Can Article 9 of the Japanese Constitution be ever Amended?

The worsening security environment in the Northeast Asian region triggered by China’s brazen aggressive and threatening foreign policy posture and North Korea’s nuclear and continuous missile firings has led to a debate in Japan if its pacifist policy as mandated by the Article 9 of the Constitution could be sustainable for long. Opinions are sharply divided among the people as well as the political parties. Why is this so?

Firstly, there is a debate about the adoption of the Constitution itself. It is widely publicised and accepted that the United States drafted the Constitution and ‘imposed’ the same on the Japanese people. A defeated and demoralised Japan had no say other than to meekly accept whatever the Occupation commander placed before Japan. However, there is another view as well. The defenders of the Constitution argue that there were also Japanese representatives in the drafting committee who approved the content of the draft and therefore, it is erroneous to say that it was imposed by the US on Japan.

The Constitution has never been revised since it took effect in 1947 during the US occupation of Japan after its World War II defeat. The Constitution has lasted longer without amendment than any other constitution in the world. The ruling conservative Liberal Democratic Party (LDP) has long viewed the Constitution as a reminder of Japan's humiliating defeat and made constitutional revision a key party platform. The party strengthened its efforts for a revision under Suga’s predecessor, Shinzo Abe, known for his nationalistic historical views and his support for a paternalistic society led by the emperor. Now Suga wants to follow in Abe’s footsteps but the path is not that easy.

For the major part of the post-War years, Japan never felt any need to amend any Article of the Constitution as it served Japan’s interests well. Being the only country in the world that became a victim of the nuclear bomb, Japanese people turned avowedly anti-nuclear and the same sentiment shaped the Japanese psyche. Japanese people realised that what Japan tried to achieve by military means can be achieved too by peaceful means. That strategy has worked well for the major part of the seven decades since the War ended.

Now the situation has turned different. The threat perception has heightened. Japan now finds compelling reasons for having a relook at the war-renouncing clause of the Constitution which presents constraints to its efforts in seeking means to defend its sovereignty. Can that be possible? What are the academic responses to such a possibility? What is the public opinion on this and how are the views of the ruling and opposition political parties on this? Given that no consensus can ever be expected on revising the Constitution, are there any ways to overcome the hurdles on the way to even amend an Article if agreed upon? These are issues to be analysed to arrive at an objective perspective on what dilemma Japan faces to cope with the new challenges to defend its security and sovereignty.

The outgoing nationalist Prime Minister Abe Shinzo did try to initiate the process of amending Article 9 of the Constitution but with little success. What best he could achieve was to reinterpret the Constitution in a way for the country to have collective self-defence to partially achieve his objective. The argument now seems to be more persuasive to take Abe’s efforts further in view of the severe security environment and battling the novel coronavirus crisis. In this context, it is important to note that on 6 May 2021, Japan’s House of Representatives Commission passed a bill to revise the National Referendum Act provisions on constitutional amendment procedures. The ruling LDP and the opposition Constitutional Democratic Party of Japan (CDP) agreed to pass the bill during the current Diet session, which is scheduled to end on June 16. Passage of these provisions should heighten the momentum of constitutional amendments.

The issue of national referendum was a much contested issue for the past three years even to figure in the commission because of lack of consensus among political parties. No progress could be made even after eight Diet sessions passed. “A national referendum on constitutional amendments is a precious opportunity for the people to exercise their sovereign rights”, observes Takashi Arimoto of Sankei Shimbun.¹ The National Diet, described as “the highest organ of state power” in the constitution, has so far deprived the people of such precious opportunity. Thus said, the occasion to arise for the people to exercise that sovereign right is not without hurdles. Here lies the difficulty in tampering with Article 9 of the Constitution.

Like Abe, Prime Minister Yoshihide Suga too has expressed his desire to amend the Constitution but it is mere wishful thinking as it looks unrealisable for now. The government’s powers are limited. Even during the surging pandemic when the Suga government declared emergency in some prefectures, it still lacked enforcing power as Japanese law does not allow that. The violators could not be punished or prosecuted as the government lacked enforcing authority. The government merely depended on the people’s response to its request. Since Japanese people are basically law-abiding in such situations, the government could achieve its objectives to some extent.

From a realistic perspective, it can be safely deduced that the National Referendum Act Revision, even if achieved, means nothing as there are bigger hurdles in the Constitution in the form of Article 9 and Article 96. Suga’s predecessor Abe also tried but failed in making any headway and Suga is likely to be on the same page. In the wake of looming Chinese threat, conservatives might not be satisfied with the enactment of the revision of the National Referendum Act alone but they are unlikely to go any further. This is because public opinion is heavily against any such measure.

