Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Sebastian Bates
Sebastian Bates is a rising first-year law student at Keble College, Oxford University.
Nearly seventy years ago, at the home of Crown Prince Wilhelm, the deposed heir to the Imperial German throne, President Truman of the United States, Winston Churchill, the British Prime Minister, and Generalissimo Chiang Kai-shek, the President of the National Government of the Republic of China, issued a proclamation that has since become known as the Potsdam Declaration. The agreement, which called for the “unconditional surrender of all the Japanese armed forces,” laid out the seven principles by which the Allies intended to end the war in the Pacific and administer a defeated Japan. 
From the perspective of a student of constitutional law, the most important article of the Declaration is perhaps the tenth, which states that, under Allied occupation, “[t]he Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established.” 
Several months after the promulgation of the Declaration – and after the atomic bombing of the Japanese cities of Hiroshima and Nagasaki – Emperor Hirohito announced in the Gyokuon-hōsō (literally translated as the “Jewel Voice Broadcast”) that his government was prepared to “endure the unendurable” and accept the Allies’ terms.  Within weeks, foreign minister Mamoru Shigemitsu and General Yoshijiro Umezu signed an Instrument of Surrender in which they “under[took] for the Emperor, the Japanese Government and their successors to carry out the provisions of the Potsdam Declaration in good faith.” 
Almost as soon as the Occupation of Japan had begun, the Supreme Commander for the Allied Powers, General Douglas MacArthur, commenced an effort to liberalize the 1889 Meiji Constitution in accordance with Article 10 of the Potsdam Declaration. He was aided by the new Prime Minister, Kijuro Shidehara.  According to MacArthur, it was Shidehara – a Christian and pacifist once known as one of Japan’s leading diplomats – who proposed the new Constitution of Japan’s most distinctive feature, Article 9. 
The official English text of Article 9, which has earned the modern Japanese constitution the sobriquet of the “Peace Constitution,” reads as follows:
ARTICLE 9. 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) 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. 
After the provision was unveiled to the public in March 1946, Shidehara boasted that “[n]o precedent for this kind of constitutional stipulation can be found in the constitution of any other country.”  While this statement may have been true at the time, it is in fact the case that the Basic Law of Germany and the Constitution of Italy, both similarly written under the watchful eye of the Western Allies, contain similar sentiments. Article 11 of the Italian Constitution “repudiates war as an instrument offending the liberty of the peoples and as a means for settling international disputes,”  while the German Article 26 states that “[a]cts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional.” 
Nevertheless, it has become apparent in the decades since that Japan has, in Shidehara’s words, “go[ne] forward alone on the vast plain of international politics” in its renunciation of war. 
While both Germany and Italy soon became members of the North Atlantic Treaty Organization, Japan never joined its short-lived Asian counterpart, the Southeast Asia Treaty Organization.  In addition, Japan – in part because of Article 9, and in part because of the lasting aftereffects of the Hiroshima and Nagasaki bombings – is considered a leader in the global nuclear nonproliferation movement, and has cooperated with the United States in the past to secure materials that could be used to create atomic weapons. 
Despite these policies, and despite the fact that Japan has not acted as a belligerent in any conflict since World War II, it has been argued that successive Japanese governments have not fully lived up to the principles of Article 9. Despite the explicit injunction against “land, sea, and air forces, as well as other war potential,” Japan maintains Jietai, or Self Defense Forces. This apparent noncompliance has historically been justified in two ways. First, the Self Defense Forces are not considered to be “war potential,” because they are military forces in a true sense: rather, they are identified as extensions of civilian law enforcement and are never referred to as gun, the term denoting armed forces.  Second, and more significantly, Japan has declined to “fully participat[e] in international peacekeeping operations” or collective security arrangements, and its Self Defense Forces are generally not permitted “to do more than defend their homeland from a direct attack.”  The Jietai therefore never have avoided becoming entangled in an attempt to use force in international affairs, as per Section 1, while also refraining from acting as a belligerent in Japan’s own interests, as per Section 2.
