Editor’s note: Although we do not regularly do so, we occasionally will issue statements that may be of professional interest to our members. Those interested in adding their names to the below can contact Tom Ginsburg at tginsburg@uchicago.edu
Statement by constitutional scholars in support of Japanese students and citizens protesting Prime Minister Abe’s reinterpretation of Pacifist Constitution
We, the undersigned professors of public and constitutional law, have closely followed the debates in Japan surrounding constitutional revision and the proposed bills on national security. We recognize that decisions on these momentous issues properly lie with the Japanese people and their representatives, within the constraints of the Constitution of 1946. While we are not in a position to express opinions on the ultimate outcome of these debates, we do believe that for constitutional democracy to flourish, the rights of free expression and association are of paramount importance. In this regard, we express our concern about recent statements from ruling party legislators concerning the media, and we also express our support for the constitutional right of demonstrators to engage in peaceful protest. We are also concerned about the rise of discriminatory language in public discourse. It is our hope and belief that Japan’s postwar constitutionalism, which reflects the efforts of the Japanese people to maintain the rule of law, human rights and a pluralistic democracy, can continue to thrive and flourish for eternity, and we commend those who are exercising their rights to ensure this outcome.
Bruce Ackerman, Yale Law School
Tom Ginsburg, University of Chicago
Richard Albert, Boston College
Wen-Chen Chang, National Taiwan University
Andrew Harding. National University of Singapore
Tzong-Li Hsu, National Taiwan University
Cheng-yi Huang, Academica Sinica
David Landau, Florida State University
Sanford Levinson, University of Texas
Yen-Tu Su, Academica Sinica
Taysheng Wang, National Taiwan University
Kevin Tan, National University of Singapore
Jiunn-rong Yeh, National Taiwan University
Comments
10 responses to “Statement by Constitutional Scholars in Support of Japanese Students and Citizens Protesting Prime Minister Abe’s Reinterpretation of Pacifist Constitution”
Additional signatories
David Law, Washington University
Li-Ju Lee, Christian Chun Yuan University, Taiwan
Yan Lin, Shanghai Jiaotong University
Ming-Li Wang, National Central University, Taiwan
Erin McGrath, University of Pittsburgh
Roberto Scarciglia, University of Trieste
Thank you for your great support for Japanese citizens!
I am so moved by the fact that so many professors and academic people all over the world concern about our constitutional revision.
Many of Japanese citizens are not aware that our constitution is about to be destroyed from within in essence because revision of constitution itself is apparently no problem in terms of its process.
We could not imagine that the government itself could change the interpretation intentionally in bad way and could try to pass a bill which is considered as unconstitutional by almost all of Japanese constitutional scholars. This action is taken only because they want to evade complex and democratic procedure to change constitution.
We have dropped our guard after we chose some politicians by elections and they now seized the occasion to use their power as they like. We should regret our regardless attitude, but now we have no time to regret. We have to take another way to protect our rules of law.
Please keep your attention to our constitutional issue. This phenomena is very similar to the process of Hitler’s Enabling Act of 1933 passed under Weimar Constitution in Germany. Again, thank you for your support.
I appreciate your academic cooperation for the Japanese constitutional scholars, especially Prof. Hasebe and his friends. This statement might be a symbol of the beautiful friendship among the scholars.
However, I should concern about this message will be treated as strong support not only for the students and citizens in Japan but also communist and radical leftist, including supporters for terrorism, in Japan.
Actually, SEALDs, the young member’s organization of Japanese Communist Party, has introduced this message to the Japanese People on FB as if the foreign scholars joining this message support for the SEALDs movement.
I’m afraid that many of Japanese people might see the most of constitutional scholars, including Prof. Hasebe and you, as supporters for Communism and terrorism.
I am not against this message and your support, but this friendship must not be involved in political movement.
So, please contact the mediator in Japan, and take care for that.
Thanks.
P.S. I heard the lecture by Prof. Tom Ginsburg in Japan before, and loved it!
It is larphable to insist everybody is communist who opposes Abe’s attempt to destroy the constitution. You cannot ignore the fact that not only more than 99% of notable scholars conclude Abe is WRONG, so are the big majority of all Japanese citizens.
Shame on your
Dear Shimizu-san.
You absolutely misunderstood my opinion.
Plainly speaking, I said the importance of distinction between Prof. Hasebe of liberal scholar and others, communist or socialist.
According to Asahi Shimbun’s enquete, almost 70% Japanese constitutional scholars believe that the Self Defense Force is unconstitutional.
But Asahi has cut this results from paper edition.
http://gohoo.org/15072301/
Do you know why? Asahi has used only the information against Abe administration. Is it fair?
