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Top>Research>Security legislation and the future of Japan Based on a theory supporting its constitutionality


Kazuhiro Nagao

Kazuhiro Nagao [profile]

Security legislation and the future of Japan
Based on a theory supporting its constitutionality

Kazuhiro Nagao
Professor Emeritus of Chuo University
Area of Specialization: Constitutional Law

Road to war, or foundation for peace and security?

The security bill was finally passed early in the morning on September 19. The security bill had been the subject of fierce debate during the past year. What was the core of the problem? Now that a tentative conclusion has been reached, I would like to reexamine this issue.

September 19 was truly an epoch-making day in the history of postwar Japan. The passing of the security bill will significantly transform the national security policy of Japan in the future.

Exactly what kind of changes will take place? The debate in Japan can be divided into the following two positions.

The detractors assert that the right to collective self-defense is unconstitutional. They refer to the security bill as a "war bill," stating that passage of the bill will cause Japan to become embroiled in wars waged by the USA, forcing Japan to participate in conflicts on the other side of the world. Casualties in the Japan Self-Defense Forces are inevitable, and a conscription system will be implemented. The detractors believe that Japan has embarked on a path towards war.

The supporters assert that the Constitution of Japan does not forbid the right to collective self-defense. They state that confirming the constitutionality of the right to collective self-defense and strengthening Japan-U.S. cooperation will lay the foundation for peace and security not only in Japan, but also throughout all of East Asia and Southeast Asia.

As illustrated above, there are two distinct images for the future of Japan. Which one of these images is correct? This is an issue which cannot be avoided when considering the present and future of Japan.

Let's start by answering the question posed above. The issue of national security cannot be determined based solely on domestic prejudice. Priority must be given to international law and international common sense. Assertions made by the detractors are completely detached from international law and international common sense. The recent turning point in the national security policy of Japan will bring stability and peace, not only to Japan, but also to countries throughout East Asia and Southeast Asia.

The security bill is welcomed by countries throughout the world

Countries throughout the world have shown significant interest in this issue. The contents of the security bill are widely known, and, as of September 19, support for the bill had already been expressed by 44 countries. In addition to the USA, the bill has received nearly unanimous support for Asian countries such as Vietnam, the Philippines, Malaysia and Taiwan. "I respect Japan's intentions and am highly interested in the issue of security legislation," said President Aquino of the Philippines upon witnessing the debate in Japan. The Ministry of Foreign Affairs of Taiwan issued a statement that strengthening the Japan-U.S. security framework will "provide a foundation for regional peace and stability." In this case, it is clear that the term "regional" refers to both the East China Sea and South China Sea. These countries are deeply concerned regarding how China is rapidly expanding its military and implementing a hegemonic policy of ignoring rules. The strengthened cooperation between Japan and the USA is expected to be a deterrent to such Chinese activities.

Other countries which welcome the shift in Japanese policy include Australia, the UK, France, Germany and even Croatia. Of course, these countries are not facing a military threat from China. Instead, Western European countries welcome the shift in Japanese policy based on the expectation that Japan will make active international contributions such as involvement in peace-keeping operations.

There is one exception to the global trend of welcoming the new security legislation of Japan. That exception is China. On September 19, the Press Secretary of the Ministry of Foreign Affairs of the PRC issued a statement that "the new security legislation has caused international society to question Japan's commitment to peace." Nevertheless, it is clear that no such "question" has arisen in international society.

Now, let's turn our eyes to conditions within Japan. Domestic opposition to the security bill has been seen in Japan, with detractors labeling it as a "war bill." It is obvious why China is adverse to the policy shift in Japan. Recently, American influence in Asia has weakened. The blatant hegemonic policy of China has been made possible by this weakened influence. Accordingly, China fears that a strengthened Japan-U.S. security framework will revive the USA's influence in Asia.

Even so, why is it that so many Japanese people are opposed to the security bill? I will examine possible reasons below.

