As many readers know, there is a significant debate going on in Japan today about the government’s proposal to pass a new law that would allow for collective self-defense in the event of armed attack. This has led to protests and conflict. The issue concerns Article Nine of the Constitution, which famously prohibits the maintenance of armed forces and the use of war as an instrument of national policy. Article Nine has long been interpreted to allow for limited capacity for self-defense, which is defined in the Charter of the United Nations as an inherent right of states. A key question is thus whether or not this limited inherent right self-defense can be expanded without violating the Constitution.
One of the leading figures in the debate is Professor Hasebe Yasuo, a scholar of constitutional law now at Waseda Law School. On June 4, Professor Hasebe testified before a Commission of the Lower House Diet about the proposal, and argued that it was unconstitutional. Amongst his works are What is a Constitution? and Re-interrogating the Constitution and Peace. He was born in Hiroshima, and is currently 58 years old. This interview was translated by Prof. Hasebe from his conversation in the Kochi newspaper on June 10, in which he elaborated on his recent testimony, problems in current security legislation, and the meaning of constitutionalism. The interview was entitled An Irregular Constitutional Interpretation.
The Right to Collective Self-Defense – Impermissible under Article 9
Q: On June 4th, you participated as a witness on behalf of the LDP in a session of the Lower House Commission on the Constitution. There, you said that the new security bills were “a violation of the Constitution insofar as they permit the exercise of a right to collective self-defense.” Had the LDP made any requests to you in advance concerning the substance of your remarks?
A: It is not well known, but expert witnesses often are not fully aware of the party by whom they’ve been nominated. You’re contacted by the administrative staff of the Lower House. I’d also testified as an expert witness regarding the Specific Official Secret Act, but I wasn’t informed until I actually arrived [in Diet] there that I’d been nominated by the LDP. Similarly, I’d vaguely gathered this time that I’d probably been nominated by the LDP, but it was just that – a vague suspicion.
Q: In your previous writings, you’ve shown yourself to be against the exercise of a right to collective self-defense.
A: I haven’t changed on that point. When it comes to the current security-related legislation, I still think that the right to collective self-defense is completely unconstitutional. Thus far, only a portion of these bills has made it into writing. But it’s the most essential portion.
Q: Could you elaborate?
A: The bill to revise the Self-Defense Forces Act is one example. To say that the Prime Minister can order the defensive dispatches of troops when facing a “threat to [Japan’s] survival” is clearly to assume the exercise of a right of collective self-defense.
Q: It’s said that even in the case of military involvement in “rear support” [logistical support for multilateral missions], the distinction between combat zones and non-combat zones will vanish.
A: The so-called “Four Ōmori Factors”[1] have defined the government’s view thus far. Since it is difficult for a commanding officer on site to make judgment calls one after another on the spot, the standard practice is to draw a clear distinction between combat and non-combat zones. One can act only within the former. It’s been understood that making this distinction eliminates the danger of [defensive activity] merging with the exercise of military force.
There’s talk in the Diet now about also “providing ammunition” and “refueling aircrafts en route [for combat missions].” These acts merge with the exercise of military force as a matter of common sense. Merely proclaiming that the Self Defense Force (SDF) will “only engage in rear support activities in combat zones” cannot prevent this merger from occurring. War is like a living organism, and like a living organism it is in constant motion.
Q: Until now, SDF activities have been broadened by means of constitutional [re-]interpretation. What is the difference between these past problems and the current security bills?
A: Their dimensions are completely different. According to Article 9 of the Constitution, Japan should in principle exercise no military force whatsoever. However, one needs to protect the lives and property of citizens. Thus, with the understanding that every government engages even if at a minimum in such protection, we’ve created individual laws to specify “how much is permitted under Article 9.’ But due to Article 9, all that has been recognized, even in these cases, is just a right to individual self-defense, i.e. we’re permitted to exercise the most minimal level of force necessary if Japan is attacked by a foreign country, and has no other means at its disposal. That is what previous debates have been about. And these debates have not signified a broadening of the basic principle of the Constitution.
In contrast, a right to collective self-defense, briefly put, consists of the exercise of military force for the defense of other countries. It’s impossible to permit this under Article 9. Note that I’m not the only one saying this. Historically, prior administrations have always maintained the same view. It’s been repeatedly confirmed that one cannot exercise a right to collective self-defense without revising the Constitution. Changing the interpretation of the Constitution is not a legitimate means here.
Q: You claim in your writings that there are “no aspects of the current constitution that require revision.”
A: Right now, that is the case. The ruling coalition says that Japan will be safer if their security bills pass. But there’s no guarantee of that. Even if the national security environment is more treacherous today than in the past, it would be the height of folly to extend Japan’s limited defensive capabilities over the whole expanse of the globe. Take an analogy from soccer. If the ball is close to your own goal, do you send your players scattering out across the opposing team’s pitch?
