AN ESSAY ON ARTICLE 9 OF THE JAPANESE CONSTITUTION

Consider how the Post-War Constitution is perceived in Japanese society today. If it was created by Americans after World War Two, why are Japanese people reluctant to change it and why is it held in such high regard?

I           INTRODUCTION

II          THE SHAME OF ‘TOTAL DEFEAT’ 

III        THE MEIJI CONSTITUTION: THE WILL OF THE EMPEROR

·         Theory of State Structure, kokutai under the Meiji Constitution: modernism, constitutionalism and the rule of law

·         Western criticism of Meiji governance

IV        THE 1946 CONSTITUTION: DEMOCRACY AND U.S. OCCUPATION

·         The Japanese surrender: comparison with Germany’s surrender under the Potsdam Declaration

·         General MacArthur’s ‘Three Principles: the American origins of Article 9

·         The consequences of democratization and demilitarization

·         Elite Japanese opposition to the American draft

V         ARTICLE 9: JAPAN AS A ‘PACIFIST STATE’

·         Celebrating peace and renouncing war

·         The Japanese people’s rejection of militarism: “constitutionalist” and “creative constitutionalist” perspectives on Article 9

·         The meaning of a ‘Pacifist State’

·         Sakata v Japan (‘The Sunukawa Case’)

VI        RULE OF LAW IN JAPAN: ARTICLE 9 AND THE CONSTITUTIONAL “BATTLEFIELD”

·         Cold War, the Treaty of Peace and the Anpo Treaty: conflicting political views on the role of the SDF

·         Popular discontent with the US-Japan security relationship

·         Judicial conservatism regarding LDP policy and the SDF

·         ‘The Naganuma Nike Missile Site Cases’

·         Motivation behind ‘The Doctrine of Political Questions’

VII       POPULAR SUPPORT FOR ARTICLE 9 AS BASIS OF MODERN JAPAN: THE   FINAL REPORT

·         Nakayama’s ‘Three Principles’

·         Shortcomings in the political process

·         ‘Permanent peace’ and ‘human security’

 

VIII     CONCLUSION

‘It is said that war is a curse; it is resorted to only when it is inevitable. However, in time of peace, do not forget the possibility of disturbances’… (Tokugawa Ieyasu)

I           INTRODUCTION

The Final Report of the House of Representatives Commission to the Diet in 2005 indicated that the majority of the Japanese people perceive the 1946 Constitution to be their ‘Peace Constitution’[1].  For ordinary Japanese, therefore, the most celebrated provision of the 1946 Constitution is Article 9 providing for the renunciation of war[2].  Located on its own in Chapter II of the Constitution, Article 9 is divided into two succinct paragraphs.  The first prescribes that Japan shall “forever” renounce the right to belligerency in deciding any international dispute.  The second proscribes any Japanese government from maintaining the ‘war potential’ necessary to wage armed conflict[3].

The ruling Liberal Democratic Party (LDP) government has long agitated for constitutional reform and revision of Article 9[4].  Towards the end of his office, Prime Minister Koizumi introduced an ‘Emergency Contingency’ bill into cabinet which purports to invest the ‘Self-Defense Force’ (‘SDF’) with the authority to serve in international United Nations peace-keeping operations (‘PKOs’)[5].  In his ‘Basic Plan’, the Prime Minister called upon the SDF to be ‘fully engaged’ with the United States Coalition’s reconstruction of Iraq.  The Prime Minister stressed, however, that Japanese personnel would be dispatched solely to provide ‘humanitarian assistance’ in southern Iraq[6].

Although they would not engage in the use of force, the SDF would strive to ‘maintain international coordination’ with the U.S. government’s democratic program for Iraq[7].  In this mission, the Prime Minister declared to the Japanese electorate that the United States remains a unique and trustworthy ally for Japan.  The Prime Minister reminded the Japanese people in his press conference that Ambassador Katsuhiko Oku and First Secretary Masamori Inoue had been killed while engaged in reconstruction work[8].  

The 1946 Constitution was largely drafted by twenty-seven American drafters attached to the ‘Supreme Commander of Allied Powers’ (SCAP), General Douglas MacArthur[9].  Despite this, the Japanese people have confirmed that the 1946 Constitution supports their right to a peaceful life and the continued democratization and demilitarization of Japanese society[10].  Radical political parties and provincial Japanese have fought a “rear-guard action” to preserve the 1946 Constitution’s peaceful and democratic character[11].

However, Koizumi’s foreign policy initiatives have raised very complex domestic legal concerns[12].  Even current enthusiasts of Article 9 acknowledge that Japan provisions the fourth-largest military in the world with the third-largest defense budget.[13]  In this respect, the Treaty of Mutual Cooperation and Security between Japan and the United States of America (‘Anpo’) has become more controversial than ever[14].  This is particularly because the United States government continues to urge the Japanese government to increase military expenditure and to commit the SDF to ‘rear-support’ roles[15].  In addition, U.S. bases house nuclear weapons and massive strategic military potential on Japanese territory[16]. Though U.S. bases provide a collective security apparatus and “nuclear umbrella”, these forces cause injury and expense to the Japanese public in the outlying provinces[17]. As evidenced by threats from North Korea and China’s rapid military buildup, they may also destabilize the Asian region and ‘Japan Area’.[18]’

While the Japanese people generally adopt a restrictive interpretation of the levying of war potential, this is a live legal issue.  In the legal construction of Article 9, the Japanese people’s definition has not found favour with the Japanese courts[19]. Despite judicial setbacks, “constitutionalists”, Gokenron demand a total ban on the maintenance of any Japanese land, sea or air forces [20]. On the other hand, “creative constitutionalists”, Sokenron support the ‘minimum necessary’ use of force under the customary international right of individual self-defense [21].  It is unclear whether such a limited right of the SDF to act in self-defense extends to the collective or regional use of force [22]. This ambiguity subsumes the problem of the constitutionality of the SDF and Japan’s Post-Occupation relationship with the United States.

Setting aside the issue of constitutionality, the Japanese People have consistently affirmed the principles of non-aggression, protection of fundamental human rights and popular sovereignty [23].  The 2005 Commission Final Report to the Japanese Diet confirmed popular support for retaining Article 9 in toto.  Furthermore, not a single referendum has been successful to amend any article of the 1946 Constitution[24], a situation peculiar to Japan.

Academic commentary though extra-curial, carries substantial weight in the Japanese legal system[25].  Scholars have explained the reluctance to amend Japan’s “Anti-war” clause in many ways[26].  However, one must situate any discussion regarding Article 9 within the pre-1945 realities of War and the Emperor under the Meiji system of Government.  Consequently, this paper shall compare the 1946 Constitution with the ‘Meiji Constitution’ (1889) following the Meiji Restoration[27].  The author will also compare Article 9 with articles 11-14 of the Meiji Constitution.  Comparison of the two shows the depth of feeling among the Japanese populace against the outcomes of WWII and the resulting Occupation.  It also points to the Japanese people’s ambivalence toward the status of the Emperor and their sense of his responsibility for previous aggression.

This paper will also address to what degree the 1946 Constitution was imposed or adopted[28], comparing this with the Meiji Constitution’s theory of state structure, kokutai [29].  In so doing, the paper will examine how the “MacArthur shogunate” divested the Showa Emperor of autocratic power[30].  In order to do so, the paper will first lay out the context of Japan’s defeat and surrender at the end of World War II[31].  Further, it will explain the rationality behind the Japanese people’s enormous esteem for the 1946 Constitution[32].  On the other hand, the paper will present conservative / imperialist opposition to retaining Article 9 and to the 1946 “Post-Occupation” distribution of power[33].

In this way this paper will contextualize the heightened tension between the Japanese government and the Japanese people with respect to the Anpo Treaty[34].  In the process, it will explore the notion of Rule of Law in Japan as it pertains to the judiciary and the non-justiciability of Article 9 and other ‘political questions’[35] referring to the leading-cases.  Having referred to the Final Report, the paper will propose that the most important values underpinning the 1946 Constitution are the norms of popular sovereignty, permanent peace and human security[36].

