New Diplomacy Compass
Crossing Borders, Demystifying Japan
January 2022

Japan's Pacifist Constitution:
A Constitutional Perspective
Miho Aoi
Professor
Graduate School of Law
Gakushuin University

I. Introduction
People in Japan often label Japanese Constitution as the "Pacifist Constitution" as if Article 9, which renounces war,
represented the whole document. Article 9 is, without a doubt, the most famous constitutional clause in Japan: even
if the article about Freedom of Expression (Article 21) is not known, many people know about Art. 9.
Article 9 declares as follows.
(1) Aspiring sincerely to international peace based on justice and order, 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.
(2) To accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as another war potential,
will never be maintained. The right of belligerency of the State will not be recognized.
It has been one of the focal points in post-WWII politics and the post-war culture of Japan. It has been a symbol ofpacifism, beloved by many people for generations. But, at the same time, many people have accepted other facts thatseemingly contradict the ideal of pacifism in Article 9: a vast military presence of US troops in Japan and the SelfDefense Forces (SDF) of Japan. To understand this contradictory state, we need to separate two aspects of Article 9:(a) its commitment to the values of pacifism and (b) its deprivation of military power from the State. The former
aspect is often emphasized in general, but I would like to focus on the latter aspect as an expert of the Constitution.
From the perspective of constitutionalism, we can think of Article 9 as a power restraining clause that allocates "nopower to military forces." The post-WWII practices regarding the national security policies of Japan can beunderstood as a struggle to achieve the above mandate. Overall, Article 9 has been contributing to the restraint of"military" power.
This article proceeds as follows.
First, I will sketch a brief history of military power in Japan. We will see how the relation between military andordinary civic politics started and how the first Constitution —the Meiji Constitution— failed to control military
power under civic politics.

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New Diplomacy Compass
Crossing Borders, Demystifying Japan

Second, we focus on efforts to maintain logical coherence under the present Constitution. The government hasreasoned that the SDF is not "military forces" because Article 9 forbids them. Certainly, the government's
explanation is a tricky one; at least, it provides no easy understanding. Because of this, the SDF provoked vast
political tensions among people in the past. And the constitutionality of the SDF was a significant political issue
until around the mid-1990s. However, at the same time, this history can be understood as a struggle to realize thelimitation of power of Article 9 in legal terms.
Finally, we consider the impact caused by the change in interpretation in 2014: permitting the use of collective selfdefense rights that used to be deemed unconstitutional. Then, we think about the future of Article 9.

II. Brief History of the Military Institutions in Japan
Japan has had two Constitutions during modern times: the Meiji Constitution (The Constitution of the Empire ofJapan: 1889-1947) and the present Japanese Constitution (1947). We can best understand the current government
institutions against the background of the practices under the Meiji Constitution: some are utter denials of the past,and others are extensions of the past. Article 9 is a typical example of the former.
Therefore, to explain the somewhat peculiar legal status of the SDF in Japan, we should start with a briefbackground history, starting from around the Meiji Restoration — a word referring to the political event of"restoration" of practical imperial rule, the Shogunate.
A. The Independence of the Supreme Command of the Emperor
If we think of monarchs from feudal times to modern times, there is an interesting difference between Europe andJapan. Unlike European monarchs, Japanese Emperors did not have military power until the establishment of theImperial Army in the Meiji period. The Meiji Restoration was completed without the Emperor's military forces: theTokugawa Shogunate bloodlessly surrendered Edo-jo Castle in 1868. This was how Japan started its modern
governmental system with no central military forces. Since then, it can be said that having and controlling militaryforces has been a massive issue in Japan, with slightly changing focuses.
After the Meiji Restoration, the Emperor and the government established military power to suppress strong
militaristic ex-feudal clans.
The Emperor had established some military institutions before the promulgation of the Meiji Constitution. Most
importantly, His Majesty adopted the Independence of the Supreme Command of the Emperor (Tosuiken-nodokurituI), which explained the prerogative power of his majesty. Once an issue was classified as a matter of theSupreme Command, it could no longer be dealt with by parliamentary political processes.
The Independence of the Supreme Command is commonly regarded as a leading cause for the government’s loss ofcontrol over the military. The Meiji Constitution took the Independence of the Supreme Command of the Emperor
for granted. And people, including constitutional scholars, treated it as the "fact before the law." In hindsight, we
can say the concept of the Independence of the Supreme Command made it possible for those in charge of militaryforces to act without "responsibility" to destabilize the constitutional system.

