International resistance to the constitutional reforms envisioned by its Liberal Democratic (LDP) prime minister, Shinzo Abe, rightly focus on the proposed changes to Article 9. According to Aurelia George Mulgan, though, there are three other sections under attack, Articles 12, 21, and 96. Where China and South Korea legitimately fear the implications of a Japanese National Defense Force unfettered by the constitutional restrictions of a peace regime, the greatest threats are directed at democratic procedure and human rights.
First, Abe has taken aim at Article 96, which sets the legal requirements for amending the Constitution: a minimum two-thirds majority in both houses of the Diet and approval by a simple majority in a national referendum. These represent a high political hurdle — but no higher, relatively speaking, than in most other democracies with written constitutions — and may help to explain why the Japanese Constitution remains unamended since its 1947 enactment, although equally, it may indicate insufficient support for change. Abe wants to make amendment easier by lowering the bar to a simple majority of Diet members in both houses. The referendum stage would remain.
Third, other proposed changes in the LDP’s draft pose dangers to the liberal democracy the Constitution guarantees. Two particular changes stand out. The LDP’s draft adds a provision that prioritises ‘order’ and ‘the public good’ over ‘fundamental human rights’. For example, with respect to ‘freedom and rights’ (Article 12), the draft has added the provision, ‘[The people] must be aware that [freedom and rights] are accompanied by responsibility and obligations, and must not go against the public interest or public order at any time’. With respect to ‘freedom of assembly, association, speech, press and all other forms of expression’ (Article 21), the draft has added, ‘The conduct of activities aimed at harming the public interest or public order and associating with others for the same purpose are unacceptable’.
Human rights in Japan are not absolute but are already constrained by considerations of public order and safety. For example, there are public order limits on rights of demonstration and association written into Japanese law. So the point of this proposed change can only be to bring about a major shift in the current balance between state power and individual rights.
What the LDP draft is proposing is anti-liberal and potentially anti-democratic. Writing notions of public order and citizens’ obligations to the state into the Constitution has a highly conservative and statist (kokka shugi) flavour. Moreover, by arguing on cultural grounds for these changes — that concepts of universal human rights are ‘ill-suited for Japan’s traditional culture and values’ — Abe and his affiliates in the LDP are effectively saying that liberal democracy is incompatible with Japanese culture. This puts them closer to cultural traditionalists in China (and even the Taliban) in political ideology than to the United States and other liberal democracies.
Michael Cucek, focusing solely on Mulgan’s discussion of the threats to Article 9, argues that Abe should follow his self-interest and forego Article 9 revision.
Due to the absence of regional economic and security structures, due to Japan’s being in a bad geo-political neighborhood (think of when Japan exited from the Occupation: no other industrialized states nearby, no other democracy in the region except the chaotic Philippines) — and due the halt in the program of purging the government of totalitarianism, post-Occupation Japan faced unleapable hurdles to integration (some China-sodden commentators might say “re-integration”) into East Asia. The latter half of the 20th century would then most likely have been much like the first half: constant warfare, with an armed Japan in contestation with the Soviet Union and a fragmented China, the dogs of war unleashed by a breakdown, after a decade or so, of Japan’s alliance with the world’s premier maritime power.
[As to the implications of a martial Japan on the process of decolonization in this alternate universe East Asia, the mind boggles.]
Article 9 had a purpose and effect of breaking the chain of inevitability. Japan could integrate into East Asia at minimal cost, both in terms of its own sovereignty and social structure. A de jure shackled Japan had a chance of living at peace with the military dictatorships and expansionist communist states of the region. A demilitarized Japan could be given free rein to permit the rehabilitation of its pre-war elites.
Someone needs to look the PM in the eye and tell him, “Look, your enthusiasm for constitutional revisionism is misguided. The Meiji State was a miserable one for the common people. But forget about them. The only reason your grandfather could walk out of Sugamo Prison alive and hearty to take up where he left off, becoming Prime Minister less than eight years later — was Article 9. Article 9 made it possible for your grandfather’s younger brother to, eventually, succeed him, your great uncle Eisaku becoming the longest serving post-war prime minister. It has allowed you, who have been steeped in a culture or unscientific, ahistorical, backward-looking authoritarian fantabulism, to become Prime Minister not once but twice.
Forget about what Article 9 has done for the average citizen; think about the tremendous service it has done for your family.”
I doubt the Chinese and South Koreans opposed to constitutional revision care as much about Japanese human rights as they do their own national glory. Implicit in Mulgan’s and Cucek’s analysis is, that Japan’s national power is anchored in a regional dynamic facilitated by its constitution. That analysis slights the impact of American military protection, China’s diplomatic and economic resurgence, or competition from other regional actors, like the former Soviet Union. Arguing that the region owes its dynamism solely to Japan’s pacification seems to me a bit self-serving and another instance of the single cause fallacy.