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Tuesday, May 1, 2012

FYI

Constitution again faces calls for revision to meet reality


Staff writer

Thursday marks the 65th year since the Constitution took effect in 1947.

Drafted during the Allied Occupation under the leadership of Gen. Douglas MacArthur, the Constitution has remained untouched since its birth, despite years of divided discussions among experts and lawmakers over whether it should be revised.

These debates were recently put on the back burner as Nagata-cho became mired in a vicious spiral of childish tit-for-tat politics that has led to the rise and fall of five prime ministers in as many years.

But since autumn, there has been gradual movement suggesting that politicians may slowly be gearing up to revise the war-renouncing Constitution. This has been led most recently by the opposition parties, notably the conservative ones, which have drafted amendment proposals.

How does the Constitution differ from its prewar counterpart, the Meiji Constitution?

The fundamental difference is that under the Meiji Constitution, which took effect in 1890, sovereignty resided with the Emperor. Sovereignty resides with the people under the current charter.

The Meiji Constitution held the Emperor "sacred and inviolable" and conferred on him command of the army and navy, as well as the ultimate authority to declare war, make peace and conclude treaties. State ministers served as "advisers" to the monarch.

The Meiji Constitution could be amended at the order of the Emperor, followed by a two-thirds vote in the Diet.

Article 1 of the current Constitution, however, stipulates that the Emperor is a "symbol" of the state.

Drafted immediately after World War II, the preamble stresses that "never again shall we be visited with the horrors of war through the action of government." And Article 9 forever renounces war and declares that Japan will not maintain land, sea or air forces. The Self-Defense Forces, a modern, three-branch military, can attribute their existence to a vague interpretation of the charter that permits them.

The Constitution also guarantees fundamental human rights as "eternal and inviolate" and guarantees equality under the law, prohibiting "discrimination in political, economic or social relations because of race, creed, sex, social status or family origin."

Why are the revisions being sought?

One reason change is being sought stems from the goal to have a national charter drawn up by the people of Japan, instead of one forced on the country. Many people also feel the Constitution needs to be updated to reflect the current domestic and international situations.

"It has been over 60 years since the Constitution was forced on us by the General Headquarters," said Akira Momochi, a constitutional law professor at Nihon University. "There is no way that it can still be applied in current times. Naturally, there will be strains or gaps and what we are saying is let's review that."

Mainly made up of conservatives like Momochi, revisionists are calling for the establishment of an army, navy and air force in name, and clarification of Japan's territory, including that an islet cluster controlled by South Korea in the Sea of Japan, as well the uninhabited Senkaku Islands in the East China Sea, are in fact part of Japan.

What concerns are opponents raising about the revisions?

Perhaps their main worry stems from the movement to ease the terms of Article 9, which states that Japan renounces war and the use of arms as a means to settle international disputes, and rejects the maintenance of war potential and the right of belligerency of the state.

Asaho Mizushima, a law professor at Waseda University and an expert on constitutional issues, said this article has effectively kept Japan from dispatching the SDF to war zones.

"The Japanese government used the interpretation to maintain Japan's unique way of maintaining peace, and in that sense, the Constitution has been effective," Mizushima said. "If the Constitution was easily amended, the SDF would have become a force that could have been dispatched anywhere in the world, including Vietnam and Afghanistan, and many lives would have been lost."

Mizushima argues the Constitution mirrors the fundamental structure of the state and is best left abstract so that individual laws be used to govern specific actions.

"A constitution reflects the different failures and history of each nation to prevent future mistakes as well as ideals and objectives that are hard to achieve," Mizushima said. "So it is true that gaps may surface between the Constitution and the current situation, but that doesn't mean we should immediately revise it."

What would change if the SDF became a "self-defense army?"

Although both incorporate "self-defense" in their titles, pundits say the latter would be very different.

The SDF developed from the National Police Reserve, which was created in 1950 at the request of the Occupation during the Korean War. Technically, Japan relinquished its right to bear arms under the nascent Constitution, but the reserve, which was armed, eventually expanded and in 1954 was transformed into the SDF.

Article 9 prohibits Japan from using force as a means to settle international disputes and therefore will not have "land, sea and air forces, as well as other war potential" for that objective.

