Rebooting Japan’s Security Legislation Debate

Publications Rebooting Japan’s Security Legislation Debate

This week, Japan’s House of Councillors (Upper House) takes up debate on a set of eleven security-related bills that were passed by the House of Representatives (Lower House). Unfortunately, the debate in the Lower House failed to cover key issues in the legislation. Instead, deliberations focused narrowly on the issue of collective self-defense. And despite the government’s efforts to persuade the public (as well as critics and opposition parties) of the bills’ necessity, polls show a majority of the Japanese people remains opposed to the bills.

The Upper House deliberations offer an opportunity to reboot the debate. The government should do a better job explaining the content and need for the bills while critics should consider the legislation’s provisions beyond the issue of collective self-defense and acknowledge the limits still maintained on the SDF’s use of force.

Much of the legislation focuses on issues and activities that are non-lethal in nature. These include: enabling the Self-Defense Forces (SDF) to engage more effectively in non-combatant evacuation operations of Japanese nationals overseas and provide goods and services to U.S. forces during peacetime; imposing penalties on SDF members who commit crimes overseas; obliging Japan’s National Security Council to discuss topics that may threaten Japan or the international community; and amending laws on the treatment of prisoners of war and ship inspections.

The bills would also enhance the SDF’s ability to respond to “gray zone” situations (situations short of military attacks but threatening Japan’s security), as well as expand the role of the SDF when engaged in UN peacekeeping operations. Under the new legislation, Japanese involved in such operations will no longer be forbidden from aiding troops from other countries under attack or have to wait until being shot at before using their own weapons—thereby bringing Japan closer to international standards.

Despite the wide array of issues, opponents of the legislation focused on collective self-defense and the extent to which the bills would enable the SDF to support the armed forces of the United States and other countries in situations affecting Japan’s peace and security.

This narrow attention resulted from exaggerated claims by critics and ideologically left-of-center media that allowing Japan to exercise its right to collective self-defense would undermine seven decades of pacifism—and even that the legislation constituted “war bills” that would permit Japan to send the SDF to fight in foreign wars.

The most pointed criticisms have centered in the constitutionality of the bills. In June, three constitutional scholars (one of whom was chosen by Prime Minister Shinzo Abe’s ruling party) testifying before a Diet committee reviewing the bills, called them unconstitutional. They argued that, while Article 9 of Japan’s Constitution forever renounces war and establishes this renunciation as Japan’s sovereign right, the Cabinet Legislation Bureau (CLB) ruled in 1954 that Japan has the right to collective self-defense, like any other signatory state to the United Nations Charter, but cannot exercise that right because that would exceed the CLB’s definition of “minimal” defense. According to opponents, Abe’s reinterpretation of the constitution—which the legislation operationalizes—contradicts the previous position and is therefore unconstitutional.

The public should have questions about whether Abe’s reinterpretation and the bills to operationalize it are constitutional. But the public should also better recognize that the bills remain firmly rooted in Japan’s long-maintained policy of minimal force necessary for exclusively “defensive-oriented defense” (senshu-boei), upon which the original constitutional interpretation was based. Moreover, there is nothing in the legislation (or Abe’s reinterpretation) that would give Japan the right to launch war against other countries. Instead, the bills narrowly expand the areas of SDF cooperation with the militaries of other nations. Indeed, in order to use force, three conditions must be met: 1) Japan’s survival is threatened and there is clear danger to the Japanese peoples’ right to life, liberty, and pursuit of happiness; 2) no other appropriate means is available to repel an attack and ensure Japan’s survival and protect its people; and 3) the use of force is limited to the minimum extent necessary. Although critics argue that these conditions are vague, they clearly limit Japan’s ability to use force.

Importantly, the public also needs to recognize that political oversight of any use of force remains firm. While the bills should make it unnecessary to pass “special measures” laws for many actions (as Japan has each time it dispatched the SDF overseas), new situations defined in the legislation will still necessitate Diet approval. In the case of international peace-supporting activities, the legislation requires prior Diet approval before dispatching the SDF abroad. And in crisis situations, Diet approval will also still be required, though ex post facto approval will be allowed when speed is essential or when the Diet is not in session.

In addition, the public needs to remember that Japan can reject missions not in its national interest. The bills will not force Japan to join military actions, whether led by the United States or any other countries. Indeed, Abe pointedly dismissed the notion that the SDF will be dispatched to operations like the 1991 UN-mandated Gulf War or the 2003 Iraq War because both operations were combat coalitions. Indeed, he only cited one specific example of an allowable engagement for the SDF upon the enactment of the legislation: a minesweeping mission in the Strait of Hormuz, based on the potentially catastrophic impact on Japan’s economy of a cessation in oil shipments through those waters and because minesweeping is a “passive and limited action.”

