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A Coup by Appointment: Debilitating Article Nine

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Abe meets his panelists (Kantei)

SNA (Tokyo) — It is not exactly an unknown technique in politics, but the Abe administration is using it in several high-profile cases, and some people, at least, have noticed. The technique is to establish supposedly “independent” panels or organizations, but appointing people to serve on those panels or in those organizations whose opinions and conclusions are already known in advance. In Shinzo Abe’s case, he is appointing people who often have a long record of publications advocating conservative revisionist positions to “study” and “report” on the very subjects they have vociferously argued about in their earlier careers, either in the academy or within the permanent bureaucracy, especially the Foreign Ministry and the Defense Ministry. And when the councils of these Wise Men conclude their deep deliberations — Shock! — they come to the very same conclusions that they had been advocating for decades, but now with the added authority of being seen as Cabinet-backed specialists.

During his first, miserable term as prime minister from September 2006 to September 2007, Shinzo Abe already employed this approach. He set up a government panel in April 2007 called the Advisory Panel on Reconstruction of the Legal Basis for Security.

Abe stuffed this panel with 13 individuals who were all well known for taking conservative revisionist stances on security policy and who were certainly no friends to Article Nine of the Constitution, which they either believed to be naive or outdated or altogether preposterous. The 13 appointed individuals were as follows:

Shunji Yanai (Chair)
Shinichi Kitaoka (Deputy Chair)
Yoko Iwama
Yoshiyuki Kasai
Shinya Murase
Hiroshi Nakanishi
Osamu Nishi
Tetsuya Nishimoto
Hisahiko Okazaki
Kazuya Sakamoto
Masamori Sase
Ken Sato
Akihiko Tanaka

Liaising with these 13 conservatives was the then-head of the Foreign Ministry’s legal bureau, also noted for his own revisionist conservative views, Ichiro Komatsu.

With staffing of this sort, it was clear to anyone watching the inside game that the panel was far more of a public relations exercise than a serious debate over what Article Nine allows and doesn’t allow. The minds of the panelists on the uselessness of the Japanese Constitution and the need for a “normal” Japanese military were made up years before they walked into the first meeting of the panel. Their main job was to give political cover to Prime Minister Abe by providing expert “advice” that he should do the things he wanted to do. Thus, ostensibly, Abe would not be seen as simply pushing his own agenda, but thoughtfully responding to some of the best minds in the nation and doing what must be done to secure the nation in the face of the new challenges of the 21st century.

The Advisory Panel on Reconstruction of the Legal Basis for Security met five times in the four months May to August of 2007, but their fate was sealed soon after their fifth meeting when the first Abe administration collapsed in disgrace in September and the ruling LDP selected moderate Yasuo Fukuda to be his successor.

Fukuda quickly indicated that there was no need for the Advisory Panel on Reconstruction of the Legal Basis for Security to meet again. When Chairman Shunji Yanai issued a 32-page report from the panel in June 2008 calling for changing the “interpretation” of the Constitution on security issues, and all the other revisionist goodies, then-Prime Minister Yasuo Fukuda thanked him for his hard work and promptly lost the report in a shuffle of papers.

After Fukuda came Aso, Hatoyama, Kan, and Noda as the Japanese national leaders, and never a word was heard about the Advisory Panel on Reconstruction of the Legal Basis for Security. But on February 8th of this year, the old-new Prime Minister Shinzo Abe resurrected the panel with the same exact 13 people as its members.

Prime Minister Abe received with fanfare the June 2008 report that Fukuda had scorned, commenting, “I offer my gratitude for being given this opportunity to receive the report anew… I convened this meeting to discuss once more what Japan should do to maintain its own peace and security in the face of changing tides, including the most effective way to carry out the US-Japan security arrangement.”

Chairman Yanai replied, “In addition to terrorism, nations are also posing an ever-greater threat,” once again highlighting the fear-inducing public relations approach of the security hawks.

The deliberations of the Advisory Panel on Reconstruction of the Legal Basis for Security have resumed rather quietly since February, probably because it was well understood that Prime Minister Abe wanted to highlight themes of economic revival ahead of the July House of Councillors elections, which was the great lesson he had learned from the failure of his first administration.

But now that the election hurdle has been crossed, the agenda closest to Abe’s heart is beginning to re-emerge.

