Japan’s post-war Constitution
On Wednesday, May 3, Japan observes the 70th anniversary of the coming into force of Japan’s post-war Constitution. At the center of renewed push for amending the document is Article 9—Paragraph 2 in particular. It states:
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.
Calls for rewriting this provision is, in fact, overdue.
Strange it hasn't been amended.
It has been 70 years since the Constitution of Japan was enacted. In that span of time, however, there hasn’t been a single constitutional amendment. In that sense, ours is the oldest constitution in the world.
Isn’t that very strange? It is true that, after the Constitution of the Empire of Japan was proclaimed in 1889, it went unchanged for nearly 60 years. But at the time, there wasn't even any discussion of amendment.
It’s not the case with our current constitution. Since the Liberal Democratic Party’s inauguration in 1955, its primary published goal has been “Amending the Constitution.” Since then, the party has never removed constitutional amendment from its platform, and indeed it has always been the party in power, except during an unusual three-year period.
Basically, despite the fact that since the end of the war political power has rested consistently with a party calling for constitutional amendment, not a single amendment has occurred. I think you’d have to call that strange.
Of course, there’s no denying the argument that the requirements for amending the current constitution are prohibitively strict. However, other countries with similarly strict requirements have been able to amend their constitutions, so that alone can’t be the reason.
Another reason given by experts is that the Japanese people truly desire peace, and that deeply rooted hope has given rise to strong opposition to any administration that tried to amend Article 9.
Peace-Destroying Article 9, Paragraph 2
However, while Article 9 of the Constitution of Japan is called the “peace clause,” only Paragraph 1 fits that name. Paragraph 2 is in no way peaceful at all.
Paragraph 1 of Article 9 allows for self-defense but forbids wars of aggression, and so follows the basis of an anti-war treaty, perfectly exemplifying an internationally standard peace clause.
However, Paragraph 2 states: “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.”
If we take these words literally as written, then “preceding paragraph,” meaning actions “aspiring sincerely to an international peace based on justice and order” (for example, participating in United Nations peacekeeping forces) and of course self-defense actions, would be totally impossible. From the beginning, it would make Japan an area completely devoid of all military capability. Nothing could be more dangerous for international peace.
It’s all well and good to speak of the whole world working toward demilitarization, but when written into the constitution of only one nation, Article 9, Paragraph 2, can only work to destroy peace.
What makes this problem even graver is that it results in a loss of sovereignty, which has become a fundamental idea in modern written constitutions. Sovereignty here means that each country has the right to independence, preservation of its own territory, and to run its own government. But originally, in Europe, it meant “the highest power.” In other words, the word sovereignty only becomes meaningful when a country has the power to protect its independence.
The ab initio principle of our constitution, the “Sovereignty of the People,” means the right to decide political power is held internally, by the people. However, this principle as well is only valid inasmuch as the state can preserve its sovereignty and protect its independence.
If Article 9, Paragraph 2, were followed to the letter, our nation would have no power, and in real terms our sovereignty would vanish. In other words, the basic principle of our constitution, the sovereignty of the people, becomes impossible under Article 9, Paragraph 2.
Why has it been preserved for so long?
Seen from this point of view, then, amending Article 9, Paragraph 2, isn’t a problem in terms of thought or ideology, but rather one of simply revising a flawed clause. For those who desire peace and the sovereignty of the people, revision should be a nonpartisan hope. So why on earth has it been preserved so long? The mystery just keeps growing.
Perhaps that’s because this flawed clause is deeply connected to a fundamental problem in the constitution itself, one not at first apparent on the surface.
As everyone knows, Japan’s Constitution was written by occupiers, in a period where we had lost all sovereignty after losing the second world war. Modern written constitutions place enormous importance on whose sovereignty they rest. So the fact that Japan’s Constitution was made by its occupiers, resting on the supreme power of the commander-in-chief of the allied military forces, is nothing less than scandalous. This is the reason the so-called “Invalid Constitution of Japan Theory” has its advocates.
However, if the invalidity theory is completely accepted, all laws, government systems, and current Diet based upon the Constitution become invalid as well. That would lead the nation into a chaotic nightmare. It is likely that everyone has turned their gaze from this flawed clause just because this thought is so frightening.
But now, after 70 years, we can turn our gaze calmly on this issue and treat it as the scandal that it is, without worry of unrest. And we can amend this flawed clause, a last gift from our occupiers, as it should be.
Michiko Hasegawa is an emeritus professor of Saitama University
(Click here to read the original article in Japanese)