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The True Face of Disgust–A Comment on Japanese Constitutional Politics

–Kenji Ishikawa, Professor, University of Tokyo Faculty of Law

Amongst the representative postwar works of Takami Jun – a writer little commented upon today – one finds the novel A Feeling of Disgust.[1]

Its first-person narrator, speaking to readers in an informal, colloquial register, is a working-class anti-intellectual at odds with the claustrophobic mood of 1930s Japan. Though opposed to the self-righteousness of the Japanese military, the narrator also harbors a gut-level feeling of rejection toward the central current of anti-government thought up to that point – Marxism – associated as it was with the intellectual class emanating from Japan’s imperial universities. In consequence, the narrator becomes an anarchist, devoting himself to terrorist activities in an attempt to consume his own life.

The Mukden Incident of 1931, however, changes everything. The discourse of the era, taking the event as a “crisis,” at once begins to undermine both the narrator and Japanese society. This aspect is key.

It was fundamentally promised then that “crisis” and “emergency” were temporary states of exception, and that after overcoming them, things would return back to what they had once been. The suspension of the fetters of constitutionalism, the consolidation of separated powers, the restriction of people’s rights – even if, for the purpose of “national defense,” all these measures were implemented, their temporal duration would be limited. And yet, with Japan’s entrance into war against a vast China – a war that necessitated long-term commitment – a contradictory state of affairs arose: international crisis became normalized.

The guarantee of rights and the control of power are constituent elements of constitutionalism. This “normalized international crisis” permanently deprived Japanese society of constitutionalism. A system of total national mobilization was established on the grounds of “national defense,” and the lives of every individual were absorbed into the state. Power, its brakes ceasing their function, careened recklessly forward. The narrator of Takami’s novel had sought to overthrow state authority. By the time he notices it, however, he is on the front lines of battle in China, decapitating the heads of pitiful Chinese civilians. At the peak of this corporeal ecstasy, he falls into insanity.

At each major juncture on the road to this conclusion, the narrator experiences a gut-level “feeling of disgust.” Defeat in the war offered a release from this “feeling of disgust” for Takami Jun, within the affective dimensions of his own daily life. Therein is intimated that it was Japan’s postwar constitution that had contributed most of all toward cordoning off this “feeling of disgust.” Intimated, too, is a perverse sense of the fact that freedom was at long last achieved through defeat.

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That “constitution” is about to be changed – again, on the pretense of “crisis,” and at a distance far removed from the reach of the “people.”

Around this time last year, the debate to “amend the constitutional amendment procedure” was at its height. As his principle for relaxing Article 96’s requirement of a bicameral two-thirds majority to initiate the amendment procedure, Prime Minister Abe Shinzō repeatedly stressed the importance of the “will of the people” – referring to the nationwide referendum necessary to amend the constitution. Regardless of whether or not his hidden motive was the revision of Article 9, those of the Japanese people who applauded Prime Minister Abe’s calls for “returning the constitution to the people’s hands” were not few in number.

Yet, as surveys soon made clear, the overall “will of the people” was still against revising Article 96. The government then reversed its stance, turning its back on the “people.” Based on the report Prime Minister Abe demanded from the Advisory Panel on Reconstruction of the Legal Basis for Security – an assembly of like-minded experts sharing Abe’s sympathies – the government suggested that it was possible to exercise a right to collective self-defense simply by changing the interpretation of the Constitution. This amounted to overturning previous remarks and snatching the Constitution away from the hands of the people. The “people,” in the end, were merely a pretext.

Furthermore, in comparison to those senior Ministry of Defense bureaucrats – experts on national security – who have frequently voiced negative opinions of Abe’s approach, many of Abe’s faction are on the whole amateurs. Two facets are particularly striking in the discourse of these amateurs. The first is the hostility – bordering on deep grudge – that they bear against the postwar Constitution. The second is the trauma suffered by those from the Ministry of Foreign Affairs, i.e. that their significant financial contributions toward the Gulf War went unappreciated. Yet these considerations bear no relation either to the current “crisis,” or to national security. They are “arbitrary and capricious.” Were one to review Abe’s effort as an ordinary administrative action, such an exercise of authority based on “arbitrary and capricious” grounds would clearly constitute an abuse of said authority, and be judged illegal.

One gets a feeling of déjà-vu observing the make-up of this situation. Former Secretary of State Colin Powell had been a soldier, and continually demonstrated an attitude of restraint concerning the Iraq War. In contrast, the “neoconservative” civilians concentrated around former Secretary of Defense Rumsfeld – together with a George W. Bush insistent upon carrying out the overthrow of Saddam left unfinished by his father – stood singularly possessed in their hawkishness. This latter faction rejected any possibilities external to their framework of understanding – a framework of “crisis” – and refused to listen to outside opinions.

It was this faction, too, that employed the pejorative label of “Old Europe” to disparage and exclude France and Germany when these countries pointed to a lack of evidence and voiced caution against hasty campaigns.  Claiming without proof that Iraq possessed “weapons of mass destruction,” Bush’s faction rushed carelessly into open hostilities. The war on terror was an “arbitrary and capricious” ground for invading Iraq.

