The US and Japanese Constitutions Research Paper

Introduction

The contribution Americans in the making and enactment of the 1947 Japanese constitution, which is still in use to date, has been an issue for debate since the adoption of the constitution.

Of special significance is Article 9 of the constitution which renounces war by stating that “… 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…”^[1] For this to happen, Japan had to give up its military on land, air and sea. It also gave up the right or need to develop or keep military weapons. More to this, article 9 states that “the right of belligerency of the state will not be recognized”^[2]

Article 9 is an issue of civil rights concerns because of several reasons: first, there were and still are concerns about America’s involvement in changing the military constitution that were present in the Meiji Constitution coming soon after World War II. Secondly, there were concerns about the haste through which the United States through its Supreme Commander McArthur proceeded to enact the Potsdam Declaration and demilitarize Japan.^[3]

In a statement sent to General MacArthur by the US government, it is clear that there was clear comparison between the provisions of the Japanese constitution that did not match the US constitution. In the statement titled “ reform of the Japanese System SWNCC 228” and classified as top secret, the US government stated that her forces would not leave Japan until a ‘peaceful and responsible government” had been put in place ^[4].

However, for this to happen, the statement clearly stated that some of the Japanese institutions and practices had to be eliminated. The statement insisted that the “allies” (referring to the Supreme Command for the Allied Powers led by MacArthur) in accordance to provisions in the Potsdam treaty were at liberty to insist that the basic law in Japan be altered in order to make the Japanese government responsible to its people.

The statement highlighted the lack of an effective system through which the Japanese government could be responsible to its people. Comparing the Japanese system to the US one, the statement noted that while the executive government in the US was answerable to the president, who was in turn answerable to the people who elected him, and had to work within a judiciary- enforced constitution, the Japanese system lacked such accountability measures^[5].

Citing the Meiji constitution the statement by the US government to MacArthur stated that the constitution in Japan then had been framed with the intention of “stilling popular clamor for representative institutions” and “fortifying and perpetuating the centralized and autocratic government structures”.

While the constitutions contained some of the trapping contained in the US constitution such as the three branches of government (judiciary, legislature and the executive), the checks and balances that would have made Japan a democracy were lacking because the constitution granted too much power to the Emperor thus making the country an absolute Monarchy^[6].

The Meiji Constitution reaffirmed the inviolable and sacred status of the emperor, and vested powers such as supreme command of the navy and the army on him. He also had the powers to determine the military and civil salaries in the country^[7].

While this was of concern to the American people, the question among civil right activists remains- did the United State have a right to impose its believes and democratic concepts to Japan, especially seeing that Japan was a sovereign country? Of more concern is the argument that Gen MacArthur and SCAP imposed a constitution on Japan instead of letting the country goes through its own sovereign process of constitution making^[8].

Of special concern to opponents of the provisions of article 9 is the right for Japan to have self defense forces. The argument by such groups is that Japan had a right to a military because military forces by countries are mainly used for defense rather for perpetuating aggressive acts^[9].

A review of literature on article 9 indicates that opinions on whether Japan should have a military are divided into two groups both inside Japan and outside her bonders. One group holds that the article prohibits Japan from having armed forces for any reason. The other group holds that Japan has a self-defense right and hence a recourse to have a military when necessary.

This study is intended to evaluate the controversies surrounding article 9 of the Japanese constitution and evaluate whether there is the necessary political will needed to revise or amend the same. The study will also look at the effect of article 9 and the impact it has had and continues to have on the US-Japan relations.

The study concludes that even though the international community, especially the UN and the US would prefer a more military-independent Japan, the article which was initially put in the constitution by the American framers has been adopted by the Japanese and is now viewed by a significant population to be their only assurance that Japan will not revert to its notorious military past.

As such, amending the same especially considering that it needs two thirds political support in Japans legislature (Diet, House of Councilors and House of Representatives) is a near impossible task.

Discussion

The Japanese people have “learnt to ‘Japanize’ the constitution” through localized interpretations when applying it to the local context even though it was originally framed by the Americans^[10]. Overtime, the Japanese have found a way to go about even the most controversial article 9 and have since developed and expanded a significant military force that is seen by some as a contravention of the constitution^[11].

