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2015.07.10

Another Debate on Constitutionality

JBpress on June 29, 2015

  • Kunihiko MIYAKE
  • Research Director
    Kunihiko MIYAKE
  • [Expertise]
    Foreign Affairs and National Security

Many apologies for being absent during the month of June. Writing a new book―even though it is in Japanese―is much more time consuming than I thought.

As has long been expected, utopian pacifism is back again at the center of Japanese politics.The upbeat run of Shinzo Abe's administration, which once looked almost unbeatable, seems to be stalling as critical opposition voices grow against his contentious national security bills.

A counter offensive was rekindled on June 25 when younger members of the Liberal Democratic Party (LDP), in their closed, private study meeting, harshly criticized the media and threatened to "punish [media organizations critical of the government] by taking out ad revenues."

The June 26 headlines of both the Okinawa Times and Ryukyu Shimpo referred to a conservative novelist's remarks at the study meeting that called for "destroying the two Okinawan newspapers." By the way, I strongly defend media freedom of speech, no matter how politically biased.

Naturally, the LDP study meeting has sparked a Japanese-media outcry, providing political ammunition for the opposition and even raising the eyebrows of some senior LDP lawmakers. The organizer of the study meeting, the LDP Youth bureau chief, was suspended from duty for a year.

However, the fallout had already started in early June at a hearing of the Commission on the Constitution in the lower house of the Diet, Japan's parliament. Three noted constitutional scholars, including one picked by the LDP, all criticized Abe's reinterpretation of the collective self-defense.

Ironically, the public hearing of the Commission on the Constitution on June 4 had nothing to do with the security bills. The commission is only an "organization that conducts broad and comprehensive research on the Constitution of Japan or closely related fundamental legislation."

The constitutional scholar invited by the LDP to testify stated at the hearing that "allowing the use of the right of collective self-defense cannot be explained within the framework of the basic logic of the past government views" of the Constitution of Japan.

Echoing two other noted professors, he went on to say that Abe's reinterpretation "considerably damages legal stability and violates the Constitution." The silent majority of Japanese might think that Abe's reinterpreted collective self-defense is unconstitutional.

Wait a minute. Best to think twice before reaching this conclusion. As the New York Times reported on June 26, in a long-sought victory for the gay rights movement, the U.S. Supreme Court finally ruled by a 5-to-4 vote that the U.S. Constitution guarantees the right to same-sex marriage.

The majority ruling says, "No longer may this liberty be denied." It goes on to say, "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were."

That's fine. It's in the United States. To the best of my knowledge, however, the U.S. Constitution does not mention marriage. That is the reason that the Supreme Court can rule that same-sex marriage is constitutional, although opponents still claim that such marriages are unconstitutional.

In Japan, there seems to be no room for such marriage since the Constitution clearly stipulates in Article 24 that "marriage shall be based only on the mutual consent of both sexes and it shall be maintained through mutual cooperation with the equal rights of husband and wife as a basis."

The same logic could be applied to the right of collective self-defense. This right, as defined under the Charter of the United Nations, allows all U.N. member states, including Japan, to use force in assisting allies under attack, even if these member states themselves are not being attacked.

Article 9 of Japan's Constitution, while stating that "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," does not mention the right of individual or collective self-defense.

In a constitutional democracy, it is the Judicial Branch--and not those prominent constitutional scholars--that has the ultimate authority to rule whether a bill or law is unconstitutional. Japan, of course, is no exception. We must leave this constitutional debate to Japan's Supreme Court.

Having said that, the Abe administration must learn a bitter political lesson: if the people inside the administration are all puffed up because of Abe's political success over the past 30 months, as seen in the handling of the new security bills, they are doomed to fail.

What Japan needs now is not an academic debate on the constitutionality of the new security bills; it needs a sound and healthy political judgment on the future course of our nation within the framework of the Constitution and the existing security arrangements with its allies and partners.

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