II THE SHAME OF ‘TOTAL DEFEAT’

It is against the backdrop of war and imperial aggression that one must seek to understand the Japanese people’s depth of feeling for Article 9 and the 1946 Constitution.  With the introduction of military conscription, young men were bound to obey the Imperial warrior code, bushido while the tennsei concept of loyalty bound them to the Showa Emperor.  Japanese aggression in Manchuria, China, Korea and Formosa (Emperor Hirohito’s ‘Secure imperium’) caused enormous domestic and regional convulsions. By the end of WWII the Japanese Imperial Army had caused massive suffering in the Philippines, Manchuria, China, Korea, the South Pacific, as far as Indonesia[37].

By the time the nuclear bombs were dropped on Hiroshima and Nagasaki in 1945, Japan was devastated and millions of civilian and military lives had been lost.[38]  Though Japan had occupied and brutalized the region, at war’s end the Japanese people were themselves ‘scattered jewels’ to the Tojo leadership[39].  Undoubtedly, Imperial Japan engaged in atrocities throughout Asia and against the Allies.  It also, however, brutalised its own people and shamed them in defeat.  Japanese men, women and children died in horrific numbers.

The subsequent American terms of surrender were utterly humiliating to the Japanese Government and to the Emperor.  The Emperor himself was spared prosecution or open criticism but was forced to ‘endure the unendurable and bear the unbearable’.[40]  Despite this admission, Hirohito never confessed responsibility for the protraction of the War, even when defeat appeared inevitable[41].  The Meiji Restoration itself was in jeopardy with General MacArthur and his entourage’s revision of the Meiji Constitution and the Meiji system of military rule.  Despite this, extreme conservatives still contend that the Meiji system of Emperor-worship has some legitimacy over popular rule[42]

III THE MEIJI CONSTITUTION: THE WILL OF THE EMPEROR

Theory of State Structure, kokutai under the Meiji Constitution: modernism, constitutionalism and the rule of law

The Meiji Restoration followed the humiliation of the ‘Unequal Treaties’ a product, as Beer and Maki write, of Japan’s drive towards modernisation[43].    Adopting the German concept of Rechsstaat, a ‘top-down’ approach to civil law, Japan established the theory of state structure known as kokutai[44], power centred in the person of the Emperor[45].  Oda states that this is the antithesis of the rule of law.  Pledging sole allegiance to the Emperor as a god incarnate and the ‘soul’ of the nation, the Imperial Diet was answerable to the Emperor in time of war or national crisis[46].   Under the Imperial Oath and constitutional text, the Meiji Constitution compelled Japanese to comply with all Imperial Ordinances and Rescripts[47].  Article 34 drew the House of Peers from the Imperial Household and nobility while Article 59 permitted the suspension of judicial process and administrative review by the Emperor to counter any national emergency[48].

Western criticism of Meiji governance

To Western eyes, the document fails to adopt a “constitutionalist” stance to the rule of law.  By the concept of “constitutionalism”, Beer and Maki denote a single-polity foundational document that establishes an independent judicature with the power of judicial review[49].  In this light, the Meiji Constitution was obviously defective.  By virtue of Chapter I, the Emperor maintained sole control over the armed forces as well as over the pay of salaried civil servants and officers[50].  Contrary to Article 66(1) of the 1946 Constitution, there was no legal requirement under the Meiji Constitution for civilian control of the military through the Imperial Diet.  Under Articles 13-14, the Emperor enjoyed the prerogative of declaring war and a state of siege as well as the exclusive authority to ratify international treaty[51].

IV THE 1946 CONSTITUTION: DEMOCRACY AND U.S. OCCUPATION

The Japanese surrender: comparison with Germany’s surrender under the Potsdam Declaration

It is premature to condemn the 1946 Constitution at its birth.  The 1945 Occupation cannot be read in vacuo, the terms of surrender being largely consonant with the settlement proposed by the ‘Five Powers’ to deal with Germany’s surrender and occupation by the Allied forces[52].  The Potsdam Conference envisaged that the USSR, France and the United Kingdom would undertake all ‘necessary preparatory work for the peace settlements’, focusing on the administration of occupied zones in Germany in conjunction with the elimination of Germany’s navy, merchant marine, submarine fleet, war-related industry and other ‘war potential’[53].  The avowed goal was the complete disruption of Germany’s organizational and economic potential to wage war coupled with the progressive re-settlement, democratization and demilitarization of Germany’s population[54].

Just as a European Advisory Commision was appointed by the Potsdam participants, so a Far Eastern Advisory Commission vied with MacArthur and the Allied Council to establish the post-war pacifist, democratic basis for Japanese society[55] and to dismantle Japan’s zaibatsu.  Washington prevailed upon McArthur to honour relevant provisions of the ‘Potsdam Declaration’ in order to restore Japan to the fold of peaceful, civilized nations, according to Japan’s own constitutional processes[56].  Never again, Washington advocated, would Japan wage war on any sovereign nation.  Rather, the Japanese political elite would agitate for the “greater spirit” of peace and human dignity now stirring the globe[57].

General MacArthur’s ‘Three Principles: the American origins of Article 9

MacArthur drafted his “Three Principles” for constitutional revision and submitted them to the Japanese delegation[58].  To the LDP and conservative reformers, Article 9 is almost a transcription of the MacArthur’s second principle.  Behind the high-flying rhetoric, MacArthur appears to have had a very practical expedient in mind.  In the author’s words, this might be described as a “Great Power” consideration.

The Emperor was threatened by the Japanese Left and by Washington critics who hoped to oust Hirohito from Japan’s post-war political landscape[59].  Certain critics (including Japanese) intended ultimately to place Hirohito on trial for alleged war crimes and for prolonging a war of aggression[60].  MacArthur sought desperately to maintain the Emperor’s authority - if only symbolically.  He could not envision a viable liberal democratic future for Japan without the stabilizing institution of the Emperor and His Imperial Household[61]. 

The consequences of democratization and demilitarization

Though he betrayed little sympathy for the defeated Japanese leadership, McArthur nevertheless was determined to secure a full democratic constitution for Japan to replace the Imperial Meiji Constitution[62].  At the time, Japan was governed by a series of alien, Conservative administrations, which were democratic only in name.  They were not respected by the majority of Japanese as fulfilling any representative function[63].  All administration centred in ‘General Head Quarters’ (GHQ) nicknamed “Little America”.

Japan was curtailed from expanding into Asia.  The U.S. strategic bomber command was responsible for protecting Japanese sovereignty over Okinawa, the Ryukyu and Sakhalin Islands[64].  Simultaneously, the U.S. government consolidated a string of bases across the Asian Pacific rim to ‘democratise’ Asia by containing Soviet communism.

Elite Japanese opposition to the American draft

In spite of these advances, SCAP’s Conservative Japanese opponents instantly attacked the draft document as an exercise in ‘cultural imperialism’ and Western arrogance[65].  They warned that Japan had no experience in democratic politics - politics which defied Japan’s reliance upon the Emperor since time immemorial.  The renunciation of the Emperor’s sovereign right to wage war and maintain the peace of His Realm was “ill-fitting” and entirely unacceptable to the Japanese people.

On the contrary, socialist, intellectual and communist critics of the conservative cabinet emphasised that “militarists” were solely responsible for the nation’s plight and the ignominy of occupation[66].  Indeed, Marxist critics indicated that Japan could throw off the yoke of imperial fiat and the false consciousness that Hirohito and his cohorts engendered for socialist progress[67].

Finally, others adhered to the ‘two-sword national-polity school’.  They claimed that the 1946 Constitution was neither authentic nor inauthentic – it simply enunciated that all political power was exercised on behalf of the Japanese people - beneficiaries either of popular sovereignty or of Hirohito’s post-war “imperial democracy”[68].

In any event, it is readily apparent that the drafters[69] left the matters of both sovereignty and the sovereign exercise of force unresolved, so that the Constitution was launched full of ambiguity.

V ARTICLE 9: JAPAN AS A ‘PACIFIST STATE’

Celebrating peace and renouncing war

It is instructive to read Article 9 together with the Preamble to the Constitution[70].  The Preamble refers instanter to ‘We, the Japanese people’[71].  This is in stark contrast to its predecessor in the Meiji Constitution, which recognized the sovereign lineage of the Emperor during “ages eternal”[72].  Unsurprisingly, the Preamble in the 1946 Constitution alludes to the devastation wrought by WWII upon Japan’s territory.  What is unique in the recital is that the Japanese are resolved through the Constitution never again to be ‘visited with the horrors of war’[73].  Henceforth, government is to be the ‘sacred trust’ of the people (rather than the Emperor) and the People are to be the centre of all power and legitimacy.

