Abe’s Legislation and a Non-Persuasive View of ‘Constitutionality’

Prime Minister Abe’s cabinet has created a document which argues that proposed security legislation for collective self-defense is “constitutional.” Arguments from three constitutional scholars conclude that the same legislation is “unconstitutional.” However, to suggest that these scholars’ arguments are unpersuasive and the legislation is indeed constitutional is completely unacceptable.

There is no other way imaginable to justify approval of collective self-defense except to emphatically apply a lower statute – Abe’s legislation – to the constitution – the supreme law of the land.

In the document, it is argued that collective self-defense in order to protect Japan maintains the “fundamental logic” of traditional interpretations of the constitution by allowing the use of military force only in cases where Japan is attacked. It further states that “logical consistency and legal stability are maintained.”

Abe’s Cabinet once again has referred to the so-called 1959 Japan Supreme Court “Sunagawa Ruling” – which recognizes the “inherent national right to use” a self-defense force – as grounds to approve collective self-defense.

However, this particular ruling questioned the constitutionality of American forces stationed in Japan based on the old U.S.-Japan Security Treaty. There are no arguments on whether Japan has the right to collective self-defense, nor does the ruling itself touch on the subject.

Following the ruling, Prime Minister Nobusuke Kishi stated about collective self-defense: “If our nation and a nation closely linked to us were attacked, as a matter of course we cannot go out and defend the other country in the same way as our own country due to the constitution.” (Feb. 10, 1960, Upper House of the Diet).

Is it not obvious that the Sunagawa ruling’s recognition of a self-defense force did not include the idea of collective self-defense?

Successive cabinets afterward have stated there is a natural right to collective self-defense, but have held on to the interpretation of the constitution thaat doesn’t allow that right to go beyond the minimal amount necessary for Japanese security.

We must never allow a single cabinet – a cabinet that looks down on the many decades of collected arguments by the Diet and government which determined collective self-defense to be unconstitutional – to unilaterally make collective self-defense constitutional.

It holds great meaning that even a constitutional scholar who was recommended for the Lower House’s Constitutionality Committee by Prime Minister Abe’s own party, the Liberal Democratic Party, determined the Abe legislation to be unconstitutional within the actual premises of the Japanese Diet – the pinnacle of state power in Japan. The Abe cabinet should accept this rejection with humility and withdraw the successive bills. Even if the cabinet could manage to line up constitutional scholars who swear on the constitutionality of collective self-defense, ordinary Japanese would not have it.

If the reasoning is that the geopolitical situation in the world is changing to include Japan, then the Abe cabinet should not offer unrealistic examples to support a collective self-defense argument, but instead consider a realistic security policy that conforms to change. It goes without saying that this policy’s framework should be a “nonaggressive security policy” which exercises no military power abroad.