Photo/IllutrationOriginal text of Article 9 of Japanese Constitution (Provided by National Archives of Japan)

Constitutional experts are warning that Prime Minister Shinzo Abe’s push to spell out the legal status of the Self-Defense Forces in a revision of war-renouncing Article 9 could lead to the SDF becoming Japan’s full-fledged military.

The Japanese Constitution marked the 71st anniversary of its promulgation on Nov. 3. Meanwhile, Abe is busy accelerating discussions on a constitutional amendment. His aim is apparently to put the government’s defense policies on a stronger footing and contain the argument that they violate the Constitution.

Asaho Mizushima, professor of sociology of constitutional law at Waseda University, said, “We do not know what clause will be added. But (whatever it is), whether the SDF’s existence violates the Constitution will continue to be questioned.”

Article 9 of the Constitution stipulates, “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.”

The controversial second paragraph says, “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.”

The SDF, initially called the National Police Reserve, was established under the order of U.S. Gen. Douglas MacArthur, the supreme commander for the Allied powers in Japan at the time, in 1950, the year the Korean War broke out.

The Japanese government has explained that the Constitution allows Japan to possess the “requisite minimum capacity to defend,” and therefore, the SDF’s existence complies with the Constitution.

Mizushima said, “Despite the explanation, if its scale, capacity and equipment are beyond the minimum level, the SDF provides the potential to wage war and violates the Constitution. As long as the second paragraph remains, the argument that the SDF violates the Constitution will not disappear".

On the other hand, “if the existence of the SDF is clarified (by amendment), the second paragraph will lose its backbone,” he said.

The government had long interpreted Article 9 as prohibiting the country from exercising the right to collective self-defense. Abe, however, made a 180-degree turn from the previous government’s view during a Cabinet meeting in July 2014, reinterpreting the Constitution to assert Japan’s right to collective self-defense and join an ally's conflicts.

The move provoked a backlash from constitutional experts who said that Abe’s national security policies violate the Constitution.

Mizushima agrees with those experts’ views. He said, “The government should return to the interpretation of Article 9 that the country should keep its exclusively defense-oriented policy. But, (if the Constitution is amended) the cause for that will be lost, and the government will heighten the SDF’s capability while aggressively justifying itself saying the policy is within the ‘defense force,’ which will virtually make the SDF the military.”

Miho Aoi, a professor of constitutional studies at Gakushuin University, said, "'The Constitution' ended up being demoted to just ‘a constitution.’ It has lost its dignity and has been disregarded over the past few years.”

Opposition parties have asked the Abe administration to hold an extraordinary Diet session based on Article 53 of the Constitution, which says, “When a quarter or more of the total members of either House makes the demand, the Cabinet must determine on such convocation,” but the administration has ignored the request.

“The Abe administration has created the assumption that the Constitution is not something that needs to be adhered to,” Aoi said.

“Abe emphasizes the rule of law overseas, meanwhile, at home, he pursues power that is not bound by anything. Japan is exposed to the risk of losing trust as a nation.”

Abe has never discussed what may happen after the existence of the SDF is clarified in the Constitution.

Aoi warned, “In the future, the amendment could pave the way for the deletion of the second paragraph of Article 9, and the establishment of a national defense military, which is described in the Liberal Democratic Party’s draft constitutional amendment.”

During a meeting at the LDP’s Constitutional Reform Promotion Headquarters in June this year, Okiharu Yasuoka, chairman of the headquarters, tried to convince opponents by explaining the situation after the revision, saying, “We will never change the government’s interpretation of Article 9 even slightly (after constitutional amendment)."

Koji Aikyo, a professor of constitutional studies at Nagoya University, challenged the logic in Yasuoka’s argument, saying, “If the Constitution’s lawful efficacy cannot be changed by amendment, it would be a significant waste for us to conduct a national referendum that costs tens of billions of yen.”

Aikyo continued, “It is a case of extreme opportunism. When the Abe administration enacted the national security legislation, it ignored criticism from constitutional experts. Now, it says the Constitution must be amended to resolve the argument among experts that the SDF violates the Constitution. The government has long been operating the SDF in a suppressive way while fighting the criticism that it is violating the Constitution.

“When a referendum is held over the description of the SDF in the Constitution, we will need to look at whether (the Abe administration’s) new interpretation of Article 9, which would allow for the exercise of the right to collective self-defense, is approved. If the people do not approve it, the government should return to its original interpretation and abandon the national security legislation.”