From the Preamble, we can trace the very broad, idealistic language of Article 9 itself[74].  Reflecting the language embodied in the United Nations Charter (1945), Article 9 states that the Japanese people are ‘aspiring sincerely to an international peace based on justice and order’[75].  The Japanese, moreover, are said to renounce the national right to wage war ‘forever’ in the resolution of international disputes[76].  This very strong language is accompanied by more specific language in Article 9(2) which provides that Japan shall never maintain any military force or other ‘war potential’ in pursuit of that aim[77].  War potential is, however, nowhere defined. 

The Japanese people’s rejection of militarism: “constitutionalist” and “creative constitutionalist” perspectives on Article 9

As Hitoshi Nasu writes, the Japanese people have adopted two broad perspectives on the Article 9.  On the one hand, a minority of Japanese advocate the constitutional defense of ‘absolute pacifism’, or Gokenron.  Under this interpretation, the SDF is presumed to be completely unconstitutional[78].  The antithesis of Gokenron is the creative constitutionalist position, or Sokenron.  Those in the Sokenron camp would permit future provisioning of the SDF for limited self-defense through the ‘minimum necessary use of force’[79].  Both camps nevertheless agree that Article 9(1) and 9(2) must be construed together to elucidate the meaning of ‘war potential’ and the definition of land, sea and air forces in accordance with the 1946 Constitution as Japan’s ‘Supreme Law’[80] pursuant to Article 98(1)[81].

The meaning of a ‘Pacifist State’

In spite of sharing a commitment to the ‘Pacifist State’, it remains unclear how the constitutionalists and creative constitutionalists distinguish between collective and individual security operations which affect the scope of Article 9[82].  Customary international law, however, distinguishes between the Treaty right of individual or collective self-defense and a nation’s right of individual self-defense in response to actual armed attack[83].  Pursuant to Article 98(2) of the 1946 Constitution, ‘the treaties concluded and established laws of nations shall be faithfully observed’[84].  Though problematic, most academic commentators agree that Japan directly incorporates international custom and usage.  Under custom, therefore, the Japanese government could issue a formal request to the U.S. government to act in collective self-defense of Japan’s territory[85].

Pursuant to the Anpo Treaty and relevant custom, U.S. forces would be entitled to deploy nuclear weapons in collective or regional self-defense of the ‘Japan Area’[86].  However, to do so would violate Japan’s ‘Three Non-Nuclear Principles’[87].  Use of nuclear force might well breach international humanitarian law (‘IHL’) and would be at “loggerheads” with the real intent of the ‘Peace Constitution’[88].  Despite the Japanese Supreme Court’s tacit recognition of increased military spending and foreign basing pursuant to ‘Anpo’, it is arguable that a joint attack of U.S. forces and the SDF would subvert the Constitution as ‘Supreme Law’[89].

Sakata v Japan (‘The Sunukawa Case’)

The Sunukawa case does not bode well for the ordinary Japanese’ construction of Article 9 and repudiation of ‘Anpo’[90].  Tried before Judge Date in the Tokyo District Court, three workers, three students and a railway worker were charged with trespass on to a U.S. installation at Tachikawa Air Base situated in Sunukawa village, Tokyo Prefecture.  The accused were acquitted.  Subsequently, the State appealed to the Supreme Court.  In obiter dicta, the Court conceded that acceptance of the Potsdam Declaration led to adoption of Article 9 in ‘reconsideration of the militaristic conduct of the Japanese people’.  Though somewhat distinct from common law reasoning, the ratio decidendi of the Sunukawa Case appears to be that war potential does not encompass the maintenance of U.S. forces or bases on Japanese soil[91].  Although it was proper for the Japanese people to live in peace – free from fear and want, the ‘minimum necessary use of force’ is an ‘inherent national function’ to maintain Japan’s peace and security and to ‘preserve Japan’s existence’.

VI RULE OF LAW IN JAPAN: ARTICLE 9 AND THE CONSTITUTIONAL “BATTLEFIELD”

Cold War, the Treaty of Peace and the Anpo Treaty: conflicting political views on the role of the SDF

Nasu demonstrates that politicians have frequently interpreted Article 9 in the context of other laws and international treaty.  This has obscured further the wording of Article 9[92]. The Japanese Diet and the Courts have contended not only with the primary significance of Article 9, but also with the ‘Three Non-Nuclear Principles’[93], the 1951 US-Japan Security Treaty[94] and the Anpo revision to that treaty[95].  When the Constitution was first submitted to the Diet for approval, Prime Minister Yoshida placed a radical, restrictive construction on the definition of ‘war potential’[96].  Yoshida asserted that Japan had thereafter abandoned all right to act in self-defense.  As a beacon for democratic pacifism in the Asia Pacific, Yoshida was adamant that Japan would no longer rely upon arms to validate her sovereignty.  To do so would compromise Japan’s newfound independence of spirit ‘controlling the fundamental human relationship’[97].  

Foreign Minister Shidehara retorted that such an approach to constitutional interpretation was novel and absurd.  By forswearing the ‘right of belligerency, Japan had placed herself on an equal footing with all civilized nations who rejected the postulate of ‘aggressive war’[98].  Such a proposition did not entail that SCAP, the Diet or any other organ of Japanese government could abandon the People’s right under international law to repel an armed attack upon Japanese soil.  Some of the American drafters later held as much, whenever they attested to the pressures of wording a political document for an occupied polity within the space of a week[99].  Shidehara maintained Japan was a peaceful country but her government was not insane[100]. In his opinion, Japan preserved her right of individual self-defence to deter an armed attack.

Popular discontent with the US-Japan security relationship

Popular outrage at the expansion of the SDF still serves to heighten tension between radical political parties, the LDP and provincial authorities in basing areas such as Okinawa[101].  Generally, the Japanese people are grateful to the U.S. for introducing the post-war democratization and demilitarization and for the prosecution of militarists and ‘Class A’ war criminals responsible for Japanese aggression before the International Tribunal for the Far East[102]. However, residents in the Japanese provinces such as Okinawa are angry and frustrated by the continued U.S. presence and its contribution to violence and disorderly behaviour.

These residents also fear that Given the US’s strategic shadow will provoke regional proliferation, threatening their security and right to enjoy a peaceful existence.  The growth in a ‘confrontation’ culture against the U.S. presence,[103] has made it more difficult for the local authorities and the LDP to contain public reaction or dissent.[104]

Naganuma Missile Site Cases

In the ‘Naganuma Missile Site Cases, I, II and III’, the Courts refused to determine the constitutionality of the LDP Government’s expansions to U.S basing arrangements and military hardware. Although the plaintiffs argued that the construction of Nike Missile sites in the Sapporo Forests was unconstitutional, the Supreme Court ultimately held that the Court could not interfere with LDP policy arrangements with U.S forces unless there was ‘really obvious unconstitutionality.’ Notwithstanding a finding of non-justiciability, the Court reserved the power to interpret the constitutionality of SDF arrangements in appropriate circumstances.

Judicial conservatism regarding LDP policy and the SDF

Following the Sunakawa ruling, Japanese courts have struggled with the substantive scope of Article 9[105].  As a rule, they apply the ‘Doctrine of Political Questions’ (analogous to the French actes de gouvernement and the German construct of Rechsstaat) to Article 9 deeming its applications to be non-justiciable[106].  Despite Japan’s excellent record on judicial independence, this position may reflect adversely on guarantees for the rule of law[107].

Pursuant to Article 76 of the 1946 Constitution, judges in Japan are obligated to be independent and apolitical[108].  Marfording cautions that it is inappropriate and misleading to distinguish opportunely between the Rule of Law under a civil as opposed to a common law system[109].  Notably, however, Marfording indicates that Japan’s legal system is differentiated from other civil law jurisdictions and operates incrementally with regard to constitutional development[110]. By the same token, it is fair to argue that the Japanese civil law system has a greater tendency toward abstractionism.  This has resulted, to an extent, in the linguistic sterility surrounding disputes over Article 9.  According to Malcolm Smith, this is evident in the Courts’ and the ‘Iron Triangle’s’ bias toward harmonisation of domestic and regional norms[111]. Notably, the Japanese have adopted the 1946 Constitution as their unique, paramount law[112].