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New Diplomacy Compass
Crossing Borders, Demystifying Japan

B. The Meiji Constitution
The Emperor established the Meiji Constitution as a restraint on his majesty's sovereign power, and he granted it tohis subjects in 1889. Many constitutions in the world had been translated and examined, such as those of the Dutch
and the French, before the Meiji Constitution was finally modeled on the Prussian Constitution. The purpose of
establishing a constitution was to proclaim the divine origin of the Imperial Family and the sovereignty of theEmperor. For Japan, the Prussian model was the most suitable one, especially considering it was a nation withstrong monarchical power and weak civil power. The Meiji Constitution was drafted with the assistance of a
German legal scholar, Hermann Roesler. He vigorously defended a more conservative constitutional system in thedraft than the Prussian Constitution of 1850.
Under the Meiji constitutional system, many prerogative powers regarding military forces were maintained by theEmperor. Under the Constitution, there was a complicated system of military law, which affected every part of thelegal system. There were also social systems related to military forces, which incorporated people's labor as capital
to fight a "total war."In the end, neither the Emperor nor anyone else could control the military powers: the Meiji Constitutional law
system was simply not robust enough to maintain a proper balance between powers. The consequence of this failure
was, of course, severe. So many people were killed, injured, or lost property. The death of 20 million people in the
Asia-Pacific region because of the Japanese invasion will ensure the same fiasco never happens again.
That was our nation's start, and I understand it should remain a reference point so as to prescribe our future direction.
It is absolutely correct for people to call this Constitution the "Pacifist Constitution." Even though people's
memories are fading after approximately 75 years, the Meiji Constitution failed to control governmental powers thathave been engraved in our present legal institutions.

III. The Self-Defense Law Under the Present Constitution
A. Article 9
Article 9 of the Japanese Constitution (a) renounces war, (b) declares non-retention of military forces, and (c) states
non-recognition of the right of belligerency of the State. Historically speaking, (a) was not uncommon among world
constitutions, but (b) and (c) were totally new ideas. From the perspective of constitutionalism, Article 9 deprived
whole military institutions of their legitimacy. It became a reason to question the constitutionality of national
security laws related to military forces. Also, because of the constitutional decision to remove powers, other related
military institutions were abolished. And it gradually changed Japanese culture from a military one into a nonmilitary one.
On the origin of the Constitution, it is well known that GHQ (General Headquarters; the standard way in Japan torefer to the Supreme Commander for the Allied Powers [SCAP]) made a draft of the present Constitution. As for
Article 9, it is understood that General Douglas MacArthur shared the idea of pacifism with then Prime Minister
Kijuro Shidehara, an old liberal.
B. Government's Logic for Exceptional Use of Military Forces
In 1947, after WWII, Japan re-started without its own military forces, relying on the Occupational Armed forces for-3-

New Diplomacy Compass
Crossing Borders, Demystifying Japan

its security. But, international circumstances soon changed the policies of occupation: the Korean War started in
1950, and General MacArthur ordered the formation of the National Police Reserve (75,000 personnel). It was
described as a police agency, and, in fact, interestingly, its legal framework was similar to that of the police.
The National Police Reserve transformed into the National Security Forces in 1952; then, they morphed into the
Self-Defense Forces (SDF) in 1954. The government has used an intricate explanation of the SDF's constitutionality.
It goes as follows:
Although the Constitution renounces war, Japan still has an international “natural right” to defend itself. A
minimally sufficient force to achieve this purpose should not be interpreted as "military forces" as prohibited by
the Constitution. So, the constitutionality of the SDF is based on this "exceptional" use of military forces.
The point is, the government interpreted that under the Constitution, the exceptional use of military forces wasallowed. However, we can call it the exceptional use of military forces only the cases that are "exceptional" can be
restricted, or if the constitutional prohibition means nothing.
Up to 2014, the government had made a clear boundary: it was based on whether there was a military attack fromother countries. This was an obvious exception because it would be abundantly clear if there was a military attack
on Japan. Also, because the above was the only possible explanation of the exceptionality of using a military force
as a corollary, the right to collective self-defense was understood to be unconstitutional: Japan had it on aninternational law level but chose not to use it at a domestic level.
The government's interpretations as explained above had been maintained for a long time: from soon after
establishing the SDF until 2014. And they held the understanding that if Japan needed to use collective self-defense
rights in the future, that would require a constitutional amendment of Article 9.
C. The Self-Defense Law: Its General Structure
Specific legislation was always needed to authorize every move and step of the SDF. The constitutionality ofalmost all of these legislations was questioned, and it became very controversial, especially in the political arena.
Because these were hot button issues, there were usually vigorous arguments in parliament; it was inevitable for thegovernment to produce more and more elaborate explanations.
Today, decades after its establishment, the Self-Defense Law — not the "Military" Law— has evolved into a vastly
complicated system. Although the government changed its interpretation in 2014, it is worth noting that the
government tried to show that the change was in line with the basic structure of the long-held understanding of
Article 9.
D. Some Essential Traits
As we have seen, the Japanese government has understood the basic logic of Article 9 as a "denial of the military."
Therefore, it has been essential to distinguish the SDF from military forces that the Constitution prohibits. People incharge have paid meticulous attention to differentiate the SDF from armies.

