Conference Report – “Democracy, Pacificism & Constitutional Change in Japan: Amending Art. 9?,” University of New South Wales

—Rosalind Dixon, University of New South Wales, and Juliano Zaiden Benvindo, University of Brasília

On August 12, 2016, the Gilbert + Tobin Centre of Public Law at the University of New South Wales (UNSW) in Sydney, Australia, and the Australian Network for Japanese Law (ANJel) hosted the symposium “Democracy, Pacifism & Constitutional Change in Japan: Amending Art. 9?”. The symposium was convened by Rosalind Dixon and Luke Nottage with the purpose of providing a rich discussion of the new developments on Japanese constitutionalism, especially focusing on its pacifist clause (Art. 9). Scholars from distinct parts of the world sought to stress how informal and formal change intertwine with each other in the current context of the Japanese government’s political actions aimed at a revision of the scope and limits of that clause.

The Japanese Constitution, drafted during the post-war context of a defeated country occupied by Allied forces, brought a very singular provision in comparative perspective. Its Art. 9 commits Japan to a distinctive form of constitutional pacifism. It provides that: “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” (Art 9(1)), and that to accomplish this, “land, sea, and air forces, as well as other war potential, will never be maintained” (Art. 9(2)).

However, ever since the Korean War, Japanese governments have interpreted this second provision in order to allow the creation of a national ‘Self-Defence Force’ (SDF), authorized to engage in limited “individual” self-defence on behalf of Japan, based particularly on Article 51 of the United Nations Charter. Over time, successive governments have also expanded the scope of the SDF’s mission in order to allow it to contribute to global peace-keeping efforts via certain forms of combat-support or non-combat missions.[1]

In recent years, Japan’s center-right Liberal Democratic Party (LDP) government has sought to launch a much more aggressive effort: it has sought to “reinterpret” Art. 9(1), particularly through a new statement of the Cabinet Legislation Bureau (CLB),[2]  to allow Japan to engage in all military action necessary for the “collective” self-defence of Japan and its allies. With the comfortable re-election of the LDP government this year, Prime Minister Shinzo Abe has also begun to propose formally amending the Constitution in order to further authorize this shift in policy.

Japanese constitutional scholars, however, have loudly criticised the Abe government for this reinterpretation of Art. 9. Yasuo Hasebe, for example, argued during a debate in the Diet that such interpretation “considerably damages legal stability and violates the Constitution.”[3] Comparative constitutional scholars have also increasingly turned their attention to the issue. Bruce Ackerman and Tokujin Matsudaira, for instance, called this change “Abe’s constitutional coup,”[4] and Craig Martin pointed out that “such changes should come after a significant public debate, and through the formal constitutional amendment process.”[5]

The symposium at UNSW sought to bring together leading Japanese and comparative constitutional scholars to debate in more detail whether comparative constitutional theory in fact lends any support to the legitimacy of the Abe government’s actions in this context.

The first set of questions addressed by symposium participants in this context involved the line between constitutional interpretation and “change.”   On one view, endorsed by Hitoshi Nasu (ANU) and Hajime Yamamoto (Keio), Art. 9 is in fact sufficiently open-textured in scope to allow for this shift in constitutional construction: changing regional and global geopolitical factors may support the change, and language itself may not be enough to prevent this new construction. In this respect, although Yamamoto regards this new interpretation as a bad one,[6] he argues that “it is extremely difficult to affirm a clear legal rule and criterion to distinguish a constitutional situation and an unconstitutional situation in the field of interpretation of Article 9.”[7]

The more commonly stated view, endorsed by scholars such as Yasuo Hasebe (also at the symposium, and previously in testimony before the Japanese Diet), is that both the text and prior authoritative interpretations of Art. 9 by Japan’s Cabinet Law Bureau do not support this new construction, and it is thus a clear “change,” not simply an evolution in constitutional meaning. Moreover, a formal constitutional change through amendment is very unlikely because of its unpopularity.[8]  This debate makes clear how difficult it is to talk about comparative constitutional change without first engaging in a debate about the legitimate scope for constitutional construction.[9]

A second set of questions involved the relationship – both positive and normative – between formal and informal modes of constitutional change.  One important distinction noted by contributors was the distinction between explicit and deliberate, versus more implicit, non-intentional forms of informal constitutional change.

Implicit, non-intentional forms of change could be analysed, Hajime Yamamoto (Keio) suggested, through the lens of Georg Jellinek’s “mutation” theory.  Commenting on Yamamoto’s paper, Carlos Bernal (Macquarie) further suggested that it was useful to distinguish between constitutional and unconstitutional infra-constitutional mutations.[10] This debate indeed becomes particularly appealing in a country where an executive body such as the Cabinet Legislation Bureau, whose statements are regarded as “quasi-constitutional”[11] norms, is the institution behind this interpretative change. Craig Martin (Washburn) likewise suggested that for informal constitutional change to be legitimate as a form of “constitutional moment” of the type identified by Bruce Ackerman in the United States, key actors could not deliberately set out to exploit an informal or irregular path to constitutional change: change of this kind had to be more organic or incidental, rather than deliberately planned in nature.