Some seem to think wishfully that if we engage in military cooperation with the U.S., then the U.S. will, in return, take an active role in our national security. That’s rather wishful thinking. The U.S. will only mobilize troops in its own [national] interest. This holds true for every country. Moreover, congressional approval is required for the U.S. to take any military action. In a presidential system, there’s no guarantee that congress will listen to what the executive says. It’s completely different from Japan’s system of Diet approval.
Q: There are also those who fear that if the security bills succeed, it will lead to an arms race.
A: The ruling party says that they’re “building up deterrent capability,” but if Japan increases its capability for deterrence, then other countries may build up their own arms. Both the First and Second World Wars were the outcome of a competition to increase deterrent capability. The idea that “peace will result from a build-up of deterrent capability” is also wishful thinking.
Q: So, looking back at history, the competition to build up deterrent capability ends in war?
A: I won’t deny the possibility that building up deterrent capability may result in peace. But there’s at least an equal chance that it will result in something even more dangerous – that’s the point. Japan’s neighboring national security environment definitely isn’t changing much.
Pacifism: The Basis of the Constitution will Change
Q: There’s an opinion concerning constitutional revision that even if proper procedure is followed, some elements of the constitution cannot be revised. For instance, one can’t revise the constitution’s position of respect for basic human rights.
A: I agree with that view. [No matter what revisions are made], the foundational principle of pacifism must be part of the constitution.
Q: What about constitutional revision that would make possible the exercise of a right to collective self-defense?
A: That kind of revision is possible. After all, the U.S., UK, and France all exercise a right to collective self-defense. Some might even say that so long as it remains very limited, a right to collective self-defense is compatible with the basic principle of pacifism. If they want to obtain consent through a national referendum, then they should try their utmost to explain matters in a way that reflects the history of past wars. If, after that, we end up exercising a right to collective self-defense, then there’s nothing for constitutional scholars to say against it.
Q: Whereas right now, they’re trying to skip this step, and de facto revise the constitution by re-interpreting it.
A: A constitution should not be altered willy-nilly according to the thoughts of whoever happens to be the prime minister at the time. That’s precisely why it’s a constitution. It’s designed to be rather difficult to change.
At the recent G7 summit in Germany, Prime Minister Abe spoke of “protecting human rights, democracy, and the rule of law.” However, if he really believes in the rule of law, he should respect the current constitution. How can one respect something by violating it? His actions contradict his words.
Q: You’ve said before, “War is a battle between one constitution and another.”
A: When you have different constitutions, then, in the worst-case scenario, war will break out. It’s the constitution that determines which countries get along with one another. Once upon a time, Japan and the U.S. went to war due to differences in their constitutions. Japan was then informed in the Potsdam Declaration that if they wanted to end the war, they would have to fundamentally change their constitution. Should the constitution fundamentally change again, then there’s always the possibility that a large-scale war will erupt.
Q: In contrast to all this, we, in our daily lives, aren’t really too deeply conscious of the constitution.
A: The relation of the constitution to everyday life is rather weak. There are, of course, more pressing issues at the quotidian level. As the saying goes, “It’s more important to make sure there’s food on the plate.” And, I agree. A nation that can get away without thinking about its constitution on a daily basis is a happy nation. Yet, the security bills would change the very fundaments of our constitution. Before long, we might end up having to think about constitution on a daily basis. Getting food on the plate may be more important right now, but, perhaps, in five years, we’ll be in a position where just thinking about food seems absurd.
Q: The constitution is not high up on the list of criteria we use to vote for politicians.
A: The economy comes first. That is the same for every country.
Q: Are there examples where a country is swept up by economic concerns, such that the constitution ends up changing, which in turn changes the nature of that country itself?
A: Hitler’s a prime example. Hitler seized power, and the economy recovered. The unemployment rate fell on account of large public construction projects. But since the average income of individual Japanese citizens has been rising thus far, I don’t think we’ll end up under a dictatorship again.
Q: But is it possible that, before we know it, we’ll see a very deep and profound change?
A: You mean, the kind of situation where we end up looking back, and saying to ourselves, “Ahhh – so that was when everything became different.” Yes, I think that’s a key point to bear in mind in our current climate.
Q: Why is it unacceptable to revise the constitution de facto via a change in interpretation? If you could run over the argument again.
A: Simply put, because we’ll become an “irregular country.” The constitution serves as a last resort when negotiating with other countries. We’d thus be indicating to the world that despite all those times we’ve said, “No, it’s impossible because the constitution says otherwise,” we’re now instead claiming, “No, we can change what the constitution says to suit our needs.” From that point on, if we ever try to resist on grounds of the constitution, others will just say to us, “Ok, well, then – just change your interpretation.”
Q: Is the form of the constitution connected to our inner consciences?
