Comming Full Circle

Hello Everyone,

Last year I wrote a paper about the possiblity of Japan reforming its constitution to allow for a traditional military. With the events in North Korea the last couple days, I thought it may be appropriate to post that paper.


去年日本の軍隊化の可能性のために憲法を改正についてレポートを書きました。北朝鮮の近事から、そのレポートを貼り出そうと思っていた。

Michael R. Zerby

Political Science 454

Professor Zhong

Wednesday, November 23, 2005

Coming Full Circle: The Approaching remilitarization of Japan

Over the last century, Japan has gone through many changes. In the late 1800’s and early twentieth century, Japan increased its status as a nation by engaging and defeating other nations through military confrontation. By the time Japan annexed Korea in 1910, Japan had become one of the world’s great powers.[1] Japan gains lands in Shantung through the Treaty of Versailles in 1919.[2] From the late 1920s and into the early 1940s, Japan expanded its empire into Pacific area countries marking the height of Japanese expansion in Asia. By the end of World War II, Japan had been decimated by the United States Military and its borders retracted to ones of pre-1910 Japan. Along with the reduction in land, Japan’s government was recreated through the postwar Constitution. Article 9 of the Japanese Constitution 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. 2) 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.[3]

From then until the present, Japan has refrained from having major wartime involvement, reemerged as a world economic power, and had begun to entertain the notion of amending the Constitution. The Liberal Democratic Party of Japan (LDP) has drafted a revised Constitution which they unveiled on the fifty year anniversary of the party. One of the main alterations to the Constitution proposed by the LDP is the alteration of Article 9 for the purpose of allowing Japan a military in a traditional sense. What changes to and retentions of Article 9 exist in the proposed alterations to the Constitution by the LDP? Why has the LDP chosen to propose an alteration to the Constitution at this point in the Japan’s history? Have there been steps taken towards remilitarization, and what significance would those steps have to making the process of revising Japan’s Constitution easier?

Today Japan’s army controls an approximately 235,300[4] man strong self-defense force properly named Jieitai (自衛隊) or the Japanese Self-Defense Force (JSDF). The JSDF is organized into three main military branches. Those branches are the Japan Ground Self-Defense Force, the Japan Maritime Self-Defense Force, and the Japan Air Self-Defense Force which are analogues to the US Army, Navy, and Air force respectively. Japan’s Military expenditures, as of 2004, were $45.841 billion or 1% of the GDP.[5] Due to Article 9, the JSDF lacks aspects of its military which enable a grater overseas ability. Those aspects of the military would include, but not limited to, a Marine force, longer-rang munitions, a larger cash of ammunitions, and rules of engagement.[6]

In addition to the JSDF, Japan and the United States have signed treaties which, in general, state that the United States will come to the aid of Japan in the event of an attack by another nation. Therefore in actuality, Japan’s military capability is greater than that of the Self-Defense Forces under Japanese control.

Debates over constitutional revision occurred fifty years ago around the time the LDP was created.[7] Revising the Constitution “…has been a long-standing basic idea of the LDP,” Prime Minister Koizumi told reporters.[8] However, revising the Constitution has not been a constant central theme in Japanese politics over the last fifty years. After the debates in the early years of the LDP with the exception of some constitutional challenges to the SDF and US-Japan Security Treaties, revision of the Constitution receded somewhat from public debate until recently.

Koizumi and the LDP’s revisions to the Constitution, if endorsed by the Diet and passed in a nationwide referendum, would alter several areas of the Constitution; of the revisions proposed by the LDP however, the revision to Article 9 will be the most significant amendment affecting the status of Japan as a world military power and the greater role Japan would be able to play in protecting its own national interests militarily. The proposed alteration leaves the first clause of Article 9 as written in the 1947 Constitution, but it changes the second clause of the Article.[9] The provision of Article 9 which states “land, sea, and air forces, as well as other war potential, will never be maintained,”[10] will be removed.[11]

The deletion of that provision would change the status of the JSDF from a defensive force to that of a traditional military. That being said, it is important to note that the war renouncing aspects of the Japanese Constitution are left intact. This suggests that Article 9 under the proposed revision would allow the right to collective self-defense,[12] or coming to the military aid of an ally. However since the first clause of Article 9 is left intact, it would suggest that the ability of Japan to engage in unprovoked unilateral military action would remain unchanged.

The process by which the LDP would amend the Constitution is specified in Article 96 of the Constitution. First, the proposed amendment would have to be initiated in the Diet. In order to pass, the amendment would have to secure a positive vote of two thirds in both the upper and lower houses of the Diet. If passed, the amendment would have to secure a positive simple majority vote in a national referendum. If both votes are successful, the proposed amendment would be promulgated by the Emperor to become an integral part of the Constitution.[13]

There are several reasons why the LDP would choose this point in Japanese history following World War II to propose amending the Constitution. Generally, these reasons fall into three categories. First is the ability the LDP has to pass amendments to the Constitution. Next is the increasing ambiguity of the difference between the status of the Japanese Self-Defense Forces and a traditional military. The final group is the effects of the Japanese Supreme Court decisions on the constitutionality of the JSDF and the US-Japan Security Treaties.

