Japan Amends The Illegality Of Article 9 Of The Constitution

At the end of the Second World War(WII),as the result of the limitation on Japan sovereignty from the allied powers,the Constitution of Japan(1947)has stipulated explicitly that the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes,and in order to accomplish the aim of the preceding paragraph,land,sea,and air forces,as well as other war potential,will never be maintained.The right of belligerency of the state will not be recognized.Therefore,the Constitution of Japan is also named “Pacifist Constitution”.However,after the enactment of the “San Francisco Treaty of Peace with Japan”(1952),the Japanese conservatives argued that Japan reserved their autonomy to amend the constitution,especially article 9 of the constitution that hinders Japan becoming a “normal country” on the ground that the Pacifist Constitution is imposed by Japan's conservative party in the pacifist constitution is born under the foreign military occupation,in other words,it is imposed by the external powers.The so-called “imposed constitution” is the theoretical logic starting point for the conservatives to insist amending the constitution independently.Moreover,it puts forward the fundamental issues of constitutional amendment,that is,the effectiveness and legitimacy of the constitution.Therefore,it is inclined to demonstrate the legitimacy of the Pacifist Constitution primarily.The general position of this paper is that it is the Pacifist Constitution has forged the thought of “sovereignty of the people” in Japanese mind,rather than the opposite.In this sense,the paper puts forward the constituent right transfer theory.Specifically,Japan needs to re-establish the country and government after the WII,which requires a new constitution.The most essential element of a constitution is the “rationality” of its citizens,which is the Japan government and their people most lack.In the immediate aftermath of the WII,the overall Japan is still immersed in the fever of militarism,due to lacking of conscience and reason,internally it cannot properly handle domestic affairs and abolish militarism,externally it cannot enter into any international agreement.As a result,it has to rely on the rationality and conscience of the international community to bring Japan on the right track,the most effective way is to set a democratic constitution to reform Japanese society and restore national soul.This is the root cause of the constituent right transfer theory.In the perspective of the form,as the invasion war launched by Japan destroys the international order and all humans,the international society reached an agreement “the Potsdam Proclamation”(1945)in the light of human conscience and rational.The Potsdam Proclamation endows the Allies with occupation right,which leads to Japan's sovereign “suspended”.It means that the exercise of sovereignty is transferred to the Allies,thus the constituent power,as part of sovereignty,is exercised by the Allied Power accordingly.Therefore,in both substance and form,the constitutional power of post-war Japan must and should be exercised by the Allies.The United States,on behalf of the allied powers,sent an initiative draft constitution to the Japanese people.If the Japanese people agree,the international community is willing to give Japan the opportunity to reform itself and return to the international order.If not,then all victimized states have the right to “revenge” Japan in an appropriate manner.In the end,representatives of the Imperial Diet approved the MacArthur's draft constitution,and a special session established through national elections also voted to agree it.Eventually,a peaceful constitution,which respects the dignity and value of the Japanese people and conforms to the basic principles of constitutionalism,was formed.The Pacifist Constitution is justified in terms of its source of power,formulation process and substantive content.On the ground that the Pacifist Constitution is not imposed,the constitutional amendment shall abide by the certain limit,the limit not only refers to the procedural limitation prescribed in the constitutional articles,more than that is the implicit substantial limitation.Substance limitation refers to the “fundamental norm” that even restrict the prime constituent power,which is composed of human dignity and value as the core content,as well as the basic principles compatible with constitutionalism principle in different eras,such as pacifism after WII became the basic principles by which each domestic constitution shall abide.The “fundamental norms” constitute the core clauses after being confirmed by the constitution,therefore,the core clauses cannot be modified.In the case of Japan,article 9 of the Pacifist Constitution,which embodies the fundamental norms of pacifism,cannot be amended.In this sense,the amendment towards article 9 is essentially a “constitutional suicide” in the name of “constitutional amendment”,and right of constitutional amendment violates the constituent power.Furthermore,the Pacifist Constitution is created by the representative of the Allies GHQ in accordance with the Potsdam Proclamation(1945),the constitutional amendment hence should comply with the limitation in the international law,particularly the amendment of article 9 must obtain the consensus of the overall Allies,it is the inevitable requirement of constituent power transfer theory.In addition,the amendment of article 9 involves the illegality for Japan to lift the collective self-defense right.In the perspective of domestic law,the new security bill passed in 2015 which actually lifts collective self-defense right has breached constitutionalism.Whilst at the level of international law,lifting collective self-defense right violates the restrictions stipulated by international law on Japan,as well as the state responsibility principle.It is notable that Japan has actually lifted collective self-defense right,which has completely undermined the existing article 9 and the norm of pacifism in it.The conservative Liberal Democratic Party(LDP)claim that the pacifism norm centered on article 9 of the Constitution is neither reasonable nor realistic.The responds here is the following.On the one hand,the pacifist norm is a restrictive norm in consideration of Japan's history of aggression,so it is naturally reasonable.On the other hand,provided that the LDP reject to acknowledge the Japanese imperialism's invasion nature,denying the significance of Pacifist Constitution and the postwar system,even clamoring the so-called national normalization,these instead highlight the practical significance of the pacifism norm specification,at least it provides constitutional basis for the Japanese people to counter the government excessive expansion in armed force.At the same time,as a historical witness of the article 9 remind Japan that,only with sincere attitude and actions to solve related issues of war,can they have the chance to obtain international recognition and the possibility to lift collective self-defense right.At the end of the paper,it highlights that Japan is not absolutely forbidden to modify article 9 of the Pacifist Constitution in theory and practice.The statement here proposes three minimum requirements for Japan to modify article 9 explicitly.First,Japan should prove to the international community that they are willing to abide by the Pacifist Constitution in a sincere manner in a long term,and willing to stop their scramble for territory of other countries and interference for the home affairs,in a word,they have no ambition for territory and home affairs of other countries.Second,recognizing the aggressive nature of militarism in WII and sincerely rethinking their monstrous crimes.Their self-examination must not be replaced by a mere verbal apology,the emperor and the government must issued a legally binding document in a formal and public manner,acknowledging their aggression history and the identity of the defeat,moreover,apologizing publicly to the victimized states and their people.Beyond that,the Japanese government should actively respond to the civil litigation of the victimized states,fulfill their obligations of compensation for loss and make apology.Finally,the Allies reach an agreement on Japan's amendment of Pacifist Constitution.The first two conditions are essential and the third is formal.Only if Japan satisfies the first two requirements and proves that it is no longer a dangerous country and receives acceptance and forgiveness from the injured country,the international community is likely to agree its constitutional amendment.However,since the end of the war,Japanese government led by the LDP insists denying that it has waged an aggression war against other countries and the whole human beings.What they do is to beautify and distort the war crimes,to stir up territorial disputes with neighboring countries in order to expand territory.All of these suggest that Japan is not inclined examine their invasion in attitude and actions,therefore it has no right to obtain understanding and forgiveness of the international community,it still undertakes the responsibility to apologize and compensate for the injured countries,based on that,a dangerous country is forbidden to amend the article 9 of Pacifist Constitution.