Japanese politics at this moment bears a close resemblance to America on the eve of the Iraq War. And this resemblance is eliciting an intense “feeling of disgust.” It is thus of great urgency that we find words to accurately grasp the situation.

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The sources of this “feeling of disgust” form a complex. But there is no question that contained within this complex are two factors: a “negation of the individual,” and an “absence of others.”

Take, as an example, the three new conditions for the invocation of the right of self-defense upon which the Cabinet, we are told, will soon be making its decision. According to these conditions, exercising the right to collective self-defense will allow more secure protection of the “right to life, liberty, and the pursuit of happiness” as stipulated in Article 13 of the Constitution. This, at least, is the way in which constitutional reinterpretation has been sold to the people.[2] Yet the right to collective self-defense here is paired with the “negation of the individual.” In reality, it therefore does not hold that the “life, liberty, and pursuit of happiness” of each individual citizen – the “fathers, mothers, grandmothers, and children” whom Abe professes to protect – will be safeguarded.[3]

Evidence of this may be found in the Liberal Democratic Party’s draft for a revised constitution, which doggedly seeks to erase the term “individual” from the first sentence of Article 13. The current constitution reads, “All of the people shall be respected as individuals.” The LDP draft instead wishes this to read, “All of the people shall be respected as persons.”[4] Because Article 13 continues, “Their right to life, liberty, and the pursuit of happiness shall…be the supreme consideration in legislation and in other governmental affairs,” the article has been used to guarantee such rights as the individual’s right of self-determination, as well as the right to privacy. Now, with the individual negated, “life, liberty, and the pursuit of happiness” are being invoked for the sake of a “whole” that includes other countries with close relations to Japan. Here, a “feeling of disgust” arises.

For the original intent of Article 13 of the Constitution was without doubt to prevent the life of the “individual” from ever again being absorbed into the “whole.” Yet Abe’s proposed interpretation enables Japan to exercise the “minimum necessary use of force” overseas when events in other countries with “close relations” to Japan threaten to “overthrow our people’s lives, freedom, and right to pursue happiness.” Right-wing commenters on blogs and web forums have increasingly vocalized their dislike of Korea. In the event of an emergency on the Korean peninsula, however, each of their lives would be squandered for the sake of South Korea. The irony should be apparent to all sides. The invocation of Article 13 in such a context completely reverses its original priorities. Following the example of LDP Vice-President Kōmura Masahiko, let us point out here that in the decisions of the Japanese Supreme Court, one finds the following sentence: “Life is precious. The life of one person is more important than the whole of the earth.”[5]

This “negation of the individual” comes together as a set with the “absence of others.” At its root, the guarantee of basic human rights, in order to ensure to each individual his or her own way of life, considers power to be an “other” whose interference is to be eliminated. Or, to look at it from the opposite angle, in order to allow people, as “individuals,” to live as “others” internal to a given political society, the state must restrict its own power. The LDP’s draft for a revised constitution ignores the significance of this fact – a fact that is the standard equipment of constitutionalism.

Values dominant for one group will not be shared by those with different values. To expand outward from one’s own self, eliminate others, and thereby create a political society without impurities would surely make society an easier place to live for certain persons. It would also entail civil war between those whose values differ. To prevent such civil war, the political societies of Western Europe created a basic framework that would allow “others” to coexist with one another. Common to the political societies possessing this framework is what we call constitutionalism. The separation of powers, along with the guarantee of basic human rights, is one of the representative inventions of constitutionalism.

If, for example, a given political society centralizes to take the form of a nation-state, the separation of powers provides for an alternative power that can act as a counter against the government, thereby preventing the government from abusing its power. It is within this context that “controls on the government” have been stressed. One is tempted to see in the word an etymology of contra-role, or counter-role. Whether through parliament or through courts, the chief aim of “controls on the government” is to provide for roles or offices capable of countering the government. In this case, too, one might say that that constitutionalism is acutely conscious of the importance of providing for “others” interior to government power.

In distinction to all this is the argument, found in modern democracies, that it is actually democratic to reject interior “others.” The “will of the people” is essentially one; a unitary existence chosen by the “will of the people” exercises – at least until the next election – a unified, central power; and the existence of a “counter-role” to this power is instead seen as anti-democratic. So runs one line of thought. But this line of thought encountered Hitler, Mussolini, Stalin, and other dictators who, in claiming the support of the “people,” brought about the “negation of the individual” and the “absence of others.” After this, we came to appreciate the merits of a system wherein separated powers made room for “others” internal to it. This is the position taken by the constitutional democracy invoked by the Constitution of Japan. And the course of events by which this came to be is crucial still today.

*                                              *                                              *

In addition, Article 9, which the Abe administration seeks to revise, is conscious of the gaze of exterior “others.” The international order it posits is not an order that excludes, as official enemies, the “others” that are Japan’s neighboring states. It is a constitutional international order aimed precisely at coexistence with “others” whose values differ. This is why the United Nations Charter’s Enemy Clauses were problematic.