The LDP has been, with the exception of a few years in the mid 1990s, the major party in Japanese politics. With the recent election this past September, the LDP has won a majority in the House of Representatives holding 61% of the seats;[14] and in the House of Councilors, the LDP won 47% of the seats.[15] This is not enough control of either house, although very close in the House of Representatives, to pass a proposed change to the Constitution. However, the Democratic Party of Japan (DPJ) President Seiji Maehara has voiced support of the revision of Article 9 of the Constitution.[16] Both the LDP and the DPJ together constitute 85% of the House of Representatives and 80% of the House of Councilors.[17] If both parties were to agree on a proposed amendment to the Constitution, they would only need to retain on average approximately 81% of the votes of both parties’ members in both houses to pass an amendment.

Assuming the amendment was to pass both houses of the Diet, a simple majority referendum would be needed to secure the revision of the Constitution. Newspaper polls have shown that about half of the population supported changing the pacifist provision of the Constitution.[18] Even though this does not show overwhelming support for the LDP, it does not show overwhelming opposition to the revision of the Constitution either. However, this is not necessarily showing a fifty-fifty chance of the success or failure of a national referendum. Recently, public support for the constitutional amendment has increased as Japan has increased its international military and diplomatic profile.[19]

Besides recent troop deployments and the growth of the JSDF, there is an additional reason why the Japanese population would be more receptive toward revision of Article 9. In 1998, North Korea fired a missile over Japan.[20] It is not unreasonable to suggest that a population, under what may be construed as military harassment by an unpredictable rogue nation, may desire a stronger military.

Ever since the 1947 Constitution was adopted, the self-defense forces of Japan have been a work in progress. Only weeks after Article 9 became active, a Japanese National Safety Agency was created. Within the next year, a Japanese Coast Guard was established. Following the Korean War, the National Police Reserve was established. By August of 1951, the Coast Guard and the Police Reserve were consolidated to form the National Security Force. In March of 1954, the Defense Agency was created. Then with adding the Air Self-Defense Force along with reorganizing the National Security Force and the Coast Guard as the Ground SDF and the Maritime SDF, the Japanese Self-Defense Force was formed.[21] In 1992, Japanese troops were sent to Cambodia under the UN to oversee their first free election. Japanese troops were sent to Iraq as peace keepers without an agreement from the UN in 2004. Following the tsunami in 2005, the JSDF assisted the people of Indonesia.[22] From 2000 to 2004 Japanese military expenditures increased from $45.6 billion[23] to $45.841 billion U.S. dollars.[24] Even though the increase in military spending was less than one percent, the budget for the JSDF was still increased. Within the last fifty years, Japan’s military capability has progressed from a security agency to one of the most capable military forces in the world.

Particularly in politics and government, major change is very difficult. However if progress is made in small increments of change towards the desired result, it may be possible that reality becomes so close to that desired result that changing the new altered reality to what once would have been a major undertaking is now arguably justifiable.

The progression of the JSDF, as it becomes and acts increasingly like a military and less as a strictly defending force, has had an impact of the public perception of the JSDF to the effect that the likelihood of a referendum passing has increased. Regardless of weather the maturation of the JSDF over the last fifty years was intentionally done for the purpose of creating ambiguity in regard to the JSDF having a militaristic identity or not, the justification today of labeling the JSDF a military force rather than a defense force can be reached with decreasing effort.

The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.[25] Since 1947, Japan’s Judiciary has decided approximately 24 cases involving the constitutionality of the JSDF and the security treaties between the U.S. and Japan; and out of those cases, the Supreme Court of Japan has adjudicated appeals concerning only seven.[26] Generally, the rulings have dismissed the cases’ actions against the constitutionality of the JSDF and U.S.-Japan Security Treaties on a lack of standing or interest to sue. However, what the decisions have given is that the size, kind, and use may constitute the unconstitutionality of the JSDF, but the court has not been provided with, what the justices in the Sunakawa case termed, an unmistakably clear violation of Article 9.[27]

What the rulings of the courts have effectively done is defer the issue to the Diet and Cabinet. Without a specific Supreme Court decision, the authority to interpret Article 9 of the Constitution has been assumed by the Cabinet Legislation Bureau (CLB). The CLB has interpreted Article 9 to mean that the Self-Defense Forces and U.S.-Japan Security Treaties are acceptable and not unconstitutional. This interpretation has allowed Japan to increasingly fund and expand the capability of the JSDF through legislative action in the Diet.[28]

As stated previously, the increase of military action, enabled by the absence of definitive decisions by the Supreme Court, has been a factor in the rising public support for amending the Constitution including the second clause of Article 9. As public opinion sways more in favor of amending the Constitution, Diet members may feel more pressure to satisfy their constituency. This may particularly be the case of the DPJ and the LDP which both having already expressed interest in amending the Constitution.

