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Statement Protesting against the Cabinet Decision

Statement Protesting against the Cabinet Decision
to Reinterpret Article 9 of the Japanese Constitution
in order to Approve the Exercise of the Right of Collective Self-Defense

The Law Section of
The Association of Democratic Scientists

1. A storm of criticisms and objections are continuously raised from the Japanese people against the “Self-Defense Forces” (SDF) of Japan and the US forces stationed in Japan because they are clearly in violation of the obligation to renounce the threat or use of force and not to maintain the forces under Article 9 of the Japanese Constitution. In 1954, the Japanese Government founded the SDF, and attempted a new interpretation of Article 9 that it was constitutional to maintain and use “armed strength for self-defense” based on the doctrine that within the minimum level necessary to ensure that Japan exercises the inherent right of self-defense it does not constitute “forces” prohibited under Article 9, paragraph 2, of the Constitution. Since that time, the Government has obstinately clung to that interpretation of Article 9 until quite recently. However, it also stated that it was not permissible to exercise the right of collective self-defense, since it would exceed the limit of use of armed strength as permitted under Article 9 of the Constitution. The previous view of the Government was that, while it was in conformity with the Constitution to exercise the right of individual self-defense in the case of armed attack against Japan, it was not constitutional to exercise the right of collective self-defense in the case of armed attack against another State.
This interpretation was first suggested in a written reply by the Government to questions asked in the Diet in 1954 (the 1954 view), and sophisticatedly established in the document under the title of “Relationship between the Right of Collective Self-Defense and the Constitution” submitted by the Government to the Committee on Audit of the House of Councilors on October 14, 1972 (the 1972 view). It has been maintained for sixty years from 1954 and for more than forty years from 1972. Therefore it has quite a long history. At least, the Government’s ban on the exercise of the right of collective self-defense has formed a cardinal normative pillar of Article 9 and functioned as a component of “the fundamental law regulating the governmental act of Japan,” and “the unwritten Constitution” or the Constitution in the substantive sense in the post war Japan.

2. On 1 July 2014, the Abe Shinzo Government decided to change the interpretation of Article 9 with the aim of opening the door to the collective self-defense, as well as of making stronger Japan’s own capability for individual self-defense and cooperation with the United Nations under the collective security system. This is a conclusion drawn by the Government from consideration of “measures for self-defense permitted under Article 9 of the Constitution” within “the limit of the basic logic of the interpretation of Article 9 of the Constitution as expressed by the Government to date” on the basis of the aforementioned 1972 view. As it refers to “the measures for self-defense” to “ensure Japan’s survival,” the 1972 view is truly along the same line of the 1954 view on the permissible use of strength for self-defense based on the right of individual self-defense. The 1972 view which the successive Cabinets have supported concludes that “the measures for self-defense” must be necessary and kept within the minimum level when they are resorted to, and therefore Japan is not in position to exercise the right of collective self-defense, which would be unconstitutional and illegal.
Nonetheless, the Abe Cabinet has decided that Article 9 should not prevent Japan from using armed strengths to the minimum extent necessary for self-defense, which is not limited to individual self-defense by invoking the abstract nature of “the measures for self-defense.” In this way, the Government so much extends the restricted notion of the right of self-defense under Article 9 as to cover the right of collective self-defense. The Government’s assertion cannot be sustained that the shift in the Cabinet’s interpretation of Article 9 from denial to approval of the right of collective self-defense follows the basic logic of the past Government’s view with “the logical consistency and legal stability.” Quite contrarily, the reinterpretation of Article 9 made by the current Government is irreconcilable with the past official interpretation of the provision.