A: Each person has his own unique manner of living and thinking. Japan’s current constitution recognizes this impartially. It seems, however that there are those in the ruling party [LDP] who are opposed to this very viewpoint. Changing the constitution, and getting everyone to think in the same way – this is troubling. It means that we may end up having to go to war again.
Q: Are you saying that there could be revisions that would seek to restrict our individual consciences?
A: Restricting the conscience of the individual is a certain kind of revolutionary faith – a belief that by changing institutions, one can reform the minds of the people, and make them all into “the right type of person.” To be sure, this sort of revolutionary faith has always existed, in every era of history, and in every country. Marxism, the Jacobin dictatorship of the French Revolution, Nazism, Fascism — these are all instances of that same faith. It’s not especially rare, and particularly common among elites.
Q: The witnesses who testified in front of the [Lower House] Commission on the Constitution all maintained the unconstitutionality [of the security bills], after which the LDP leadership angrily accused their commission members of exercising poor judgment in choosing witnesses.
A: Ah, the poor LDP Commission members! Wasn’t their response something like, “If you don’t like our choices, then search for a witness yourself!” There’s no way they’ll be able to find any sympathetic witnesses without great difficulty. They’d basically have to get someone who is qualified to speak on the nature of constitutionalism, while also willing to agree that the security bills are constitutional.
Q: Yet those bills were considered in the Diet, and the ruling party still asserts that they are constitutional.
A: We’re definitely reaching the end of the end. Although the end of what is still unclear.
Expert Witnesses of the [Lower House] Commission on the Constitution: 99% of Scholars Say it is Unconstitutional
Q: After the Lower House’s Commission on the Constitution, there were voices from the administration and ruling party that spoke of a “poor choice in witness selection.” They said that there were many legal scholars who believed the new security bills to be constitutional. Are there actually any?
A: The overwhelming majority – about 99% of scholars – are of the opinion that it is unconstitutional. Or, at least, they think that a right to collective self-defense is unconstitutional. Who comprise the remaining 1%? I can’t say. I don’t have any personal relations with anyone who holds that opinion, and I haven’t met any at academic conferences. The opinion of the scholarly community leans pretty heavily to one side on this.
Q: According to Article 99 of the Constitution, members of the Diet, Ministers of State, and all other public officials have a duty to respect and uphold the constitution. It seems that they’re currently trying on their own to break out of this established framework.
A: It’s extraordinary. I don’t know how far they’ll go in trying to break out of the constitution’s framework. Until now, there have never been any deliberations on a bill that would eliminate this very framework. For example, it’s said that if a right to collective self-defense is recognized, then the SDF will be able to sweep for underwater mines in the Strait of Hormuz. However, there’s no guarantee at all that they won’t be enabled to do even more than that. Prime Minister Abe has promised that Japan will not take part in operations to eliminate the Islamic State. But that’s merely the word of the presently serving Prime Minister.
Q: Some claim that sweeping for mines in the Strait of Hormuz could be covered by a right to individual self-defense.
A: That’s possible. At the Lower House Commission on the Constitution on June 4th, Kobayashi Setsu, Professor Emeritus of Keiō University, made a comment to that effect, to which Kitagawa Kazuo [Vice-Representative of the Kōmeitō] replied, “International law doesn’t work like that.” This is a problem of the Constitution of Japan. We can only permit that which is considered a right to individual self-defense under the Constitution of Japan. If an American vessel defending Japan is attacked by a foreign country, then Japan can certainly retaliate. But those who would instead call that a “right to collective self-defense,” and further claim that we can therefore sweep for mines abroad, are simply unpersuasive in their arguments.
Q: Part of the Strait of Hormuz falls within Iran’s maritime territory. Isn’t it impossible to remove mines within another nation’s borders under the right to individual self-defense of one’s own nation?
A: Arguments for both sides could be made. However, there’s a very tiny chance that Iran would lay mines. Iran’s Revolutionary Guard are one of the main elements for fighting against the ISIS in Iraq. In the future, even with U.S.-Iran cooperation, a conflict is unthinkable. The whole issue of “What if petroleum stops coming to Japan?” is an utterly unrealistic fantasy.
[1] When the SDF is sent abroad on missions, one fear is that their activities will merge together with other countries’ exercises of military force. In 1997, Ōmori Masasuke, then Director-General of the Cabinet Legislation Bureau, explained to the Diet the administration’s criteria of judgment for such situations. These are sometimes referred to as the “Four Ōmori Factors.” They are 1) the geographical relation between the SDF and other countries’ militaries; 2) the specific content of the SDF’s activity; 3) the proximity of the SDF to those exercising military force; 4) the existing condition of partner countries’ activities. One takes these four issues into consideration, and then evaluates each situation individually. That was the rubric to be employed when sending the SDF abroad.
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