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What could addition of SDF to Constitution's Article 9 lead to? (Part 1)

A Self-Defense Force parade is seen here in this file photo taken at the Japan Ground Self-Defense Force Camp Asaka in Saitama Prefecture, Oct. 23, 2016. (Mainichi)

Emboldened by the victory of the ruling Liberal Democratic Party (LDP)-Komeito coalition in the House of Representatives election, Prime Minister Shinzo Abe has expressed a renewed zeal toward rewriting the Constitution.

In its election pledge for the general election, the LDP vowed to clearly spell out the existence of the Self-Defense Forces (SDF) in the Constitution. What will change if the SDF's presence is written into Article 9 of the Constitution that renounces war and does not recognize the maintenance of war potential or the belligerency of the state? We asked constitutional experts on the potential changes to Japan's "pacifism" -- a main pillar of the Japanese Constitution -- and the role of the SDF.

Let us first review the LDP's campaign vows. Constitutional amendment is listed as the sixth of the six pillars of its campaign platform. The LDP promised it would aim for constitutional revision while maintaining the three main principles -- popular sovereignty, respect for basic human rights and pacifism -- of the current Constitution, and stated that explicitly incorporating the existence of the SDF into the Constitution was a main priority among the constitutional changes it hoped to make.

In May, Prime Minister Abe expressed his wish to keep the first two paragraphs under the Constitution's war-renouncing Article 9, while adding a third that clearly states the existence of the SDF. However, he has yet to announce the specifics of the text he wants added.

Ken Motoyama, a professor emeritus of constitutional law at Ryukoku University, and a co-founder of Chiba Prefectural Shimin Rengo, a civic group protesting the constitutional revisions proposed by the LDP, points out that if the existence of the SDF were to be added as a third paragraph in Article 9, there are three possible ways that could unfold. Motoyama and other constitutional law experts believe the following three options are the most likely ways that Abe will attempt constitutional amendment, based on the discussions that have taken place within the LDP and among those close to the prime minister.

According to Motoyama, option A consists of the addition of a clause along the lines of "the previous provisions must not be interpreted as prohibiting the existence of the Self-Defense Forces." Option B is virtually the same as the LDP's working draft that the Mainichi Shimbun reported on in June, saying, "The previous provisions must not be interpreted as prohibiting the establishment of the Self-Defense Forces as an organization using the bare minimum of force necessary to protect the state." Lastly, option C closely resembles what is being deliberated by a think tank affiliated with the nationalist Japan Conference group, which is said to have close ties to Abe: "The previous provisions do not prohibit the establishment of the Self-Defense Forces, with the prime minister as its commander-in-chief, for the purpose of guaranteeing our nation's independence and peace, as well as the safety of the nation and its citizens under international law."

Says Motoyama, "I suspect that Prime Minister Abe is aiming to add a clause along the lines of option C, which would completely open the way for Japan to exercise the right to collective self-defense. By changing the government's interpretation of the Constitution, the Abe administration in 2014 passed a Cabinet decision that green-lighted the exercise of collective self-defense. The following year, the Abe administration rammed through security-related legislation that aligned with the Cabinet decision. What Abe is likely to do next is try to change the Constitution so that it fits the security legislation."

Mechanics check an F-15 fighter jet at Japan Air Self-Defense Force Naha Air Base in Okinawa Prefecture in this file photo taken on April 24, 2017. (Mainichi)

If all goes as Abe hopes, the Constitution will not serve its original purpose of keeping those in power in check, but will instead affirm the changes that those in power have forced through, according to Motoyama.

So what becomes possible if a clause explicitly stating the existence of the SDF is added to Article 9, under current circumstances in which security legislation passed in 2015 is in force?

"There have been complaints, even among conservatives, that the security laws passed amidst all that protest are not user-friendly," Motoyama explains. "First, there's the prerequisite for overseas deployment that was incorporated into the laws at the request of Komeito, the junior coalition partner of the LDP. It sets the legitimacy of overseas deployment under international law and the guaranteed safety of SDF personnel as criteria that must be met before SDF personnel are sent abroad. The other is the second paragraph of Article 9, which states that 'the right of belligerency of the state will not be recognized.'"

Motoyama raises "kaketsuke keigo" -- literally meaning "rush and protect" -- as an example of the problems we would face if and when the SDF is deployed overseas. It is a mission newly granted to the SDF under the recently enforced security legislation that entails the SDF rushing to a location away from the SDF's area of activity and using weapons to protect the lives of United Nations and other NGO staff.

Under previous laws, the use of weapons beyond the purposes of self-defense and emergency evacuations were considered the "use of force" forbidden under Article 9 of the Constitution. But with the passage of new security legislation, "rush-and-protect" missions were made possible if they fulfill the five principles of peacekeeping operation (PKO) participation.

"There is no proper term in English that equals 'kaketsuke keigo,'" Motoyama explains. "It's a specifically Japanese concept. If SDF personnel use weapons during their missions, there's a high probability their activities could ultimately develop into the 'use of force' banned by the second paragraph of Article 9."

However, Motoyama continues, constitutional restrictions can be loosened with a change to Article 9.

"There is something called the 'last-in-time rule' in the world of law, which means that whatever law that was enacted later has priority over a law that was created earlier. Thus, even if the second paragraph of Article 9 prohibiting the 'use of force' were to remain unchanged but an amendment like option C were passed, the government might see it as meaning that the SDF can engage in real combat in order to secure the safety of Japanese citizens," says Motoyama. "In this case, the SDF's defense-only policy would come crumbling down."

Furthermore, Motoyama worries that such developments could reduce the SDF's participation in disaster relief, which has largely contributed to the SDF's good reputation among the Japanese public. Article 3 of the Self-Defense Forces Act states that the main mission of the SDF is to defend the country in order to maintain the country's safety. It goes on to say that depending on the need, the SDF shall work to maintain the public order, which is the stipulation under which the SDF currently engages in disaster relief activities. "If Article 9 of the supreme law were to be changed, rendering such stipulations in the SDF Act meaningless, the SDF would become just another military," Motoyama points out. (To be continued. This is Part 1 of a 2-part series.)

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