The American framers of the Japanese constitution placed enormous hurdles for the revision of amendment of the constitution. Among them is article 96 of the constitution, which states “amendments to this constitution shall be initiated by the Diet, through a concurring of two-thirds or more of all the members of each house and shall thereupon be submitted to the people for ratification, which shall requires the affirmative vote of all votes cast thereon, at a special referendum or at such elections as the Diet shall specify”^[12]. This provision is seen as making amendments to the constitution as a near impossible task^[13].

It however must be noted that the Japanese people had a chance to change everything the American Framers had put in the constitution before enactment in the period between 1948 and 1949. The Japanese people however did not lay much emphasis on the constitution and even the review commission that was set up by the government only introduced some few and minor revisions^[14]. This therefore nullifies the claim that the constitution was imposed to the Japanese.

Later in 2000, amid raised concerns over the need to review article 9, the Diet created two research commissions in the House of Councilors and the House of Representatives to consider the possibility of revising article 9 ^[15]. By 2006, the two houses had made recommendations to the house, but it was expected that as stipulated in the constitution, the recommendations would then be discussed by the diet, and if found favorable by a majority members, would be subjected to a national referendum.

The framers of the Japanese constitution seems to have had a clear intention of making sure that Japan would in future pose threats to other countries. In the constitution preamble, one notes that the language used is similar to the same language in article 9.

The preamble states that the Japanese people “shall secure for themselves and the posterity the fruits of cooperation with all nations” and resolves to never again to “be visited with horrors of war through the action of government…” The preamble also states that the “the people of Japan have determined to preserve their security and existence, trusting in the justice and faith of peace-loving peoples of the world.”^[16]

Controversies surrounding article 9

The right to use force as a defense mechanism

Although Japan does not have a military, at least in theory, article 9 has been interpreted to mean that Japan has the right to have a self-defense form^[17]. Right after the attack of South Korea by North Korea in 1950, Japan put together a National Police Reserve. This was later renamed to National Safety Force two years later and the Security Defense Force in 1954^[18].

The constitutionality of the SDF can be argued either way. While establishing the SDF in 1954, the Japanese government at that time argued that article 9 does not prohibit self defense forces just as long as they are not used for aggression to other countries. The argument was that although the first paragraph of article 9 prohibited aggressive “acts of war”, it did not prevent them from having self-defense forces.

Research into the constitution making indicates that the phrase “in order to accomplish the aim of the preceding paragraph…” was deliberately included by a committee formed to discuss the draft constitution, deliberately with future purposes in mind, whereby the Japanese would be able to maintain a self defense force^[19]. A different school of though states that the SDF is completely unconstitutional and lack the legal backing and should thus be disbanded and replaced with a civilian force.

Japan-US relations

The relations between the US and Japan largely rely on the provisions of the Mutual Security Treaty, which was enacted in 1951 and later revised in 1960. The treaty has an understanding that just as long as Japan does not have a military of its own, it would be under the security Umbrella of the United States^[20].

Under the treaty, Japan is obligated the troops with Military bases and under the “Host Nation provision”, it is supposed to defray costs emanating from stationing the US troops in Japan. In the wake of missile technology and nuclear development in North Korea and the risk that this poses to Japan, the Japan-US relationship has strengthened over the years.

China’s growth in both economic and military capabilities also gave rise to a need for better strategic positioning of Japan security wise.^[21] This is despite the fact that the end of the cold War had marked a re-evaluation phase of the relationship by Japan.

Japan also sent an approximated 600 troops to assist US forces in Iraq and is also known to have cooperated with the United States in the development of a defense system largely thought to be ballistic missile in nature^[22].

Notably, Japan declined a UN request to send troops to the Persian Gulf War in 1991, but after the 9/11 terrorism attack the country announced its support to the US efforts to fight terrorism^[23]. It even dispatched naval forces ostensibly to aid the US with logistical support during the former’s offensive against Afghanistan^[24]. Although the support offered to the US so far is logistical in nature, one gets the impression that Japan is achieving through the United States what is prohibited by article 9.

