Symposium |Constitutional Struggles in Asia | Part III | Thin but Resilient Constitutionalism in Japan?

[Editor’s Note: In light of recent constitutional (or some may say, unconstitutional) developments, I-CONnect is pleased to feature this timely symposium examining constitutional struggles in Asia. This is part III of a five part series, in addition to the Introduction.]

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— Akiko Ejima, School of Law, Meiji University, Tokyo, Japan

Introduction: 75-year-old Constitution without amendment?

In 2021, the Constitution of Japan will be 75 years old if the day of its promulgation is considered as its birthday.^[1] The government led by the Liberal Democratic Party (LDP) has been in power most of the time since 1955.^[2] The Constitution has never been amended, but has regularly faced serious challenges in the Cold War era, the Post-Cold War era, and the current COVID-19 pandemic, although the nature of each challenge varies.

When the Constitution was drafted, its main goal was demilitarization and democratization of Japan because of the consequences of World War II. Therefore, it was not difficult to install Article 9 (“pacifism” clause renouncing war and prohibiting war potential) which shared the idealism of the UN Charter seeking international peace and security. However, under the Cold War regime where the UN peace-keeping ability was paralyzed, the Japanese defense policy developed largely based on the US-Japan relationship, which facilitated the US army base in Japan and the creation of the Self-Defense Forces (SDF). This did not reflect the constitutional commitments in Article 9. The Japanese government tackled this constitutional gap by changing constitutional interpretations instead of amending the Constitution.

The end of the Cold War forced Japan to reconsider its defense policy and raised questions about the government’s previous constitutional interpretation. However, the LDP government continued to change constitutional interpretations instead of amending the Constitution. This contribution highlights the ways in which Japan’s experience with constitutional change reflects its struggles in maintaining constitutionalism, against the backdrop of a dominant party regime.

Background

Japanese liberal academics have argued that the Constitution of Japan was based on liberal constitutional principles. In particular, the three fundamental principles of popular sovereignty, human rights and pacifism have been considered its central tenets. Among the three, the pacifism principle is deeply rooted in the Japanese people. In general, the Japanese people welcome Article 9 and consider this provision and the idea of pacifism important. A public poll in 2017 found that more than 80% of people think that Article 9 is useful for the peace and safety of Japan, and 57% think that it is not necessary to amend Article 9 whereas 25% think it is necessary to do so. On the other hand, they consider the SDF as useful and constitutional because of its rescue activities during natural disasters such as the Tohoku Great Earthquake, despite the fact that the constitutionality of the SDF was once at the center of constitutional debate.^[3] The same poll showed that 80% of people see the SDF as useful, and 60% see it as constitutional, whereas 11% see it as unconstitutional.

The constitutionality of the SDF was one of the most debated constitutional questions until the mid-1970s. There were many court cases in which constitutionality of the SDF was tested, but the question remains open as the Supreme Court of Japan (SCJ) has never clearly decided the issue. Moreover, there are other implications of this constitutional contestation.^[4] First, political debate concerning the constitutional amendment tends to focus solely on Article 9. It may hinder development of a necessary discussion regarding updating the framework for better governance. Second, the confrontation stiffens the democratic process for discussing constitutional amendments. Third, the political deadlock may not accurately reflect public opinion.

Constitutional change by constitutional interpretation

Due to the impasse, the Japanese government relied on constitutional interpretation. When the government established the National Police Reserve (NPR) in 1950 in order to fill a vacuum created by the transfer of the US armed forces from Japan to Korea, the government argued that the NPR was a part of the police force. Since then, the government has constantly changed the interpretation of Article 9 to legitimatize changes in its defense policy and the establishment of the SDF.

The most recent change in the interpretation of Article 9 occurred when the government submitted a package of eleven bills; the most controversial aspect of the package was to enable the SDF to defend the US Army when the latter is attacked even when Japan is not yet attacked. This had been considered a recourse based on the right of collective self-defense, but was deemed  unconstitutional by the Cabinet Legislation Bureau (CLB), which has played a role of pre-judicial review by carefully scrutinizing the constitutionality of bills and providing opinions on the interpretation of the Constitution.^[5] However, the Abe administration changed the head of the CLB and nominated a diplomat who declared that it was his role to make the government policy possible. The CLB changed its previous opinion to admit the limited recourse of the right of collective self-defense. This damaged the constitutional custom that the CLB worked as a neutral interpreter of the constitution. In view of this, some constitutional scholars argue that Japanese constitutionalism is under threat, and an authoritarian tendency is emerging.^[6]

These examples demonstrate that if constitutional interpretation can do what the constitutional amendment is supposed to do, it is not necessary to use the constitutional amendment procedure. If a constitutional interpretation oversteps a limit, the Supreme Court and/or constitutional court can check the misuse or abuse of the constitutional amendment procedure. The SCJ, however, has been reluctant to take this role, and there is no constitutional court in Japan. Therefore, the present situation facilitates the government’s use of constitutional interpretation rather than a constitutional amendment to bring about constitutional change.