The rulings of the Supreme Court giving way to the interpretation of Article 9 by the CLB, the increasing ambiguity of the militaristic status of the JSDF along with poor foreign relations with some of Japan’s regional neighbors, and the ability of the LDP to push an amendment through the Diet and secure a positive simple majority in a national referendum all have their own particular effects on the likelihood of the remilitarization of Japan. In addition, all three major areas of influence on the likelihood of the remilitarization of Japan also have an indirect effect on the likelihood of remilitarization at the same time as they influence each other.

If these influences and the interactions between them give way to a revised Japanese Constitution allowing the maintenance of war potential, it would signify the final step of Japan’s emergence from the abyss of World War II. With the exception of the pacification of Japan and its new form of government, Japan will have regained its strength similar to the late nineteenth century and early twentieth century.

---

[1] “Timeline: Japan”, BBC News, http://news.bbc.co.uk/1/hi/world/asia-pacific/country_profiles/1261918.stm

[2] Treaty of Versailles, Part IV, Section VIII, Article 156, 1919

[3] The Constitution of Japan, Chapter II, Article 9, 1947

[4] John O. Haley, “Waging War: Japan’s Constitutional Constraints”, unpublished^*, pp. 21^**, 2004

*“Waging War: Japan’s Constitutional Constraints” will be published in a forthcoming issue of the University of Alberta publication: Constitutional Forum. Presently the paper can be found at http://law.wustl.edu/Faculty/index.asp?id=655

**The page number corresponds to the page of draft.

[5] Reference.com: http://www.reference.com/wiki/Japan_Self-Defense_Forces

[6] Reference.com: http://www.reference.com/wiki/Japan_Self-Defense_Forces

[7] “EDITORIAL/Constitutional revision: The LDP apparently put off debate on Article 9”, The Asahi Shimbun, http://www.asahi.com/english/Herald-asahi/TKY200510310093.html

[8] “LDP finalizes draft for revising Constitution”, Japan Today, http://www.japantoday.com/e/?content=news&cat=9&id=353595

[9] “Walker’s World: Japan flexes muscles”, United Press International http://www.upi.com/internationalIntelligence/view.php?StoryID=20051122-035953-4969r

[10] The Constitution of Japan, Chapter II, Article 9, 1947

[11] “LDP finalizes draft for revising Constitution”, Japan Today, http://www.japantoday.com/e/?content=news&cat=9&id=353595

[12] “EDITORIAL/Constitutional revision: The LDP apparently put off debate on Article 9”, The Asahi Shimbun, http://www.asahi.com/english/Herald-asahi/TKY200510310093.html

[13] The Constitution of Japan, Chapter IX, Article 96, 1947

[14] Japan, National Diet of Japan, House of Representatives, Strength of the Political Groups in the House of Representatives, http://www.shugiin.go.jp/index.nsf/html/index_e_strength.htm

[15] Japan, National Diet of Japan, House of Councilors, List of the Political Groups in the House of Councilors, http://www.sangiin.go.jp/eng/member/index.htm

[16] “Maehara backs changing war-renouncing Article 9”, The Japan Times, http://www.japantimes.co.jp/cgi-bin/makeprfy.p15?nn20051018a6.htm

[17] “Toward a new Constitution”, The Japan Times, http://www.japantimes.co.jp/cgi-bin/makeprfy.p15?eo20051017kn.htm

[18] “Japan endorses constitutional change”, Taipei Times, http://www.taipeitimes.com/News/world/archives/2005/04/16/2003250678

[19] “Japan endorses constitutional change”, Taipei Times, http://www.taipeitimes.com/News/world/archives/2005/04/16/2003250678

[20] New role envisioned for military in Japan”, International Herald Tribune, http://www.iht.com/articles/2005/10/30/news/japan.php

[21] John O. Haley, “Waging War: Japan’s Constitutional Constraints”, unpublished^*, pp. 8-9^**, 2004

*see footnote on pg. 2.

**see footnote on pg. 2.

[22] Reference.com, http://www.reference.com/wiki/Japan_Self-Defense_Forces

[23] John O. Haley, “Waging War: Japan’s Constitutional Constraints”, unpublished^*, pp. 8-9^**, 2004

*see footnote on pg. 2.

**see footnote on pg. 2.

[24] Reference.com, http://www.reference.com/wiki/Japan_Self-Defense_Forces

[25] The Constitution of Japan, Chapter VI, Article 81, 1947

[26] John O. Haley, “Waging War: Japan’s Constitutional Constraints”, unpublished^*, pp. 9^**, 2004

*see footnote on pg. 2.

**see footnote on pg. 2.

[27] John O. Haley, “Waging War: Japan’s Constitutional Constraints”, unpublished^*, pp. 9-14^**, 2004

*see footnote on pg. 2.

**see footnote on pg. 2.

[28] John O. Haley, “Waging War: Japan’s Constitutional Constraints”, unpublished^*, pp. 14-18^**, 2004

*see footnote on pg. 2.

**see footnote on pg. 2.