Article 9 of the Japanese Constitution and the Rule of Law

49 Pages Posted: 14 Mar 2005  

Kenneth L. Port

Mitchell Hamline School of Law; William Mitchell College of Law

Abstract

Article 9 of the Japanese Constitution renders the Self Defense Forces (SDF) unconstitutional. If the original intent of Article 9 means anything at all, nothing could be more clear. This is bizarre because today, some 57 years since the promulgation of Article 9 and the entire Japanese Constitution, Japan now has the fourth largest military (and by some counts the third) in the world as measured by dollars spent.

This article concentrates on the original intent of the drafters of Article 9. This article is not about whether or not there have been intentional or unintentional mistranslations of the Article 9. Rather, this article argues that the original intent of Article 9 was to deny Japan the right to possess any armaments whatsoever, for offensive or defensive purposes. This article argues that the Japanese people have used this original intent to create, at least in their minds, a pacifist State. The Japanese impression that they live in a pacifist country is, of course, simply a mis-perception. With the fourth largest military in the world by dollars spent, it is impossible that Japan also is a manifestation of a pacifist State.

This article, therefore, argues that Japan should honor the original intent of their Constitution, should honor the belief that Japan is a pacifist State, and disband the SDF. The SDF ought to be converted to a true disaster relief organization and largely disarmed. Additionally, this article argues that the terrorist attacks in the United States on September 11, 2001 have caused the SDF to further expand in apparent disregard of the terms of Article 9. The Japanese Diet and Cabinet has authorized a force of some 550 to join the United States coalition in Iraq. This has lead to intense debate and analysis in Japan regarding the role Japan's military should play in Iraq in light of Article 9. It is striking how little attention Article 9 and the constitutionality of the SDF now gets outside of Japan. Finally, this article briefly reviews various proposed amendments to Article 9. This article concludes that the use of the military in Japan must change. The SDF ought to be converted into primarily a disaster relief organization and the Constitution ought to be amended to reflect and memorialize this change. If this is done, for the first time, the Japanese people can attain what they believe they already have: a pacifist state.

JEL Classification: K33

Suggested Citation

Port, Kenneth L., Article 9 of the Japanese Constitution and the Rule of Law. William Mitchell Legal Studies Research Paper No. 4. Available at SSRN: https://ssrn.com/abstract=685118

Kenneth L. Port (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

HOME PAGE: http://mitchellhamline.edu/biographies/person/kenneth-l-port/

William Mitchell College of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

HOME PAGE: http://mitchellhamline.edu/biographies/person/kenneth-l-port/

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