Under George Bush administration, Japan and the US held meetings relating to their security cooperation and resolved the need for Japan to take up more active responsibilities in global stability. This would however be pegged on the US military. The meetings also resolved that there would be a reduction of US troops in Japan.

More to this, Japan agreed for an X-band radar system deployed to the country, as well as a nuclear-powered aircraft carrier^[25]. Japan however has to foot the bills associated with US troops based in the country. Among critics of the US-Japan relationship is a group of thought that argues that the relationship favors the United States, and need to be revised in order to address the concerns of the Japanese people more comprehensively^[26].

This study notes that Japan’s relations towards the United States are probably based on the fact that without a military provision in the constitution, Japan knows that the United States is the best bet for providing it with the security it needs against aggression, while the US knows that its relations with Japan has a central role to play in ensuring its interests in the Far East.^[27]

This however does not mean that Japan agrees with everything that the US does. For all intents and purpose, this study surmises that the Japan-US relationship is strengthened by the culpability placed on the latter by article 9. If the country had a military however, may be the relationship would not be as strong.

Post war Japan has relied on the United States to provide it with security within and outside its borders. The United States’ troops in Japan alone for example are approximately 53,000^[28].

Considering that Japan is a strategic economic contributor to the US economy ( Japan is the second largest export market for the US, the second-largest imports source and the second-largest foreign Domestic investment source) one wonders if contravening article 9 would have any significant reaction for the United States especially considering the need to protect the economic interests of the country.

Collectively, Japan and the United States represent about 40 percent of the world’s Gross Domestic product^[29]. This means that the two have a mutual relationship that impacts not only them, but the entire world. Their interconnectedness stretches from trade in merchandise, services, and foreign direct investments (FDI). It is therefore highly unlikely that the United States would sever its relationship with Japan based on the revision or amendment of article 9.

Considering Japan’s strategic position in Asia, article 9 appears like a prohibiting factor more to the US interests in the region than it is a concern for the Japanese. Since the enactment of the 1949 constitution, Japan has lacked both the political and civil will to change article 9^[30]. Constitution interpreters argue that Japan has interpreted the article to suit their position by allowing the establishment of the SDF, but prohibiting the country’s involvement in outside war or peace interventions even as a third party country.

The United States is especially constrained by the same Article 9 that its framers put in the Japanese constitution because it cannot develop a closer defense cooperation with Japan as it would like, especially in light of the rising threats posed by North Korea’s and China’s emergency as military and economic powers.

Japan’s role in international security

Being a member of the United Nations, Japan cannot comply with article 51 as stipulated in the UN’s charter, which gives UN member countries a mandate to intervene where another country is being attacked even though the country itself may not be under attack. Justifying their resolve about non-intervention, Japan cites paragraph 1 of article 9 and argues that its constitution prohibits it from interfering with international disputes unless deliberation, negotiations and diplomacy are the only tools in use^[31].

The argument by the government is that although the country is permitted by the international law to engage in “collective self-defense”, its constitution does not permit it to engfage in activities that flout the “minimum necessary level for the defense of the nation”, which is only applicable when; 1) Japan faces an illegitimate and imminent aggression against it, 2)when every other mean of dealing with the aggression has been tried without success and 3) when only the minimum necessary level of armed strength is to be used by Japan^[32].

With rising global security concerns, Japan has in the past engaged in a series of bilateral security agreements, which among other things pledges the country’s cooperation in disaster relief, peace-keeping, maritime security and counterterrorism. The first was an agreement with Australia, closely followed by another agreement with India in 2008^[33]. Though not military alliances, the pacts establishes a framework that allows Japan to cooperate with Australia and India.

The United States however is an ever present force in these pacts and one gets the impression that Japan would not have signed these pacts if they did not serve the US interests well. This is especially so because the United States was at the time of the bilateral agreement signing spearheading a campaign that sought to strengthen strategic alliances among its democratic allies in hopes of countering the ever growing military power emanating from China.

Japan has however been accused of using the provisions of article 9 to stay off collective-defensive exercise and only intervening where the situation suits them such as when helping out the US, which is a strategic partner in both trade and security^[34] .