These restrictive terms of engagement for the Self Defense Forces have attracted criticism from abroad, and from conservative elements within Japanese society. When Article 9 was adopted, a few right-wing members of the Japanese cabinet “wept openly,” and members of the Liberal Democratic Party (the major conservative party that has been in power for all but four years since 1955) have consistently sought to blunt its impact. Former Prime Minister Nobusuke Kishi and his grandson, the current premier Shinzo Abe, have been particular vocal in this effort.  The primary obstacle in this quest is the fact that the constitution as it stands is broadly popular, with one poll finding that 63% of respondents oppose altering Article 9. 
In any case, the Japanese Constitution is deliberately difficult to amend – according to Article 96, two-thirds of both chambers of the Diet, or legislature, must approve a proposed amendment, which can only take effect after winning the support of a majority in a national referendum. Indeed, the document has not been altered since it came into effect in 1947. In light of this fact, Prime Minister Abe and his Cabinet appear to have adopted a different tack in their drive to reshape Japan’s fundamental laws.
According to the recently-released “Cabinet Decision on Development of Seamless Security Legislation to Ensure Japan’s Survival and Protect its People,” the Japanese government under Mr. Abe has come to view the provisions of Article 9 in an entirely new light. The Cabinet notes that
[t]o date, the Government has considered that ‘use of force’…is permitted only when an ‘armed attack’ against Japan occurs. However, in light of the situation in which the security environment has been fundamentally transformed…by shifts in the global power balance…even an armed attack occurring against a foreign country could actually threaten Japan’s survival…[thus] the Government has reached a conclusion that not only when an armed attack against Japan occurs but also when an armed attack against a foreign country that is in a close relationship with Japan occurs and as a result threatens Japan’s survival and poses a clear danger to [the] people’s right to life, liberty and pursuit of happiness [which is the “supreme consideration” of the government under Article 13]…[the] use of force to the minimum extent necessary should be interpreted to be permitted under the Constitution. 
Based on this reasoning, which some argue perverts and changes the meaning of the text while bypassing the Diet and Article 96, Mr. Abe’s government has taken steps to alter existing legislation in order to allow the Self Defense Forces to play this more active role in regional geopolitics. These moves have provoked widespread outrage.
As former Waseda University professor Norihiro Kato notes, “media outlets opposed the move, hundreds of thousands of citizens protested outside the prime minister’s official residence and a man set himself on fire in front of Shinjuku Station” when the Cabinet’s deliberations were made public.  It is unlikely, however, that public discontent such as this will in itself derail Mr. Abe’s plans. While many of his policies continue to attract criticism, he is still personally popular and commands the loyalty of the party with the largest number of seats in both chambers of the Diet. Together with its coalition partner the New Komeito Party, the LDP is perfectly capable of passing the necessary legislation to see the Cabinet’s decision made law.
Opponents of the move, therefore, have only a few avenues open in halting this process of informal constitutional alteration. The first – and the one that might seem most appealing to American analysts, after the publicity generated by the end of the Supreme Court term – is to wait for the laws to be made and then to challenge them in the Supreme Court of Japan, which (like its American counterpart) is endowed “with power to determine the constitutionality of any law.”  The Supreme Court, however, is traditionally reluctant to wield its powers of judicial review; indeed, it has been characterized as “so passive or cautious that it almost never challenges the government,” and in fact struck down only eight statutes on constitutional grounds between 1947 and 2009.  A second is to foment dissent within the New Komeito Party – traditionally identified as pacifist, and associated with a Buddhist sect – in hopes that grassroots discontent might cause the party’s parliamentary leaders to withdraw their support from the Cabinet’s decision, or from the coalition itself.
Regardless of the ultimate fate of the Cabinet’s proposal, there is fear amid the Japanese left that a dangerous precedent has been set. Opposition party member Hiroyuki Konishi has characterized the move to reinterpret the constitution as practically a “coup d’état.”  The Japan Times has been similarly critical, writing that “[b]y simply changing the interpretation of the Constitution to achieve its policy objectives, the Abe administration is violating the status of the Constitution as the nation’s supreme law to which all other laws and government decisions must conform.” 
