Will Abe Finally Realize the Revision of the “Peace Clause”?

National Diet Building of Japan. Courtesy Wiiii/Wikimedia.

National Diet Building of Japan. Courtesy Wiiii/Wikimedia.

For the first time since February, the Commission on the Constitution of the Diet (the upper chamber of the Japanese parliament) reopened debates on revising the country’s Constitution on November 16, 2016. The lower chamber panel followed suit on the next day, breaking a longer hiatus of seventeen months. On the very same day, Japanese Prime Minister Shinzo Abe met with President-elect Donald Trump who had said during his campaign that Japan would be “better off if they defend themselves from North Korea” with its own nuclear power. The discussions at the Diet focus on whether Article 9, known as the “peace clause,” should be revised. The outcome of these debates, along with Trump’s election, is likely to bring about great changes to the international security of Pacific Asia.

The Japanese Constitution, which celebrated its seventieth anniversary on November 3, 2016, has never been revised since its promulgation in 1946. Article 9, which states that “land, sea, and air forces, as well as other war potential, will never be maintained,” has undergone various reinterpretations despite never having been explicitly revised (for the history of its reinterpretations, see Ken Motoyama’s article). The Commission on the Constitution was set up in 2007 with the aim of discussing constitutional revisions. In July 2014, Abe’s cabinet approved of the reinterpretation of Article 9 so that the Japanese Self-Defense Forces (SDF) would be permitted to participate in acts of collective self-defense. In September 2015, the upper chamber of the parliament approved a set of security bills, which allow the country’s military to engage in overseas combat assignments under certain circumstances for the first time since World War II. While the approval provoked wide public protests, the controversial laws are still in effect.

Despite what reinterpretation has been capable of, Abe and his party, the Liberal Democratic Party (LDP), have long sought for a proper revision of Article 9. The LDP drafted a constitutional revision in 2012, which was harshly criticized for abandoning the Constitution’s pacifist nature and disregarding individual human rights. Although the LDP announced that it decided to set aside the 2012 draft, the party’s lawmaker Okiharu Yasuoka rejected the demand of the Democratic Party, the largest opposition force, to completely scrap the draft. Yasuoka stated that the 2012 draft will remain as an “official document” to which lawmakers can refer. Abe’s expression at a recent news conference, that “[r]evising the Constitution is [his] party’s long-held goal” and that he, “as head of the LDP, will make an all-out effort to realize that,” demonstrates the level of his commitment and determination to accomplish the revision during his political career.

The principal reason for such a staunch drive for constitutional revision among conservative forces is the belief that the Constitution was “imposed” by the Allied Powers in the aftermath of World War II and therefore does not represent the nation’s own will. This issue was in fact the focus of discussion in the lower chamber on November 17th. While Gen Nakatani who represented the LDP on the panel said that “[i]t is an incontrovertible fact that the GHQ (General Headquarters of the Allied Powers) intervened to draft the Constitution,” Kazuo Kitagawa of Komeito disagreed, saying that they “can’t agree that it was imposed.” The differing opinions even between the LDP and Komeito, the coalition allies, were also pronounced at the upper chamber discussion on November 16. Nishida Makoto, a lawmaker of Komeito, stated that his party supports adding amendments to the Constitution instead of a wholesale revision of the existing Article. Consequently, Komeito’s approach differs from that of the LDP, which is to revise the Article in reference to its 2012 draft. On the other hand, a lawmaker of the Democratic Party, Shinkun Haku, articulated that his party would “never engage in discussions on revising the Constitution” if the panel did not first examine the constitutionality of the security laws passed in September 2015.

According to Article 96 of the Constitution, revisions to the Constitution can be proposed by two-thirds of the members of each chamber of the Diet and must be approved by a majority of people in a referendum. The following steps thus comprise the revision procedure: (1) submission of the draft revision to the National Diet (approval by more than 100 members of the House of Representatives or more than 50 members of the House of Councillors, apart from the submitter); (2) examination by the Commission on the Constitution (approval by the majority of the attending lawmakers); (3) motion passed by the approval of more than two-thirds of members of both chambers; (4) national referendum (approval by the majority).

As a result of the elections on July 10, the LDP and its allies consolidated a supermajority in the upper house of the Diet, holding 77 out of 78 seats necessary to constitute a two-thirds majority. Considering that four independent lawmakers without party affiliation have stated their support for the constitutional revision, Abe and the LDP can technically skip to the fourth step of the procedure described above. However, doing so without holding proper discussions at the Diet will fail to attract the majority of popular votes at the national referendum.

In a recent survey conducted by the Yomiuri Shimbun, seventy-three percent of lawmakers in both chambers replied that constitutional revisions should be made, largely exceeding the sixteen percent who said they should not. By political party, ninety-seven percent of the LDP lawmakers said that they were in favor of constitutional revision. At the same time, fifty-five percent of the Democratic Party also supported the revision, exceeding by far those who opposed it, who amounted to twenty-one percent. On the other hand, the public remains split over the constitutional revision. A survey in May displayed that fifty-five percent of voters believed that there is no need to amend the Constitution, while thirty-seven percent supported the revision. Another survey conducted in late October, however, demonstrated that forty-four percent were now in support of the revision, while forty-two percent remained in opposition. As a result, in order to win popular support in a national referendum, Abe and the LDP would first have to gain a broad consensus among various parties for the proposal of constitutional revision.

Some scholars consider that the continued existence of Article 9 has a “normative power” no matter how “seriously damaged” its interpretation may become. However, a quick succession of events—reinterpretation, security bills, landslide victory at July elections, resumption of revision debates—combined with the lack of a strong opposition party at home and political chaos in South Korea and the United States, all seem to stage the smoothest possible path for Abe’s revision of Article 9. Although a top aide to Abe assured after the meeting between Abe and Trump that Trump’s comments, quoted above, are not to be taken literally, it certainly appears that the laws and international relations that have maintained the peace of Pacific Asia will undergo significant changes in the coming years.

Jiwon Hahn is a second-year J.D. student at Columbia Law School and a staff member of the Journal of Transnational Law. She graduated from Wellesley College with B.A. in Comparative Literature and from Oxford University with M.St. in Modern Languages.

Sachs 8_Small B symbol_end last sent