Those who counter-argue this assertion state that article 5 of the security treaty between US and Japan allows the two countries to aid each other when either faces external aggression^[35]. Article 5 of the treaty reads “Each party recognizes that an armed attack against either party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes”^[36].

Critics of Japans involvement in Afghanistan and Iraq argue that this article allows Japan to act only within areas within its borders or near its borders. In both Afghanistan and Iraq cases, this was far from the criteria observed by Japan. Supporters of Japans decisions to send troops to Afghanistan and Iraq argue that what the constitution prohibits is the dispatch of “armed forces to foreign territorial land, sea and airspace for the purpose of using force”^[37].

With rising pressure from the international community especially after it failure to send troops to the UN operations in Congo; Japan’s Diet formulated a provision that allowed the country to send peacekeeping troops in UN missions in future^[38]

Is it a good or bad idea to change article 9

The debate on whether to revise or amend article 9 of the Japanese constitution in order to at least Japan re-arm in the height of increased international aggression seems to be favored more by international players rather than the Japanese. In a survey by the BBC, 64 percent of students in Universities in Japan favored that Article 9 be retained just as it is in the constitution^[39].

It is however notable that there are at least four distinct opinions regarding the amendment or revision of article 9 in the Japanese constitution^[40]. The pro-revisionists have been advocating for the revision of article 9 arguing that Japan should have a fully-fledged military that is able to protect the country against external aggressors. This argument is supported by people who view Japan’s geographic location especially next to North Korea and China as something that needs the country to take some armament measures.

The pro-revisionists also argue that being a member of the UN, Japan should have the ability to send troops to the UN whenever the need arises. A different group of pro-revisionists are against the militarization of the country, but argues that article 9 should be revised to legalize the SDF and give it some more mandate. This school of thought argues that the SDF‘s mandate should be restricted to defense and disaster relief.

The anti-revisionists are divided in to two groups:

1. those that prefer the status quo and
2. those who argue that the SDF is unconstitutional.

The first group states that the present interpretation of the constitution is enough and any revision would only serve to create more room for broad interpretations, which would in turn lead to an escalation and expansion of Japan’s military power.

The second group argues that the SDF should be banned because it’s not only unconstitutional, but its mere existence threatens neighboring nations. They propose that the SDF should be dissolved into a “disaster relief operation force”^[41].

The study opinionates that Japan should revise article 9 to support the first pro-revisionist position because, Japan no doubts needs some military power in order to contend with the rising risks posed by its Asian neighbors. The fact that the United States, which is responsible for framing the constitution, is encouraging the country to revise the article is a clear indication that time is ripe for the country to reconsider its position regarding re-armament.

As noted elsewhere in this study, there have been complaints within the Japanese government about the money that the country spends in order to maintain the US military forces in the Japanese archipelago. This alone is a testament that though Japan may deny the need for a military, it is getting the same through a second country, and is paying dearly for the same. The expansion of the SDF mandate over the years is also a testament that Japan has realized the need for self-defense although article 9 remains a prohibitory factor.

The study however acknowledges the sentiments expressed in the reality that de-militarization of countries through provisions such as article 9 would result in a peaceful nation. However, the reality of the world today is that giving up arms cannot be a consideration that stands being given any considerable thought by military powers who perceive their military capacity as an assurance against external aggression.

Conclusion

It is no doubt that MacArthur and other Japanese constitutional framers gave Japan a pacifist constitution. Over the years however a significant percentage of Japanese have grown accustomed to the constitution and “made it their own”. Having learnt vital lessons about aggression and the effect that the same can have on the country especially in the Second World War and other wars preceding WWII, analysts argue that Japan chose to concentrate on economic expansion rather than military power.

Taro Kano, a lawmaker in Japan was quoted by the BBC saying that the bureaucrats who translated the constitution from English to Japanese left a lot of room for interpretation maneuvers thus explaining why Prime Minister Junichiro Koizumi justified sending troops to Iraq, yet an earlier Prime Minister Yoshida Shigeru had always maintained that the constitution of Japan has no provisions for the government to have any Soldiers^[42].

The ambiguities in the constitution thus emanate from the different interpretations that the politicians are able to associate with the passages and the meanings they attach to the same.