Nobody doubts that Prime Minister Abe is trying to safeguard his people and country. Nevertheless, it seems possible that what started as a move to strengthen Japan’s position on the world stage during a period of high tension in Asia may ultimately do little more than undermine the Japanese people’s faith in the commitment of their government to the constitutional principles that have undergirded Japanese society since World War II. If this is so, Mr. Abe may yet regret trading the confidence of citizens in their government for the short-term comfort of bellicose nationalism.
 Potsdam Declaration, Article 13.
 Potsdam Declaration, Article 10.
 Max Fisher, The Atlantic, “The Emperor’s Speech: 67 Years Ago, Hirohito Transformed Japan Forever,” August 15, 2012, accessed July 13, 2014, http://www.theatlantic.com/international/archive/2012/08/the-emperors-speech-67-years-ago-hirohito-transformed-japan-forever/261166/.
 The Instrument of Surrender, §6.
 Sayuri Umeda, “Japan – Article 9 of the Constitution” (Washington: The Law Library of Congress, 2006), 22.
 Klaus Schlichtmann, “A Statesman for the Twenty-First Century? The Life and Diplomacy of Shidehara Kijuuroh (1872 – 1951)” (lecture presented at the April 10, 1995, meeting of the Asiatic Society of Japan, Washington, District of Columbia). Note that the Romanization of the Prime Minister’s name (幣原 喜重郎) in the title of this lecture differs from that used in the body of this post.
 The Constitution of Japan, Article 9.
 Klaus Schlichtmann, “Article Nine in Context – Limitations of National Sovereignty and the Abolition of War in Constitutional Law,” The Asia-Pacific Journal: Japan Focus 23 (2009): 6.
 The Constitution of the Italian Republic, Article 11.
 The Basic Law for the Federal Republic of Germany, Article 26.
 Schlichtmann, “Article Nine in Context,” 6.
 Umeda, “Article 9 of the Constitution,” 1.
 David E. Sanger and Michael D. Shear, “Japan Lets U.S. Assume Control of a Nuclear Cache,” New York Times, accessed July 12, 2014, http://www.nytimes.com/2014/03/24/world/asia/japan-to-let-us-assume-control-of-nuclear-cache.html.
 Umeda, “Article 9 of the Constitution,” 1.
 Dennis Blair, “The Ally America Needs,” Politico, accessed July 4, 2014, http://www.politico.com/magazine/story/2014/07/the-ally-america-needs-108560.html#.U8b5efldUdc.
 Bill Powell, “Japan Rethinks Its Pacifist Constitution, Alarming Its Neighbors,” Newsweek, accessed July 12, 2014, http://www.newsweek.com/2014/07/18/japan-rethinks-its-pacifist-constitution-alarming-its-neighbors-257704.html.
 D.McN., “Keeping the peace,” The Economist, accessed June 13, 2014, http://www.economist.com/blogs/banyan/2014/05/japans-pacifist-constitution.
 The Prime Minister of Japan and His Cabinet, “Cabinet Decision on Development of Seamless Security Legislation to Ensure Japan’s Survival and Protect its People,” 7-8.
 Nohiro Kato, “Japan’s Break With Peace,” New York Times, accessed July 16, 2014, http://www.nytimes.com/2014/07/17/opinion/norihiro-kato-japans-break-with-peace.html.
 The Constitution of Japan, Article 81.
 David S. Law, “The Anatomy of a Conservative Court: Judicial Review in Japan,” Texas Law Review (84): 3.
 D.McN.,“Keeping the peace.”
 The Editorial Board, “Abe guts Article 9,” Japan Times, accessed July 13, 2014, http://www.japantimes.co.jp/opinion/2014/07/02/editorials/abe-guts-article-9/#.U8b7_fldUdd.
Photo Credit: Flickr user Michael O'Donnabhain