Motivation behind ‘The Doctrine of Political Questions’

Ramseyer highlights the reality of political intervention in the constitutional decisions of lower courts regarding Article 9[113].  Those judges who place an ill-advised emphasis on Article 9 are likely to be scape-goated by the ruling LDP[114].  Within the Japanese system of judicial ‘rotation’ and administrative branching, renegades may be “expelled” to the regions in order to remove them from the centre of political and judicial power[115].  Other courts refuse to entertain legal applications challenging LDP policies with respect to the SDF.

VII POPULAR SUPPORT FOR ARTICLE 9 AS BASIS OF MODERN JAPAN: THE   FINAL REPORT

In April 2005, the Japanese House of Representatives released its Final Report (‘the Report’) on the state of the 1946 Constitution.  This was based on community consultation, academic publications, overseas study missions and frenetic debate in the Diet for a period of five years.  The Commission addressed the paramount issue of the SDF’s constitutionality in light of Article 9.  The Report is thus the most vital piece of research on the future life or expansion of Article 9 to be released since 1946.  The Report’s scope is amply described in the preface by Commission Chairman, Nakayama Taro:

Since its creation, to fulfill its task the Commission has conducted research on the Constitution of Japan from the perspectives of the past, present, and future. We began by investigating the process by which the Constitution of Japan was formulated (its past), then examined major postwar decisions of unconstitutionality (an aspect of the past extending into the present), and looked at an ideal vision for Japan in the 21st century (the future). We then formed four subcommittees to carry out specialized and effective research (focused on the present) dealing with the Preamble and the 103 articles which make up the Constitution, after dividing them into topics, each comprised of a small number of articles. Finally, to conclude our investigations we looked at an overview of the Constitution as a whole[116].

(Emphasis added).

Nakayama’s ‘Three Principles’

As Chairman Nakayama was careful to explain, the purpose of the Report was to bridge the divide between the reality of modern-day Japan and the Constitution’s original intent.  Nakayama sought ‘consensus-building’ through collating the views of the People themselves[117].  He proposed ‘Three Principles’: Pacifism, respect for the Fundamental Human Rights and Popular Sovereignty[118].  Touchstones for future democratic reform in Japan[119], these three principles propound MacArthur’s cherished ideals in fresh language.

Chapter 3 of the Report specifically addressed the continuing significance – and symbolism – of Article 9 itself.  In so doing, the Report provided an executive summary resembling a ‘digest within a digest’ to seek both alternative views and bi-partisan consensus on the language and machinery of Article 9[120].

Shortcomings in the political process

Critics of the Report agreed that Article 9 was important, that it committed Japan to remaining a pacifist state and that it spoke for the will of the People.  In critical areas, the Report only deferred substantial problems concerning Japan’s future security and the constitutionality of the SDF.  For instance, the mediation of local concerns through the Commission Directors and the bureaucracy may have affected the level of truly majoritarian participation.  The Report did not solve the dispute between Gokenron and Sokenron and did not determine the definition of war potential.  Vocal members of the Japan Socialist Party and the Japan Communist Party were still adamant that the elite could not alter the restrictive scope of Article 9.

Permanent peace and ‘human security’

The most enlightening positions to emerge from the participant submissions were with respect to the convergent concepts of permanent peace and human security[121].  Ensuring respect for fundamental human rights of the Japanese people, the Nakayama Principles articulate the cardinal tenets of Japan’s constitution.  These comprise pacifism, popular sovereignty and respect for fundamental human rights, including the right to peace[122].  

IX CONCLUSION

The Japanese post-war Constitution is conceived to be the Peace Constitution.  Although it was originally drafted by SCAP, the Constitution has been adopted by the Japanese people to promote democratization and demilitarization of Japanese society.  This has happened despite conservative arguments that the Constitution was imposed on Japan.

Because of the Meiji aggression, Emperor-centred polity and lack of real popular political representation, the Japanese people were happy to adopt a democratic and pacifist constitutional text.   Article 9, the unique provision which prevented Japan exercising any right of belligerency and from possessing the war potential necessary to commit aggression, was at the heart of the constitution.

In light of their past, the majority of Japanese have been wary of political rationales to justify the use of force whether as an act of aggression or in lawful self-defense. This national conscience extends – sixty years later – to the issues of collective as well as individual self-defense.  Having internalised the ‘real fear’ or trauma of WWII, the Japanese people wish to ensure against the re-militarization and the rebuilding of totalitarian society based on total war.  The Japanese people have also internalised the United States’ goals of the democratization of Japanese post-war society and demilitarization of Japan’s war potential.

The Japanese People are suspicious of the LDP’s attempts to increase military expenditure and expand U.S. bases.  This suspicion has been heightened because of the Courts’ reluctance to rule on the constitutionality of the SDF and the legality of the Anpo Treaty.  This is partly due to economical and political disincentives to review Article 9 and the U.S. / Japan security relationship.

Article 9 remains a contentious legal and political issue retaining the capacity to inflame partisan public and political opinion[123].  The conservative backlash has driven a wedge between the Japanese People and their representatives in the Diet.  One way of reorienting Japanese society would be to focus on the principal norms of permanent peace and human security.  Instead of unleashing latent war potential the Japanese people could focus on their collective democratic potential to secure peace and prosperity.

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Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US) (Merits) (‘the Nicaragua case’) ICJ Reports 1986.

Corfu Channel case, ICJ Reports 1949. 

Ishizuka et al v Japan et al Minshu 6, Sup. Ct, Third Petty Bench, 20 June 1989 (‘The Hyakuri Air Base Case’), 385. 

Japan v Sakane et al (1969) Keishu 5; Sup. Ct, Grand Bench, 2 April 1969 (‘The Court Worker Incitement Case’), 685.

Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory, Israeli Wall case, ICJ Reports 2004.

Minister of Agriculture, Forestry and Fisheries v Ito et al. (1976) 27 Gyosai reishu 8;

Sapporo High Ct

, 5 August 1976, 1175 (‘The Naganuma Nike Missile Site case’, II).  

Shigeru Sakata et al.  v Japan (‘the Sunakawa Case’), Supreme Court, 16 December 1959, Keishu 13, 3225.

Sunukawa Ito et al. v Minister of Agriculture, Forestry and Fisheries (1973) Hanrei jiho No. 713; Sapporo Dist.Ct, 7 September 1973 (‘The Naganuma Nike Missile Site case’, I).

Uno et. al. v Minister of Agriculture, Forestry and Fisheries (1982) 36 Minshu 9;

Supr. Ct

, First Petty Bench, 9 September 1982, 1679 (‘The Naganuma Nike Missile Site case’, III).      

US Diplomatic and Consular Staff (Teheran Hostages), ICJ Reports 1980.

Legality of the Possession or Use of Nuclear Weapons Advisory Opinion, ICJ Reports 1997.

Books

L. W. Beer, “Japan’s Constitutional System and its Judicial Interpretation: in Haley (ed.), Law and Society in Contemporary Japan (Kendall Hunt 1988) 7-35.

John W. Dower, Embracing Defeat: Japan in the Wake of World War II (Norton. 1999).

John O. Haley and Veronica Taylor, “Rule of Law in Japan” in Randall Peerenboom (ed) Asian Discourses of Rule of Law: Theories and implementation of rule of law in twelve Asian Countries, France and the U.S., Routledge, London, 2004, 446-474

R. Higgins, Problems and Processes: International Law and How We Use It, (1994), 17-38.

Glenn D. Hook & Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Routledge, London, 2001, 8, 13-17,29-36

Hiroshi Itoh and Lawrence Ward Beer (eds), The Constitutional Case Law of Japan: Selected Supreme Court Decisions, 1970 through 1990, Asian Law Series, School of Law, University of Washington, No. 13, (University of Washington Press, 1996).

Hiroshi Itoh and Lawrence Ward Beer (eds), The Constitutional Case Law of Japan: Selected Supreme Court Decisions, 1961-70, Asian Law Series, School of Law, University of Washington, No. 6, (University of Washington Press, 1978).