Rosalind Dixon (UNSW) countered that this account might itself rule out a number of constitutional moments in US history, including Reconstruction and the New Deal, and argued that a defining feature of constitutional moments was their deliberate and deliberative character.  Together with Guy Baldwin (UNSW BA/LLB), Dixon also suggested that the Japanese experience did in fact superficially meet the requirements for an Ackerman-style constitutional moment: there were signs of each of Ackerman’s five key stages being met in Japan between 2013 and 2016.  At the same time, Dixon and Baldwin argued that the Abe government’s reinterpretation of Art. 9 did not in fact seem to enjoy broad democratic support of the kind required for a true constitutional moment; and the LDP was able to pass the relevant changes through the Diet in large part due to an absence of meaningful political opposition.  Using the Japanese experience as a negative or “aversive” lens to understand the requirements for successful constitutional moments, Dixon and Baldwin thus argued that some degree of meaningful political competition was more or less a necessary condition for legitimate informal constitutional change.

Along with other participants and commenting on the papers of Rosalind Dixon and Guy Baldwin as well Craig Martin, Juliano Benvindo (Brasília) stressed the importance of further scholarship in this area on the more positive dimensions to informal change: how is it, for instance, that Abe has succeeded in creating informal change, if in fact it has occurred? He argued that although normative premises such as those found in Ackerman’s theory of constitutional moments may play a relevant role – and agreed more particularly with the need for meaningful political opposition as a central feature of this concept – attention must also be given to how individuals and institutions coordinate their strategies in a way that can either strengthen or disrupt constitutionalism. In the case of Japan, it seems that Abe’s strategy has gradually overlapped institutional thresholds and that normative parameters have shown little capacity to hinder such changes, thereby signalling a more structural problem of institutional design.

Discussions at the symposium clearly pointed to three potentially important contributing factors: the dominance of the LDP, compared to its political opposition, its willingness to allow some degree of public protest, but also to impose limits on certain forms of mass media debate or criticism, and its strategy of micro-institutional control via a process of irregular appointments to the Cabinet Law Bureau. The role of other factors, and the relationship between these factors, however, is a topic needing further scholarly analysis.

A third set of questions regarded the role of academics, as public intellectuals, in contributing to debates over the legitimacy of both formal and informal constitutional change.  Hitoshi Nasu (ANU) suggested that academics, particularly legal academics, had a duty in such debates to recognise the scope for reasonable disagreement, or differing approaches to the question.  Craig Martin (Washburn), in contrast, defended the importance of scholarly criticism of the government, particularly in a context such as Japan, and praised the prior public role of Professor Hasebe in this context.

A fourth and final set of questions related to how recent changes in Japan relate to broader global and democratic developments. Luca Siliquini-Cinelli (Deakin), in this context, sought to locate recent Japanese debates within broader debates about nationalism and neoliberalism. His argument revolved around the premise that “Japan has never been part of the liberal global-order project, and continues to reject it.”[12] Comparative analyses must thus pay attention to Japanese particularities and not simply apply standardized liberal parameters to understand its constitutional culture.  Stacey Steele (Melbourne), on the other hand, analysed the relationship between the Abe government’s changes to Art. 9 and its push to allow the vote for young people. By presenting fascinating empirical evidence as to the effect of these changes, however, she concluded that Japan follows the worldwide trend of failing to attract young voters to participate in elections.[13]

Theories of informal and formal amendment have a lot to learn from looking at what is happening in Japan. Questions related to the limits, legitimacy and scope of formal and informal constitutional change, the very characterization or not of this change as a constitutional moment, the particular nature of Japan’s institutional design and its possible structural problems, the difficulty of interpreting Japan’s constitutionalism based on traditional methods of comparative law, and the empirical dilemma of transforming election results into an effective demonstration of legitimate government, were all subject to rich debates during the symposium. More important, however, was the conclusion that scholars in general, and comparative constitutional scholars in particular, have a duty to seriously engage with governmental actions that may affect constitutionalism at large. As the symposium revealed, Japan, for all of its particularities, is a paramount example of how formal and informal constitutional change are only the tip of the iceberg of a much broader phenomenon: constitutionalism and its ongoing struggles with the arena of politics.

---

[1] Leszek Buszynski, ‘Japan’s Security Policy in the Koizumi Era’  2(3) Security Challenges 93, 95-6 (2006).

[2] The CLB, in the Japanese constitutional system, is responsible for providing legal advice to the government, and its statements have historically been followed as strongly authoritative. In this sense, the role of the CLB is in some important way a functional complement or substitute for a more active role on the part of the Supreme Court of Japan in this context.

[3] See Experts’ Tongue-Lashing Rekindles Diet Debate on Reinterpreted Constitution, The Japan Times (Jun. 5, 2015).

[4] Bruce Ackerman & Tokujin Matsudaira, Cry ‘Havoc’ and Let Slip the Constitution of War, Foreign Policy (Sep. 28, 2015).

[5] Craig Martin, Media Should Stop Legitimizing Abe’s Article 9 ‘Reinterpretation’, The Japan Times (Jun. 12, 2015).

[6] Hajime Yamamoto, Interpretation of the Pacifist Article of the Constitution by the Bureau of Cabinet Legislation: A New Source of Constitutional Law? (paper presented at the symposium).

[7] Ibid.

[8] See Yasuo Hasebe, The End of Constitutional Pacifism (paper presented at the symposium).

[9] See Lawrence B. Solum, The Interpretation-Construction Distinction, 27 Const. Comment. 94 (2010).

[10] See Carlos Bernal-Pulido, Informal Constitutional Change. A Critical Introduction and Appraisal, 62 Am. J.  Comp. L. 495 (2014).

[11] See Yamamoto, supra note 6.

[12] See Luca Siliquini-Cinelli, Japan and the Liberal Global-Order Project: A Time to Stop and Stare (paper presented at the symposium).

[13] See Stacey Steele, Lowering Japan’s Voting Age from 20 to 18 Years Old: Potential Consequences for Lay Participation? (paper presented at the symposium).