The reality on the ground regarding article 9 and other controversial sections of the Japanese constitution is the fact that the American Framers made it absolutely hard for the Japanese to enact any alterations unless the change had a majority backing in the Diet, the house of Councilors and the House of Representatives. The two thirds majority is especially a near-impossible tasks especially considering that the Japanese people are divided over the need to change the article.

As such, the only remaining actions that respective government can take lies with individual interpretations, which for example allowed the formation of SDF, and the sending of soldiers to Afghanistan and Iraq.

The probability that the Japanese people will review article 9 cannot however be overruled especially considering the geographical position of the country and the increasing military powers from the N. Korea and China, increasing international pressure and the need for the Japanese people to possess a sovereign right to collective security.

References

Berlin, Noah. “Imperial Role: Accession, Yasukuni Shrine, and Obligatory Reformation.” Journal of Constitutional Law. 1(2). (2006): 383-413.

Chanlett-Avery, Emma, Cooper, William,H., Manyin, Mark E., & Konoshi, Weston S. “Japan-US relations: Issues for Congress” Congressional research Service. (2009): 1-36. Web.

Edward, J. L. “From Japan to Afghanistan: The US-Japan joint security Relationship, the war on Terro and the Ignomious end of the pacifist state?” Law Review. (2003): 1-7.

Hogg, Chris. “Revising Japan’s Ambiguous’ Constitution.” BBC News, (2007). Web.

“Japan-United States Security Treaty.” A Dictionary of World History. 2000. Web.

Kishikawa, Kimihiko. “The Realignment of the Japan-United States alliances and the emerging roles and missions of the Japan self-defense force,” USAWC strategy research project, (2004):1-30.

Nasu, Hitoshi. “Article 9 of the Japanese Constitution Revisited in the Light of International law.” NR, No. 18 (2004): 1-5. Web.

National Diet Library. “Birth of the Constitution of Japan: Topic 2 renunciation of War.” (2004). Web.

National Diet Library. “Reform of the Japanese Governmental System (SWNCC 228)” (2004). Web.

Okamoto, Yukio. “Japan and the United States: The essential alliance, “The Washington Quarterly 25, No. 2 (2002): 59-72.

Parisi, Lynn. “Lessons on the Japanese Constitution.” Japanese Digest. (2002): 1-2.

Pike, John. “Article 9 renunciation of War.” Global security. Org. (2006). Web.

Prime Minister of Japan and His Cabinet. “The constitution of Japan” (2009). Web.

Soichi, Koseki. The Birth of Japan’s Postwar Constitution. New York: Westview Press, 1997.

Takeuchi, Kazutoshi. “Japan’s war renouncing Constitution.’ CIF Japan, (2007): 1-20.

