The Law and Politics of Unconstitutional Constitutional Amendments in Asia

Rehan Abeyratne, Ngoc Son Bui, Rehan Abeyratne, Ngoc Son Bui

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000483741
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book explains how the idea and practice of UCA are shaped by, and inform, constitutional politics through various social and political actors, and in both formal and informal amendment processes, across Asia.

This is the first book-length study of the law and politics of unconstitutional constitutional amendments in Asia. Comprising ten case studies from across the continent, and four broader, theoretical chapters, the volume provides an interdisciplinary, comparative perspective on the rising phenomenon of unconstitutional constitutional amendments (UCA) across a range of political, legal, and institutional contexts. The volume breaks new ground by venturing beyond the courts to consider UCA not only as a judicial doctrine, but also as a significant feature of political and intellectual discourse.

The book will be a valuable reference for law and political science researchers, as well as for policymakers and NGOs working in related fields. Offering broad coverage of jurisdictions in East Asia, Southeast Asia and South Asia, it will be useful to scholars and practitioners within Asia as well as to those seeking to better understand the law and politics of the region.

Part I

Discursive model

2 The politics of unconstitutional constitutional amendments in Japan

The case of the pacifist Article 9

Koichi Nakano

DOI: 10.4324/9781003097099-2

2.1 Introduction

This chapter provides an analysis of the political process that led to an unconstitutional informal constitutional amendment by the executive in Japan that lifted the ban on the exercise of collective self-defense through the government reinterpretation of Article 9 of the Constitution of Japan (Postwar Constitution) in July 2014 and the subsequent enactment of the security legislation in September 2015. Article 9 renounces war as a sovereign right of Japan, and though the text of the constitution has never been amended, and the overwhelming majority of the constitutional law scholars, legal professionals, as well as the general public, deemed the new government interpretation and the security legislation that followed to be unconstitutional, Prime Minister Shinzo Abe’s government pushed through this de facto constitutional amendment and maintains that Japan can now exercise “limited” collective self-defense.

2.2 Questions of constitutionality and constitutionalism in Japan

The Postwar Constitution grants courts the power to conduct judicial review on the constitutionality of the laws and government actions in Article 81 (“The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.”) Constitutional reviews may be divided into two types: “Concrete review requires review in a particular case where the law has already been applied or is about to be applied. Abstract review determines the constitutionality of a statute or government practice without any reference to a specific case,” and the Japanese Supreme Court, like its US counterpart, may only hear concrete cases. ¹

1 Tom Ginsburg, ‘Comparative Constitutional Review’, 2–3 (US Institute of Peace Report 2012) https://www.usip.org/sites/default/files/ROL/TG_Memo_on_Constitutional_Review%20for%202011_v4.pdf accessed 10 April 2021.

Furthermore, in general, the Japanese courts followed the US Ashwander rules for judicial self-restraint and avoiding constitutional questions, and when they did take a position on the constitutionality of laws, it was often in order to protect the individual rights of the citizens that are guaranteed in the Constitution rather than to assert the supremacy of the Constitution over the laws that contradict it. ² In reality, Japan has had a highly conservative and passive judiciary that is extremely reluctant to get engaged in judicial review that will have it involved in taking positions against the executive or the legislative branches of the state on what it considers to be “political questions.” As we note in some detail below, the role of the a priori arbiter of the questions of the constitutionality of the laws and government actions has been filled by the Cabinet Legislation Bureau (CLB) in postwar Japan.

2 Nobuyoshi Ashibe (with Kazuyuki Takahashi), Kempō [Constitution] (7th edn, Iwanami Shoten 2019), 389–94.

The Japanese debate over the constitutionality of laws and government actions dates back to the promulgation of the Constitution of the Empire of Japan (Meiji Constitution) in 1889, in time for the opening of the Imperial Diet the following year. The Meiji Constitution, East Asia’s first modern constitution, was a product of compromise and ambiguity. On the one hand, the emperor was supposed to govern “according to the provisions of the present Constitution” – thereby committing the Empire of Japan to be a constitutional monarchy. On the other hand, the Constitution was granted to the imperial subjects by the emperor who was declared to be “sacred and inviolable” (Article 3) in the same Constitution. Moreover, the Constitution provided, “The Empire of Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal” (Article 1).

As a result, the promulgation of the Meiji Constitution did not unequivocally and irreversibly place constitutional constraints on imperial rule. There were two particular points of contention. First, the ministers of state, including the prime minister, were appointed by and were responsible to the emperor, not the Imperial Diet (Article 55). Second, the emperor was the supreme commander of the Army and the Navy (Article 12).