3. The Cabinet states that “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… use of force to the minimum extent necessary should be interpreted to be permitted under the Constitution.” The Government has only to underline the importance for “enhancing the deterrence of the Japan-United States Alliance” in order to apply loosely the requirements for the right of collective self-defense and to stretch its interpretation of the right to suit itself. Furthermore, in this respect, the Cabinet might reinterpret the conditions for the right of self-defense again in the near future.
The decision explains its legal justification by saying that “in certain situations, the aforementioned ‘use of force’ permitted under the Constitution is, under international law, based on the right of collective self-defense.” It adds immediately to this sentence that “they are permitted under the Constitution only when they are taken as measures for self-defense which are inevitable … for defending Japan.” It is natural that this argument on the permissible “use of force” in the decision should give an impression of the exercise of the right of individual self-defense, not the right of collective self-defense, to the Japanese people. It might be intended to mislead them into believing that the use of force could be grounded on the right of individual self-defense, although it embraces the invocation of the right of collective self-defense and the possibility of participation of the SDF in enforcement measures under the UN collective security system.

4. In the past several months, as an example for the necessary exercise of the right of collective self-defense, the Government took a fictitious case that the United States would make a request for assistance from Japan to defend the US warships navigating near an MSDF escort ship from attacks when the United States was attacked by another State. It is almost impossible to imagine that such a case will really happen in near future, because the United States is still a military giant in the world. Some of the real cases such as the Vietnamese war and the Afghanistan war in which the right of collective self-defense was invoked as a justification for the use of force involved the United States as a party exercising the right, not as a party asking for the help from other States. Likewise, a highly probable scenario is that the SDF would join the warfare in the front commenced by the United States. This is the true political purpose for the Cabinet’s lift of the ban on the right of collective self-defense. It will never contribute to the maintenance of peace and security of Japan, Asia and the world.
The Government has been and is making efforts to deprive Article 9 of its normative core element inconsistently with the fundamental principle of constitutionalism. The Government’s attitude bypassing the nationwide discussion is contrary to the principle of democracy. Considering that the pacifism in Article 9 banning the military forces and repudiating the Government’s power to exercise the right of collective self-defense should be observed as a noble idea, the Law Section of the Association of Democratic Scientists strongly protests against the practical modification of the Constitution through unilateral reinterpretation to empower the Government to exercise the right of collective self-defense and also against the formal amendment of the Constitution which might be designed at the next stage.

5. It is likely that the Government will revise the 1997 Guidelines of Japan-US Defense Cooperation within the year, which will substantially direct the meetings of the Diet on Japan’s defense policy. The Diet, however, has a competence to discuss whether to give the Cabinet an approval of conclusion of a treaty under Article 73, paragraph 3, of the Constitution which confers the supreme power to decide on diplomatic matters upon it. Therefore, it surely has and should take responsibility to question the Government about various problems which will be raised in the new Guidelines. Next year, bills to enforce the Cabinet’s decision will be put on agenda of the Diet. It is categorically deniable that any decision taken by the Cabinet may bind the Diet. The Diet should play an important role to check the Cabinet by examining the legal problems of the decision and making clear its unlawfulness. It is a task entrusted to the Diet to clarify in its meetings the meaning of “a close relationship” between a foreign county and Japan, and “a clear danger” to Japan’s survival, both of which are regarded as necessary conditions to trigger the use of force for Japan in the decision. Subsequently the Diet is recommended to turn down the bills and to make the Cabinet give them up. Let us undertake an active campaign against the Cabinet’s decision to abandon the Japan’s policy not to use force in collective self-defense when the Diet is examining the bills on the collective self-defense.

6. In its Statute, the Law Section of the Association of Democratic Scientists declares its object “to develop legal science for democracy.” In this respect, it has continuously conducted academic research on the “practical modification of the Constitution” by way of interpretation as well as “formal amendment of the Constitution.” The society of Japan which does not actively resist the Government’s new policy to use force in collective self-defense is truly becoming militaristic, or at least tolerant of militarism. This trend is so dangerous as to threaten the academic freedom which allows individual academics and their associations to carry out their own scientific research.
Herein, the Law Section of the Association of Democratic Scientists declares that it will:

Express its strong objection to the unofficial amendment of the Constitution through the unilateral reinterpretation of Article 9 by the Cabinet to pave the way for the exercise of the right of collective self-defense, and

Pledge that it will do its best to squash the bills which will be proposed by the Government to implement the decision at the next Diet sessions.

20 July 2014

The Executive Board for
The Law Section of
The Association of Democratic Scientists