I am afraid that the same thing happened to the Japanese constitutional scholars, like Prof. Hasebe. Most of them believe the SDF and the war of self defense are not unconstitutional.
I’m concerned about that the image of the liberal scholars might be created as absolute pacifism as same as communist and socialist by the leftists in academic world and the press.
On the other side, Prof. Inoue of Kyushu University has been blackmailed “I shall kill you!”, because he answered constitutionality of the Abe’s National Security bill to the Press.
But few constitutional scholars, lawyers or press have protested this. In spite of gathered over 300 supporters for Mr. Uemura of Hokusei University in contrast.
There are “liberals” without liberty for others in Japan. Communist or Socialist always say “I’m liberal”, but their ideas should be different from Prof. Hasebe and other real liberals.
So, Shimizu-san, this situation against Abe administration should be the situation of “the bitter enemies in the same boat”. Prof. Hasebe is not an ordinary constitutional scholar, but a real academician.
Thank you.
Your statement touches on quite a broad point and seems to be either ambiguous on the central point, or too formalistic without addressing the real issue.
You basically make three points:
1. Affirmation of the rights of free expression/press, association, and peaceful protest.
– we do believe that for constitutional democracy to flourish, the rights of free expression and association are of paramount importance.
– we also express our support for the constitutional right of demonstrators to engage in peaceful protest.
– we express our concern about recent statements from ruling party legislators concerning the media,
2. Warning against rise discriminatory language in public sphere.
– We are also concerned about the rise of discriminatory language in public discourse.
3. Somewhat ambiguous statement about the eternity of postwar “constitutionalism”.
– It is our hope and belief that Japan’s postwar constitutionalism, which reflects the efforts of the Japanese people to maintain the rule of law, human rights and a pluralistic democracy, can continue to thrive and flourish for eternity,
– we commend those who are exercising their rights to ensure this outcome.
Commentary:
1. In essence, no one is disputing the basic principle in point 1. The issue of conflict over freedom of press may exist in any country as the press or certain press often constitute a group of power of its own with a political agenda. The prime minister has reaffirmed the need to uphold the principle of the freedom of press. Quite a broad point but still it’s a good point to support.
2. I’m not really sure what you have in mind here. Very vague. I don’t know if sporadic cases really link up decisively with the essential issue you seem to want to address of Japanese constitutionalism or political framework.
3. Constitutionalism is of course different from the actual constitution. The postwar “constitutionalism” is not the quite an outcome of the effort of the Japanese people. It’s an outcome of the power play between the government of the defeated Japan and the government of the victorious USA/Allies. The conservative constitutionalism is a tradition since before the war, since the establishment of the Meiji constitution. The Japanese have had a tendency to treat the constitution as a holy text, which it isn’t. The postwar constitutionalism is not bad but flawed due to its breakoff with reality. Japan has an army and Japan has the right to self-defense, as well as wide ranged rights to protect its national interest. I agree that the issue of how much Japan should be able to help an alleged ally in distress is very arguable, but we should at least amend the constitution to reflect a reality that’s been in effect since more than 50 years.
So as constitutional scholars, you love formalities, and procedures, I understand. My question to you is, if the majority of the Japanese people did support the amendment of the constitution so that we would officially recognize that we have an army, and that we have the right to protect the nation, our nationals, and our interests, and that we have the right to engage in collective military operations where our interest is really threatened (like most advanced, democratic countries), would you accept this amendment?
I personally am not a believer in the law of numerals or temporary quantity, but perhaps we can clarify whether your objection is mainly procedural or more ideological even to the extent of refuting a clear reality and the clear mentioning of a basic right to self-defense which in the actual constitution is either refuted or unclear, and which has created a need to operate it under the logic of flexible interpretation, which you seem opposed to. If you are opposed to such acts of interpretation, the constitution should be amended at least to be clear on the topic and prevent such operation by flexible operation (a mystico-pragmatic constitutionalism, which is becoming the rule not since Abe but before Abe).
Speaking for myself, I am quite willing to accept a constitutional amendment, properly passed. It might even be a good idea, but that depends on the precise proposal and one’s view of how much the international environment has changed.
Living constitutionalism is necessary in every country, but that doesn’t mean that every proposed constitutional interpretation is valid. In the case of Japan today, there seems to be a consensus among experts that the proposed security bill is unconstitutional. Should we trust these experts? I’m inclined to.
Thank you for your input. The issue is axiomatic. The Article 9 (quoted below) refutes our country’s right to bear an armed force, and to engage in any type of war, even defensive. This understanding is the outcome of a rigorous reading of the Constitution. And any or most expert in the art of thinking in the box = Constitution will reach this definitive or probable conclusion.
>ARTICLE 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.
(2) To accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.