John M. Maki (trans), Japan’s Commission on the Constitution: the Final Report, Asian Law Series, School of Law, University of Washington, No. 7, University of Washington Press, 1980.

Ray A. Moore and Donald L. Robinson, Partner for Democracy: Crafting the New Japanese State under MacArthur (Oxford, 2002)

Sekai, ‘Peace and Regional Security in the Asia-Pacific: a Japanese Proposal’ (1993-94) reproduced in Glenn D. Hook & Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Routledge, (London, 2001).

Beate Sirota Gordon, The Only Woman in the Room (Kodansha, 1997).

Gillian Triggs, “Draft Chapter 4: the Relationship between International and National Law” in International Law, (2005), 1-30.

Frank Upham, “Chapter 1: Models of Law and Social Change”, in Frank Upham, Law and Social Change in Postwar Japan, (Harvard University Press, Massachusetts), 1987, 1-27.

Reports

Research Commission on the Constitution, The House of Councillors (Japan), Handbook on the Research Report on the Constitution of Japan, April 2005.

Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005.

John M. Maki (trans), Japan’s Commission on the Constitution: the Final Report, Asian Law Series, School of Law, University of Washington, No. 7, University of Washington Press, 1980.

United Nations High-Level Panel Report into Threats, Challenges and Change, 2005.  

Legislation

Constitution of the Empire of Japan (Meiji Constitution), 1889, Tanaka, 16-24.

The Constitution of Japan, 1946, Tanaka, 3-15.

Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, GA Resolution 2131 (XX), 21 December 1964 G.A.O.R., 20^th Sess., Supp.14, 11 (1966).  

Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC Articles.

General Treaty for the Renunciation of War (1928), Pact of Paris, (‘Kellogg-Briand Pact’), Cmnd. 3410; 94 L.N.T.S. 57.

Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (xx), 24 October 1970.

Treaty of Mutual Cooperation and Security between Japan and the United States of America (‘Anpo’), signed on 19 January 1960, 11 UST 1632 et seq.

Treaty of Mutual Cooperation and Security between Japan and the United States of America (‘Anpo’), signed on 19 January 1960, 11 UST 1632 et seq.

Newspaper Articles

The Asahi Shimbun, “Force is No Way to Bring Order” by Yoshitaka Sasaki, Annual Reports: Report 2000 in The Asahi Shimbun Asia Network, 

The Asahi Shimbun, “New Role as a ‘Middle Power’” by Yoshihide Soeya, Annual Reports: Report 2001 in The Asahi Shimbun Asia Network, 

Press Conference by Prime Minister Junichiro Koizumi, “The Basic Plan regarding the measures based on the Law Concerning the Special Measures on Humanitarian and Reconstruction Assistance in Iraq” (9 December 2003).

Vladimir Putin, ‘Unilateral Force Has Nothing to Do with Global Democracy: 43^rd Munich Conference on Security Policy’, The Guardian, (Februrary 2005).  

The Asahi Shimbun, “Dangerous Alliance Set for the Course of War”, 2 February 2007.

The Japan Times, “Action Plan Eyed with Australia on North Korea”;

The Asahi Shimbun, “Defense Agency gets Upgraded to Ministry”, 1 October 2007

The Asahi Shimbun, “Japan’s Role as a ‘Nation of Peace’” by Gong Ro-Myung, Former South Korean Foreign Minister, Annual Reports: Report 2004 in The Asahi Shimbun Asia Network, 18 August 2004.

Electronic resources

Birth of the Constitution of Japan, National Diet Library available at <http://www.ndl.go.jp/constitution/e/index.html%20at%2020%20November%202006>.

Lynn Parisi, ‘Lessons on the Japanese Constitution’ (November 2002) available at <http://www.indiana.edu/~japan/Digests/cosnt.html>.

---

[1] Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005. See also Research Commission on the Constitution, The House of Councillors (Japan), Handbook on the Research Report on the Constitution of Japan, April 2005, 1-868. 

[2] The Constitution of Japan, 1946, Tanaka, 3-15:

Article  9 provides:

Aspiring sincerely to an international peace based on justice and order, 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. 2) In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

[4] Glenn D. Hook & Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Routledge, London, 2001, 8, 13-17,29-36.

[5] Press Conference by Prime Minister Junichiro Koizumi, “The Basic Plan regarding the measures based on the Law Concerning the Special Measures on Humanitarian and Reconstruction Assistance in Iraq” (9 December 2003); Iraku ni okeru fukko shien katsudo oyobi anzen kakuho shien katsudo no jisshi ni kansuru tokubetsu sochi-ho, Law No. 137/2003; Engl. Trans: M. Hayashi, Translation: The Japanese Law Concerning the Special Measures on Humanitarian and Reconstruction Assistance in Iraq in Pacific Rim Law and Policy Journal 13 (2004), 587-609. Cf. SC Res 1483.  

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] “Chapter 2: Gifts from Heaven”, John W. Dower, Embracing Defeat: Japan in the Wake of World War II (Norton. 1999), 69-80.  

[10] Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005, Chapter III, 233-65.

[11] Ibid, 235-37.

[12] See, eg, E. J. L. Southgate, “Comment: from Japan to Afghanistan: the US-Japan Joint Security Relationship, the War on Terror, and the Ignominious End of the Pacifist State”?, University of Pennsylvania Law Review 151 (2003) 1620; The Asahi Shimbun, “Defense Agency gets Upgraded to Ministry”, 1 October 2007; The Asahi Shimbun, “Japan’s Role as a ‘Nation of Peace’” by Gong Ro-Myung,  Former South Korean Foreign Minister, Annual Reports: Report 2004 in  The Asahi Shimbun Asia Network, 18 August 2004.

[13] J. E. Auer, “Article Nine of Japan’s Constitution: From Renunciation of Armed Force “Forever” to the Third-Largest Defense Budget in the World in Law and Contemporary Problems 53 (1990) 171. Cf. Lawrence W Beer, “Chapter 6 Pacifism and Renunciation of War” in Lawrence W. Beer and John M. Maki, From Imperial Myth to Democracy: Japan’s Two Constitutions, 1889-2002, University Press of Colorado, (Boulder, Colorado), 2002, 113-121.

[14] Treaty of Mutual Cooperation and Security between Japan and the United States of America (‘Anpo’), signed on 19 January 1960, 11 UST 1632 et seq; Glenn D Hook and Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Sheffield Centre for Japanese Studies, Routledge Series,  (2001) 8, 33.

See particularly, Hitoshi Nasu, ‘Article 9 of the Japanese Constitution Revisited in the Light of International Law’ (2004) 9(18) Journal of Japanese Law 50, 63. 

[15] Nasu, Ibid.     

[16] Ibid. Cf From Imperial Myth to Democracy: Japan’s Two Constitutions, 1889-2002 by Lawrence W Beer and John M Maki reviewed by Jim Dator, Department of Political Science, University of Hawai’ I Vol. 12 No. 12 (December 2002); Ito et al. v Minister of Agriculture, Forestry and Fisheries (1973) (‘The Naganuma Nike Missile Site Case, I; Minister of Agriculture, Forestry and Fisheries v Ito et al (1976) (‘The Naganuma Nike Missile Site Case, II; Uno et al. v Minister of Agriculture, Forestry and Fisheries (1982) (‘The Naganuma Nike Missile Site Case’, III).  

Regarding Okinawa and the “Government of the Ryukyu Islands” created under the United States Civil Administration for the Ryukyus (USCAR); reversion of Okinawa on May 15, 1972 in Research Commission on the Constitution, The House of Councillors (Japan), Handbook on the Research Report on the Constitution of Japan, April 2005, iv.  

[17] See “The Rape of Okinawa”, The Guardian, (London, UK), 18 December 1995, 2. See further, Aurelia George Mulgan, ‘Managing the U.S. Base Issue in Okinawa: A Test for Japanese Democracy’ (2000).  Japanese Studies, 159, 159; Nao Shimoyachi, ‘Okinawans Feel State Leaving them In Limbo’, Japan Times, (Tokyo, Japan), 11 November 2004.     

[18] ‘Japan Area’ defined in Treaty of Mutual Cooperation and Security between Japan and the United States of America (‘Anpo’), signed on 19 January 1960, 11 UST 1632 et seq, Art 10.