But for more than half a century, the government has justified the existence of the Ground Self-Defense Force, Air Self-Defense Force and Maritime Self-Defense Force by arguing they are armed forces for "self-defense" — a strictly limited role and one allowing only the "minimum amount of force necessary."

"The SDF is not considered of war-making potential and is only for self-defense. . . . The Japanese government's position is that anything that exceeds the nature of self-defense . . . would become military power, and therefore unconstitutional," Mizushima said, adding that this fundamental interpretation of the Constitution is what prevents Japan from engaging in collective defense — the act of militarily helping an ally under attack.

Upgrading the SDF to an overall army, with sea and air components under it, would mean that its members would be able to use weapons to do their jobs, as opposed to the SDF, which, like the police, can only use firearms if absolutely necessary to defend themselves.

"The restrictions would be lifted so that the army can use force in situations other than self-defense, including dealing with disturbances, for example," Momochi said. "We need to change our legal approach because there will always be problems if an army status is not officially included in the Constitution."

Momochi added that a revision would make it easier to dispatch forces abroad to participate in international missions.

How do the main political parties feel about amending the Constitution?

The ruling Democratic Party of Japan drafted "Proposals for the Constitution" in 2005, in which it states the need to establish a new charter, clarify the definition of "self-defense" and set up a framework of international cooperation. But as a diverse group whose members range from ultraconservatives to liberals, it is especially hard for the DPJ to agree on security policies and nothing new has come out since.

But the conservative Liberal Democratic Party, which ran the country for most of the postwar era and started the ball rolling on revisions before its ouster by the DPJ, proposed Friday that the Emperor be declared the "head of state" as well as a symbol, and called for establishment of a "national defense army," instead of its originally pushed "self-defense army."

The LDP also backs institutionalizing the Hinomaru as the national flag and "Kimigayo" as the anthem and wants the government to clarify its responsibility to protect Japanese territory.

New Komeito has proposed augmenting the current clauses instead of revising them to suit the times, such as by adding articles that address environmental and privacy rights issues.

The Japanese Communist Party and Social Democratic Party are firmly against revising the Constitution — particularly Article 9.

What procedures must be followed to revise the Constitution?

Draft changes can be submitted to the Lower House with the support of 100 or more lawmakers, while Upper House lawmakers need the support of at least 50 members. The proposals must be made item by item in accordance to each individual theme and not as a whole package.

Article 96 stipulates that the draft must ultimately be approved with a two-thirds vote in both chambers before being put to a public referendum.

According to the 2010 referendum law, all Japanese citizens aged 18 and older can participate in the referendum and the bid must win a majority in order to actually take effect.

Experts said there are many hurdles in the technical process, making it difficult to amend the Constitution — a fact that is criticized by those in favor of change and welcomed by opponents.

Last June, a nonpartisan group of lawmakers gathered specifically to call for revising Article 96 to ease the conditions. Participants included members of the DPJ-Kokumin Shinto (People's New Party) ruling bloc, as well as the LDP, New Komeito and other conservative opposition party members.

Is revision a realistic possibility in the near future?

It is difficult to say. Although the referendum law took effect in 2010, measures including revising the law to lower the voting age to 18 from 20 need to be taken. The government launched a panel in January, but lowering the voting age will affect somewhere in the region of 200 to 300 bills, including the legal age limit to drink and smoke, and it is unclear just how soon a bill can be submitted to the Diet.

Political instability in Nagata-cho could also slow the process.

Since the long-serving Junichiro Koizumi of the LDP stepped down in 2006, there have been six prime ministers, most lasting less than a year. And the currently divided Diet makes fulfilling political agendas especially difficult.

DPJ Prime Minister Yoshihiko Noda is now focused on passage of a bill that will double the consumption tax to 10 percent by 2015 to cover skyrocketing social security costs.

Mizushima noted it is clearly stipulated that amendments can be made to the Constitution and so the focus should not be about whether people are for or against them, but on discussing what areas may need change.

"The Constitution limits the power of the rulers and not the people, and therefore, if it is to be revised to relax restrictions, the call for amendments should come from the people and not from the authorities themselves," Mizushima said. "It is common sense to always be suspicious if only rulers talk of revision."

The Weekly FYI appears Tuesdays. Readers are encouraged to send ideas, questions and opinions to hodobu@japantimes.co.jp


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