This ambiguity, combined with the absence of any system of constitutional adjudication, had the effect of pitting the proponents of democratically elected party government, who rallied under the banner of “constitutionalism” and “constitutional government,” against the conservative oligarchs and military leaders, who sought to preserve their power to govern in the name of the emperor, particularly from the Taishō period (1912–26) onwards.

The advocates of representative democracy and constitutional government scored some important victories in what is known as Taishō Democracy, but the militarists who abused Article 12 usurped power by imposing their vision of Kokutai (National Body) – the principle of imperial rule as the super-constitutional constitution – by attacking the progressive constitutional theorists and scholars for lèse-majesté in the mid-1930s. The Meiji Constitution became more or less meaningless as the militarists and their collaborators brought the Japanese Empire down the path of a devastating war in Asia and Pacific.

Postwar Japan represents a curious case in which its postwar tradition of pacifism that is enshrined in Article 9 of the Constitution has been incrementally modified informally but has remained formally unamendable for over 70 years for reasons that have nothing to do with court protection. Needless to say, not all informal constitutional amendments through government reinterpretation are considered to be unconstitutional, though some have been contested by critics. It was not until the Abe government’s lifting of the ban on the exercise of collective self-defense that de facto constitutional amendment through the executive’s reinterpretation of the constitution has been condemned so widely as unconstitutional, and has even revived a widespread opposition movement under the banner of constitutionalism against unrestrained, arbitrary rule.

2.3 Article 9 controversy during the Cold War

The political controversy over Article 9 is as old as the Constitution of Japan, which took effect in May 1947 under the US occupation. The Postwar Constitution was formally an amendment of the Meiji Constitution, but with three radically different “pillars” supporting the whole structure: (1) popular sovereignty (with the emperor relegated to being “the symbol of the State and of the unity of the People, deriving his position from the will of the people with whom resides sovereign power” (Article 1)), (2) fundamental human rights, and (3) pacifism.

At the time of the promulgation of the Postwar Constitution, the political bosses from the prewar period, including Nobusuke Kishi (Shinzо̄ Abe’s grandfather) and Ichirо̄ Hatoyama, were still purged from public office, and as soon as they were de-purged as the occupation drew to a close in 1952, they advocated the need for a wholesale revision of the constitution, which they criticized as an illegitimate imposition on Japan during their forced absence from the political scene. The argument of these reactionary advocates of constitutional revision was that an independent Japan needed an independent constitution. The anger of the revisionists was particularly targeted against Article 9, which stipulates as follows.

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.

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.

The dominant postwar constitutional theory, however, has been the “limitation of constitutional amendment” doctrine that argues that (1) the principle of popular sovereignty, (2) the principle of individual dignity and human rights, and (3) the principle of international peace should be considered to be beyond the realm of any legitimate constitutional amendment, though this does not mean that specific articles of human rights or the second paragraph of Article 9 cannot be amended. ³

3 Ashibe, op. cit., 409–11.

To date, after more than 70s years since its adoption, the Constitution of Japan has never been formally amended – making it the longest surviving constitution in active use without a single amendment in the world. It is certainly a “rigid” constitution with comparatively high hurdles for a formal amendment. Article 96 of the Postwar Constitution stipulates that

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.

It has been pointed out by Kenneth Mori McElwain and Christian G. Winkler, however, that the Constitution of Japan is not uncommonly hard to amend, but that it has never been formally amended rather because (1) it is short and vague on matters that concern political institutions, leaving it to the laws to determine the specifics (thereby rendering constitutional amendment unnecessary in the first place), and (2) it is a very progressive constitution with regard to civil rights and liberties. ⁴

4 Kenneth Mori McElwain and Christian G. Winkler, ‘What’s Unique about the Japanese Constitution? A Comparative and Historical Analysis’ (2015) 41 Journal of Japanese Studies 249.

Despite the sweeping constitutional ban on war and war potential, the reality of the Japanese defense posture was rather more complex from the very beginning. At the time when the San Francisco Peace Treaty was signed to return sovereignty back to Japan, the US and Japan also signed the Security Treaty thereby placing Japan firmly under the US military umbrella during the Cold War. Moreover, under American pressure, Japan established the Police Reserve already in 1950, which was then reorganized as National Safety Force in 1952, and finally, as the Self-Defense Force (SDF) in 1954.

Political and scholarly contestation over its constitutionality accompanied the SDF from the moment of its founding, but the Japanese courts refused to rule over the issue while the government sought to justify it by arguing that Article 9 does not amount to a renunciation of Japan’s right for individual self-defense, and contended that Japan can legitimately exercise it (1) when Japan is under military attack and invaded, ...