 The Asahi Shimbun, “Defense Agency gets Upgraded to Ministry”, 1 October 2007; The Asahi Shimbun, “Force is No Way to Bring Order” by Yoshitaka Sasaki, Annual Reports: Report 2000 in The Asahi Shimbun Asia Network, (Tokyo, 2000). 

[19] Minister of Agriculture, Forestry and Fisheries v Ito et al. (1976) 27 Gyosai reishu 8;

Sapporo High Ct

, 5 August 1976, 1175 (‘The Naganuma Nike Missile Site case’, II); Shigeru Sakata et al.  v Japan (‘the Sunakawa Case’), Supreme Court, 16 December 1959, Keishu 13, 3225.

[20] See Glenn D. Hook & Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Routledge, (London, 2001), 8-17, 29-36, 14. Since 1946, Japan has reconstituted her navy as the Maritime –Self Defence Force (‘M-SDF’), an Air –Self Defence Force (‘A-SDF’) and the Self Defence Force (‘SDF’) as its major auxiliary force.

[21] Hiroshi Itoh and Lawrence Ward Beer (eds), The Constitutional Case Law of Japan: Selected Supreme Court Decisions, 1970 through 1990, Asian Law Series, School of Law, University of Washington, No. 13, (University of Washington Press, 1996); “Japan’s Constitutional System and its Judicial Interpretation: in Haley (ed.), Law and Society in Contemporary Japan (Kendall Hunt 1988) 7-35.

[22]

See, eg, Sekai, ‘Peace and Regional Security in the Asia-Pacific: a Japanese Proposal’ (1993-94) reproduced in Glenn D. Hook & Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Routledge, (London, 2001), 92-128.

[23] Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005, p. Cf proposals for reform from Japanese media in Yomiuri Shimbun, ‘A Proposal for the Revision of the Text of the Constitution of Japan’ (1994) reproduced in Glenn D. Hook & Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Routledge, (London, 2001). 

[24] Constitution of the Empire of Japan, Art 96 provides:

Amendments to this Constitution shall be initiated by the Diet, through a concurring vote of two-thirds or more of all the members of each House and shall thereupon be submitted to the people for ratification, which shall require the affirmative vote of a majority of all votes cast thereon, at a special referendum or at such election as the Diet shall specify. 2) Amendments when so ratified shall immediately be promulgated by the Emperor in the name of the people, as an integral part of this Constitution.   

 The author notes that the referendum procedure provided for by Article 96 is very complex, requiring a complex majority of Japanese voters. In addition, there are proposals to revise the suffrage by changing the voting age from twenty years to eighteen[24].

[25] On value of academic commentary, see, esp, A. Marfording, “The Fallacy of Classification of Legal Systems: Japan Examined” in Taylor V (ed) Asian Laws Through Australian Eyes (LBC, 1997), 65-89, 87.

[26] For an overview of the academic literature, see generally, Glenn D Hook and Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Sheffield Centre for Japanese Studies, Routledge Series 2001); John O Haley and Veronica Taylor, “Rule of Law in Japan” in Randall Peerenboom (ed) Asian Discourses of Rule of Law: Theories and implementation of rule of law in twelve Asian Countries, France and the U.S., Routledge, London, 2004, 446-474.  

[27] Dower, above n. 9; General Secretariat, Supreme Court of Japan, Justice in Japan: Supreme Court of Japan (General Secretariat of the Supreme Court of Japan, Tokyo: 2002), 5-42, 40; Hiroshi Oda, Japanese Law, (2^nd ed, 1999). 

[28] Dower, above n. 9.

[29] Ibid.

[30] John Temple, The Bamboo Bends, but Does not Break, (1975).   

[31] Ibid, Dower.

[32] “Chapter 3”, Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005, 233-65, 233-34.

[33] Ibid, Dower, 370-72.

[34] J. L. Southgate, “Comment: from Japan to Afghanistan: the US-Japan Joint Security Relationship, the War on Terror, and the Ignominous End of the Pacifist State”?, University of Pennsylvania Law Review 151 (2003) 1620.Chalmers Johnson, ‘The Okinawa Rape Incident and the End of the Cold War in East Asia’ (1997) 27 California Western International Law Journal 389, 395. 

[35] Minister of Agriculture, Forestry and Fisheries v Ito et al. (1976) 27 Gyosai reishu 8;

Sapporo High Ct

, 5 August 1976, 1175 (‘The Naganuma Nike Missile Site Case’, II); Shigeru Sakata et al.  v Japan (‘the Sunakawa Case’, I), Supreme Court, 16 December 1959, Keishu 13, 3225; Sunukawa Ito et al. v Minister of Agriculture, Forestry and Fisheries (1973) Hanrei jiho No. 713; Sapporo Dist.Ct, 7 September 1973 (‘The Naganuma Nike Missile Site case’, I); Uno et. al. v Minister of Agriculture, Forestry and Fisheries (1982) 36 Minshu 9;

Supr. Ct

, First Petty Bench, 9 September 1982, 1679 (‘The Naganuma Nike Missile Site case’, III).      

[36] Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005. See also Research Commission on the Constitution, The House of Councillors (Japan), Handbook on the Research Report on the Constitution of Japan, April 2005, 1-868, i-x.  

[37] Dower, above n. 9, “Chapter: Shattered Lives”, John W. Dower, Embracing Defeat: Japan in the Wake of World War II (Norton. 1999), 33-54. 

[38] Ibid, 37.

[39] Ibid, 36.

[40] Ibid, “Chapter 3: Enduring Exhaustion and Despair”, 89-87, 87. 

[41] With respect to Battle of Okinawa, Ibid, 54-55.

[42] Re Yakasuni Shrine, respect for Emperor and bringing disrespectful judges before Judges Indictment Committee, ‘Judge Facing Dismissal Wants his Boss Fired’, The Japan Times (Tokyo), 1 December 2005 <http://dearch.japantimes.co.jp/member/nn20051201b2.html> at 27 November 2006..

[43] Regarding the blackships and Commodore Perry, see Dower, above n. 9, 41.

[44] Rights of state

[45] Reference to Unequal Treaties and blackships.

[46] Constitution of the Empire of Japan (Meiji Constitution), 1889, Art 3 provided that ‘the Emperor is sacred and inviolable’. Moreover, Art 4 provided that ‘The Emperor is the head of the Empire, combining in Himself the rights of sovereignty, and exercises them, accordings to the provisions of the present Constitution’; Arts 11-14, Art 8(2). Regarding the Emperor as ‘visible divine deity’, or Akitsumikami,  see Dower, above n. 9, 317.

[47] Oda, above n. 49. Mark J. Ramseyer and M. Nakazato, “The Rational Litigant: Settlement Amounts and Verdict Rates in Japan” (1989) XVIII Journal of Legal Studies 263-290 and Dower.

[48] Meiji Constitution reproduced in Oda Hiroshi, Japanese Law, (2^nd ed, 1999). 

[49] Lawrence W Beer, “Chapter 6 Pacifism and Renunciation of War” in Lawrence W. Beer and John M. Maki, From Imperial Myth to Democracy: Japan’s Two Constitutions, 1889-2002, University Press of Colorado, Boulder, Colorado, 2002, 113-121, 114. The 1946 Constitution provides for ‘matters pertaining to review’ pursuant to Constitution of Japan, Art 79(4). 

[50] Meiji Constitution, Art 10.

[51] Yomiuri Shimbun, ‘A Proposal for the Revision of the Text of the Constitution of Japan’ (1994).  The 1946 Constitution replaced the imperial subject, shinmin with the national citizen, or jinmin. Sovereignty was transferred from the Emperor to the people:.from  shinko to shuken). The 1946 Constitution was  written in the (admittedly awkward) vernacular, kogutai, replacing the writ of stylized autocracy, bungotai.  

New Powers of Emperor:

Article 9 (The Emperor’s acts in matters of state) 

The Emperor, with the advice and approval of the Cabinet, shall perform the following acts in matters of state on behalf of the people:

1    As the representative of the State, receiving foreign ambassadors and ministers and attesting commissions of full power, credentials of ambassadors and ministers, instruments of ratification and other diplomatic documents as provided for by law.

[52] The Principles to Govern the Treatment of Germany In the Initial Control Period, Potsdam Proclamation, Potsdam Protocol.

[53] Potsdam Protocol,  Annex 2.

