The Japanese Constitution Should be Promptly Revised for Peace in East Asia

Seiji Fuji

Conspicuous American decline in the Middle East and Ukraine

 The July issue of Japan Conference’s monthly bulletin Nippon no Ibuki contained the concluding remarks by Chairman Tadae Takubo at the 25th Constitution Forum, titled, “As America Declines, Japan Must Revise its Constitution to Enter a New Phase.” It read:

Japan is in direct conflict with China, Russia, and North Korea, all of which are nuclear states. The worst situation would be for a conflict to break out in Taiwan. However, an even bigger crisis is the decline of American power.
The unthinkable occurred in March when China mediated Iran and Saudi Arabia’s agreement to normalize diplomatic relations. The starting point of America’s Middle East policy was President Franklin D. Roosevelt’s meeting with the Saudi king just prior to the end of World War II. Roosevelt made a promise about national security and obtained a route for acquiring oil. This fundamental structure has broken down today.
For the first time, the United States did not carry out military intervention in response to the Ukraine crisis. Moreover, America is in a dilemma because of Vladimir Putin’s repeated nuclear intimidation.
Strangely, Japan is not apprehensive about the American “nuclear umbrella.” But South Korea feels uneasy, and 70% of respondents to a South Korean public opinion poll were in favor of their country acquiring nuclear arms. The South Korean president gave an address in Washington, D.C. due to this indescribable anxiety that is starting to pervade the Korean Peninsula. If North Korea obtained intercontinental ballistic missiles that could strike American cities, would the U.S come to the aid of its allies?
Japan should consider an American loss of momentum as an opportunity for independence, rather than simply relying on the U.S. I believe Japan should revise its constitution to enter a new phase and transform our nation. We should extensively promote the fact that Japan is a peace-loving nation centered on the Imperial Household, and clearly tell the world that Japanese people will fight courageously for their country when danger threatens.

 Takubo’s argument is sound indeed. Independent states should defend themselves before asking their allies for assistance only when additional help is needed. A nation is not capable of independent defense unless it prepares for emergencies by constantly building up its military strength.

The 2015 security legislation enhanced Japan-U.S. information sharing

 One year has passed since Prime Minister Shinzo Abe’s tragic death by firearm on July 8, 2022. “Diplomacy and Security: The Abe Cabinet’s Legacy,” posted on Toyo Keizai ONLINE on March 11, 2021, describes Abe’s great contributions to Japan’s security policy. The author is Tokyo University Emeritus Professor Shinichi Kitaoka.

I believe the Abe administration’s greatest accomplishments were the 2015 security legislation, Abe’s statement on the 70th anniversary of the end of World War II, and its concept set forth in 2016 of a “Free and Open Indo-Pacific” (FOIP). These are all worthy of special mention in the history of contemporary Japanese diplomacy.
[As an extension of the National Security Strategy and Three Principles on Transfer of Defense Equipment and Technology,] the Advisory Panel on Reconstruction of the Legal Basis for Security was re-started in May 2014 and submitted a report that became the basis for the July Cabinet decision. The security legislation was passed in September 2015.
First, the Advisory Panel was formed with most of the same members in the advisory panel (established May 2007) from the first Abe Cabinet. The chairman was Shunji Yanai, president of the International Tribunal for the Law of the Sea. I served as deputy chairman.
The Advisory Panel proposed that the partial exercise of the right to collective defense currently falls under “required minimum self-defense capability.” This is based on the 1954 interpretation that says Paragraph 2, Article 9 of the Constitution of Japan does not prohibit the required minimum self-defense capability, as well as the 1959 Supreme Court decision that upholds this interpretation. The panel also stated the necessity of revising the 1972 Cabinet Legislation Bureau interpretation that made Japan unable to exercise the right to collective defense.
In response, the government determined that Japan can exercise this right through joint activities with the U.S. Armed Forces and other parties in the area surrounding Japan.
This Cabinet decision was made in July.
The laws including this content were submitted in 2015. They were discussed for an unprecedented span of time before being passed. Many Japanese constitutional scholars were opposed, and numerous protests took place in front of the National Diet while the bills were under deliberation.
Nevertheless, we must bear in mind the exceedingly peculiar nature of most discussions among Japanese constitutional scholars. The constitution is a set of rules for administering the state. Although it is premised on the nation’s activities amidst global competition, Japanese constitutional scholars are virtually uninterested in internal law and politics. Their judgments are solely based on whether something agrees with the written constitution or not.
Many other countries welcomed the passage of the 2015 security legislation. It has been common for some opposition parties and media outlets to object when Japan solidified its security policy, and for Asian countries to feel a sense of apprehension as well. The new legislation received no major protests from China, South Korea, or North Korea, and was hailed by Southeast Asian countries – a natural response considering how these nations are threatened by China.
Even more fascinating is the way these objections have waned so greatly today, five years after the legislation was passed. On December 18, 2020, The Asahi Shimbun – which was the base of the opposing argument – published an article clearly stating that far more people are in favor than against the legislation.
There has been a dramatic increase in information sharing between Japan and the U.S. since 2015. It is a matter of course that countries only exchange sensitive intelligence if they are shouldering the same burden. The security legislation was significant for this reason.

 Tension is rapidly increasing in the East Asian security structure in recent years. As of 2015, a great thing has been accomplished by allowing Japan to use the right to collective defense and strengthening collaboration with the U.S. Today, the question at hand is expanding defense equipment exports to Southeast Asian and other nations according to the Three Principles on Transfer of Defense Equipment and Technology established in 2014, which would be a way to cope with the deteriorating security environment.

