Shinzo Abe

The perils of Japan's bid to reinterpret its 'peace' constitution

Peter Drysdale says changing the peace clause of Japan's constitution, as the Abe government proposes, may be stretching it to breaking point, and doesn't appear to be backed by a wary public

PUBLISHED : Tuesday, 27 May, 2014, 9:03pm
UPDATED : Wednesday, 28 May, 2014, 4:20am

The debate on the reinterpretation of the Japanese constitution is looming to be the single most consequential security-related debate in Tokyo since the US-Japan Security Treaty debate in 1960.

Japanese Prime Minister Shinzo Abe has compounded matters by choosing a "panel of experts" on security issues that is 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 recently, 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).

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 permissible under Article 9.

While Japan has been fitfully moving towards a more "normal" defence identity since the end of the cold war, in the 1990s that was accompanied by its breaking new ground on admitting to and apologising for wartime aggression. 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 US and others. While US pressure on the Abe administration has brought the more outrageous expressions of revisionism into check, things have clearly gone backwards.

Recent opinion polls suggest a public that is very cautious when it comes to constitutional change. While many are undecided, support rates for and against changing the constitution are fairly evenly matched. But on the specific question of amending Article 9, many do not want any messing with the peace clause. This is in contrast to polling a year earlier while Abe was riding his Abenomics honeymoon.

Still, many thoughtful people in the policy community are aware of the legal inconsistencies 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, is persuasive. Former diplomat 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 is inextricably linked with persuading Japan's neighbours of its benign and limited intent. Proceeding otherwise would be hugely destabilising.

Along the way to acceptable Japanese constitutional reinterpretation, which needs to follow intensive debate internally and diplomacy throughout the region, Japan needs to consider how any change fits into a 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 US 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, a senior research associate at Samuels International Associates, worries that the exercise of the patrol and interdiction advocated by the panel, "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 … would constitute a breathtaking expansion of the scale and scope" of the responsibilities of the Self-Defence Forces.

He concedes that while collective self-defence is a right, not an obligation, 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 Senkaku-related contingency would.

Gupta points out that Abe's panel of security experts painted an anodyne scenario of the country's Maritime Self-Defence Forces minesweepers acceding to an American request to ensure safe passage through the Strait of Hormuz during an outbreak of hostilities, presumably with Iran. But nothing within the proposed legal framework would prevent the Self-Defence Forces from having to respond with an exchange of fire with a Chinese warship in the South China Sea, after having been called on 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.

He warned of Japan stumbling 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". Before that happens, he said, 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," he wrote. 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 panel, by constitutional reinterpretation.

The public mood appears to insist, responsibly, that if it is to be done, it should be done in a procedurally proper way. All aspects should be debated exhaustively and any change should be voted on - 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.

Gupta's focus on just one of the committee's recommendations - but an incredibly important one - makes it abundantly clear why this is wise.

Peter Drysdale is editor of the East Asia Forum. This is an edited version of an article that first appeared on the East Asia Forum.