[54] On monopoly zaibatsu, or war industries, see Dower, above n..9, 82.  

[55] Ibid. According to Temple, two preconditions can thus be discerned in Japan’s rise to pacifist “Glory”. In the first place, Japan was thoroughly annihilated in the clash of arms[55]. By 1945 and the ensuing occupation, the Japanese people were heartily sick both of the war effort and the Militarist clique. What is extraordinary is that ordinary Japanese retained their affection for the “person” (shintai) of the Emperor and for the realm he oversaw. We may need to question these Western “insights”, however it seems clear that the majority of Japanese as willingly laid down their arms in response to Hirohito’s rescript as they had rallied to arms to defend the Emperor’s honour.

[56] The Principles to Govern the Treatment of Germany In the Initial Control Period, Potsdam Proclamation; Cf ANNEX II, (b)Proclamation Defining Terms for Japanese Surrender, July 26, 1945.  

 Dower above n. 2 see especially relevant articles?

[57] Constitution of Japan, Preamble.

[58] Initially MacArthur, as Supreme Commander, penned ‘three principles’ to facilitate the process of constitutional reform. These principles entailed the Emperor as symbolic head of state, the abolition of Japan’s right to belligerency – in short, Japan’s legal power to wage war – and the abolition of feudal tenure as well as any patent of nobility justifying such tenure. As John Dower shows, MacArthur’s proposal compelled the Japanese political elite to expedite the drafting of a new constitution.See, generally, Dower, above, n. 9.   

[59] Ibid. 

[60] But see dissenting remarks of Justice Pal, The Charter and Judgment of the Nurnberg Tribunal: History and Analysis (Lake Success, N.Y: International Law Commission, General Assembly, United Nations, 1949, 81-86 for proceedings of the International Tribunal for the Far East. Cf Onuma Yasuaki, Senso Sekinin-ron Josetsu, (Tokyo: Tokyo Daigaku, 1995).

[61] Ibid, Dower; Ray A. Moore and Donald L. Robinson, Partner for Democracy: Crafting the New Japanese State under MacArthur (Oxford, 2002); The Birth of Japan’s Postwar Constitution by Koseki Shoichi (trans) reviewed by David M. O’Brien, Woodrow Wilson Department of Government and Foreign Affairs, University of Virginia Vol. 7 No. 7 (July 1997), pp 369-71; From Imperial Myth to Democracy: Japan’s Two Constitutions, 1889-2002 by Lawrence W Beer and John M. Maki reviewed by Jim Dator, Department of Political Science, University of Hawai’ I Vol. 12 No. 12 (December 2002):

[62] Ibid, Dower.

[63] Ibid. 

[64] See Chalmers Johnson for statement on “Okinawa phenomenon” in Chalmers Johnson, ‘The Okinawa Rape Incident and the End of the Cold War in East Asia’ (1997) 27 California Western International Law Journal 389, 395;     

[65] Ibid.

[67] Ibid.

[68] Ibid. See also, From Imperial Myth to Democracy: Japan’s Two Constitutions, 1889-2002 by Lawrence W Beer and John M Maki reviewed by Jim Dator, Department of Political Science, University of Hawai’ I Vol. 12 No. 12 (December 2002); Hiroshi Itoh and Lawrence Ward Beer (eds), The Constitutional Case Law of Japan: Selected Supreme Court Decisions, 1970 through 1990, Asian Law Series, School of Law, University of Washington, No. 13, University of Washington Press, 1996.

[69] The draft ultimately tendered to the Japanese delegation was incredibly progressive. Formally, the proposed text guaranteed rights and freedoms consistent with the principle of political morality then coming into being. Thus, the Constitution guaranteed equality of women; universal suffrage and the fundamental human rights, including the Right to a Peaceful Life. Cf Constitution of Japan, ‘Chapter 3: the Rights and Duties of the People’, Arts 10-40.  

[70]

We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution. Government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people. This is a universal principle of mankind upon which this Constitution is founded. We reject and revoke all constitutions, laws ordinances, and rescripts in conflict herewith.

[71] The Constitution of Japan, 1946, Preamble. See also Dower, above n. 2 SCAP drafters

[72] Constitution of the Empire of Japan (Meiji Constitution), 1889, Preamble

[73] The Constitution of Japan, 1946, Preamble

[74] The Constitution of Japan, 1946, ‘Chapter II: Renunciation of War’

Article 9:

Aspiring sincerely to an international peace based on justice and order, 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. 2) In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

[75] The Constitution of Japan, 1946, Art 9(1); Cf UN Charter, Art 1; see also, Beer L.W, “Japan’s Constitutional System and its Judicial Interpretation: in Haley (ed.), Law and Society in Contemporary Japan (Kendall Hunt 1988) 7-35; Birth of the Constitution of Japan, National Diet Library

available at <http://www.ndl.go.jp/constitution/e/index.html%20at%2020%20November%202006>.

.

[76] With respect to academic commentary on Article 9(2), see Lawrence W Beer, “Chapter 6 Pacifism and Renunciation of War” in Lawrence W. Beer and John M. Maki, From Imperial Myth to Democracy: Japan’s Two Constitutions, 1889-2002, University Press of Colorado, Boulder, Colorado, 2002, 113-21;

 Nike Missile cases

[77] UN Charter, Art 2(4):

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

[78] ‘Chapter 3’, Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005, 233-65, 238-40.

[79] Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005; Lawrence W. Beer, “Chapter 6 Pacifism and Renunciation of War” in Lawrence W. Beer and John M. Maki, From Imperial Myth to Democracy: Japan’s Two Constitutions, 1889-2002, University Press of Colorado, Boulder, Colorado, 2002, 113-121; Sekai, ‘Peace and Regional Security in the Asia-Pacific: a Japanese Proposal’ (1993-94) reproduced in Glenn D. Hook & Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Routledge, London, 2001; Asahi Shimbun, ‘International Cooperation and the Constitution’ (1995) reproduced in Glenn D. Hook & Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Routledge, London, 2001,

[80] The Constitution of Japan, 1946, Art 98(2). 

[81] Constitution of Japan, Art 98(1) provides that ‘This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have no legal force or validity’.

[82] Hitoshi Nasu, ‘Article 9 of the Japanese Constitution Revisited in the Light of International Law’ (2004) 9(18) Journal of Japanese Law 50, ; Lawrence W Beer, “Chapter 6 Pacifism and Renunciation of War” in Lawrence W. Beer and John M. Maki, From Imperial Myth to Democracy: Japan’s Two Constitutions, 1889-2002, University Press of Colorado, Boulder, Colorado, 2002, 113-121, ; Cf Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005. 

[83] On use of force, self-defense and customary international law, see, particularly Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US) (Merits) (‘the Nicaragua case’) ICJ Reports 1986, para 176. See also Barcelona Traction, Light and Power Co. Case (Belgium v Spain) (‘Barcelona Traction’), ICJ Reports 1970; Corfu Channel case, ICJ Reports 1949, p. 4; U.S. Diplomatic and Consular Staff (Teheran Hostages), ICJ Reports 1980, p. 3; Caroline Correspondence (1841) 29 BFSP 1137-38; Legality of the Possession or Use of Nuclear Weapons Advisory Opinion, ICJ Reports 1997, para. 36-96; Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory, Israeli Wall case, ICJ Reports 2004; Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (xx), 24 October 1970; Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC Articles; J. Hargrove, “The Nicaragua Judgment and the Future of the Law of Force and Self-Defence”, (1987) 81 AJIL 135; R. Higgins, Problems and Processes: International Law and How We Use It, (1994), 17-38.

[84]

[85] UN Charter, Art 51:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

[86] Treaty of Mutual Cooperation and Security between Japan and the United States of America (‘Anpo’), signed on 19 January 1960, 11 UST 1632 et seq, Art 6; Legality of the Possession or Use of Nuclear Weapons Advisory Opinion (Advisory Opinion), ICJ Reports 1997, 36-96.

[87] ‘Non-production, non-possession and non-introduction’ reproduced in Hitoshi Nasu, ‘Article 9 of the Japanese Constitution Revisited in the Light of International Law’ (2004) 9(18) Journal of Japanese Law 50.

[88] Yoshida,Nike Missile

[89] Academic commentators

[90] Shigeru Sakata et al.  v Japan (‘The Sunakawa Case’), Supreme Court, 16 December 1959, Keishu 13, 3225.