Footnotes

1. Prime Minister of Japan and His Cabinet. “The constitution of Japan” (2009).
2. Prime Minister of Japan and His Cabinet. “The constitution of Japan” (2009).
3. National Diet Library. “Reform of the Japanese Governmental System (SWNCC 228)” (2004).
4. National Diet Library. “Reform of the Japanese Governmental System (SWNCC 228)” (2004).
5. National Diet Library. “Reform of the Japanese Governmental System (SWNCC 228)” (2004).
6. Noah, Berlin. “Constitutional Conflict with the Japanese Imperial Role: Accession, Yasukuni Shrine and Obligatory reformation,” Journal of Constitutional Law.1 (2) (2009):370.
7. Noah, Berlin. “Constitutional Conflict with the Japanese Imperial Role: Accession, Yasukuni Shrine and Obligatory reformation,” Journal of Constitutional Law. 1(2). (2009):390.
8. Edward, J. L. “ From Japan to Afghanistan: The US-Japan joint security Relationship, the war on Terro and the Ignomious end of the pacifist state?. Law Review. (2003): 5.
9. Edward, J. L. “From Japan to Afghanistan: The US-Japan joint security Relationship, the war on Terro and the Ignomious end of the pacifist state?. Law Review. (2003): 7.
10. Koseki, Sochi. The Birth of Japan’s Postwar Constitution. (New York: Westview Press, 1997), 259.
11. Mark, Chinen. “Article 9 of the constitution of Japan and the use of substantive heuristics for consensus,” Michigan Journal of International Law. 27 (55), (2006): 55-110.
12. The Prime minister of Japan and His cabinet. The Constitution of Japan, (2009)
13. Edward James. “From Japan to Afghanistan: The US-Japan joint security relationship, the war on terrors and the ignominious end of pacifist state?” Law review, (2003): 1-12.
14. Lynn, Parisi. “Lessons on the Japanese Constitution.” Japanese Digest. (2002): 1-2.
15. Mark, Chinen. “Article 9 of the constitution of Japan and the use of substantive heuristics for consensus,” Michigan Journal of International Law. 27 (55), (2006): 55-110
16. National Diet Library. “Birth of the Constitution of Japan: Topic 2 renunciation of War.” (2004).
17. Mark, Chinen. “Article 9 of the constitution of Japan and the use of substantive heuristics for consensus,” Michigan Journal of International Law. 27 (55), (2006): 55-110
18. Glenn D. Hook
19. John, Pike. “Article 9 renunciation of War,” Global security.Org. (2006).
20. “Japan-United States Security Treaty.” A Dictionary of World History. 2000.
21. Mark, Chinen. “Article 9 of the constitution of Japan and the use of substantive heuristics for consensus,” Michigan Journal of International Law. 27 (55), (2006): 55-110
22. Mark, Chinen. “Article 9 of the constitution of Japan and the use of substantive heuristics for consensus,” Michigan Journal of International Law. 27 (55), (2006): 55-110
23. Kimihiko, Kishikawa. “The Realignment of the Japan-United States alliances and the emerging roles and missions of the Japan self-defense force,” USAWC strategy research project, (2004):7.
24. Edward James. “From Japan to Afghanistan: The US-Japan joint security relationship, the war on terrors and the ignominious end of pacifist state?” Law review, (2003): 1-12.
25. Emma, Chanlett-Avery and others “Japan-US relations: Issues for Congress” Congressional research Service. (2009): 1-36.
26. Ibid
27. Yukio, Okamoto. “Japan and the United States: The essential alliance, “The Washington Quarterly 25, No. 2 (2002): 60.
28. Emma, Chanlett-Avery and others “Japan-US relations: Issues for Congress” Congressional research Service. (2009): 1-36.
29. William Cooper. “US-Japan Economic Relations: Significance, prospects, and policy options, ” CRS Report RL32649.
30. Mark, Chinen. “Article 9 of the constitution of Japan and the use of substantive heuristics for consensus,” Michigan Journal of International Law. 27 (55), (2006): 55-110
31. Mark, Chinen. “Article 9 of the constitution of Japan and the use of substantive heuristics for consensus,” Michigan Journal of International Law. 27 (55), (2006): 55-110
32. Lynn, Parisi, “Lessons on the Japanese Constitution.” Japanese Digest. (2002): 1-2.
33. Emma, Chanlett-Avery and others “Japan-US relations: Issues for Congress” Congressional research Service. 2009): 1-36.
34. Hitoshi, Nasu. “Article 9 of the Japanese Constitution Revisited in the Light of International law.” NR, No. 18(2004).
35. Hitoshi, Nasu. “Article 9 of the Japanese Constitution Revisited in the Light of International law.” NR, No. 18(2004).
36. “Japan-United States Security Treaty.” A Dictionary of World History. 2000.
37. John, Pike. “Article 9 renunciation of War,” Global security.Org. (2006).
38. Mark, Chinen. “Article 9 of the constitution of Japan and the use of substantive heuristics for consensus,” Michigan Journal of International Law. 27 (55), (2006): 67
39. Chris, Hogg. “ Revising Japan’s Ambiguous’ Constitution.” BBC News, (2007).
40. Kazutoshi, Takeuchi. “Japan’s war renouncing Constitution.’ CIF Japan, (2007), 12
41. Kazutoshi, Takeuchi. “Japan’s war renouncing Constitution.’ CIF Japan, (2007): 15
42. Chris Hogg. “Revising Japan’s Ambiguous’ Constitution.” BBC News, (2007).