Japan’s Revolution Is Far Too Quiet—A Commentary by Bruce Ackerman ’67
Japan’s Revolution Is Far Too Quiet
By Bruce Ackerman ’67, Norikazu Kawagishi ’99 JSD,’93 LLM
Japan is on the cusp of a constitutional revolution. To an overstretched West, a newly muscular Tokyo promises stability in a rapidly shifting region. Yet, in its rush to overturn six decades of official pacifism, the Japanese government is stifling the serious national debate required in a modern democracy. Is anyone paying attention?
Japan’s pacifist Constitution has been frozen in time, unchanged since it was enacted during the occupation of U.S. Gen. Douglas MacArthur. But with little opportunity for debate, the Japanese parliament recently passed a bill that opens the door to major constitutional revisions. Western governments, overwhelmed by their security commitments around the world, have honed in on one preferred outcome—amendment of Article Nine, which prohibits Japan from participating in war and restricts the size and scope of its military. Their nearly exclusive emphasis on this point has obscured the deeply flawed process by which the changes are to be made.
The new law, pushed by the inexperienced Prime Minister Shinzo Abe, allows the government to hold a national referendum on proposed constitutional amendments. Rammed through parliament on a party-line vote, the Abe initiative has serious flaws.
Most importantly, it imposes drastic restrictions on freedom of speech. No political advertising will be permitted on radio or television during the two-week run-up to the referendum on proposed amendments. Worse yet, the law bans the nation’s schoolteachers from speaking out on the matter—as if a little learning were a dangerous thing when the nation contemplates its constitutional future. These restrictions have no place in a system based on the rule of the people.
But the government may have something else in mind. The new law fails to require a minimum turnout before any constitutional referendum becomes valid. By tolerating massive political passivity and imposing silence on broad sectors of civil society, the law sets the stage for a parody of democratic politics. The Constitution should not be amended by minorities marching to the polls under the guidance of entrenched political elites.
Some checks on abuse will remain. The Constitution inherited from the MacArthur era requires a two-thirds vote from both legislative houses before an amendment can be placed before the voters. This supermajority rule will necessitate a consensus from the political elite before any basic constitutional change could occur. But democratic principles require something more—a full and fair test of the consent of ordinary citizens. By restricting free speech and not mandating a minimum voter turnout, the referendum law falls short of this key requirement.
Western policymakers will find it easy to ignore this point. With NATO’s resources desperately overstretched, they are increasingly concerned with the revision of the famous “peace clause” of Article Nine. As they contemplate China’s rising power, a growing number of Western governments will be tempted to support the repeal of the peace article without serious questioning.
This would be a grievous mistake. Any attempt to repudiate Article Nine would generate large anxieties in the region, even if it is accompanied by flawless democratic procedures. But an effort by elites to ram repeal through a defective process will justifiably generate larger concerns about the future of Japanese democracy. It is one thing for a democratic Japan to return to the world stage as a normal military power; it is quite another for it to create a precedent for future assaults on its fragile constitutional heritage. In a fiercely nationalistic region with long historical memories, such a move could be extremely dangerous.
Abe is right about one thing: Japan’s move toward popular sovereignty is essential if the Japanese people are to take ownership of their own political destiny. The existing Constitution was largely drafted by American military lawyers and was never put up for approval by the people. Sixty years later, it is past time for modern Japan to move beyond the U.S. occupation and build a constitution worthy of its two generations of democratic practice. But this new law is the wrong way to start.
The referendum law does not come into effect for three years—time enough for public opinion, both inside and outside the country, to have an impact. Intent on repealing the peace article, the Abe government has pressed forward without a broad discussion of its larger constitutional implications. But it would be shortsighted for friends of the country to allow this silence to continue.
Bruce Ackerman is professor of law and political science at Yale University. Norikazu Kawagishi is professor of law and political science at Waseda University in Tokyo, Japan.