[91] On Japanese judicial reasoning, see L. W. Beer, “Japan’s Constitutional System and its Judicial Interpretation: in Haley (ed.), Law and Society in Contemporary Japan (Kendall Hunt 1988) 7-35.

[92] Hitoshi Nasu, ‘Article 9 of the Japanese Constitution Revisited in the Light of International Law’ (2004) 9(18) Journal of Japanese Law 50. Cf Glenn D Hook and Gavan McCormack, Japan’s Contested Constitution: Documents and Analysis, Sheffield Centre for Japanese Studies, Routledge Series 2001.

[93] ‘Non-production, non-possession and non-introduction’ reproduced in Hitoshi Nasu, ‘Article 9 of the Japanese Constitution Revisited in the Light of International Law’ (2004) 9(18) Journal of Japanese Law 50.

[94] Treaty of Peace

[95] Treaty of Mutual Cooperation and Security between Japan and the United States of America (‘Anpo’), signed on 19 January 1960, 11 UST 1632 et seq. Cf Yomiuri Shimbun, ‘A Proposal for the Revision of the Text of the Constitution of Japan’ (1994) New Chapter 3 National Security (Currently Chapter 2 Renunciation of War)

Article 10 (Rejection of war and ban on weapons of mass destruction)

1)           Aspiring sincerely to an international peace based on justice and order, the Japanese people shall never recognize war as a sovereign right of the nation and threat or use of force as means of settling international disputes.

2)           Seeking to eliminate from the world inhuman and indiscriminate weapons of mass destruction, Japan shall not manufacture, possess or use such weapons. Nasu, above n. 37, Treaty of Peace, US-Japan Security Agreement (1960) (‘Anpo’), Beer and Maki? See also Beer and Itoh.

[96] Dower. Cf Nike Missile case II?

[97]  Constitution of Japan, Preamble.

[98] Dower. Oda Hiroshi, Japanese Law, (2^nd ed, 1999).

[99] Charles L Kades, “The American Role in Revising Japan’s Imperial Constitution” (1989) 104 Political Science Quarterly 215-247. See also Dower.   

[100] Dower

[101] Chalmers Johnson, es

[102] Dower, Charles L Kades, “The American Role in Revising Japan’s Imperial Constitution” (1989) 104 Political Science Quarterly 215-247; Ray A Moore and Donald L. Robinson, Partner for Democracy: Crafting the New Japanese State under MacArthur (Oxford, 2002)

[103] Cf ‘Burakamin’ method of violent social confrontation: Ibid, Upham.

[104] Cf ‘Shingikai’ and notion of ‘transparency’ in Greg Noble, “Reform and continuity in Japan’s shingikai deliberation councils” in Jennifer Amyx and Peter Drysdale (eds), Japanese Governance: Beyond Japan Inc, (2003), 113-132.  

[105] Shigeru Sakata et al.  v Japan (‘the Sunakawa Case’), Supreme Court, 16 December 1959, Keishu 13, 3225; Cf K. Yokota, “Renunciation of War in the New Japanese Constitution: As Interpreted by the Supreme Court in the Sunukawa Judgment, Japanese Annual of International Law 4 (1960) 16. Crucially, Japanese law undergoing rapid development and revision. At the same time, there tends to be a stricter demarcation than commonwealth democracies observe between public and private law. Finally, the Sunakawa ruling suggests that the Supreme Court may itself “go out on a limb” to adjudicate limits to the language of Article 9 and the constitutionality of specific political arrangements, including the US-Japan Self-Defence Treaty. Haley and Upham, nevertheless, advise Westerners not to be beguiled by ‘gentle aesthetic of the Japanese mind’. Litigation rates are up and the judiciary is becoming less conservative. These issues attract legal uncertainty and imprecision. Vide John O Haley and Veronica Taylor, “Rule of Law in Japan” in Randall Peerenboom (ed) Asian Discourses of Rule of Law: Theories and implementation of rule of law in twelve Asian Countries, France and the U.S., (2004), 446-474; Frank Upham, “Chapter 1: Models of Law and Social Change”, in Frank Upham, Law and Social Change in Postwar Japan, (1987), 1-27.

[106] Japan v Sakane et al (1969) 23 Keishu 5; Sup. Ct, Grand Bench, 2 April 1969 (‘The Court Worker Incitement Case’); for judicial conservatism in 1970’s Japan, see, especially Hiroshi Itoh and Lawrence Ward Beer (eds), The Constitutional Case Law of Japan: Selected Supreme Court Decisions, 1961-70, Asian Law Series, School of Law, University of Washington, No. 6, (1978). See generally, John M Maki (trans), Japan’s Commission on the Constitution: the Final Report, Asian Law Series, School of Law, University of Washington, No. 7, (1980); Lynn Parisi, ‘Lessons on the Japanese Constitution’ (November 2002) available at < http://www.indiana.edu/~japan/Digests/cosnt.html>.

[107] The Rule of Law entails a ‘set of justiciable principles and rules equally binding on those who make and enforce them’, John O. Haley and Veronica Taylor, “Rule of Law in Japan” in Randall Peerenboom (ed) Asian Discourses of Rule of Law: Theories and implementation of rule of law in twelve Asian Countries, France and the U.S., Routledge, (London, 2004), 446-474,  449. Nevertheless, Haley and Taylor suggest that this is ‘Essentially an Anglo-American idea’, Ibid. See also, Hiroshi Oda, Japanese Law, (2^nd ed, 1999).  

[108] Constitution of Japan, Art 76(3) provides that ‘All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws’.

[109] A Marfording, “The Fallacy of Classification of Legal Systems: Japan Examined” in Taylor V (ed) Asian Laws Through Australian Eyes (1997), 65-89.

[110] Ibid, 68. .

[111] Malcolm Smith, “Private Law and Public Control of Commercial Activity in Japan – The Role of the Codes” in John Gillespie (ed), Commercial Legal Development in Vietnam: Vietnamese and Foreign Commentaries (1997), 261-276.  

[112] Constitution of Japan, Art 97(1)  provides that ‘This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity’.  Ibid. Oda.

[113]  “Chapter 4 Political Disputes: Military, Malapportionment, Injunctions, and Constitutional Law”, in J. Mark Ramseyer and Eric B. Rasmusen, Measuring Judicial Independence: The Political Economy of Judging in Japan, (2003), 62-68. See also Hiroshi Oda, Japanese Law, (2^nd ed, 1999) on Rule of Law and the Courts?

[114] With regard to the judicial pressure placed upon Japanese judges to declare the SDF constitutional in order to secure judicial reappointment and to avoid administrative or branch reassignment, see “Chapter 4 Political Disputes: Military, Malapportionment, Injunctions, and Constitutional Law”, in J. Mark Ramseyer and Eric B. Rasmusen, Measuring Judicial Independence: The Political Economy of Judging in Japan, (2003), 62-68. See, eg recent controversy in respect to judicial interference by fellow judges and interference over reference to unconstitutionality of Yasukuni by Fukuoka District Court in ‘Judge facing dismissal wants his boss fired’, The Japan Times (Tokyo), 1 December 2005

<http://search.japantimes.co.jp/member/nn20051201b2.html> at 27 November 2006.

[115] Tokyo Osaka commercial centres

[116] Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005, Foreward, i.

[117] As Chairman Nakayama states, ‘during my five years as chairman, I was always mindful that

the Constitution belongs to the people; in other words, I was resolved that in discussing the

Constitution, rather than arguing from partisan positions, we should always adopt the perspective of

the people’: Ibid, ii.

[118] p?

[119] In Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005. See also Research Commission on the Constitution, Akamatsu Masao of ‘New Komeito’ states: …’the centrality that the Constitution gave to permanent pacifism by renouncing war and declaring that Japan will not maintain war potential has been largely responsible—though other factors were involved—for enabling the Japanese to enjoy an era of peace such as the world has rarely seen’.

[120] Cf Funada Hajime, Director of LDP on proposed amendment to referendum procedure plus retention of Article 9, paragraph 1 in full: Ibid, p  

[121] Research Commission on the Constitution, The House of Representatives (Japan) Final Report, April 2005.

[122] Constitution of Japan, Preamble.