Cry ‘Havoc’ and Let Slip the Constitution of War

The Japanese Constitution’s famous Article 9, or Peace Article, “renounce[s] war” and the “threat or use of force.” Despite this solemn commitment, Prime Minister Shinzo Abe wants to authorize Japan’s military to engage in preemptive attacks, alongside the United States, against aggressive actions by China, the Islamic State, or other forces that might ultimately threaten Japan’s security. With President Barack Obama cheering him on, Abe is engaged in an illegal frontal assault on Japan’s constitution.

If Abe had the legislative support he needed, he could have done this legally. Indeed, the constitution provides the prime minister a straightforward way to amend the Peace Article. The Japanese Diet is composed of two branches: the House of Representatives and the House of Councillors. Both must approve a proposed amendment by a two-thirds vote. If Abe were to win the support of both branches, that would have obliged him to place his proposal before the general public and persuade a simple majority to adopt it at a special referendum.

Yet Abe couldn’t even gain the parliamentary support he needed to make his case before the Japanese people. His Liberal Democratic Party might have been able to surmount the two-thirds requirement in the House of Representatives if his junior coalition partner, Komeito, had gone along. But Komeito is rooted in the Buddhist community and would have had difficulty renouncing its pacifist principles. In any event, the LDP-Komeito coalition only controlled 55 percent of the House of Councillors — and so a formal amendment was plainly beyond the prime minister’s grasp.

Upon taking office in December 2012, Abe responded to his predicament by attempting to amend the constitution to allow a simple majority in both houses to trigger a referendum. But after a six-month effort, his initiative proved to be a political non-starter. He then embarked on an end-run around the nation’s supreme law, proposing sweeping military legislation that defied traditional understandings of the Peace Article.

After two years, he finally maneuvered his military bills through the House of Representatives in July and the House of Councillors on the weekend of Sept. 19.

But it wasn’t easy. Before embarking on this political campaign, Abe first had to create at least a semblance of constitutionality for his campaign to unleash Japan’s military. This required a confrontation with the Cabinet Legislative Bureau, the office charged with constitutional interpretation for the executive branch in the country’s parliamentary system. Dominated by senior lawyers in the civil service, it had consistently interpreted the Peace Article as banning all use of military force, except against an immediate threat to Japan. But in May 2014, Abe finally pressured the bureau to adopt a “reinterpretation” that allowed the country’s Self-Defense Forces to join the United States and other allies in wars in far-off places — so long as the prime minister and parliament believed these battles were in Japan’s fundamental national security interest. Abe then persuaded the Komeito leadership to abandon its pacifist traditions and endorse the bureau’s break with the constitutional past. This made it politically possible for Abe’s cabinet to assert that the new Orwellian reinterpretation of the Peace Article authorized legislation transforming Japan into a leading military power.

But the more aggressively Abe pushed his military bills, the more resistance he encountered. In June 2015, three leading constitutionalists, including one selected by the government, went before the Diet to denounce the legislation. Since then, polls of the nation’s leading constitutional scholars show that 90 percent have rejected central aspects of the new legislation.

The general public also strongly disapproves of the initiative. Some 60 percent now believe Abe’s laws are unconstitutional, an increase of eight percentage points since July. Yet despite the escalating opposition — or perhaps because of it — Abe avoided taking his case to the public. Instead, he rammed his legislation through the Diet in a late-night session ending early on the morning of Sept. 19 — just in time for members to leave town for a five-day national holiday that began the following day.

Abe feared that any further delay would give opponents a chance to organize waves of protest during the holiday — which could convince some parliamentary allies to abandon his increasingly desperate campaign. And in fact, demonstrators continue to protest the prime minister’s parliamentary “victory,” keeping the spirit of resistance alive in rallies involving as many as 25,000 participants.

The nature of these demonstrations enhances their moral standing: A rising generation of students and young adults, committed to an ethic of nonviolent protest, have organized and energized the opposition movement. Rather than provoking the police or destroying property, they have been mobilizing with the express aim of breathing new life into the constitution. One of the demonstrations in front of the Diet climaxed in thunderous applause in response to a public recitation of the constitution’s preamble: “We, the Japanese people … [are] resolved that never again shall we be visited with the horrors of war through the action of government.”

The last-minute proceedings inside parliament carried a different message. The prime minister’s determination to force a quick vote led to physical assaults, as opposition members insisted on continuing the debate. These violent scenes, carried out on national television, were in stark contrast to the nonviolent popular demonstrations in defense of the Peace Article — emphasizing Abe’s contempt for the will of the people in ignoring majority sentiment in the country.

Abe’s constitutional coup has grave implications for Japanese-American relations. As a new generation struggles with the enduring meaning of its post-war legacy, Obama should have stayed on the sidelines and allowed the Japanese to determine their future alone. Instead, the U.S. president intervened decisively in support of Abe’s constitutional end-run. Until several months ago, the United States maintained a military pact with Tokyo that respected the severe limits imposed on Japan’s Self-Defense Forces by the Peace Article. But in April, Obama signed a new cooperation agreement enabling joint operations far more ambitious than those required for domestic defense — even though Abe had not yet gained parliamentary authorization for such adventures.

As the U.S. military is badly overstretched by its global commitments, the U.S. Defense Department was the principal force behind this deal — with Secretary Ashton Carter making a special trip to Tokyo to push it forward. But it appears that nobody in the administration emerged to make the counterargument or urged Obama to think twice before intervening in Japan’s constitutional affairs. As a consequence, Obama formally signed the new military agreement when Abe visited the White House in late April.

Nevertheless, it is far too soon for Abe to declare victory. His ham-fisted tactics are already uniting the opposition parties to run on a common platform opposing his military ambitions in their 2016 campaign for the House of Councillors. The Japanese Supreme Court may also intervene. While the justices have been reluctant to strike down legislation in the past, they have never before confronted such a brazenly unconstitutional initiative. In an unprecedented move, Shigeru Yamaguchi, a retired chief justice, publicly condemned the government’s efforts at justification as “nonsense” — and plans have already been announced for a major litigation effort.

Japan has a long way to go before its current crisis comes to a definitive conclusion. Given this fact, Obama should take a cautious approach to the implementation of the new military cooperation agreement. He should order the U.S. Defense Department to refrain from conducting aggressive joint maneuvers until the Japanese people have truly resolved their greatest constitutional debate since World War II. This is the only way that Obama can show the U.S. commitment to constitutional democracy is far more important than its short-term military convenience.

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