In an August 9 interview with the Asahi Shinbun, the panel’s deputy chairman, Shinichi Kitaoka, gave a preview of what to expect when the Advisory Panel on Reconstruction of the Legal Basis for Security releases its new report near the end of this year.

The preface, as usual, is that the nation is in greater danger than ever before. Kitaoka stated, “There is one nuclear power that is belligerently encroaching on Japan’s territorial waters. North Korea is developing nuclear arms and has used very rough language when it comes to Japan. If Japan should protect itself with only the right to individual self-defense, it would have to become a nuclear power itself.”

When the Asahi interviewer pointed out that his view of the Constitution seemed to be at odds with what the Japanese government has understood since 1947, Kitaoka replied, “Interpretations need to change with the times. How would you meet Japan’s security needs? Is it okay to stick to the same old rules even as military technology keeps advancing and China and North Korea are becoming more powerful? The Cabinet Legislation Bureau has never answered such questions.”

On one key issue, Kitaoka’s bottom line was as follows: “The defense of US naval vessels has become a more real question with the issue of the Senkaku Islands. North Korea’s ballistic missiles can now fly as far as the waters off the Philippines. I believe the right to collective self-defense should be included, from the very start, as a minimum requisite of military options Japan is allowed to exercise.”

If the exercise of the right of collective self-defense is the “minimum requisite” for Japan’s security according to Kitaoka, he hinted what a more satisfactory policy might look like: “The Afghan War, the Iraq War and the like fall under the concept of collective security. Japan has the option to join such wars if they have been authorized by the United Nations and dozens of other countries are also taking part.”

So according to the number two man on Prime Minister Abe’s panel, it probably would have been a good thing for Japan to send fighting troops to Iraq and Afghanistan — and presumably wherever else the United States decides to launch its next crusade with allies in tow.

It should be clear by now that the position that Shinichi Kitaoka takes on Japanese security issues is more than a little radical and far outside of the mainstream Japanese public opinion, but this is not a guy screaming from the sidelines of a Yasukuni Shrine protest, but rather a respected figure of the Japanese political establishment; a former Japanese ambassador to the United Nations and currently the president of the International University of Japan.

There is no reason to believe that any of the other twelve people on the Advisory Panel on Reconstruction of the Legal Basis for Security have any major dispute with Kitaoka’s views on these matters.

Indeed, Chairman Shunji Yanai has just revealed to Kyodo News that, “It is the basic stance of the panel that Japan can exercise the right of collective self-defense. We already have the answer.”

As troubling as Prime Minister Abe’s approach to this panel may be to those who are not in such a hurry to discard Japan’s postwar culture of pacifism, it is not the most serious move he has made. This panel is just a panel. It’s recommendations can be accepted or rejected by the government, and New Komeito has already been emphasizing that there is no obligation in this regard.

The much bigger issue is the action Prime Minister Abe has taken to decapitate resistance from more moderate sections of the bureaucracy; namely, the appointment of Ichiro Komatsu as the new head of the Cabinet Legislation Bureau.

Komatsu, as mentioned above, is the Foreign Ministry official who worked closely with the Yanai Panel in 2007. Thereafter he was appointed ambassador to France. But, all along, he was personally outspoken about his advocacy for changing the “interpretation” of the Constitution to allow for the exercise of the right of collective self-defense.

The Cabinet Legislation Bureau, on the other hand, has long been a bogeyman of the Japanese right. During the Persian Gulf War of 1991, it was this bureau more than any other which blocked Japan’s military participation in the campaign against then-Iraqi President Saddam Husain. If one goes back and reads what Yanai, Kitaoka, and others were writing about the Cabinet Legislation Bureau in those days, one will realize that this is actually a political vendetta that goes back for decades. Kitaoka’s comment about the bureau in the Asahi Shinbun interview cited above shows that his rage against this institution endures even to this day.

The prime minister is not entirely obligated to follow the advice of the Cabinet Legislation Bureau, but in practical terms its view on how the Constitution can be interpreted carries major political weight. In short, it has been one of the most effective guardians of the Constitution, which is precisely why the right hates it.

