Reconsidering Article 9 / No easy task to express basis for SDF existence in constitutional manner

The Yomiuri ShimbunThis is the second installment of a series.

How do you add the next part to a piece of glasswork? It is not easy to add a clause that provides a constitutional basis for the Self-Defense Forces while maintaining Article 9 of the Constitution.

“Writing in a third paragraph of Article 9, ‘In spite of the stipulation in the preceding paragraph, Japan establishes self-defense forces for the purpose of defending itself.’ We’d like to make such a proposal.”

So said Keiji Furuya, a Liberal Democratic Party lawmaker close to Prime Minister Shinzo Abe and a former chairman of the National Public Safety Commission, at a meeting of constitutional revisionists on May 3 last year. He was responding to an interview with Abe, who also is the president of the ruling LDP, in The Yomiuri Shimbun expressing his strong intention to realize constitutional amendment.

The “preceding paragraph” in Furuya’s comment refers to Paragraph 2 of Article 9, which stipulates that “land, sea, and air forces, as well as other war potential will never be maintained.”

Whether the SDF qualify as the “war potential” that Paragraph 2 prohibits Japan from possessing has been a subject of much debate since the end of World War II.

Furuya seemed to think that it was possible to escape from the yoke of Paragraph 2 by using the phrase, “In spite of the stipulation in the preceding paragraph.”

However, Furuya’s proposal failed to gain support inside or outside his party.

The phrase “in spite of the stipulation in the preceding paragraph” implies setting up an exception. With an expression to establish an exception in Paragraph 2, the SDF could come to exist beyond Article 9.

“This method turns the principle set out in the preceding paragraph on its head, and is inconsistent with the government’s conventional interpretation that deemed the SDF to be constitutional,” said Makoto Oishi, an honorary professor of constitutional law at Kyoto University.

Even a source related to the LDP said the move “goes against the prime minister’s intention to leave Paragraphs 1 and 2 of Article 9 intact.”

Instead, there have been talks within the party that the third paragraph should say something like, “The preceding paragraph shall not prevent the government from maintaining self-defense forces.” Meaning that this expression stipulates that Paragraph 2 allows Japan to establish self-defense forces.

A similar expression can be found even in the current Constitution. Article 59, which outlines the procedures for when the houses of the Diet disagree about a bill, contains the following passage: “The provision of the preceding paragraph does not preclude the House of Representatives from calling for the meeting of a joint committee of both houses, provided for by law.”

Oishi said, “This method may be used to eliminate a small degree of doubt, but not to make a radical departure from conventional interpretations.”

Proper noun debate

How the SDF should be referred to in a clause is a subject of much debate.

There is an influential view within the LDP that the SDF deserves the status of a proper noun.

The main reason why is that if the name appears in the Constitution as a proper noun, the public would be able to easily understand that it has finally been described in the Constitution, according to a mid-ranking LDP lawmaker.

Governing institutions written as proper nouns in the Constitution are limited. They are the Diet — the lower and upper houses — the Cabinet, the Supreme Court and the Board of Audit.

If the SDF was to be included as a proper noun, it would be regarded as a constitutional organization equivalent to the others.

“If self-defense forces were established through a national referendum, they would become a highly legitimate national organization. On the other hand, the Defense Ministry is not more than a legally established organization. So the hierarchical position of the two would be reversed,” said Takeshi Inoue, an associate professor of constitutional law at Kyushu University.

Inoue insists that, rather than using a proper noun, a general description like “an organization with the minimum required level of military organization, should be used.”

As to the process of drawing up the clause, Inoue said: “A clause requires an expert level of rationality, and experts ought to be included in the discussion. At the very least, rather than limiting itself to a single proposal, the LDP should explore multiple options and share them with the public.”

Rather than turning Article 9 into a dead letter, how should the SDF be described within the framework of Article 9? There should be detailed, transparent discussions.Speech

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