this:
"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. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized."
Article 9 has been stretched and bent over the years. (To begin with, Japan has had "war potential" since the the early 1950s, and the Constitution came into effect in 1947.) Over the years, Japan's effective military strength has grown, although Japan has done little to assert itself as such. The U.S. had taken upon itself to carry Japan's security burden in the wake of the Cold War after neutering Japan's military strength after World War II, but it became apparent that this was a frustrating arrangement for the U.S. which itself (other East Asian countries are a completely different story) no longer distrusted Japan to abuse its military powers. So, little by little, Japan built up its military strength but was constrained in the use of that strength by the now-iconic provision that was given to Japan by the United States along with the rest of the Constitution.
To be sure, Article 9 is long due for one of two things: some form of formal revision or serious re-commitment to its basic principles. A refresher course on what Article 9 actually means and does--as well as what "pacifist" means--may be necessary for the Japanese people as well. However, none of this gives lawmakers the right to ignore the constitutional procedure to amend a constitutional provision (clearly laid out in Article 96) or to call what is effectively a constitutional amendment a legislation and proceed without the required votes by the legislature and by the people.
A majority of constitutional scholars and other experts agree that these bills as written violate Article 9. Passing them as legislation and calling it the law of the land is the equivalent of amending the Constitution without going through the proper procedures. Prior to the bills being passed into law, 75 former judges sent an opinion letter to the speaker of the upper house expressing that concern that the bills were "unconstitutional" and "in violation of the fundamental principles of democracy;" this move was unprecedented for Japanese judges who are expected to not make political statements, even after retirement. The fact that a majority of the Japanese people (by a large margin) oppose the legislation just adds insult to injury since they have always been entitled by the Constitution to vote on a constitutional amendment. After all, even those who support the substantive contents of the new law believed sufficient debates had not taken place for the bills to be passed into law.
Whether and how Article 9 should be revised should rightly be up for discussion. It is a complicated matter that requires the Japanese people to think critically about Japan's history with war, the current geopolitics in East Asia and around the world, and the vision of where Japan should be headed as a country. Moreover, many Japanese people are more anti-war than pro-peace, meaning that they have more of an isolationist mentality than a proactive idea of peace in a globalized world. They believe that keeping Article 9 as is is the best and only way to ensure peace in Japan. This idea likely requires some examination, even if one ultimately concludes that keeping Article 9 is the answer.
But the point is that the drastic change to Japanese national security law in violation of the Constitution should have been presented to the people so that they, in accordance with constitutional procedures, could have determined the fate of Article 9. Instead, Abe and his party decided that it was perfectly acceptable to ignore the Constitution and the right of the people under it. They demonstrated their disdain for the Constitution, rule of law, and basic principles of democracy.
The Internet is a wonderful thing. Halfway across the world, I got to stream the final vote online. I got to witness what felt like the death of rule of law in Japan. But the social media posts of my friends who are in Japan--including a photo my friend posted from the massive protests outside of the Diet (parliament) a couple nights ago--give me hope that Japanese democracy just may have been given a new breath of life.
