Japan’s Peace Constitution: Is it time for a change?

The election of a new Japanese prime minister and the speculation of his potential hawkish policy have generated much interest and speculation for us in Asia. I cannot claim any current insight on Japan. Fortunately, my friend and colleague, Domingo L. Siazon Jr. (former ambassador to Japan and Secretary of Foreign Affairs) has agreed to be my guest columnist today.

By Domingo L. Siazon JR.

The general election in Japan last December was another political tsunami. After being ousted from power in 2009, the Liberal Democratic Party (LDP) and its junior coalition partner, the New Komeito (NK) of Japan are back with more than two-thirds of the seats in the House of Representatives. With this majority, they can over-ride decisions of the House of Councilors.

On Dec. 26, Shinzo Abe was elected prime minister (PM) for the second time. He needed two ballots to be elected by the House of Councilors, a reminder that the LDP must regain the majority in the July Upper House elections.

PM Abe faces a multitude of challenges. Japan’s economy has been anemic for two decades. The Great Northeastern Japan Catastrophe, consisting of earthquakes, tsunamis and nuclear accidents has blighted large segments of Japan. The population is ageing fast. And relations with China and the Republic of Korea are almost out of control.

Japan also needs to mend ties with the United States of America as the security aspects of its relations have floundered during the last few years.

One of the proposals in the LDP Campaign Manifesto is the amendment of the Japanese Constitution. For some time now, there have been serious efforts towards a formal amendment of the Japanese Constitution because many feel that their constitution should be drafted by the Japanese themselves.

There is also a growing sentiment that the practice of continuously reinterpreting the constitution to suit the requirements of Japan has probably reached its limit. But perhaps the most compelling reason is the need to remove the constraints on Japan’s ability to undertake what is necessary to defend itself and its allies: to exercise collective self-defense in accordance with Article 51 of the United Nations (UN) Charter and to exercise collective security in accordance with Chapter 7 of the UN Charter.

The Japanese Constitution is unique in the world because of Article 9 which contains three important elements. The first seems to suggest the prohibition of the use of force even for self-defense. The second implies that the maintenance of any military force whatsoever is prohibited. The third denies the individual members of the armed forces of Japan, as a matter of domestic law, the privileges and immunities they would otherwise enjoy as belligerents in an armed conflict.

The Japanese çonstitution has never been amended since its adoption in 1947. Yet today, the Japanese Self Defense Force (JSDF) number around 240,000 men and women with an annual budget of some $50 billion. During the last 20 years, JSDF has participated in some 11 UN operations abroad mostly under the United Nations auspices. And the JSDF has advanced weapons systems including ballistic missiles developed with the USA. All these have been made possible by re-interpretations of the Constitution and the passage of domestic law.

There are many good reasons for amending the Japanese Constitution. From a constitutional perspective, it would be much better to amend the Constitution and acknowledge the existence of an armed force. It may also be useful to define the necessary requirements for Japan to engage in the exercise of collective self-defense and collective security. But given the multitude of problems facing Japan at this time, amendment of the Constitution may better be postponed.

Collective self-defense

Within 10 days after becoming prime minister, Abe announced that after the election for the House of Councilors in July, the government will introduce a bill on the Fundamental National Security Law that would specify the rights and conditions for the exercise of collective self-defense by Japan. This bill would reflect the following recommendations of the Yanai Panel which was established in 2006:

“1. On the use of collective self-defense:

a) Japan had the legal ability to respond to an attack on nearby US warships engaged in joint exercises with the MSDF in international waters; and

b) Japan had the legal ability to respond, irrespective of extant technological capabilities, to utilize its Ballistic Missile Defense (BMD) assets to intercept a missile launch targeted at the United States.

2. Japan had the legal ability to use force to defend the military personnel of other states engaged in United Nations Peace Keeping Operations (UNPKO) in which Japan was also participating; and

3. Japan had the legal right to provide logistical support to the militaries of other states involved in UNPKO operations which might involve the use of force.”

The government can get this bill approved. The LDP can also rely on the 54 votes of the Restoration Party headed by Shintaro Ishihara who is well-known for his strongly nationalistic views.

Early passage of this bill would allow Japan to use the upgraded Standard Missile-3 interceptor missile with possible break out capabilities against Intercontinental Ballistic Missiles (ICBM) heading for the USA. Such a development would remove an irritant in USA-Japan security relations.

PM Abe also announced wider and deeper cooperation between Japan and the USA on defense matters and that these would be covered by the New Defense Guidelines. With Abe- san at the helm, USA-Japan security ties will be much closer and stronger.

A strong USA-Japan alliance is good for the stability of the Asia-Pacific region. From history, we have learned that security alliances and the balancing of military powers contribute to the maintenance of peace. This is particularly true when there are economically and militarily rising states in a region. In the case of Asia, China and India are both new economic and military powers. As long as there is no established ‘rules based’ security framework in Asia-Pacific, security alliances will have to guarantee peace in the region.

Two decades ago, ASEAN established the ASEAN Regional Forum (ARF) with the hope that one day, East Asia will have a security framework that is capable of preventive diplomacy and conflict resolution. We are still hoping that our four neighbors in Northeast Asia can work together to get us closer to our goal.

PM Abe is a well-known nationalist. He is also a very pragmatic leader. Based on what he has done so far, there is hope for better times in Northeast Asia.

John Negroponte

On Tuesday January 22, John Negroponte will speak before a joint meeting of the Carlos P. Romulo Foundation, Amcham, European Chamber and Asia Society.  The topic will be “US Foreign Policy of the Second Obama Administration.   Ambassador Negroponte is vice-chairman of McLarty Associates, co-chairman of the US-Philippines Society and a board member of the Romulo Foundation.  Members of the four organizations are urged to make advance reservations before Jan. 15. Space is limited.