Abe built a multilayered security structure

In August 2016, Abe proposed the FOIP strategy (later called a “concept”) at the Sixth Tokyo International Conference on African Development (TICAD VI) in Nairobi.
FOIP is more than an economic partnership concept; it is connected to the value of democracy and is indivisible from the universal principles of the rule of law and free navigation.
One essential point of FOIP is strengthening U.S.-Japan ties, including approving the partial exercise of the right to collective defense.
The U.S. has come to use the term “FOIP” as well. Efforts were made to carry out the Quadrilateral Security Dialogue (QUAD), which is regarded as part of FOIP, during the Donald Trump administration. Another part is the free navigation strategy protesting China’s domination in the South China Sea.
Japan and the U.S. have not fully agreed on the content of FOIP.
However, I do not think anyone can dispute that the Abe government was the one who set forth and promoted this concept.
Abe’s results in the diplomacy and security field are incomparable, even stacked up against Eisaku Sato’s return of Okinawa and Taro Katsura’s Russo-Japanese War (I compared their terms of office to Abe’s at the beginning of this article).
The article concludes:

 Considering the ingrained, fundamentalist pacifism in Japan, it is not an exaggeration to say that Abe did great things while faced with China’s economic and military expansion, as well as its high-handed foreign policy.
 In particular, Japan came up with the FOIP concept that has since spread to the U.S. and Europe, which has greatly reduced its distance from the North Atlantic Treaty Organization (NATO). The NATO summit in July will discuss whether to open a NATO liaison office in Tokyo. I believe Abe’s contributions to building a multilayered, multinational security structure have help ensure the future security of our country.

Paragraph 2, Article 9 puts the JSDF in a perilous position

 The Cabinet decided in December 2022 on the “three defense documents” (the National Security Strategy, National Defense Strategy, and Defense Buildup Program), which clarified a policy for reinforcing Japan’s defense capabilities within the next five years, including raising defense spending to equal 2% of the GDP. This is the first step to making Japan capable of independent self-defense, but we cannot accomplish this unless we also revise the constitution. The Abe faction in the Liberal Democratic Party (LDP) proposed a new constitutional reform plan. The Sankei Shimbun website posted an article on June 15, entitled, “LDP Abe Faction Determines Recommendation to Remove Article 9’s Paragraph 2.”

Before his death last July, Abe’s dearest wish was to revise the constitution. The LDP Abe faction (Seiwa Seisaku Kenkyukai, 100 members) determined its recommendation on June 15 to clearly specify the role of the Japan Self-Defense Forces (JSDF) in the constitution, followed by removing Paragraph 2 of Article 9, which states that Japan will never maintain “war potential.”
They propose that efforts should be made to remove Paragraph 2, which limits the scope of the right of self-defense that can be exercised by the JSDF. It reads, “It will likely be difficult in the future to respond to rapid changes in the international circumstances.” “We must position the JSDF as a regular military according to both domestic and international law.”
They advocate for first including a clear statement about the JSDF, saying that many citizens must trust in and endorse the constitution, and stating that citizen understanding has already been obtained on this issue.
Former Minister of Defense Tomomi Inada, head of the faction’s constitutional project team, spoke to the press corps at the party headquarters. She explained the significance of this recommendation, saying, “Abe regarded the Article 9 issue as the core element of constitutional change.”

 Paragraph 2 does not allow Japan to have “war potential” or the right of belligerency. It reads, “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.” Because sovereign nations have the right to defend themselves, the government interprets this as permitting the required minimum self-defense capability. Removing Paragraph 2 would allow Japan to enhance its fighting strength without being bound by the minimum level or exclusively defense-oriented policies. This would provide other benefits as well, which are explained by Tokyo University Emeritus Professor Tatsuo Inoue in his PRESIDENT Online article from March 24, “Japan Cannot Even Wage a Counterstrike to Defend Itself…Why Were Two JSDF Officials Killed After Returning Home From Peace-keeping Operations?”

 Past administrations have regarded the JSDF as constitutional because these forces lack “war potential” and are unable to exercise the right of belligerency in defense activities. This has also led to the belief that the JSDF are like a police force. Many people probably think that the JSDF are bound hand and foot by the constitution and other laws. The opposite is actually true – they cannot be properly regulated due to Paragraph 2, Article 9. The Constitution of Japan does not establish a standard for controlling this “war potential,” which has yet to be determined. This refers to stipulations to regulate the abuse of military force, including civilian control, prior approval in the National Diet, and creating a basis for military law (the establishment of martial law, provisions for authorizing the establishment of a military justice system, etc.). Because Article 9 declares that war potential will never be maintained and the right of belligerency will not be recognized, it makes no sense to create a legal structure for regulating the fighting power that should not exist and the military actions that should not take place. The JSDF remains in an extremely dangerous position. The Japanese legal structure cannot effectively control the danger of the JSDF abusing its military power in a way that goes beyond the objective of self-defense. There is also no civic law system to regulate the JSDF’s use of military force according to the rules of engagement as described by international law in the time of war. The JSDF is not a military subject to overly strict regulations; it is a risky, useless military, rather like a pistol with no safety that could spontaneously discharge at any time.

 Doing away with Paragraph 2 would allow Japan to enact military laws to sufficiently control the JSDF. I think this would result in a military that can be operated like those of other countries, which would provide the security that Abe hoped for.
 Japan must revise its constitution and enhance its military force for independent self-defense. By doing so, Japan could fulfill its duty to maintain peace in East Asia against China, which is gaining prominence based on its economic and military power; North Korea, which is launching more missiles than ever; and Russia, which is invading Ukraine while experiencing more internal tension.

July 14 (Friday), 5:00 p.m.