–Tokujin Matsudaira, Associate Professor of Law, Kanagawa University
Japan has long had a parliamentary cabinet system. A major event in the political calendar is the questioning of ministers in Diet committees, especially budget-related ones. In these sessions, the prime minister and other ministers have to answer the questions from members of parliament, even if not budget-related. Throughout Japan’s parliamentary history, the opposition has used the questioning sessions to attack govt officials’ scandals, slips of the tongue, and other foibles, as part of the effort to maintain ministerial responsibility. Prime Minister Abe suffered politically from this process during his first government in 2006-2007. But this time, having high approval rating and a super-majority of seats in the lower house, Ave behaves insolently in the Diet. He sometimes refuses to answer questions from the opposition parties or totally ignores them. When faced with aggressive questions, he may become angry and throw papers down, or stare back at the MP with a derisive laugh. All these things never happened during the so-called Japanese ancien regime, the system of 1955 under which the Liberal Democratic Party was dominant.
On Feb. 12, PM Abe renewed his record of revisionism by arguing that the constitutional right to social welfare justifies altering the long-time government interpretation that collective self-defense measures would violate Article 9 of the Japanese constitution. PM Abe argues that the collective self-defense right is implied in Article 25 of the constitution providing citizens the right to live, and thus constitutional. To be sure, the scholarly jurisprudence has long suggested that the “peaceful living” clause in the Preamble of the constitution endorses Article 9 and makes the latter enforceable by the judiciary. But Abe’s argument is far from this and totally alien to any kind of possible constitutional interpretation. As I have mentioned in a previous post, PM Abe holds an undergraduate law degree and surely took mandatory constitutional law courses. Maybe he hates the current constitution too much to correctly understand it?
On the other hand, it seems that Japan’s “invisible constitution”—-the political constitution followed and enforced by the national bureaucracy—-is checking and balancing Abe’s revisionist efforts. The bureaucrats at the Cabinet Legislation Bureau (CLB) who produce the government interpretation of the constitution have insisted that it is impossible to exercise the collective self-defense right without amending Article 9. Last year, to supress bureaucratic resistance, PM Abe appointed Mr. Ichiro KOMATSU, a retired high ranking diplomat and known as advocate of a collective self-defense right, as chief of the CLB. However, the Japanese bureaucracy is characterized by its refusal of top-down political control. Mr Komatsu was recently reported hospitalized and left Abe to fight the battle at Diet alone. It seems the bureaucrats are trying to bargain with the prime minister, by granting him a certain degree of discretion in the name of individual self-defense which CLB finds constitutional. There is a ”gray zone” in Japan’s self-defense, which stems from the US-Japan security treaty, about hypothetical cases such as the US response to Chinese invasion of Taiwan. Some constitutional scholars argue that Japan’s individual self-defense right applies to such cases and therefore it is unnecessary and improper to rely on unconstitutional collective self-defense right. Still, no one knows whether Abe, a rightist politician who vows to devote rest of his life to transform Japan out of the postwar order of the peace constitution and the San Francisco Peace Treaty regime, will accept the compromise.
–Tokujin Matsudaira, Prime Minister Abe’s latest revisionist interpretation, Int’l J. Const. L. Blog, Feb. 14, 2014, available at: http://www.iconnectblog.com/2014/2/prime-minister-abes-latest-revisionist-interpretation