All this is to say that the critics’ dismissal of the legislation as “war bills” is clearly inaccurate. While the constitutionality of Abe’s reinterpretation remains open to discussion, there are many other components in the bills, including provisions involving non-lethal missions that the public should grasp in order to ask more meaningful questions and make better-informed decisions on whether or not to support the legislation. Most important, the public should understand that the SDF’s singular mission of defense will remain firm, the strength of civilian control will not be diminished and Japan will not remilitarize.

The sloppy explanations in the Diet by members of the ruling coalition did not help the debate. Abe is fully aware of the polls indicating that a majority of the Japanese people feels the government has not sufficiently explained the legislation. The Prime Minister has stated on numerous occasions that he wants to obtain the public’s understanding on the need for the bills. Prior to Diet submission, for example, he told a news conference that, “We will also hold debates at the Diet and continue to make efforts to gain the understanding of the people,” and when the coalition decided in June to extend the current Diet session by 95 days to allow debate on the legislation, Abe told reporters, “In seeking (the bills’) passage, I’ll ensure our explanation will be thorough.” After the bills’ passage in the Lower House, Abe told reporters that he would continue to make efforts to gain the public’s understanding, and even took to the Internet in a Liberal Democratic Party-sponsored attempt to explain the bills.

A key problem is that the government’s arguments have not gone much beyond platitudes about the necessity of the legislation or descriptions of hypothetical or oversimplified scenarios rather than clear, reasoned explanations. For example, after the Lower House vote, Abe simply said, with little explication, that, “The security environment surrounding Japan continues to get tougher,” and “These are absolutely necessary bills in order to protect the lives of Japanese people and prevent wars.” Such facile statements do not answer fundamental questions or concerns including: What role should Japan play in today’s world and why? What role should the SDF play, specifically? How do current laws fall short in protecting Japanese lives?

Moreover, one scenario often cited by proponents of the legislation focused simplistically on the need for Japan to shoot down a missile on its way to the United States, neglecting to mention that such a scenario would result in total war for the United States (and all of its allies). Worse, attempting to explain the bills through the simple-minded analogy of “helping a neighbor whose house was burning” was an insult to the public’s ability to understand complex issues.

Looking ahead to the Upper House debate, it would be helpful if the government explained how changes in the security environment demand different responses from Japan, ones that are difficult or impossible to manage currently due to the legal constraints on the SDF. In so doing, the government should also better define the limits on any SDF response to incidents that threaten Japan even with a new ability to exercise its right to collective self-defense.

Concurrently, the government needs to acknowledge the public’s questions and concerns. Although the proposals do not amount to “war bills,” they do introduce the possibility of the SDF using force outside Japan. Abe would benefit by conceding that the legislation will expand the areas of SDF activity, which, in turn, will mean greater risk for SDF personnel dispatched for such operations. At the same time, he should explain why those risks are necessary for Japan’s security in today’s world.

In addition to a more honest discussion, the government should also consider how to reverse the perception that they “rammed” the bills through the Diet in the face of the opposition parties’ desire for more debate. The bills, introduced on May 26, were debated for 116 hours. By comparison, the Lower House spent less time debating other controversial, security-related bills: PKO Law (105 hours), Situations in Areas Surrounding Japan Law (94 hours), and War Contingency Laws (92 hours). In fact, the Diet spent less time debating more recent, controversial legislation in both the Lower and Upper Houses: Anti-Terrorism Special Measures Law (59 hours), Iraq Special Measures Law (76 hours), and Anti-Piracy Law (47 hours).

But this is not just about hours of debate. Although the opposition parties spent the majority of their time questioning the constitutionality of collective self-defense, on July 8th, the Japan Innovation Party (JIP), supported by the Democratic Party of Japan (DPJ), submitted counter-proposals to the legislation, which covered a spectrum of issues. Because the ruling parties were already moving toward a vote on their bills, however, the counter-proposals were defeated after only five hours of debate. The government, therefore, lost an opportunity to engage in debate over specific suggestions by the opposition, and the bills passed unchanged from the drafts submitted in May. By failing to incorporate any of the measures in the counter-proposals, the government appears to have willfully ignored real concerns.

The debates in the Upper House offer a second chance to hold a reasoned, informed discussion, engage the JIP and DPJ on their suggestions, and perhaps even incorporate some of them in the final legislation. Given the importance of the legislation in making Japan more secure, as well as in operationalizing Abe’s reinterpretation of the constitution and the revised U.S.-Japan defense guidelines, such a discussion is essential.

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