PRESENTATION of the JAPANESE CONSTITUTION
Article 9.
Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.
In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.
Reference: Japan Defense Agency (http://www.jda.go.jp/e/policy/f_work/kenpo_.htm)
1. 1. Outline of problems of the Article 9
1-1. 1-1. “Renunciation of War Renouncement”
* Definition of the permanent pacifism [in the Preamble]
* Security system of the right to live in peace [in the Preamble]
· Security system of the right to live in peace [in the Preamble]
Epoch-making for understanding peace not as policy of a country but as a part of the basic rights
1-1-1. 1-1-1. Interpreting the First Paragraph of the Article 9
1-1-2.
1-1-3.
1-1-4.
1-1-5.
1-1-6.
1-1-7.
1-1-8. Relation to the Realistic Problems: Security Problem
1-1-2. Relation to the Realistic Problems: Security Problem
Ideal of the constitution: →
Present condition: → Possibility to send troops
overseas
1-2. 1-2. About“Non-maintenance maintenance of war War potentialPotential””
1-2-1. Interpretation of “military War powerPotential” in the 2nd Paragraph in the Article 9 sector 2
One of the In peacetime, it includes those which aren’t aimed for war
→ strong opinion at the time the Constitution has established
Distinguished from police power for keeping domestic order
→ currently majority of the theories
Military power with the enough ability for the execution of modern war
→ 1951.11 government consensus
・ Preservation of minimum power for the use of the right for self-defense is constitutional → 1954.12 government consensus
* general nuclear weapon, ICBM, long-distance strategic bomber
* Nuclear weapons for strategy are permitted. (for strategy?)
Objections against for the government’s Government’s interpretation Interpretation (reference 4)
* * It’s hard to distinguish ‘’military powerwar potential’’ and ‘’self-defense power’’.
* Denial of the Right of Belligerency = Denial to Exercise the Right of Self-defense
* The Lack of Regulations about the Military Power in the Constitution
l
* denial of the right of belligerency = denial of the exercise of the right for self-defense
* The lack of regulations about the military power in the Constitution
1-2-2. 1-2-2. Judgment and Interpretation of Self-Defense Forces
・ Attitude which try to fill the gap between the constitutional principle and real self-defense forces
*Article 9 program regulation theory
(President of the Constitution examination committee Takayanagi)
→Article 9 as a philosophy, denial of effect as a legal regulation
* Change of the Constitution theory
→Change of the meanings of the article 9
* Legitimacy of the unconstitutionality theory
（1984-84 President of the Social Party Ishibashi）
→Aiming at the legitimacy based on the law of self-defense forces
・ National feelings, which mostly used to consider self-defense forces as unconditional until around 1960, (omission) are inclining to accept the accomplished fact. On the other hand, however, national orientation of anti-war is still strong and as a whole, opinion which supports the pacifism itself in the article 9 has not changed.（reference 5)
・1967.3, 1975.2: Innocence on the level of the legal interpretation
・1973. 9/7 Sapporo district court: self-defense forces applicable to‘land, sea, air forces’are illegal →only judgment as unconditional
・1977. 2/27: Conditional implicitly
・Both cases were appealed, judgment of unconstitutionality was avoided in the court of appeal
* 1976.8 Sapporo High Court: the accuser lost the suit because of his dissolution of the disadvantage + government act theory
* 1982.9 Dismissed because of accuser’s dissolution of suit advantage
* 1989.6: Inapplicable to the act in private law
･ government consensus: subjective, objective theory (organized aimed for self-defense, only self-defense is possible objectively too)
1-2-3.
1-2-4. 1-2-3. Judgment and interpretation Interpretation of foreign Foreign stationary Stationary troops Troops based Based on the Constitution
・The opposition of the political ideology is main, opinions split even in the pure interpretation of the Constitution by courts.
・1959.3/30 Tokyo district court: army in partnership with Japan which is responsible for Japanese security is unconstitutional.
・1959.12/16 the Supreme Court:‘military power’= military power peculiar
to Japan only
2.
3.
4.
5. 2. Discussion about the Amendment of the Constitution
5-1. 2-1. Political situationSituation
· 2001.4 Mr. Koizumi, who strongly explains the necessity of theto amend of the Constitution, formed a Cabinet.
