THE BLOG
07/22/2015 05:35 pm ET Updated Jul 22, 2016

Rearmament and the Rule of Law in Japan: When Is it OK to Change the Constitution With a Statute?

ASSOCIATED PRESS

Last week, the Lower House of the Japanese Diet passed Government-sponsored legislation that would expand the potential role of Japan's Self-Defense Forces, specifically by allowing it to engage in collective self-defense with other countries. The proposal touches a deep nerve in the country, which for seventy years has had a stable security arrangement anchored by two legal instruments: the US-Japan Security Treaty, and Article Nine of the Constitution, which prohibits the nation from having a military. Together, these legal arrangements have proven a force for stability in East Asia.

Now comes along Prime Minister Shinzo Abe, scion of a political faction of the Liberal Democratic Party that has long sought to overcome the shackles of the postwar Constitution and its stain of American involvement. Supported by some hawkish voices in the US, he has been seeking a greater role for the Japanese military abroad. The proposed statute represents a kind of second-best solution for Abe, as he would prefer to change the country's Constitution, but faces resistance from the public and from his coalition partner, the Buddhist Komeito party.

In recent weeks a vigorous protest movement has emerged against the proposed bill, along with what might seem an unlikely source of resistance: the country's constitutional law professors, who, along with some former judges and government bureaucrats, have argued that the proposed law is unconstitutional. While most of the attention has focused on the issue of rearmament per se, many of the constitutionalists are making a slightly different point. The government, many believe, should not seek to alter settled constitutional understandings by virtue of a statute. To do so violates the rule of law.

A little history might be helpful to understand this position. Japan has had a modern legal system since the late 19th century, when it borrowed heavily from Germany after emerging from centuries of isolation. As early as 1891, the Japanese Supreme Court was resisting government pressure to impose sentences that were higher than statutorily required. With the rise of militarism in World War II, prominent constitutional scholars were attacked, but the courts did not cooperate. The rule of law is a value that has been deeply held in Japan for over a hundred years, particularly among the legal profession. It is seen as an essential part of the democratic order.

Does this mean that the constitution is fixed for eternity? Not necessarily. It is true that, from fairly early on, Article Nine has been creatively interpreted to allow certain kinds of military capacity of a defensive nature. Many of these interpretations were carried out by government bureaucrats, accompanied by judicial acquiescence. All nations, the understanding goes, have an inherent right of self-defense. But collective self-defense, though legal under international law, is not considered to be legal under the Japanese Constitution. And more to the point, the question of constitutionality cannot be answered by the government of the day acting alone. The broader consensus of the Japanese people, along with the assent of the courts and bureaucracy, is required.

American legal commentator Noah Feldman seems to view this controversy through the lens of debates over U.S. constitutional interpretation. We have had generations of argument in this country between those who give priority to the text and original understandings of the Constitution, and those who view the Constitution as a living instrument meant to evolve with the times. In the new security environment, Feldman suggests, constitutions must adjust with the times, and so Japan's changing its pacifist clause is no big deal.

But even if one grants that the security environment has changed--an arguable proposition--Feldman's position misses the context. Recall that the recently passed bill is widely understood as an effort to achieve what cannot for the moment be accomplished by a formal constitutional amendment. Consider an American analogy: suppose that President Obama sought to change the constitution to allow himself a third term, but was unable to convince the required 2/3 of members of Congress to propose an amendment. If a majority of Congress nevertheless passed the change as an ordinary statute, would we really say that this was just an instance of living constitutionalism? Simply because constitutions must change with the times does not mean that every proposed change is acceptable.

Another important point is that constitutional adjustments of this nature require broad public support for their legitimacy, or at a minimum elite consensus with popular acquiescence. Neither condition seems to be satisfied at the moment in Japan. Abe's popularity is declining; and elites themselves are divided about the merits of the proposal. The Japanese people, it seems, genuinely value Article Nine and see it as constraining the government, notwithstanding its origins in General MacArthur's handwriting. All this suggests that a true change in the Japanese Constitution will require more than simply a passing a statute.