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