The following is from an article by former Josai University Professor Seishiro Sugihara, which appeared in today's Sankei Shimbun under the title, Mystery of Big-name, the University of Tokyo Professor's "About-face."
An Inconvenient History of Constitutional theory
Constitutionalists who argue that the Self-Defense Forces are unconstitutional have been holding their breath recently, perhaps because of the invasion of Ukraine and the threat of China. Still, in the debate over doubling defense spending and enemy base attack capability (counterattack capability), the opposition has again risen, using Article 9 of the Constitution as a shield.
Japan, as usual, has not been released from the yoke of Article 9.
However, is it correct to recognize that the Constitution renounces war and stipulates the non-retention of military forces?
Article 9, paragraph 1 states, "Japan sincerely desires international peace and renounces forever war as an exercise of national sovereignty and the threat or use of force to settle international disputes."
The interpretation that war is not renounced "as a means of self-defense" is also logical. The government's interpretation allows the exercise of the right of self-defense.
However, this is not called "war."
The non-preservation of military forces stipulated in Article 9, Paragraph 2, also provides that "for the purpose of achieving the objectives set forth in the preceding paragraph, no army, navy, air force, or other military force shall be maintained," so it is logical and academic to interpret this as allowing the possession of military forces for the purpose of self-defense, which is different from the "objectives set forth in the preceding paragraph.
If we trace the enactment process of the Constitution, we can see a certain logic to this interpretation.
In fact, in the government's original draft of the Constitution imposed by the occupying forces soon after the war, the phrase "in order to achieve the purposes set forth in the preceding paragraph" was not included in paragraph 2. Instead, it could read the article stating that the armed forces shall not be possessed under all conditions.
However, the House of Representatives amendment inserted the phrase "in order to achieve the purposes set forth in the preceding paragraph.
This amendment was made at the suggestion of Hitoshi Ashida, the chairman of the subcommittee that deliberated the Constitution in the House of Representatives. It is called the "Ashida Amendment. Through the occupying forces, the Far Eastern Commission forced Japan to include the phrase "The Prime Minister and other Ministers of State shall be civilians.
If Japan does not retain an army under the new Constitution, there will be no military personnel, in other words, no one but civilians, so this clause is essentially superfluous.
The fact that they went to the trouble of having this clause included in the new Constitution means that, from the point of view of those who imposed the new Constitution, Article 9 could be interpreted to allow the retention of an army for self-defense.
The current Japanese government does not follow this interpretation of the Constitution (the Ashida Amendment) but interprets Article 9 to make the Self-Defense Forces a constitutional entity.
Although more than a few countries other than Japan have constitutions renouncing war, it is international common sense that they still have armies.
For some reason, however, Japanese Constitutional theory has insisted on a fundamentalist renunciation of war and non-retention of armed forces.
Mr. Hideaki Shinoda, an international political scientist, harshly criticizes this in his book "The Disease of Constitutional theory" (Shincho Shinsho).
The book calls the Constitutional theory of successive generations of constitutional scholars at the University of Tokyo's Faculty of Law a "disease of Constitutional theory" and criticizes it for being " Galápagos syndrome," far removed from international common sense.
With the current situation in Japan, where the constitutional interpretation of the University of Tokyo Law School dominates, the book effectively critiques Japanese Constitutional theory.
The Emperor is a "Robotic Being"
Why have Japanese Constitutional theory become Galápagos syndrome?
I am not a constitutional scholar, but I know part of the reason because I have studied Japan's modern and contemporary history.
In short, soon after the war, a famous professor of Constitutional theory at the Faculty of Law of the University of Tokyo (then still called Tokyo Imperial University) named Toshiyoshi Miyazawa buttered up to the occupying forces and the United States for his self-preservation and promoted an interpretation that upheld the principles of the imposed Constitution.
It was so unrealistic that the rest of the world left behind Japanese Constitutional theory.
Miyazawa was a so-called "big government-patronized scholar," and immediately after the defeat in the war, he was the leading member of the government's Constitutional Problems Investigation Committee, where he argued that even if the Meiji Constitution was to be revised, it should not be as drastically changed as the later Japanese Constitution.
However, on February 13, 1946, when he learned that the occupying forces had forced the Japanese government to adopt a constitutional revision plan known as the "MacArthur Draft," he changed his attitude.
The MacArthur Draft thoroughly eliminated any room for political power concerning the Emperor, clearly stated that the Emperor was a "symbol" rather than a head of state, and included almost everything in the current Japanese Constitution, including the renunciation of war and the non-retention of military forces. Miyazawa took advantage of his position to obtain this strictly confidential draft and brought it to Shigeru Nanbara, then president of the University of Tokyo, on the same day.
Significant professors from the University of Tokyo's Faculty of Law were assembled the next day. A "Constitutional Law Research Committee" was formed within the university, and Miyazawa was appointed chairman.
He became the standard-bearer for the revision of the Constitution based on the MacArthur Draft.
One can only assume that the occupying forces disciplined him, but why did Miyazawa change his attitude so drastically?
The fear of incurring the occupation forces' displeasure, or being ousted from public office, is the analysis of journalist Eiji Takao in his book "Document Imperial Household Law: Toshiyoshi Miyazawa and Ryoichi Takao" (Gentosha), based on a series of painstakingly researched historical documents.
Miyazawa subsequently put forth theories faithful to the occupying forces and the U.S. in the immediate postwar period in interpreting the new Constitution.
Calling Japan's defeat in the war a revolution, he even negatively interpreted the authority of the Emperor, describing him as a "robotic being."
He also interpreted Article 9 as meaning Japan could not have war power even for self-defense.
As mentioned above, this fundamentalist view exceeded even the assumptions of the United States. Still, it took root in the University of Tokyo law department and came to dominate Constitutional theory as a whole.
As discerned by Miyazawa, the occupying forces and the U.S. were to weaken Japan in the early stages of the occupation to prevent Japan from taking revenge on the victorious powers.
The United States eventually changed its policy in response to the Korean War and other changes in the international situation, even going so far as to call for Japan to rearm. However, only the Constitutional Theory continued to take root in Japan, gaining support among the anti-war, pacifist left.
This article continues.
April 4, 2023, in Kyoto
