Dishonest Abe

Why we should be worried about the Japanese prime minister's move to amend the constitution.

Brendan Hoffman/Getty Images
Brendan Hoffman/Getty Images

As Iraq disintegrates before the U.S. administration’s eyes, it is ignoring news from Japan that is no less ominous. Without attracting much international attention, Prime Minister Shinzo Abe is attempting a constitutional coup: trying to repeal basic tenets of the constitution without obtaining the support of the Japanese people in a special referendum.    

In the aftermath of World War II, Article Nine of Japan’s new constitution "forever renounce[d] war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes." Abe believes that the rise of China and the unpredictability of North Korea require military responses that the constitution renounced. It is up to him to convince the Japanese people that he’s right — but not by short-circuiting a referendum to achieve a radical change through unconstitutional means. If his coup is successful, it will establish a precedent that will permit the further destruction of the country’s liberal democratic legacy.

Thus far, U.S. President Barack Obama has allowed Abe to embark on his mission without protest. But continued passivity will undercut the moral foundations of U.S. Asia policy for generations to come.

Over the past two years, Abe’s Liberal Democratic Party (LDP) has won sweeping electoral victories on the basis of economic policies that have begun to lift Japan out of the doldrums — raising business confidence to the highest levels since the global recession. But the constitution doesn’t allow the prime minister to use the popularity he has gained from economic success to revolutionize fundamental values — in this case, Japan’s commitment to pacifism. Instead, the constitution requires a two-thirds majority in both houses before any amendment can be submitted to the voters. Only if a majority then approves at a referendum can the initiative become law. Yet Abe lacks the necessary parliamentary majorities — the LDP, along with coalition partner New Komeito, controls a two-thirds majority in the lower house, but only 55 percent of the seats in the upper house. What is more, the electorate has turned decisively against his amendment campaign — a June poll from the respected Kyodo News reports that 55 percent of the public oppose Abe’s initiative, up from 48 percent in May.

Soon after Abe regained power in Dec. 2012, he launched a campaign to weaken the amendment procedure, so that only a simple majority in both houses would be required before going to the voters. But his strategy backfired: It estranged, rather than mobilized, popular support.

Abe then switched tactics, and began pursuing the same objective by more devious means. In the Japanese system, the Cabinet Legislation Bureau is the government office in charge of constitutional and statutory interpretation. It had long viewed Article Nine as banning even those military actions authorized as legitimate self-defense under the United Nations Charter. Since August, Abe has been pressuring lawyers at the bureau to revise this position. In May, he finally succeeded. The agency is now reinterpreting Article Nine to authorize a wide range of preemptive military actions in the name of collective self-defense. And now, without seeking a legislative mandate in support of this basic change, he is pressuring his Cabinet to accept it.

Abe’s current proposal, presented in June, would authorize military force if "the country’s existence, the lives of the people, their freedoms, and the right to seek happiness are feared to be profoundly threatened because of an armed attack on Japan or other countries." The last three words are significant, as they authorize Japan to use force in defense of the United States or other close allies. Such preemptive attacks — including the authority to use the military to break embargos on oil or food so long as the "right to seek happiness" is endangered — go far beyond the principles of self-defense authorized by Article 51 of the United Nations Charter, and erase Article Nine’s emphatic renunciation of "the threat or use of force."

Despite the extreme nature of the proposed revisions, Abe seems to be overcoming his coalition partner’s resistance. While New Komeito may eliminate some of the broader reinterpretations as a face-saving measure, it may go along with a constitutional revolution by unconstitutional means — unless public opinion at home and abroad emphatically oppose the move.

There is more at stake than Article Nine. The 1947 constitution was written under U.S. occupation, and the imperial government accepted it without submitting it to voters in a referendum. Since then, it has never been amended. If the Abe government gained the two-thirds legislative majorities required for a popular referendum  this would permit Japanese people of the 21st century to claim ownership over their constitutional destiny, and thereby consolidate the nation’s standing as one of Asia’s leading democracies.

In contrast, if Abe unilaterally modifies the constitution, and treats the referendum procedure with contempt, it would create a terrible precedent for further constitutional coups. For example, Article 97 of the constitution declares that "the fundamental human rights … guaranteed to the people of Japan are fruits of the age-old struggle of man to be free; they … are conferred upon this and future generations in trust, to be held for all time inviolate." But the LDP has already prepared a draft that eliminates this statement of principle. The draft also contains a provision restricting freedom of speech and association "for the purpose of harming the public interest and public order." Once Abe has evaded the requirements for constitutional amendment in the case of Article Nine, what is to stop him from undermining Japan’s constitutional legacy through more acts of Orwellian "reinterpretation"?

During Obama’s April trip to Japan, the two leaders held a joint press conference, where Abe announced that "wide-ranging security and defensive cooperation would be promoted."

But at what price? To eliminate false impressions left by the press conference, U.S. Ambassador to Japan Caroline Kennedy should state that the United States only supports military collaboration when it is in strict conformity with Article Nine. More fundamentally, the Obama administration should not prioritize seeking Japanese help in dealing with short-term provocations from other Asian powers. Instead, it is far more important to secure Japan’s place as a mature democracy in the region. The alternative is unacceptable.

Bruce Ackerman is professor of law and political science at Yale University.
Tokujin Matsudaira is an associate professor of law at Kanagawa University.