Much of the media described the appointment of a foreign ministry official, Ichiro Komatsu, as the new head of this institution as a “rare appointment.” In fact, it is entirely unprecedented and near-revolutionary. In the past, every head of the Cabinet Legislation Bureau was promoted from within. Apparently, Prime Minister Abe and his colleagues couldn’t find any official inside the bureau who was sufficiently loyal to their revisionist agenda, and that’s why they looked for an outsider.

The Japanese media, as usual, wrote a couple of strongly worded editorials and swept the whole matter under the carpet. Still, the Japan Times in its editorial did at least briefly provide a glimpse at what Komatsu’s appointment could mean, even if they have no intention of following up on the logic of their own arguments:

Although Mr. Abe appears to want to exercise the right to collective self-defense in limited cases, his approach skirts the normal procedure to revise the Constitution. It undermines the principles of constitution-based parliamentary democracy. If Mr. Abe goes through with his plan, the reputation of Japan as a country with a constitutional government will be irreparably damaged. Lawmakers of the Liberal Democratic Party also should consider whether his approach is constitutionally acceptable and persuade him to abandon his plan.

One might expect that an action that “undermines the principles of constitution-based parliamentary democracy” would be a profoundly serious event, but the reality is that Japan’s mainstream media will do little in practice to defend these principles and, in fact, already lost interest in pursuing the story once the prime minister went ahead and made the appointment.

The strongest response to the appointment of Komatsu, not surprisingly, comes from the Japanese political party which has been the most consistent in defending the Peace Constitution over the years, and that is the Japan Communist Party.

JCP leader Kazuo Shii memorably described Komatsu’s appointment as being “like a coup d’etat” and an act that “shakes the foundations of the rule of law” in Japan.

It should be recalled that the JCP is not quite as marginal these days as it used to be. Today it is one of Japan’s largest opposition parties — certainly the best organized — and competing with the DPJ as the opposition party with the highest level of public support in opinion polls. Nevertheless, even with their unusually strong will the JCP’s power to influence state policy remains minor; certainly compared to the LDP, New Komeito, and the Abe government itself.

At any rate, Kazuo Shii and his colleagues can read the writing on the wall and their view of the significance of the Komatsu appointment is certainly not far off the mark.

Indeed, there has even been a rearguard action by Tsuneyuki Yamamoto, the former head of the Cabinet Legislation Bureau who is being replaced by Komatsu. Yamamoto is now the newest Supreme Court justice.

At his inaugural press conference for his new post, Yamamoto observed, “When a law remains unchanged, changing its interpretation is very difficult… A constitutional amendment may be appropriate.”

In other words, Yamamoto tried to slap down the notion that a new government can come in and suddenly decide that the national Constitution means something quite different from what it had been understood to mean for all the decades previously. If they want a big change, then they should go to the people and get a constitutional revision. And if the people say “no” then the answer is “no.”

Despite the obvious appropriateness of Tsuneyuki Yamamoto’s stance, revisionist conservatives (and their foreign allies) don’t like that answer because it doesn’t let them do what they want to do with Japanese military policy.

Not for the first time, when confronted by such a firm judicial argument, the Japanese conservatives chose to attack the judge rather than respect the view. Chief Cabinet Secretary Yoshihide Suga told a press conference that he felt “great discomfort” about Supreme Court Justice Yamamoto’s comments, which in the understated way of Japanese politics effectively meant: “shut the hell up and don’t interfere in politics!”

Suga’s comment, in turn, provoked the more dovish New Komeito leader Natsuo Yamaguchi to say that he found Yamamoto’s interview to be “just inside the bounds of what is acceptable.” While hardly a ringing endorsement of the notion that constitutional revision would be needed for a major change in the government’s policy on collective self-defense, it was basically interpreted as an attempt to protect Yamamoto from rightwing attacks, including those coming from senior government officials.

Nevertheless, Prime Minister Shinzo Abe is determined to get his own way on “revision by reinterpretation.” The Advisory Panel on Reconstruction of the Legal Basis for Security is not a group that ever seriously examined Japanese security policy and whose conclusions were written long before the panel itself was ever established. The appointment of Ichiro Komatsu was made for the purpose of silencing Japan’s most effective constitutional watchdog. The subtle but well-understood attack on Tsuneyuki Yamamoto was a warning to the courts to stay out of the way: It’s not terribly overt nor outspoken, but a campaign of political intimidation is now under way, and its aim is to debilitate Article Nine as a practical restraint on the policies of the conservative revisionists.

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