· Afterwards, through the incidents that shook out of our view of the security, and the discussion about the amendment of the Constitution was heated up.
o The incident of 9.11
o The development of nuclear weapons of North Korea
o Kidnapping
o Operative matter
・ Even in Liberal Democratic Party, which agree with the detachment of the self-Defense Forces, the number of Representatives saying the detachment is beyond the Constitution has become increased.
On the other hand, Democratic Party, which disagrees with the detachment, advocates the framework of UN wait forces.
5-1-1. 2-2-1. The climate Climate of public Public opinion Opinion ･･･ research 3000 people
<Opinions of amendment of the Constitution>
· We should incorporate the new systems and rights (ex. right to know, the right to privacy, right to environment, rights and duties for foreign people, etc…)
· We want to make “our” Constitution
· We should admit the system of Empress
· We should make it easier to understand
· The article 9 is one of the biggest problem
↓
o More than 90% of people in statistics accept the ”Self-Defense Forces”, so we should amend the constitution and clarify it. (Liberal Democratic Party)
o The prohibition of the exertion of the right of mass self-defense means the restriction of cooperation of alliance. For example, even if the USA, in alliance with us, is attacked around Japan, the Self-Defense Forces cannot even rescue or counter. → It will be the obstacle of the good relationships.
<Opinions of defense of the Constitution>
· More or less there are some problems, though we don’t have to amend it.
· If we write Self-Defense Forces clearly as “Army”, it will happen that the exertion of the right of mass self-defense or the arm abroad. (Communist party, Social Democratic Party)
· It’s possible for Japan to follow the USA ever after.
· ｢“International contribution ≠ detachment｣”. When it comes to it, we can play our part in non-force, too.
5-1-2. 2-2-2. The Analysis of the recent Recent research Research of public Public opinionOpinion
l The amend of Constitution → Agree: 53% Disagree: 47%
l If you agree with the amendment, then what about the amendment of article 9?
→ Agree : 47% Disagree : 47%
l “Q.What is your most interesting topic in Constitution?” “A. Article 9.” 2001.→ 20%、 2004.→ 31%
l the amend of article 9 → Agree : 30% Disagree : 60% (2004), 74% (2001)
l How do you think we should amend the article 9?
・ To specify International contribution as the Self-Defense Forces’ part…13%
l Why do you think we shouldn’t amend the article 9?
・ Because it helps the peace of Japan…32%。
Appendix: Chronology
/ Abandonment of war / Abandonmentof arm / Self-Defense
Forces / The Japan-U.S. Security Treaty / Situation /
1950 / PM. Yoshida:
｢“The abandonment of war doesn’t mean the abandonment of the right of self- defense｣” / The Spare Police Forces / Korean War
1951 / Conclusion of The Japan-U.S. Security Treaty
1952 / The Security Forces
1954 / The view of gov.’t:
｢“the Self- Defense Forces is not unconstitutional｣” / The Defense Agency, the Self-Defense Forces
1957 / The view of gov.’t:
｢”the possession of aggressive nuclear weapon is unconstitutional｣”
1959 / The view of gov.’t
｢“the attack for self-defense is constitutional｣” / Tokyo District Court
｢“the presence of U.S Army is unconstitutional｣”
1960 / Conclusion of The nNew Japan-U.S. Security Treaty
1963 / Research of Mitsuya
1967 / PM. Sato:
｢“3 principle of exporting of the arms｣”
1971 / Diet resolution:
The three anti- nuclear principles
1972 / The view of gov.’t
｢“the military power is beyond the min. strength of self-defense｣” / Restoration of Okinawa
1973 / Sapporo District Court
「“the Self-Defense Forces is unconstitutional｣”
1976 / “the Scheme of self-defense project” / PM. Miki:
｢”new 3 principle of exporting of the arms｣”
1980 / The view of gov.’t
｢“Military draft is unconstitutional, even in emergency｣” / Navy Self- Defense Forces participated in RIMPAC
1989 / Marta Talks
1991 / The view of gov.’t:
｢“It’s not the detachment a “Forces”, because the aim isn’t the exertion of the arms｣”→ / Detachment of Navy Self- Defense Forces for elimination of mines after the Gulf War
1992 / Cambodia PKO
1993 / Mozambique PKO
1994 / PM. Murayama:
｢“the Self-Defense Forces is constitutional｣” / Luanda PKO
1995 / The new Scheme of self-defense project
1996 / Golan Heights PKO
1999 / East Timor PKO
2001 / Detachment of the fleet to Indian Ocean
2003 / Detachment of Iraq for recovery support