A Constitutional Case for Amending Article 9

Abstract

The long simmering debate in Japan over whether and how to amend the war-renouncing provision of the Constitution, the famous Article 9, is once again heating up. Laws are now in place for a plebiscite on the issue. The Liberal Democratic Party has published a formal amendment proposal, which would operate to eviscerate the meaningful constraints on the use of force. The left continues to oppose any and all revision, even though public opinion has begun to shift, Japan’s strategic situation has become more fraught, and external pressure for Japan to play a greater international role mounts. Amendment is more likely, and the left needs to develop meaningful proposals to counter those of the right.

This short article, a chapter in The Constitution of Japan at 65: Time for a Change? (Washington, D.C.: Woodrow Wilson Center for International Scholars, 2012), suggests that there are in fact sound legal reasons why Article 9 should be amended, in ways that are consistent with its original objectives, and for the purpose of bringing it into line with current realities, while at the same time strengthening the normative power of the provision.

The article begins by reviewing the meaning and operation of Article 9, focusing on the effective operation of the provision’s constraint on the use of force. Then, relying in part on conclusions drawn from more detailed theoretical analysis I have published elsewhere (Binding the Dogs of War, and Taking War Seriously), the article develops an argument for revising Article 9 to provide greater clarity as to the precise scope of the limits on the use of force; introducing new provisions to acknowledge the legitimacy of existing military forces, but to also establish clear civilian control and legislative approval powers over all use of such armed forces; and adding a new provision to clarify and reinforce the powers of judicial review over decisions relating to the use of force and deployment of armed forces.

The article includes draft language for the purpose of beginning a serious conversation among the supporters of Article 9 about possible alternatives to the revisions being advanced by the LDP and others on the right. The amendment proposals provided here are designed to eliminate the harmful gap between current reality and constitutional language; preserve, clarify and strengthen the constraints on the use of force; and establish clear separation of powers with respect to the decisions to engage in armed conflict.

These proposals reflect arguments drawn from theories regarding international law compliance, and arguments for the constitutional incorporation of international law principles on the use of force. They also reflect claims that the separation of powers in the context of the decision to go to war is necessary to ensure a more democratically deliberative and representative decision-making process, and thus more sober and sound judgments on the questions of war and peace.

Keywords: Japan, Japanese law, constitutional law, constitutional amendment, armed conflict, use of force, war powers

JEL Classification: K20, K30, K33, K40