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Essay and Opinion

The Constitutional Amendment Arguments made by Mr.Masuzoe of Liberal Democratic Party of Japan's New Constitutional Amendment Drafting Committee and its Issues.

Jun 26,2006

Prof.Toshihiro Yamauchi
<Professor at Ryukoku University, Japan Institution of Constitutional Law Visiting Researcher>

On June 10th, Nagasaki Broadcasting and Nagasaki Newspaper co-hosted the Symposium regarding our constitution, "Supporting our Constitution or Amending our Constitution? Thinking in Nagasaki". As the Liberal Democratic Party of Japan's Constitutional Amendment
Drafting Committee Deputy Director General, directing the drafting of the Constitutional Amendment, Yoichi Masuzoe from the position of Constitutional Amendment and I from the position of supporting our current Constitution both expressed our concerns. Based on those concerns, Hideo Tsuchiyama former President of Nagasaki University <Co-Representative of the Prefecture's Article 9 Association> and attorney Katsumi Sagara <Provincial Bar Association Constitutional Committee member> joined to do a panel discussion moderated by Toshiya Nakamura, Professor at the Siebold University of Nagasaki.

The content of the Symposium was published by the Nagasaki Newspaper on the 11th and the 18th, therefore today I wish to briefly introduce the Symposium and express my personal views on it.

First of all, Mr. Masuzoe pointed out that we need an amendment because certain articles are ill-suited to our current situation such as Article 89, and also because there are issues such as Intellectual Property and Environmental Rights that have newly emerged. Furthermore, he pointed out that the Liberal Democratic Party's largest pillar of the amendment is Article 9, and describes the necessity of amendment as below. Regarding Article 9, the disjunction between the article and reality is widening. Our current Self-Defense Forces is clearly an army, conflicting with the second clause of Article 9. The Self-Defense Forces has been deployed as far as Iraq and the Indian Ocean, but there is no Constitutional Provision that justifies this. There's a limit as to how much we can deal with this disjunction by the interpretation of our Constitution, and it seems like we've reached the limit. In Japan, since before World War 2, we've seen how facts have been euphemistically concealed, such as how retreats were referred to as strategic anabasis before since pre-War periods. However I strongly believe that deceiving our citizens as such is unacceptable. The Self-Defense Forces should firstly be admitted as an army by our Constitution, and then their activities should be regulated by our Constitution and laws. It is queer to have a foreign army stationed in one's country for a long time, but under the current situation where Russia, China, and North Korea possess nuclear capabilities, Japan has no choice but to maintain our partnership with the US and to rely on America's nuclear capabilities. The US will assist us if Japan is ever attacked, so it is just to think that we must cooperate to an appropriate level. The citizens do not exist for the Constitution, but the Constitution for the better lives of our citizens and maintaining world order, and we must think about how the Constitution should be in order to achieve that.

In response to Mr. Masuzoe's concerns, I replied as below. In who's hands lay the responsibility of the disjunction between Article 9 and reality? It is unacceptable in a law-governed country to put aside that responsibility, but trying to adjust Article 9 to reality.
This is nothing but a reversed debate. Not only does the amendment of Article 9 just constitutionally admit the presence of the Self-Defense Forces, it accepts Japan to exercise the right of collective defense, and also accepts the Self-Defense Forces to take military action in Iraq. Thus the amendment of Article 9 means changing Japanese society into a military-first society. The Constitutional Amendment draft by the Liberal Democratic Party contains a provision of a military court, but this also means that even in the domain of the judiciary, the logic of military precedence will go unchallenged. In addition, our current Constitution rules military conscription as unconstitutional, and even the recent Emergency Acts forbid forcing people to serve through penalizing. The amendment of Article 9 aims at enabling such things. The reason why the amendment draft contains a provision that allows the restricting of human rights under the name of "common good and public order" is to enable the suppression of human rights for military order and national defense. In addition, the preamble of the Constitutional Amendment draft contains the term "patriotism", but they are putting the car before the horse when there is no provision to make it a duty to love one's country but there is a provision that makes it a citizen's duty to support and defend one's country. The Constitution was made to be a restrictive code to regulate state power, but paradoxically the amendment draft is a code that restricts its citizens. Article 9 has greatly served Japan's peace, and it meant a "pledge to never fight war again" especially towards our Asian neighbors. At such times of turbulence, we must protect and utilize Article 9.

With such issues raised, Mr. Tsuchiyama and Mr. Sagara joined the panel discussion and Mr. Sagara remarked the following. People mention the gap between Article 9 and reality, but the real gap is between Article 9 and the government, between the government and its people. In the Liberal Democratic Party's Constitutional Amendment Draft, the phrase "public welfare" has been deleted, but we must not forget that this is the principle that mutually adjusts between various civil liberties and rights, reflected in Article 13's "respect of individual". In addition, from his experience in actively promoting the abolition of nuclear arms, he also notes that if the Self-Defenses Forces turn into an army, it will be one that perhaps even our Prime Minister will not be able to control, and also that it will probably respond to the US request in exercising the right to collective defense. Furthermore, we have reached the limit in trying to amend our Constitution through interpretation, but we must recognize that it is because of Article 9 that the Self-Defense Forces personnel have never killed any foreign-nationals, and overall that is a good thing.

At the symposium, there was also debate over the results of the provincial attitude survey on the Constitution conducted by the Nagasaki Newspaper and Nagasaki Broadcasting this April. Mr. Masuzoe explained that the reason why the majority of the people supported Constitutional Amendment was mainly because of the effect of recent international affairs, and also mentioned that regarding the point that the majority were against the amendment of Article 9, he stressed that it was important to persuade the citizens. Mr. Tsuchiyama pointed out that the results of the attitude survey differed depending on the respondent's understanding of the Constitution, and the more they knew about the Constitution, the more people would be against Constitutional Amendment. In addition, Mr. Sagawa mentioned that it was inappropriate to generally ask whether people were for or against Constitutional Amendment, instead of asking for or against for each Article. I recognized that the majority were against the amendment of Article 9, and regarding the fact that there were many who argued that it should be clearly stated that the existence of the Self-Defense Forces is the reason behind the amendment of Article 9, I urged that there is a need to appeal that the motives behind the amendment of Article 9 is enabling the exercise of the right to collective defense.

The symposium itself was a great success, with approximately 600 participants at the venue. There were more than a few who came because they wanted to take a glance at Mr. Masuzoe, but there were many members from the Prefecture's Article 9 Association who participated too. The questions from the audience also varied, but one could also see that the citizens of a bombed site were strongly interested in Constitutional issues.

By the way, there is one thing I cannot overlook in the discussion by Mr. Masuzoe. That is how he mentioned that he wanted to protect the Rule of Law at the price of his life. This has something in common with the argument that the amendment of Article 9 is necessary for Constitutionalism, but I believe that before mentioning that, we must firstly hold the Liberal Democratic Party responsible for ignoring the Rule of Law. I also point out that in their draft of the Constitutional Amendment, there is no provision regarding who declares war <and thus who decides to use military force>, lacking the Constitutional brake that most "normal countries" have in their Constitutions. Therefore, the Liberal Democratic Party's Constitutional Amendment draft could be aimed at protecting the Rule of Law, but has nothing to do with the Rule of Constitution. Unfortunately, there was no clear answer from Mr. Masuzoe regarding this point. With time limitations, we could not debate on the national referendum legislation, but I believe that the participants were able to obtain an understanding of the objectives and issues of Constitutional Amendment. I am convinced that if we conduct Symposiums like this nation-wide, more citizens will re-realize the importance of protecting and utilizing our current pacifist Constitution.