Japanese common sense would be viewed as absurd overseas

The three constitutional scholars were invited to speak at the June 4 session of the Lower House panel on constitutional issues. All three of these scholars stated that "exercising the right to collective self-defense is unconstitutional.” This rekindled fierce debate regarding the security bill. The opinion of these three scholars is the prevalent academic theory.

In international society, the right to collective self-defense is recognized as an inherent right of independent nations. The right to individual self-defense and the right to collective self-defense are viewed as parts of a whole. Indeed, Japan is the only country where people differentiate between these two rights and debate that exercising the right to collective self-defense is unconstitutional. Thus, people who support this theory of unconstitutionality are effectively saying that Japan is the single exception among all nations of the world, and that Japan is different from all other countries.

Similar to countries such as the UK, Holland, Belgium and Sweden, Japan is a monarchy. Japan is no different from any other country. It is time to remind Japanese people of this fact.

The three experts indicated that the theory of unconstitutionality is almost based on how the Japanese government changed its interpretation of the Constitution.

However, there is no rule which prohibits the national government from changing constitutional interpretation. Indeed, the national government and Diet are required to work to realize more accurate interpretation of the constitution. If a proper reason exists, the national government and Diet may change constitutional interpretation at any time. For example, constitutional interpretation by the national government and Diet in regards to environmental rights and privacy rights has clearly changed. It cannot be indiscriminately proclaimed that all such changes are unconstitutional and unjust. Needless to say, the Supreme Court is also free to change its constitutional interpretation.

The issue of self-defense right is shared by western European countries and all countries throughout the world. Regardless of this fact, the theory and precedents of countries such as the USA, Germany, the UK and France have never been cited by proponents of unconstitutional theory. The debate regarding the right to collective self-defense as unconstitutional only takes place in Japan.

The right to collective self-defense is required for pacifism

The fact that the Constitution of Japan includes a peace clause is not sufficient basis to argue that Japan should be different from all other nations.

There are 124 countries which have a peace clause in their constitution. Many of these countries have peace clauses which are far more extensive than Japan; for example, prohibiting foreign military forces from being stationed in the country or abolishing nuclear weapons. Furthermore, many of these countries have implemented a conscription system (Osamu Nishi, Considering the Constitution of Japan, Bunshun Shinsho). Of course, it is inconceivable that these countries would refuse and limit the right to collective self-defense.

In order to maintain peace, it is necessary for each country to exercise their right to collective self-defense, to form mutual defense treaty, and to strengthen security. This acts as a deterrence to war and is regarded as common sense through the world. Indeed, this is the position taken by the Charter of the United Nations. Refusing the right to collective self-defense is an extremely dangerous policy. In effect, it amplifies the temptation felt by surrounding hegemonic countries to invade easily.

The Constitutional of Japan takes the position of international cooperation. Accordingly, self-righteous ideals which are only accepted in Japan are not sufficient when considering the form of international relationships; instead, it is necessary to conform to the common sense of international society. The exercising of the right to collective self-defense by an independent nation is regarded as common sense (international customary law) in international society.

Nuclear armament plan of Switzerland

The principle of unarmed neutrality was very popular in past constitutional theory. The impact of this principle still remains strong today. Absolute pacifism asserts the need for unarmed neutrality and denies the act of war itself, including wars fought in self-defense.

Proponents of absolute pacifism have often stated that "Japan should become the Switzerland of the East." If Swiss citizens were to hear such statements, they would undoubtedly roll their eyes in disbelief. The basic stance of Swiss citizens can be summarized as follows: "Even if a nation forms military alliances, that nation still requires a certain level of military power. Moreover, several times that level of military power is required by a nation which seeks to ensure its independence and safety without alliances." Switzerland thoroughly protects itself by being an armed nation of universal conscription. In order for Japan to have the same number of soldiers as Switzerland in terms of population ratio, our country would have to increase the number of Self-Defense Forces personnel by 5 million.