Constitutional change by ordinary legislation

If Japan has not formally changed the Constitution, does it mean that governance in Japan has been managed under an unchanged constitutional framework for more than seven decades? In reality, many changes by ordinary legislation (political reform, administrative reform, and judicial reform) occurred, some of which would have been done by constitutional amendment in other countries.^[7]

However, those changes by ordinary legislation have been relatively unnoticed by the Japanese constitutional academia as constitutional amendments. For example, political reform in 1994 was realized by several ordinary statutes. The purpose of this political reform was to address corrupt politics and restore public trust in politics.^[8] The reform aimed to transform the politician-centered politics into political party-centered politics. It introduced stricter regulations towards political donations and party financing, and public funding for the political parties. The electoral system was also changed from a middle-sized constituency system to a mixed system of ‘first-past-the-post’ and proportional representation.

The impact of the political reform is so wide and deep that even the reformers might not have foreseen the consequences. First, changes to the electoral system concentrated power in political party headquarters and the leader of the political party. Second, public party funding also concentrates power in the party headquarters, which distribute funding to each MP. Third, under the present electoral system, a political party now has a possibility of winning two-thirds of the seats in each House, which is one of the conditions for passing a constitutional amendment. It was impossible to obtain a two-thirds majority of each House under the previous electoral system, where election outcomes were closer to the proportional representation system. It is interesting to note that this was not an intended outcome when the Diet institute the electoral reform.

There is one more feature that should be highlighted. The Constitution of Japan is one of the shortest written constitutions.^[9] Its brief and broad nature allows ordinary legislation to specify details without much risk of being incompatible with the Constitution. This explains, to some degree, why constitutional amendments by ordinary legislation are repeatedly used in Japan. In addition, the presence of concise and general constitutions (including the previous constitution, the Constitution of the Empire of Japan) appears to reflect Japanese constitutional culture.^[10]

Conclusion: Consequences of the thin but resilient constitutionalism

Thin but resilient constitutionalism exists in Japan. Even under the circumstances of the COVID-19 pandemic, the government has not been able to push for a constitutional amendment to facilitate its agenda.However, the constitutional stalemate is not without costs. The previous confrontational debate on Article 9 tends to obscure other real issues, particularly the reform of institutions of government. The old-fashioned style of politics and bureaucracy was exposed by the COVID-19 pandemic. There are many constitutional questions which are not properly dealt with by the legislature nor judiciary: gender gap, same sex marriage, LGBTQ, anti-discrimination legislation, national human rights institution, migrant workers, environmental rights etc. It is perhaps time to revisit the idea and practice of constitutionalism in Japan.

[Note: An earlier version of this post was presented at a Webinar on Constitutional Struggles in Asia (1 – 3 December 2020). The event was part of a larger research project in collaboration with the Centre for Asian Legal Studies, National University of Singapore, the College of Law, Australian National University, and the Federal Law Review.]

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^[1] The Constitution of Japan was promulgated on 3 November 1946 and became effective on 3 May 1947.

^[2] The exceptions were the Hosokawa coalition government of eight political parties (August 1993-April 1994) and the Noda government of the Democratic Party of Japan (September 2011-January 2012).

^[3] See, Yaniv Roznai, Unconstitutional Constitutional Amendment: The Limits of Amendment Powers (OUP, 2017).

^[4] Keigo Komamura et al (eds), Kenpo Kaisei no Hikaku Seijigaku [Comparative Pollitical Study on Constitutional Amendment] (Kobundo, 2016) at 5.

^[5] Yasuo Hasebe, ‘The Supreme Court of Japan: Its Adjudication on Electoral Systems and Economic Freedoms’ 5(2) International Journal of Constitutional Law 296 (2007).

^[6] Hajime Yamamoto, ‘An Authoritarization of Japanese Constitutionalism?’, in H. A. García et al. (eds), Authoritarian Constitutionalism (Elgar, 2019)

^[7] Akiko Ejima, ‘How to Compare Constitutional Amendments in the World: Some Reflections from an Empirical Perspective’, 11 Yonsei Law Journal 39 (2020).

^[8] See Akiko Ejima, ‘Revisiting Transparency and Disclosure in Japanese Political Reform’, in K. Ewing et al (eds), Party Funding and Campaign Financing in International Perspective (Hart, 2006).

^[9] Kenneth Mori McElwain & Christian G. Winkler, ‘What’s Unique about the Japanese Constitution?’, 41(2) Journal of Japanese Studies 249 (2015).

^[10]  Ejima, supra note 8, at 54.

Suggested citation: Akiko Ejima, Thin but resilient constitutionalism in Japan?, Int’l J. Const. L. Blog, Feb. 22, 2021, at: http://www.iconnectblog.com/2021/02/symposium-constitutional-struggles-in-asia–part-iii–thin-but-resilient-constitutionalism-in-japan/