Amending Japan’s postwar Constitution has been one of former Prime Minister Abe Shinzo’s primary goals. Abe called for a constitutional amendment until 3 May 2020 (the Constitution Day), during the Covid-19 emergency. In his resignation statement on August 28, Abe expressly stated that he left his position reluctantly also due to his inability to succeed in amending the Constitution. Abe’s focus on constitutional amendment raises a number of questions: why was Abe obsessed with it? Why is constitutional amendment such a controversial topic in Japan? Does Abe leave a constitutional legacy? Will this focus be preserved by the Suga Cabinet?
These questions and their possible answers are interlinked and are based both on Japan’s historical, legal, and political characteristics and on Abe’s personal history. The difficulties characterizing constitutional amendment were and are due to at least two interconnected more general reasons: first, the characteristics of constitutionalism in Japan; second, the symbolic implications of formal constitutional amendment.
Since the adoption of the postwar Constitution in 1947, Japan has never formally amended its Constitution and constitutional issues have been characterized by judicial restraint (only ten statues have been declared unconstitutional). In this context, the role of Guardian of the Constitution has been played by a bureaucratic body, the Cabinet Legislation Bureau, which is an authoritative source of constitutional interpretation. These features partly explain the difficulties about formally changing Japan’s Constitution.
Constitutional amendment is controversial because it is linked to discussions both on the Allied role in drafting Japan’s postwar Constitution and on Article 9 of the Constitution, which not only bans war and both the threat and use of force (Art. 9, par. 1) but also the maintenance of land, sea, and air forces as well as other “war potential” and the right of belligerency (Art. 9, par. 2). The Allied-driven origins of Japan’s imposed constitution generated opposing views about the need to make the Constitution more Japanese so as to recover the lost sovereignty and to make Japan a normal state again, therefore overcoming the stigma of the Second World War. In this regard, the constitutional constraints posed by Article 9 of the Constitution mirror the collective memory of Japan’s role in the Pacific War and of the effects of war in general (including its impact on Hiroshima and Nagasaki). These reasons historically led the people to oppose the amendment of Article 9 because they feared that it could entail the revision of Japan’s pacifism. The public opinion is crucial for a formal constitutional amendment because Article 96 of the Constitution envisages a procedure that requires a two-thirds majority vote of all the members of both Houses of the Diet and the affirmative vote of the people in a national referendum.
In this context, Abe’s history partly explains his views. He descends from a lineage of first-ranked conservative members of the long-standing Liberal Democratic Party (LDP): Kishi Nobusuke, Sato Eisaku, and Abe Shintaro. His grandfather Kishi Nobusuke was one of the founders of the LDP and was Prime Minister when Japan signed the new Japan-US Mutual Security Treaty in 1960 (in the postwar period he had been imprisoned as a class A war criminal suspect). Abe saw Kishi as his role model even in his conservative views, beginning with the amendment of the Constitution and in particular of Article 9. Abe’s conservative ideas led him to take part in ultra-conservative and nationalist organizations such as Nippon Kaigi, whose main goal is to amend Japan’s Constitution. Abe’s focus on constitutional amendment was actually the reason why his approval rate collapsed during his first mandate as Prime Minister in 2006-2007. The perceived threats coming from China and North Korea and the changing international environment facilitated discussions about constitutional amendment once Abe returned to power in 2012. In 2017, he affirmed that the LDP has the historic duty to foster in-depth discussions about constitutional amendment.
Amending the Constitution has historically been the goal of many politicians, especially within the LDP (but also within the Democratic Party of Japan and the Japan Innovation Party). Projects of constitutional amendment failed due to the opposition of some factions of the LDP, bureaucrats, opposition parties, scholars, and the public opinion. Abe constantly tried to reform the Constitution via either formal or informal procedures. Abe attempted to pass a formal constitutional amendment, by proposing to also change Article 96 of the Constitution for facilitating formal constitutional amendments. Additionally, he formed panels of experts to enquire which constitutional interpretation would be appropriate, and worked to reduce the influence of the Cabinet Legislation Bureau in shaping constitutional interpretation. Eventually, Abe and his Cabinet contributed to a constitutional revolution via informal procedures of constitutional change – i.e. constitutional amendment through interpretation. This applies in particular to Article 9. The Cabinet reinterpretation of 2014 and the Legislation for Peace and Security of 2015 allowed for the first time the Self-Defense Forces to use force in collective self-defense “when an armed attack against a foreign country that is in a close relationship with Japan occurs and as a result threatens Japan's survival and poses a clear danger to fundamentally overturn people's right to life, liberty and pursuit of happiness”. As such, the reinterpretation was considered unconstitutional by the vast majority of constitutional scholars both for its procedure and its substance. This constitutional change was nonetheless a relevant step for pursuing the formal amendment of Article 9 with a step-by-step approach. In this regard, the proposal to add a third paragraph to Article 9 for recognizing the constitutionality of the Self-Defense Forces is the final step to what is also the ambition to symbolically make Japan a normal country again.
The new Suga Cabinet appears to share Abe’s goal of constitutional amendment. Suga Yoshihide is like Abe a member of the conservative association Nippon Kaigi and nominated as Minister of Defense Abe’s younger brother Kishi Nobuo, an ultraconservative politician and a member of Nippon Kaigi. Both Suga and Kishi support constitutional amendment. In this sense, Abe’s ambitions regarding amending the Constitution live on.
The opinions expressed are those of the author. They do not reflect the opinions or views of ISPI.