However, as we all know, Japan has, ambiguously, had an armed force with a war potential, Japan has de facto retained, ambiguously, the right of belligerency for self-defense from the logic that the right to have a war potential and the right to engage in war for self-defense are fundamental innate, irrefutable, and obvious rights of sovereign state (that would be difficult to completely renounce unless that state is a protectorate that is effectively defended by a protector state). The ambiguity stems from the Constitution and in part due to certain trend in thinking that confound wishful ideals with realistic compromises.
So from a “rigorous” Constitutional aspect, Japan has been in a state of unconstitutionality since more than half a Century. Half a Century of living in denial either in an ideological bubble that keeps equating the mere possession of an army and the right to engage in war with militarism while rarely applying the same judgment on other countries, or in pragmatic fence-sitting vaguely united by the righteous fear of wars. This ambiguity could be maintained thanks to the deterrence provided by the US military that acted as the de facto armed force and executioner of Japan’s right to engage in war to defend Japan’s immediate interest or existence. But many of the defenders of Constitutional rigor have long opposed this role played by America.
This is the background leading to this new set of possibly unconstitutional laws. We have lived under a Constitution that is wrong or misleading in its regulation of our military rights as it apparently denies a fundamental right which Japan couldn’t afford actually renouncing. But due to a mixture of Japanese Constitutional conservatism, a blind ideology fueled by trauma and political agenda, and a disconnection between socio-civic values and realistic national values, we’ve ended up having to maintain a de facto invalid Constitutional article and operating it by pragmatic reinterpretation that can be strongly argued as unconstitutional.
However, as you can see from the above background, the real issue is not that laws regarding Japan’s right to bear arm and engage in this or that military effort in this or that extent are unconstitutional but that there was long a lack of sufficient political courage and popular lucidity to amend the Constitution to match an irrefutable reality. Politics and the people could afford to postpone this effort by the passing of compensational laws as the US army was taking over the central role in defending Japanese existence and certain interests. Now, the situation in the Asian region calls for Japan to match further the laws to reality and to enable Japan to act swiftly in case of an emergency.
I think to what extent we should help an ally is very arguable, but it is undeniable that we have an armed force and we are in the right to engage in war to defend our country, and our key interests. The laws has passed beforehand, but ideally, Japan should have changed the Constitution since more than fifty years ago. As a result of denial, we as a country have lived in an Unconstitionality for more than fifty years, or we have lived with a de facto invalid Constitutional article for more than fifty years. That, I believe, is the essential background to the discussion at hand.
The survey carried out by our dear Asahi newspaper also covered two questions, one which is meaningless but emblematic of the formalism among constitutional experts and the other is indicative of the aforementioned de facto invalidity of article nine or the failure of an entire nation to redress/amend a failed constitutionalism/realism. (Related links below (in Japanese w/ diagrams).)
http://togetter.com/li/851500
http://bylines.news.yahoo.co.jp/yanaihitofumi/20150722-00047752/
So out of the 122 “Constitutional experts”, 104 deemed the recent security laws “Unconstitutional”, and 15 deemed the said laws were “possibly unconstitutional”. Basically a whipping 119 majority for the unconstitutionality call.
What is perhaps less mediatized is the fact that out of the 122 experts, 50 deemed that the Japanese Self-Defense force is “unconstitutional”, while 27 deemed that the said was “possibly unconstitutional”, and only 13 felt the force was “possibly not unconstitutional”, and 28 felt the force was “not unconstitutional”. Basically 50 or 77 experts recognized that we have been living in a state of unconstitutionality since more than fifty years. While a wimpy 13 or 40 felt we lived in a permanent gray zone, and 28 had managed to stretch their constitutional imagination far enough to make a mystical exception possibly in the name of fait accompli or pragmatic reinterpretation.
Another question the wonderful Asahi newspaper apparently asked the said experts was; “What do you think about the amendment of article 9?” and gave them the option of choosing whether it “needed” to be amended or not. Now, this is possibly a very futile question to ask if these experts do recognize themselves as in-box thinkers who study to judge the constitutionality of things, or who work to be able to draft various constitutions according to the visions and necessities designated to them. Naturally, a vast majority of these experts, 99 out of the 122, loyal to their function, answered there was no need to amend the constitution, and only 6 were brave enough to step out of the box and find that the constitution needed to be amended, possibly because it didn’t reflect the reality and was effectively void of sense.
This is the outcome of postwar constitutionalism and this is the state of constitutional experts in Japan. If you are inclined to trust these experts for the majority of which their job is likely not to judge the sensibility or realism of an Article but merely to judge the reality based on a given set of Articles, then you should also publish a statement to demand the Japanese government to abolish the Japanese Self-Defense Force, and to commend whichever group to ensure that this is done in the shortest delay possible so that we can uphold the Constitution in the name of Constitutional formalism and because our politics lack the courage to officially uphold our fundamental right and a group of our nationals lack of lucidity in officialising and taking charge the hard duty of maintaining our ability to fight for our national rights by all means necessary.
