Scholars warn against Abe's rush to exercise the right to collective self-defense

June 08, 2014

THE ASAHI SHIMBUN

Prime Minister Shinzo Abe announced on May 15 that the government plans to change its interpretation of the Constitution to enable Japan to exercise the right to collective self-defense, allowing it to join a war to assist another country.

Yasuo Hasebe, professor of constitutional law at Waseda University, and Atsushi Sugita, professor of political theory at Hosei University, discussed the problems they see with the Abe administration's stance as it tries to steamroller a change in the basic nature of the Japanese state.

The following are excerpts from their discussion.

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Sugita: Well, they have finally taken the first step. The Advisory Panel on Reconstruction of the Legal Basis for Security has released its report, and Prime Minister Shinzo Abe has announced that the government will consider exercising the right to collective self-defense.

Hasebe: I'd call it a "jaw dropper."

Sugita: A jaw dropper, huh?

Hasebe: The report and Abe's news conference were one jaw dropper after another. They cherry-picked what they want from things like the preamble and Article 13 of the Constitution and the verdict in the Supreme Court case over the Sunagawa incident, and they're concluding that, under certain conditions, what the government has until now said is "pitch black" is actually "white." It doesn't make sense. Is this a gambit to change the interpretation as citizens look on in jaw-dropping astonishment?

Sugita: Indeed, they are pulling all kinds of cards out of their sleeves, like a magician: the right to collective self-defense, collective security, gray-zone situations and rescue missions. I would go so far as to say that it feels, without a doubt, like they are trying to confuse the people. Their argument is that we have to hurry up and do something, at the least. But amending the Constitution would take time. That is why they will change the government's interpretation instead. This is the situation. But why do they have to rush it so much?

Hasebe: Security issues requiring a swift response originally came up in discussions during the first Abe Cabinet. Afterward, nobody talked about it in the following Cabinets until it came up again during this one. Once Abe forms his Cabinet, security suddenly takes on an increased urgency.

Sugita: If exercising the right to collective self-defense were truly necessary, they should propose a constitutional amendment and have a big public debate. But Shinichi Kitaoka, the advisory panel's deputy chairman and International University of Japan president, shot down this idea when he said, "Even the Meiji Restoration didn't involve everyone." He's saying it's OK for a few people who understand the situation to decide things. It seems from the onset they weren't thinking about trying to convince the people.

Hasebe: Perhaps they aren't confident they can convince the people.

Sugita: They're changing the topic from their lack of persuasiveness to a lack of time. When Abe and others suggested an amendment to Article 96 of the Constitution last year, they explained that they wanted to change the requirement for initiating an amendment from "a concurring vote of two-thirds or more of all the members of each house of the Diet" to "a majority" so that the Constitution reflects the will of the people, or the sovereign members of society. Yet when that proved difficult, they turned around to say the government does not need to listen to the voice of the people this time and that a Cabinet decision will suffice.

The issue of the right to collective self-defense was not even a key point of debate in the Lower House election two years ago, and it did not become one in the Upper House election. And even so they are trying to force things along by saying the will of the people is the ideas of those who won the elections. This is more heinous than the Koizumi administration's postal privatization reforms.

Hasebe: Exercising the right to collective self-defense could be severely detrimental to the lives of the people, including members of the Self-Defense Forces. They should not move forward on this without gaining a national consensus.

RELEASING THE BRAKES

Sugita: One basis of the argument made by those in favor of approving the exercise of the right to collective self-defense is: Didn't the government change its interpretation of Article 9 of the Constitution in the past as well? They say that possessing the right to individual self-defense wasn't imagined when the Constitution was enacted, and when the SDF was formed the government changed its interpretation to say that Japan has not "renounced" this right.

Hasebe: They cite an answer to a question given by former Prime Minister Shigeru Yoshida, but what he initially said was that it is impermissible to conduct war in the name of self-defense as Japan did in the Sino-Japanese War and the Russo-Japanese War. But refusing the right to self-defense in terms of wielding force against an "imminent and unjust infringement" is an entirely different story.

Sugita: What do you think of the so-called "limited approval argument" Abe is putting forward?

Hasebe: Wielding force to the minimum extent necessary in response to a request for help by a country under attack is the conditions for exercising the right to collective self-defense as defined by the International Court of Justice. Exceeding this would be a violation of international law.

Sugita: In other words, by simply reaffirming generally accepted conditions, the limited aspect would mean nothing.

Hasebe: The right to collective self-defense, which has been considered unusable for Japan, is the right to respond to an attack against another country, in a case that does not involve defending your own country, for the common good that is the peace and stability of the international community. Now they are trying to enable Japan to exercise this right, but, they say, only "when there is the possibility of a grave effect on Japan's safety." But this would mean the government could exercise this right whenever it decides "there is a possibility." That would not put any limitations. On the contrary, if Japan's safety is truly placed in danger, then we should be able to respond with the right to individual self-defense. Are they purposely confusing this discussion with another one, or do they not even know for themselves?

Sugita: It seems as if they have been trying to change the interpretation of the Constitution to win the "symbol" that is the right to collective self-defense.

Hasebe: They just want to say "right to collective self-defense" any way they can.

Sugita: When politicians, including Abe, pursue "decisive politics," they tend to settle for a decision, never mind the details. That's why they end up calling for releasing the brakes, such as the Constitution, that restrain the government's power. I think the state secrets protection law was also part of this tendency.

By the way, around the time of the debate over political reform in the 1990s, Kitaoka and others said the ruling parties should be allowed to have a sort of time-limited dictatorship. They said the only "check" should be when the ruling parties are judged in the next election. I think this sort of view of democratic politics is connected with the recent report and the attitude of the administration.

ABE'S 'HURRIED POLITICS'

Hasebe: I think the distinguishing trait of the Abe administration is "hurried politics." The politics of rushing through decisions. The Democratic Party of Japan administration created the basic concept of the secrets law. The DPJ administration did not hurry to approve it. Abe did hurry. Perhaps that is the reason why public opinion soured on the secrets law.

Sugita: As for public opinion now, the North Korean abductions issue and the dispute with China over sovereignty of the Senkaku Islands are exerting a major influence. They have never had any inherent connection to the right to collective self-defense, but they are tied psychologically. The crude underlying current is that such problems arise because somebody is "messing with" Japan, and that if we look tough with something like the right to collective self-defense, then neighboring countries will show more deference. That's what some foreign ministry officials and the administration are capitalizing on.

I cannot completely refute the need to have a deterrent, but like the "security dilemma" we talk about, history proves that tough measures instead raise tensions and can lead to unintended crises.

Hasebe: If Japan deploys the SDF, then China will certainly deploy its army. The philosopher Nietzsche said, "Whoever fights monsters should see to it that in the process he does not become a monster." If we think we might have to fight with a "scary country" next door, and we abandon constitutionalism wholesale and change our interpretation of the Constitution, I believe Japan itself will become an abnormal country.

***

Hasebe and Sugita earlier discussed the issue of Japan Broadcasting Corp. (NHK).

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