Neutrality cannot be maintained without fulfilling the obligations of international law. Failure to fulfill such obligations will be viewed as a breach of neutrality and will led to attacks from warring nations. During World War II, the Swiss Air Force daringly attacked the military aircrafts of Germany and the Allied Powers which flew through Swiss airspace. By doing so, Switzerland fulfilled its obligation of neutrality.

In the past, Switzerland had a plan for nuclear armament. The government at that time explained that nuclear armament was necessary for maintaining neutrality.

As explained above, demilitarization and neutrality are incompatible. Proponents of unarmed neutrality in Japan do not recognize the meaning of "neutrality" in international law. Instead, their concept of neutrality is simply the product of fantasy and wishful thinking.

The impact of this absolute pacifism seems to have significantly influenced people who currently assert the right to collective self-defense as unconstitutional. Both ideas are a product of fantasy.

Occupation policy and Miyazawa's position on constitutional theory

There were four major constitutional theories: Marxism theory, progressive theory, liberalist theory, and conservative theory. Marxism theory disappeared with the collapse of the Soviet Union. Currently, the main trend is progressive theory, which arose from the theory of Toshiyoshi Miyazawa. Therefore, understanding of Miyazawa's ideas is a prerequisite for understanding main trends in recent constitutional theory.

The constitutional theory proposed by Miyazawa changes like a chameleon depending on the balance of power at a certain period of time. Furthermore, Miyazawa always sided with the prevalent position throughout history.

Miyazawa took a liberal stance in the early Showa Period. However, upon the establishment of the Nazi regime, he was quick to defend and support the legality of the regime. In later years, Miyazawa used the dubious phrase "the rights of races" in an essay regarding suffrage rights. His ideas seemed to have been influenced by the racial theory of the Nazi regime. Throughout the World War II, Miyazawa continued to support constitutional theory which emphasized the divine right of the Emperor, a system which was already viewed as obsolete.

Early in the occupation of Japan by Allied Forces, under the policy of creating a "weak Japan," the General Headquarters (GHQ) developed a plan to dismantle a sense of nationhood of Japanese people. This marked the start of the War Guilt Information Program, which conducted through methods including school education, purging of public officials, and censorship of newspapers, radios and books. In response, Miyazawa's position on constitutional law developed a negative attitude towards the Emperor system and national sovereignty, with a particularly passive attitude toward the right to self-defense. These characteristics indicate that Miyazawa was attempting to please GHQ. Indeed, Miyazawa's position on constitutional theory was nothing more than a product of occupation policy.

Major trends in current constitutional theory continue to be influenced by Miyazawa's ideas. The refusal of the right to collective self-defense can be assigned to the impact of his position on constitutional law.

Today, the most important issue facing Japan is to break away from the "postwar regime." The phrase "postwar regime" refers the negative view of Japanese history and the Japanese nation which was intentionally instilled by the GHQ, as well as the social mechanisms used to spread such ideas. The constitutional theory proposed by Miyazawa was merely an embodiment of that postwar regime.

Kazuhiro Nagao
Professor Emeritus of Chuo University
Area of Specialization: Constitutional Law
Kazuhiro Nagao was born in 1942 in Ibaraki Prefecture. He graduated from the Chuo University Faculty of Law. He completed the Master's Program at the Graduate School, the University of Tokyo.
In 1968, he was appointed as a Research Associate at Chuo University. Afterwards, he held the positions of Associate Professor and Professor before being appointed as Professor Emeritus in 2013.
His recent works included The Constitution of Japan [Version 4] (2011), Interpretation of Constitutional Rights and Balancing Theory (2012), and Resident Aliens and the Right to Vote – Experience in Germany and Problems in Japan (2014). He also wrote recently The Justice Theory of Toshiyoshi Miyazawa – Based on Kelsen's Legal Theory (Chuo Law Review, Vol. 122, No. 1 ・ 2; 2015). He wrote a short essay on the security legislation, Seiron 9 (2015), in regards to political perspective.