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Government and Economy

Cabinet Decision Fails as an Interpretation, Gets a Score of 0:
The Right to Collective Self-Defense and the Current State of Article 9

Hiroshi Nishihara
Professor, Faculty of Social Sciences, Waseda University

1) What the Constitution Protects

The Constitution is as essential to our individual freedom as air is to our existence. The reason we aren’t punished when we raise issues or make remarks is that the Constitution of Japan guarantees freedom of expression. If we change the Constitution with our own hands, we may create a world in which the state has free reign to oppress the people. All it takes is adding the phrase “except when it harms the public interest” to the article that guarantees freedom of expression—as the Liberal Democratic Party did in their 2012 draft of a constitutional revision.

Are our individual liberties secure as long as the formal amendment procedure does not move forward through a national referendum? Not necessarily. Article 12 of the Constitution states: “The freedoms and rights guaranteed to the people by this Constitution shall be maintained by the constant endeavor of the people.” It seems we’d better stay on our toes.

2) The Cabinet Decision to “Approve the Exercise of the Right to Collective Self-Defense”

On July 1, 2014, the Abe administration made a Cabinet decision to approve the exercise of the right to collective self-defense. The right to collective self-defense is the right of a country—sanctioned by international law—to regard an armed attack against an ally as an invasion of one’s own country and launch a counterattack against the aggressor. Japan has not been able to exercise this right because of Article 9 of the Constitution.

Some say it is strange not to be able to exercise a right. And there is the argument that it is the same as an individual’s right to legitimate self-defense. However, while you have the right to eat hot ramen, you also have the right not to eat it on a hot day. Likewise, if you come across a gang of twenty people attacking a single person, you have the right to get into a big fight to save the victim. But those twenty thugs might beat you to death (it would be illegal, but you wouldn’t be rescued in time). So no one would blame you if you chose to prioritize your life. If we take this to the national level, a country would be justified in prioritizing the lives of its citizens.

Even so, the Cabinet decision on July 1 sanctioned the “use of force to the minimum extent necessary,” within certain bounds, in the event of an “armed attack against our country or another country with which we have close ties.” We will lose a great deal with this decision. Until now, we have turned down invitations to use military force on the grounds of Article 9 of the Constitution. This has been a valuable way for Japan to win the trust of other countries as a peaceful nation in a world full of conflicting interests. We are now about to abandon this reasoning.

3) Can a Cabinet Decision Change the Constitution?

So then, has the meaning of the Constitution of Japan been changed by the Cabinet decision? What has actually changed is the “government’s interpretation” of the Constitution. It is just one interpretation.

T he Constitution is a document that develops permanent national policy and determines what a country can and cannot do. It is written in abstract terms so that it can accommodate future issues. Since it guarantees the “secrecy of any means of communication” (Article 21, Paragraph 2, last sentence), email—a form of communication no one could have imagined when the Constitution was enacted—is protected from the prying eyes of those in power. Thus, “interpretation” is the work of thinking about what the words in the Constitution mean today. Only after an interpretation is made does the Constitution have meaning.

And there are as many interpretations of the Constitution as there are people who read it. When laws are drawn up, the Diet interprets the Constitution and considers whether a given law would be constitutional or not. If a court rules that the law is unconstitutional, however, the law becomes void (Article 81). In other words, the court determines that the Diet’s interpretation was incorrect. Eight legal provisions have already been declared unconstitutional on nine occasions by the Supreme Court.

The court can also change its interpretation of the Constitution. Laws that were in common use may be declared unconstitutional in the next trial. Thus, no one knows what the correct interpretation of the Constitution is today. When I explain the content of the Constitution to students in class, I also explain the position of the Supreme Court. At times, I tell them how my interpretation differs and ask them to think about which interpretation is the most persuasive.

4) The Next Step: Turning the New Interpretation into Law

The Cabinet decision on July 1 simply put the constitutional interpretation that will underlie new bills the Cabinet submits to the Diet down on paper. Just as I talk about the “real meaning of Article 9 of the Constitution” in class, this is a factual phenomenon and will not bring about any changes in the content of the Constitution.

However, if the Diet enacts laws based on the new constitutional interpretation, it will create a fait accompli in terms of law and order. Of course, such laws may be unconstitutional and have only temporary efficacy (in fact, the position that the Self-Defense Forces are in compliance with Article 9 of the Constitution is not endorsed by the Supreme Court and is thus only provisional).

The problem here is how exercising the right to collective self-defense can be considered permissible under the Constitution. Past government interpretations of the Constitution have argued that the right to collective self-defense cannot be exercised based on the “prohibition on the maintenance of war potential” in Article 9, Paragraph 2. According to this logic, the Self-Defense Forces (SDF) constitute the minimum level of force needed to protect Japan when it is attacked and thus do not count as “land, sea, and air forces, [or] other war potential”; however, going out and using military force when Japan is not being attacked would be no different from having a military.

The Cabinet decision actually provides no explanation as to why an SDF that can exercise the right to collective self-defense is not a military. If this were a student’s examination paper for getting course credit on the Constitution, it would receive a zero for “not holding up as an interpretation.” It remains to be seen if a government interpretation that doesn’t even qualify as an interpretation can survive deliberations in the Diet.

5) Our Resolve to Uphold the Constitution Is in Question

The most serious issue is that a paper that would get a zero score is assumed to be a valid interpretation. It is true that the Constitution is nothing more than “words” and does not have a definitive meaning. However, modern constitutionalism involves describing in written form what can and cannot be done, comparing the persuasiveness of various interpretations of the meaning of these words, and shaping the powers of the state in a reasonable fashion.

When Germany’s Weimar Constitution, said to be the most democratic constitution of its time, was destroyed by the Nazis, it was not done through the formal procedure for amending the Constitution. A law concentrating all power into Hitler’s hands was simply enacted as a regular law in 1933. When the will to uphold the Constitution dies, so does the Constitution.

This is why Article 12 calls for the “constant endeavor” of the people; the Constitution can only remain a living document as long as it is based on the will of the people to uphold it as a common set of rules governing state power. In that sense, the Constitution rests in the hands of the people. And it is the people alone who have the power to shape the correct reading of the Constitution for the Diet and Supreme Court.

Hiroshi Nishihara
Professor, Faculty of Social Sciences, Waseda University

[Profile]

Professor Nishihara was born in 1958. He received his bachelor’s degree from the School of Law, Waseda University, and his master’s degree and doctorate in law from the Graduate School of Law at the same university. He specializes in constitutional law. His publications include, besides works in Japanese Launguage, Das Recht auf geschlechtsneutrale Behandlung nach dem EGV und GG (Duncker & Humblot, 2002); Vom paternalistischen yum partnerschaftlichen Rechtsstaat (co-authership with Sung-Soo kim, Nomos 2001); “Constitutional Meaning of Proportionality Principle in the Face of the ‘Surveillance State’”, 26 Waseda Bulletin of Comparative Law (March 2008) pp. 1-10; etc., In April 2014, he published Yasuhiko the Rabbit Learns about the Constitution [Usagi no Yasuhiko, Kenpō ni Deau] (TaroJiro-Sha Editus), a book that explains the meaning and ways of interpreting the Constitution to elementary and middle school students.