Monday, October 13, 2008

"The fatal flaw in trying to impose a new interpretation on Article 9

"PHILADELPHIA — The report of the "Panel on the Reconstruction of the National Security Legal Foundation," commonly known as the Yanai Report, argues that a reinterpretation of Article 9 of the Constitution is necessary to permit Japan to participate in collective self-defense and collective security operations. Both activities are currently understood to be prohibited by Article 9, Section 1. The report reveals, however, a fundamental flaw that entirely undermines the legitimacy of the panel's analysis.

"The panel was created in April 2007 by then-Prime Minister Shinzo Abe to consider the need for a "reinterpretation" of the Constitution. The panel was composed of 13 prominent academics, former diplomats and government bureaucrats who were predominantly experts in international relations, politics and national security. It included only one constitutional scholar. The panel was criticized for being dominated by policy hawks who were on record as favoring constitutional revision. The chair, Yanai Shunji, a former ambassador to the U.S. and now a professor of Chuo University, submitted the panel's report to the Cabinet in June.

"Then Prime Minister Yasuo Fukuda showed little interest in the report or constitutional "reinterpretation." But Prime Minister Aso reiterated while at the United Nations that Article 9 should be "reinterpreted." Moreover, there is evidence that the Yanai Report has been well received within the bureaucracy, and is likely to exercise increasing influence within government. It should therefore be the subject of greater public scrutiny.

"The report argues that because the international security environment has changed since the end of the Cold War, with increased threats and more diverse threats to Japan and the international society, the established interpretation of the Constitution is no longer appropriate. Rather, Article 9 is preventing the fulfillment of important security objectives.

"Thus, it argues, the interpretation of Article 9 must be "revised" so as to permit the development of a more effective defense capability and more robust national security policies. This is necessary in order to implement the strategic imperatives of effectively defending Japan, supporting the U.S.-Japan alliance, which is key to Japanese security, and contributing to the international peace and security to which Japan's security is tied. Boiled down to its essence, the argument is this: Japan faces more threats; therefore, the meaning of Article 9 must be changed so that we can better meet those threats.

"The policy analysis is commendable, but as constitutional analysis, the argument is fallacious. The entire approach of beginning with an identification of the problems posed by current circumstances, moving to a determination of the policy responses necessary to resolve those problems, and then concluding with an interpretation of a constitutional provision so as to facilitate the adoption of such policies, is entirely illegitimate.

"Constitutional interpretation, under any accepted constitutional theory, cannot begin with the consequences and policy ramifications of a given provision and then proceed to reverse-engineer the meaning of the provision in a manner designed to enable the realization of the desired policy outcomes. Such result-oriented reasoning is simply invalid. And notwithstanding assertions within the report to the contrary, this is precisely what the panel has done.

"A constitution forms the fundamental legal framework of a democratic state. Its provisions commit future generations to operate within the confines of the system thus created, and according to the values and vision that it embodies. The meaning of a constitutional provision has to be determined by reference to the text of the provision itself, and an understanding of the purpose that it was designed to achieve. That process is assisted by reference to other parts of the constitution, and an examination of the history of the drafting and ratification of the constitution, informed by the legal principles that were drawn upon in the process.

"The subsequent interpretation of the provision by the courts and other government bodies with the requisite constitutional authority, and its operation over time, are also important guides to interpretation, as consistency, stability and predictability in the operation of fundamental legal principles are crucially important to the rule of law.

"There are different theories of constitutional interpretation, some more wedded to the text and the original intent of the framers than others. Some approaches emphasize that the constitution is a living institution that will evolve gradually over time through incremental developments in court interpretations, in accordance with the shifting values and realities of the nation. But none of them contemplate ad hoc and radical government reinterpretation of provisions to fit perceived policy needs.

"If there is such significant change to the nation's circumstances that the continued legitimacy of a constitutional provision is thrown into question, then the appropriate avenue is constitutional amendment. Changing circumstances and even changing values are obviously anticipated, and amending procedures are typically part of the constitutional system. The Constitution of Japan is no exception, and it has an amendment process that is less onerous than those of Germany and the United States.

"Ad hoc "reinterpretation," particularly by the executive, is just an end run around the legitimate amendment procedures of the Constitution.

"If the view is that the majority of the nation would not support such an amendment, then that simply highlights the illegitimacy of trying to impose a new meaning on the Constitution that the majority of the people would disagree with. At root, the argument that "the situation has changed, so we must change the Constitution" is perfectly valid; the argument that "the situation has changed, so the meaning of the Constitution must have changed" is not.

"If the government can simply "reinterpret" Article 9 due to changing circumstances, why not other provisions? As the number of immigrants in Japan increases in response to the challenges of an aging population, could the government not also "reinterpret" Article 14 as no longer prohibiting discrimination against foreigners? A "reinterpretation" of any one provision puts the entire constitutional framework at risk. Of course, the courts have the ultimate authority to interpret the Constitution and could reject such "reinterpretations," but the Supreme Court of Japan has historically demonstrated such deference to the government that it cannot be relied upon in this context.

"Consider the issue of guns in the U.S. Many Americans, and probably most of the rest of the world, think it misguided to have a constitutional provision guaranteeing an individual right to possess firearms in a country that has the highest homicide and violent crime rates in the industrialized world. The provision itself, the Second Amendment, was ratified more than 200 years ago. It is considered by many to be anachronistic and a significant obstacle in efforts to reduce the modern scourge of gun violence in America.

"Yet it is utterly inconceivable that the president or Congress could announce that it was "reinterpreting" the Second Amendment so as to permit the legal prohibition of all firearms. And the Second Amendment is much more ambiguous and has a much more complex history than Article 9. It would be open to argue, as the District of Columbia did recently before the Supreme Court, that based on valid principles of constitutional construction, an alternate interpretation is more legitimate. But governments cannot simply claim that the Second Amendment now means something different because guns kill too many people in America.

"The Yanai Report provides an important analysis of the changing international security environment, and provides a concise articulation of Japan's strategic policy requirements. It asks important questions regarding whether it is possible for Japan to meet its national security objectives within the constraints of Article 9.

"It also offers significant arguments that could be legitimately advanced in favor of constitutional amendment. The report even provides fairly detailed and impressive recommendations on the legal limits that should be created to govern the exercise of military force that would be made possible by its recommended changes. The report has considerable value as a policy document.

"However, its conclusion that Article 9 must thus have a meaning different from the long-established interpretation is simply invalid. The panel makes errors in some of the details of its interpretive arguments, but these are dwarfed by the illegitimacy of the entire approach.

"As such, notwithstanding the potential value of its policy analysis, the report ought not to have any influence whatsoever on the meaning of the Constitution. And government attempts to follow it ought to be challenged."

By Craig Martin (10/5/2008), Japan Times, Link to article (last visited 10/13/2008)

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