What the conservative LDP government wants is to give the country’s Self-Defense Force the status of a full-fledged military. Experts have different perspective. They opine that the SDF is already accorded the status of a full-fledged military and that the international community has accepted the SDF as Japan’s military. ² What the LDP wants is to make Japan a “normal nation” with a full military, a stronger government and a society in which individual basic rights can be compromised for the national interest in times of emergency. Though Abe’s coalition partners together controlled two-thirds majority in both the houses of the Diet during his eight years in office, he failed to make any headway on the national referendum issue. When the party and its coalition partner lost their supermajority in the upper house in 2019, all hopes were dashed.

Various opinion surveys have shown that people are divided over revision of Article 9. Japanese people are more concerned about the economy and job than constitutional revision. Suga government’s plea that it is hamstrung by constitutional limitations in taking tough measures to tackle the coronavirus as it does not sell among the people. The present laws in ordering restrictions on businesses are non-binding and the government can do little about it, which is why it wants to be empowered. But the peoples are unwilling to accord that luxury to the government.

A Jiji public opinion poll in June 2020 found 69 per cent of all respondents were opposed to the revision of war-renouncing Article 9 of the Constitution. Only 29.9 per cent supported a revision to Article 9. The percentage of women opposed to an amendment was 80 per cent as against 56.9 men who opposed to the amendment. On a question seeking multiple answers to their opposition, while 76.2 per cent felt the Article 9 significantly contributed to the peace and stability after the end of World War II, 56 per cent felt the article stops the country from becoming a military power. ³ This demonstrates that Japanese people are very sensitive to the possibility that the country could return to military route if the constitutional hurdle is removed. They are unwilling to see their country again enmeshed in a situation similar to its past with debilitating consequences.

There also exists a fear that if the government changes its interpretation of the Constitution, it could damage international relations, particularly ties with other Asian countries. Any change to the Constitution can have larger regional implications, especially for the Koreas and China. Already these two Asian countries continue to suffer from the shadow of the past and any amendment to the peace clause would inevitably able trigger outcry, making the present messy situation messier. Even innocuous visits by Japanese political leaders to Yasukuni Shrine raise noise in China and Koreas.

An aspect of the Constitution that is often overlooked while too much of talks focussed on Article 9 is that a constitutional amendment process in Japan is not that easy even if there was a desire by a strong leader such as Abe. He tried but failed to make any headway. Article 96 of the Constitution specifies how an amendment should be made. Article 96 mandates that a constitutional amendment must be proposed to the Japanese National Diet where the proposal must receive at least two-thirds approval in both the House of Councillors (the Upper House) and the House of Representatives (the Lower House) of the National Diet. Finally, the amendment has to be ratified by the population in a national referendum, where a simple majority vote will put the amendment into law. Once the constitutional amendment is passed, it then takes one year for it to go into effect. ⁴

The ruling LDP feels the Constitution is an “American imposition” and wants amendment with all sincerity. Its coalition partner, the Komeito, though supports an amendment move, it is more cautious. The Opposition parties are opposed to any amendment move. Moreover, the opinions of various factions within the LDP are not unanimous. Abe’s aggressive stance only toughened the position of the Opposition. Even his initial attempt to amend Article 96 from two-third majority to simple majority hit bottlenecks. Even that has to go through a national referendum. The people suspicious of the government’s long-term objective to change the country’s security posture would unlikely to endorse even if the ruling party can get through both the Houses of the Diet.

What are then Japan’s options? Strengthening further its alliance relationship with the US, consolidating the gains further accrued thus far from coalition of democracies such as the Quad, compromise and adjustment in policies as and when necessary while keeping national interests in tact, continue engaging with the Asian nations economically, politically and culturally, and continue to pursue in building a solid Asian architecture that would work for common good. The threat perception could be dissipated when all the stakeholders would find themselves in a win-win situation. For now, Japan must not make amending the Constitution a priority agenda because it is unlikely to succeed.

Endnotes

1. Takashi Arimoto, “It’s Time the Japanese Diet Start Discussing Constitutional Amendments”, 14 May 2021, https://japan-forward.com/speaking-out-its-time-the-japanese-diet-start-discussing-constitutional-amendments/ [3]
2. “Japan ruling party renews its push to revise pacifist Constitution”, 12 May 2021, http://www.asahi.com/ajw/articles/14346719 [4]
3. “69% oppose change to Japanese Constitution's war-renouncing Article 9, poll shows”, The Japan Times, 22 June 2020, https://www.japantimes.co.jp/news/2020/06/22/national/japan-oppose-change-article-9-constitution/ [5]
4. “Amending Japan’s Pacifist Constitution”, April 2018, https://isdp.eu/publication/amending-japans-pacifist-constitution/ [6]

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