I hope you do realize the primordial issue. It’s not constitutional!
Professor Ginsburg,
Please allow me to pose you several questions on the essential issue of this topic as the author of this statement, namely on the issue of de facto validness and implications of the current Article 9 (and the concerned portion of the preamble). (In passage I remind you that I am in favor of the reminder of the need to uphold the rights of free expression and association within any limits stipulated in the Constitution and other laws, and I am against any language that attempts to establish false generalities based on innate qualities such as race, etc. That isn’t the essence of the issue at hand though.) I hope you will take the responsibility of answering them within the limits of your time and that you will answer them with both integrity as an objective academic, and as a real person who can think outside the box.
1. You wrote: “In the case of Japan today, there seems to be a consensus among experts that the proposed security bill is unconstitutional. Should we trust these experts? I’m inclined to.” The majority of the same experts considers that the existing Japanese Self-Defense Force is unconstitutional. Are you still inclined to “trust” and follow these experts (if possible, not as a mechanical in-box constitutional yes-no-man but as an expert on comprehensive regulation of a country in the actual international environment)? (Again, I remind you, you don’t need to be an expert to tell the bills and the force are unconstitutional, but any realistic constitutional judgment needs to be made based on the fact that we have a de facto semi-invalid or largely untenable Article that we’ve been unable to regularize/adjust due to the dysfunction of politics and the democracy.)
2. Do you also support the position to demand the abolition of this clearly unconstitutional Force and the confirmation or complete exercise of Japan’s renunciation of war capacity and the right to belligerence even for self-defense purpose? (You may say these experts deem the Force unconstitutional but not the right to self-defense, but how would we effectively defend our self without a self-defense force?)
3. Do you also support the termination of the “Treaty of mutual cooperation and security between Japan and the USA” where it is stated that these two countries recognize “that they have the inherent right of individual or collective self-defense as affirmed in the Charter of the United Nations” which is all in appearance contrary and in violation of the spirit and text of the current Japanese Constitution where it is stipulated that Japan will/must preserve its security, and existence based on (an essentially blind) trust and faith in the peace-loving conscience of other nations without any possible recourse to military force and war?
4. Will you recommend Taiwan, Singapore, and the USA to implement an Article in their constitution to immediately renounce their right to possess a military force, and their right to individual and collective self-defense not as a wishful thought but as a real policy proposal in the current state of affairs? If not, why would you hope that we maintain Article 9 as it is for eternity and commend those who are striving to ensure this outcome (that is the political reading of your statement even if you may insist that you are merely addressing the procedural aspect)?
5a. If you are allowed to think outside the box (I add this as I understand the limitations that may be imposed on professionals of the law when providing an opinion), can you concede that Japan has been in a state of constitutional irregularity in regards to its military rights for many decades?
5b. Would you even go as far as to concede that after more than fifty years of fait accompli the Article 9 (and part of the preamble) is itself in a state of irregularity in light of reality and the fundamental right of a sovereign country such as Japan?
6. In order to regularize the aforementioned situation, would you recommend that (A) we execute the letters of the Constitution and immediately abolish our self-defense force, terminate our security treaty with the USA, and reaffirm our complete and eternal renunciation of our right to individual and collective defense, OR that (B) we swiftly amend the concerned portion in the Constitution so that we at least confirm our right to possess a military force and our right to defend our existence and key national interests (the definition of these interests can be minimized to whatever extent reasonable) even by military means if necessary?
Commentary:
As I wrote before, there is no need to be an expert to understand that in light of Article 9 the Japanese Self-Defense Force is unconstitutional, and that any laws affirming the ability for the said force to participate in any military action are unconstitutional.
Article 9 has been a quasi-dead Article since more than fifty years. Japanese politics and society have failed to reflect this reality in the texts of the Constitution through an amendment. However, as a sovereign state, the issue of self-defense is a fundamental right that is very much an undisputable matter that supersedes any procedural ideology. Although in light of the constitutional structure of Japan an amendment of the Constitution would have been ideal, Japan had to resort to pragmatic reinterpretation to work around the socio-political and psychological inability of a nation and its elite to face reality and adjust the law accordingly.
In the interest of constitutionalism, I believe it is essential that we amend the Constitution as soon as possible so that we confirm the reality that we have the right to possess a military force and that we have the right to defend our existence and key interests even by military force if necessary. We can then argue over the various details of how this right and ability are defined and implemented. But first thing first, Article 9 should be amended in the name of substantial constitutionalism and constitutional consistency with reality and fundamental right of a soverign state with no complete protector state.