war on the rocks

Revising Japan’s Peace Constitution: Much Ado About Nothing

March 21, 2018

Changes to Japan’s security policies tend to elicit fear among its neighbors. When Japanese leaders have sought changes to the post-World War II framework, which was meant to put the genie of Japanese militarism back in the bottle, critics tend to warn against military normalization or even the return of Japan as a great military power. One of the most enduring symbols of this postwar order is Japan’s peace constitution. It is the oldest unamended constitution in the world, but Japanese Prime Minister Shinzo Abe wants to change that. Last spring he announced that he wanted to revise the constitution by 2020. In December 2017, he reiterated his call for restarting parliamentary debate on the issue, saying he wanted 2020 to mark a significant rebirth of Japan. For other constitutional democracies, such revisions are par for the course, but in this case, any change promises to invite regional debate over Japan’s domestic political affairs.

Despite the piqued attention of Abe’s critics, the narrative of constitutional revision in Japan continues to frame the matter either as a revival of Japanese militarism or the return of a “normal” Japan, meaning a country willing and able to use its military as other great powers do. Analyses tend to focus on the implications for Japanese forces possibly being deployed abroad. But do regional countries have anything to worry about? Will this change enable Japan to become a great power and play a stronger military role in regional security?

The reality is, while constitutional revision could bring minor changes to Japan’s defense establishment, it will likely do little more than codify the current domestic status quo: a force exclusively focused on self-defense and heavily constrained by a domestic web of legal and normative constraints. Nevertheless, the perception of a more normal Japan unshackling itself from the postwar regime has the potential to disrupt regional relations. Both domestic and international critics would do well to keep in mind that absent much more significant changes to the legal architecture surrounding Japan’s defense posture, Abe’s proposed revisions will not change much in practice.

Japan’s Peace’ Constitution and Possible Revision 

The constitution has played a significant role in shaping Japan’s national identity. After the war, the new constitution’s Article 9 sat well with a Japanese population exhausted from the excesses of the rush for empire. Article 9 consists of two paragraphs. The first “renounces war” as a sovereign right and the “threat or use of force” as a means to settle disputes. To accomplish this, the second paragraph stipulates that “land, sea, and air forces, as well as other war potential, will never be maintained.” Japan’s establishment of the Self-Defense Forces (SDF) in 1954 did not violate this because their exclusive purpose was, and remains, defensive, including a conscious political decision not to acquire offense-oriented weaponry.

It is these pacifist ideals, committing Japan and its SDF to purely defensive purposes, that make many Japanese resistant to revising Article 9. It also puts at ease Japan’s neighbors that were colonized or invaded by Imperial Japan’s forces. And it is precisely because Abe wants to revise Article 9 that he is facing criticism, both domestically and internationally. To critics, any effort to revise this article risks a return to a revanchist 1930s Japan capable of unleashing its military overseas.

The responsibility for coming up with ideas for possible revisions was left to Abe’s Liberal Democratic Party. The party has come up with seven proposals, with Abe’s preferred vision of “kaken,” or adding something to the constitution, forming the basis of an emerging consensus. Specifically, current proposals center on explicitly recognizing the SDF as an organization “with force existing at the minimum necessary level.” Explicitly recognizing the “Self-Defense Forces” legitimizes their existence, thereby giving them a clearer legal basis. Meanwhile, the section on a minimum necessary level of force upholds the government’s position that the SDF does not constitute “war potential.”

What Would Change?

Critics’ biggest concern is that this revision will loosen important constraints on the SDF that could lead to it being used in combat operations overseas. The most vociferous domestic critics have been the Japanese Communist Party and the Social Democratic Party, which have enshrined their anti-revision views into their campaign manifestos. Externally, China and South Korea fear that revision will upset the liberal order and usher in a return to a more aggressive Japan.

But these concerns are unfounded. Because the current restrictions stemming from the existing Article 9 would remain in place, critics are wrong to fear that adding the SDF to the provision will lead directly to an expansion of Japan’s forces or changes in their rules of engagement, weapons use standards, or ability to use force. The proposed revision does not establish a basis for the SDF to be deployed on combat missions abroad or to use force outside of a specific defense operation. For changes like these to occur, Japan would have to pass new legislation that outlines broader mission sets and revisions to the SDF Law. But these do not require constitutional revision. In fact, many changes relating to these areas were already passed in a batch of security laws in 2015. Notably, these laws only led to slight changes in the SDF’s operations and combat authorities, keeping in place a myriad of constraints that favor defensive activities.

Similarly, some critics are worried that revision will alter civil-military relations, tilting more influence toward the SDF inside Japan’s policymaking circles, or completely eliminate constitutional control over the SDF altogether. Currently, SDF personnel are considered “special public servants” under Article 2 of the Public Servant Law. Revision of the constitution’s Article 9 would provide the SDF as an organization with constitutional legitimacy, but it would not lead to SDF officers or enlisted personnel being recognized as a “military.” For that to happen, the Public Servant Law, and associated SDF Law statutes, would have to be revised. It’s true that, regardless of the official status of these personnel, an explicit legal basis for the force could enhance their de facto status. This could, for instance, give SDF officers more room to insert their opinions into decision-making on defense matters with their civilian counterparts. Given how firmly embedded civilian control is in Japan, however, the SDF would continue to have no political authority.

Importantly, constitutional revision will not alter the current organizational structure of the SDF or its command and control. Currently, the prime minister is Japan’s commander in chief who, through the minister of defense, controls the SDF. According to the Ministry of Defense (MOD) Establishment Law, the minister of defense is head of the MOD. This official’s responsibilities for managing and implementing the affairs of the three SDF services are laid out in the SDF Law. These responsibilities include both administrative functions and command functions, such as training and operations. The staff offices of the three SDF services and the chief of staff of the Joint Staff Office do not hold any authority to issue orders on their own. Even if constitutional revision moves forward, without a considerable reworking of the MOD Establishment Law and SDF Law, the administrative and command functions will remain unified under the minister of defense, providing no new authority to the SDF.