In contrast, the right to collective self-defense is an alien element, forced into Article 51 of the United Nations Charter by America in an effort to legitimate the pan-American alliance initiated just prior the United Nations Conference on International Organization. Genealogically, the right to collective self-defense is thus a descendant of the international community prior to World War I, with its official enemies and allies, and its offensive and defensive alliances.

The original right to self-defense – called the right to individual self-defense – concerned legitimate defense against a sudden invader (regardless of whether this invader was a “friend” or an “enemy”). Such a right to individual self-defense was potentially permissible even in the international order posited by Article 9, and allowed room for further interpretation by the government. Conversely, the formal commitment to collective self-defense supposes war with “others” recognized officially as long-term “enemies.” It is a form of evolutionary reversion hearkening back to the old notion of “alliances.” It is form of false reasoning. And it is being forced upon us at this very moment. One feels “disgusted.”

Will we choose the path of coexistence with “others” whose values differ from our own? The question, as a civilizational choice, is one that cannot be answered through the technical knowledge of specialists. It is therefore a question that should not be decided by an advisory report from a panel of experts, or by the consensus of a ruling party. The appropriate procedure is, perhaps, a referendum. At the very least, that it is not the decision of a single cabinet is self-evident.

 

Suggested Citation: Kenji Ishikawa, The True Face of Disgust–A Comment on Japanese Constitutional Politics, Int’l J. Const. L. Blog, July 4, 2014, available at: http://www.iconnectblog.com/2014/7/the-true-face-of-disgust-a-commentary-on-japanese-constitutional-politics

 

Originally appeared in Asahi Shimbun, June 28, 2014, http://www.asahi.com/articles/DA3S11213574.html (in Japanese). Translated by Hansun Hsiung, a Ph.D. Candidate at Harvard University; supervised by Tokujin Matsudaira, Associate Professor of Law, Kanagawa University.

[1] Jun Takami, Iya na kanji[A Feeling of Disgust] (Bungei-shunjun 1963)(Japanese).

[2] Ayako Mie, Abe team presents draft statement on collective self-defense, Japan Times, June 17, 2014, http://www.japantimes.co.jp/news/2014/06/17/national/politics-diplomacy/abe-makes-last-ditch-effort-defense/#.U7KndJXlrIU.

[3] Prime Minister Abe’s Press Conference, 15 May 2014, http://japan.kantei.go.jp/96_abe/statement/201405/0515kaiken.html.

[4] https://www.jimin.jp/policy/policy_topics/pdf/seisaku-109.pdf (Japanese version).

[5] Judgment of Saikō Saibanshō [Sup. Ct.], Great Bench, March 12, 1948, 2 Keishū 191.

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Published on July 5, 2014
Author:          Filed under: Analysis
 

3 Responses

  1. P. Y. Lo

    Can the Supreme Court of Japan overturn a Cabinet interpretation of the Constitution?

    Article 81 of the Constitution of Japan installs the Supreme Court as “the court of last resort with power to determine the constitutionality of any law, order, regulation or official act”.

    Is the adoption by Cabinet of a revised “working” interpretation of the Constitution an “official act” amenable to judicial review and invalidation?

    Or should one wait for the revision of the relevant laws (such as the Self-Defence Force Act) by the Diet before there can be a law suit to impugn indirectly the “re-interpretation”? But by that time, the object of challenge is the revised legislation, which will be in different and more ambiguous phrasing. The Abe administration is playing “hard to catch”.

    The Japan Times has in its editorial of 2 July 2014 spotted the danger. “By simply changing the interpretation of the Constitution to achieve its policy objectives, the Abe administration is violating the status of the Constitution as the nation’s supreme law to which all other laws and government decisions must conform. The move will serve as a dangerous precedent for Japan’s democracy that must be based on the rule of law under the Constitution. By taking cues from the Tuesday decision, future administrations may try to make render clauses in the Constitution meaningless by merely reinterpreting the clauses to fit their agenda through Cabinet decisions. Abe insisted Tuesday that the Cabinet decision does not harm the normative nature of the Constitution. This is a lie”; see http://www.japantimes.co.jp/opinion/2014/07/02/editorials/abe-guts-article-9/

    The commitment of the Japan courts and particularly that of the Supreme Court to rule of law and democracy will now be tested.

    • Tokujin Matsudaira

      Thanks for comment. The detail of your question should be answered by the author. Thus I will mention only some basic matters related to your question. As you have noticed the Japanese Constitution is equipped with a system of judicial review. But the Japanese Supreme Court has long avoided reviewing the constitutionality of SDF, the core of government interpretation stating SDF doesn’t constitute the military powers or war potential prohibited by Article 9. The Sup Ct has done so by applying doctrines of standing, zone of legal interest, ripeness and political question. That is why the intra-gov’t review by the Cabinet Legislation Bureau was important for the politicians in the cabinet cannot make an offcial view about the constitutionality of the gov’t action without the approval of CLB (THis is a const convention for CLB has even older history than the cabinet). So it is unlikely for the Sup Ct to take up the issue unless, say, a SDF member refuses to obey the order issued in a circumstance collective defense measure has been taken and it requires SDF to attack Islamist arm forces in Iraq.

  2. Simon Drugda

    Thank you for translating the article. It is a really interesting one.

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