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Crossing Borders, Demystifying Japan

It is apparent from the structure of the Self-Defense law that this logic is working. For example, because Article 9
constitutionally negated military forces, the SDF must be explained as ordinary administrative organs: the SDF are
integrated into the Ministry of Defense. The head of the uniformed personnel (CJCS in the USA) is positioned
within the Ministry of Defense, with no legal power to directly support the Prime Minister (PM), the commander inchief.
Also, the effect of Article 9 extends to areas other than the Self-Defense Law. There are many examples, but only
the following three will be discussed below.
First, the Expropriation of Land Act under the Meiji Constitution used a clause for special expropriations formilitary use. Under the present Constitution, this clause was eliminated because there was no more "military use."
Second, no law penalized a leak of "military" secrets in general until 2013. The Secret Information Protection Act
of 2013 designates and punishes the leak of "defense-related" secrets.
Third, while ports management used to belong to the national administration under the Meiji Constitutional system,
the management power was delegated to local governments under the present Constitution. Again, although ports
have crucial importance when an island country like Japan takes action, it was assumed there would be no such
further cases in Japan.
E. Who has Maintained the Coherency?
Generally speaking, it is not easy for the judiciary to judge the constitutionality of acts relating to national security
policies.
There are several reasons for this.
First of all, it is not easy to bring these issues to court. The judicial review power bestowed on the judiciary by
Article 81 has been understood as the US-type incidental review; therefore, if threshold requirements such as a"case or controversy" are not met, the courts basically cannot address the issue of constitutionality. Also, even if thethreshold problems are solved, the judiciary tends to avoid highly political topics such as these. Lack of democratic
legitimacy has been one of the main reasons for their reluctance.
Therefore, constitutionality regarding Article 9 has been mainly scrutinized within the political branches ofgovernment. The organ that primarily plays this critical function is the Cabinet Legislation Bureau (CLB). The CLB
is a part of the executive branch, directly assisting the Cabinet on legal matters.
Since the early Meiji period, the CLB has had a long tradition of assisting administration. Its establishment dates
back to before the promulgation of the Meiji Constitution. Although it is a part of the executive branch, the CLB is
relatively independent in personnel administration and can make its appointments. For example, a person who
serves as the Deputy Director will typically become the next Director-General. Though, there is one exceptional
example that will appear in the next section.
The CLB has been regarded as playing an essential role in maintaining the legal coherence of Japan; it checks all-5-New Diplomacy Compass
Crossing Borders, Demystifying Japanlegislative bills submitted by the Cabinet for constitutionality, legality, and their "fit" into the existing legal system.
Therefore, it can be said there is an unspoken rule that the statute laws checked by the CLB are crystal-clear
constitutionally. It is sometimes argued that this is one of the reasons why the judiciary rarely strikes down on
statute laws.
The change of governmental interpretation in 2014 demolished the long-maintained logic within national security
policies. Therefore, although the CLB had played the leading role in maintaining constitutionality and coherence, it
now seems to be playing a less essential role.