Opponents have also suggested that the revision could lead to the establishment of military tribunals. Even if the SDF are legally recognized as a military, there will be no change in how SDF personnel are treated in Japan’s judicial system. The SDF currently has no military justice system with military tribunals; if a member of the SDF breaks the law, he or she is subject to the same penal code and courts as other Japanese citizens. To establish military tribunals, Japan must revise Article 76 of the constitution to recognize the existence of special courts. While Abe has referred to several other articles he would consider revising, he has never made any public reference to Article 76.

Some critics similarly fear that constitutional revision will militarize society by bringing about the possibility of restricting rights and re-establishing a military conscription system. But the proposed revision does not make it possible to establish a military conscription system. Articles 13 and 18 of the constitution are interpreted as prohibiting the introduction of conscription. Therefore, even with a revision to explicitly include the SDF, short of additional revisions of these articles, the Japanese public cannot be forced to serve in the defense forces.

Finally, revision will not alter what kind of defense equipment Japan can procure for the SDF or export abroad. Such decisions are policy issues, not legal issues. It is true that previous governments, including the Abe administration, have procured new weapons, relaxed the rules on defense exports, and used defense budgets to improve Japan’s ballistic missile defense system. The Abe administration has even begun studying the possible acquisition of long-range strike capabilities. But these are all policy decisions being undertaken under the current interpretation of the constitution and adherence to notions of an exclusive self-defense orientation. Legitimizing the SDF through the revision of Article 9 will not change this narrow focus on capabilities to defend Japan rather than taking the fight to distant shores. That said, naming conventions of SDF equipment could change. Things like “escort ships” or “special vehicles,” for example, could perhaps finally be called by names more familiar abroad: destroyers and tanks.

Why Seek Revision?

So why is Abe pursuing this change now? It is true that Japan’s immediate neighborhood has become a lot more dangerous. The Chinese threat to Japan’s southwest has increased, including blatant attempts to challenge Japanese control of a set of islands at the very western end of its archipelago. North Korea has become an immediate security challenge that has motivated important security policy changes in Japan, such as the introduction of a ballistic missile defense system. Although the United States remains Japan’s ally, it too has looked to Japan to do more for its own defense.

In this environment, it is not unusual to hear that the Japanese have moved away from their pacifism and understand the need for stronger defense; or that constitutional revision is an attempt to free itself of historical legal constraints to better provide for its security. But neither of these are the motivations. As shown above, revision will do little to strengthen Japan’s SDF or loosen existing legal constraints. Given how little would change, why would Abe risk political capital for something that promises to deliver so few benefits?

The primary benefit of adding the SDF to the constitution is to give the organization a constitutional basis to exist. More than 220,000 Japanese citizens voluntarily serve their country in the SDF. At a time when Japan is under increased security challenges from its neighbors, proponents argue that it is not the time to argue about the constitutionality of the very force that is defending Japan. By making explicit the status of the SDF, the proposed change recognizes the value of these individuals who put their lives in danger to defend Japan against both natural and man-made crises. Abe is willing to expend precious political capital on this because he wants to eradicate any question of doubt about the constitutionality of the SDF. More broadly, he and his Liberal Democratic Party have long sought to revise the constitution, which was written under the U.S. occupation. Seen from this perspective, revision helps overcome some of the problems associated with the origins of the document, long a source of contention for conservative elements in Japan.

The change could also elevate the political discussion in the Diet about defense-related issues. Whenever security-related bills are introduced for debate, an inordinate amount of time is wasted on the SDF’s constitutionality. While opposition parties use this to score political points against the government, it expends parliamentary time that could otherwise be spent on debating policies for Japan’s security. Given Japan’s rising security profile, being able to spend time on matters of substance would help the government’s efforts to meet regional challenges. It could also lead to a more effective and politically sustainable defense policy. Both outcomes, if realized, would be welcome news to Japan’s U.S. ally as well as other regional security partners who want to see a more engaged Japan.

Conclusion

Despite Abe’s legislative majority, it is still unclear whether he has enough political capital to persuade an unconvinced public of the necessity of such a revision – particularly given the ongoing scandal that could derail his administration. Yet, should he succeed, Abe’s plan would likely do little more than codify the status quo.

Even so, while revision will not give the Japanese government more latitude to employ the SDF as a tool of national power, it still carries potential regional implications. After all, constitutional revision demonstrates that Japan is capable of change once considered unthinkable and able to throw off elements of the postwar framework. Any changes to Japan’s peace constitution, particularly Article 9, may be wrongly portrayed by China and South Korea as a return to militarism. Because these countries continue to believe that Japan has yet to come fully to terms with its wartime aggression, revision of Article 9 could become a political issue if leaders in those countries believe Japan is trying to become “normal” and could pose a threat to regional stability. While such a misperception is unlikely to result in conflict, should the issue become politicized, relations between Tokyo and Beijing and Seoul would likely sour, as angry protests in both capitals are highly possible. Regional peace and stability would suffer, with possible negative implications for cooperation between Japan and South Korea on North Korea and the recent relative calm between Japan and China in the East China Sea.

To weather this possible storm, it would be best for the leaders of these countries to remind themselves that despite decades of constitutional re-interpretation, Japan’s security policies remain heavily constrained by significant legal and normative constraints. This time would be no different, despite the symbolic impact of revision.

 

Jeffrey W. Hornung is a political scientist at the nonprofit, nonpartisan RAND Corporation.

Image: Nesnad/Wikimedia Commons