IV. The Year 2014 — Its Aftermath and the Future
A. Interpretational Change in 2014
2013–15 were decisive years for the Japanese way of pacifism. In 2013, the then Abe administration abruptly
sacked the Director-General of the CLB and appointed the Japanese ambassador to France, who used to work as abureaucrat constitutionalizing collective self-defense rights during the first Abe administration.
Because the CLB stood in opposition to successive administrations' requests to change the interpretation of Article
9 to permit the use of collective self-defense rights, it had been proposed to several PMs, unofficially, of course, toreplace the Director-General —note that the PM has the legal power of appointment. But no administration had
tried to dismiss the Director-General until Mr Abe did. Therefore, when Mr Abe did dismiss the Director-General,
it was very apparent that his administration was forcing the CLB to concede its interpretation of Article 9.
Then, as expected, on July 1 of 2014, the Abe administration passed a Cabinet decision that changed thegovernmental interpretation of Article 9 of the Constitution.
Later, some civil rights groups and news media outlets, under the Information Disclosure Act, asked the CLB todisclose this interpretive change. The CLB answered that neither Cabinet minutes nor records existed in thedepartment, which strongly suggested it was a political decision rather than a matter of logic.
In the post-2014, the government rationalized that the SDF can be used not only for self-defense but also as part ofcollective self-defense. This shift in the interpretation of the role of SDF is said to be "a partial exercise of the rightto collective self-defense from the perspective of international law.“
As mentioned earlier, under Article 9 and within the Self-Defense Law, the decisive issue for the government's
interpretation has been whether it can explain the use of force as an exception to the constitutional prohibition
against "military forces.“
The problem with the 2014 Cabinet decision, and its embodiment in law in 2015 (2015 laws), is that it was unclear
in what cases the SDF could claim collective self-defense rights. During the parliamentary discussion of the 2015
bills, explanations provided by the Abe administration often changed, and it was never clear precisely what the
government was thinking.

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Overall, the reasons and justifications for the interpretation change were not enough to persuade many legal
professionals, including some former CLB Director-Generals, most constitutional academics, and many lawyers. It
can be said that the system of Self-Defense Law has become unstable, legally speaking. It will require some drastic
institutional changes in the future if the interpretation is to be stabilized.
B. The Future
So far, this article has dealt with the legal system of Japanese Self-Defense Law under Article 9 of the Constitution.
In this final part, I want to explore the external erosion of Article 9. That is, the legal system that governs the area of
the US military presence in Japan is, as it were, something above the law —in my understanding, no reasonable
explanation for legality and constitutionality is possible.
This is because it was a de facto extension of the mainly American post-war occupation of Japan. Therefore, it isunderstandable that even though the logic of the "denial of the military" obviously rejects a military alliance,
constitutional experts have regarded the US military presence as an "exceptional situation."
Techniques that avert parliamentary controls have been usually used in connection with the US military presence.
For example, while treaties need to be approved by Parliament (Article 73 (3)), guidelines, such as Guidelines forJapan-U.S. Defense Cooperation, do not need any such approval. It is well known that each of the Guidelines haspresented a "favorable future" for Japanese national security policies, and actually, these were embodied instatutory laws afterward. It may have been mutually advantageous for both US and Japanese sides to skip
troublesome parliamentary scrutiny.
So, although modifications and changes required by the US-Japan security relationship often triggered changes inJapanese security policies, most of these happened without serious parliamentary deliberation; this has been ashortcut in responsible politics, so to speak. As a constitutional academic, it is sad to admit that Article 9 does nothold normative power over this area. And I cannot deny that it seems like we are, again, possibly failing to control
military power.
To make matters worse, regarding constitutionalism, the Japanese government has been actively expanding the"exceptional area" —which was previously only related to the US— to include other countries, such as the UK andAustralia. These issues have escaped the public’s attention so far. Still, as this article shows, this trend could create
tension in existing legal systems.
We can predict two possible courses for the future.
First, we may see the Self-Defense Law in Japan change more dramatically to expand to its logical limits, which
would lead to a constitutional amendment.
The other possibility is that the issue of the constitutionality of national security policies will become ambiguous
over time and, finally, become forgotten. People in the future might look back at this period (around 75 years afterWWII) and say, "Article 9 was just a blossom without a fruit."-7-

New Diplomacy Compass
Crossing Borders, Demystifying Japan

Either way, currently in 2021, one thing is clear: Article 9 remains a perennial favorite of citizens wanting "peace
without resorting to military power." Ultimately, it is up to the Japanese people whether to hold on to this notion ornot. Whatever their choice, this is and will remain to be, one of the most emotional issues for many people in Japan.

Miho Aoi
Professor at Graduate School of Law, Gakushuin University. Her research interest is Constitutional Law. Graduatedfrom the Graduate School of Law and Political Science of the University of Tokyo (Law) and holds a Masters
degree in law from the same university. After working as Associate Professor at the Faculty of Economics, Shinshu
University and the Faculty of Law, Seijo University, she assumed her current position in 2011. From April 2020,
she was a Visiting Fellow at the Australian National University (ANU) for one year, working on the Australian
Capital Territory (ACT) Human Rights Act. She has published numerous papers on constitutional law and authoredand co-authored several books including Constitution and Politics and Who Will Defend the Constitution?

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