Parliamentary Debate Has Shifted Its Focus to the Constitutionality of Security Legislation

The Commission on the Constitution of the House of Representatives held a meeting on June 4, where three prominent constitutional scholars were invited to participate. Professor Yasuo Hasebe at Waseda University, who is a constitutional scholar invited by the coalition parties (the Liberal Democratic Party and Komei Party), claimed that it would be unconstitutional for the right to collective self-defense to be permitted. As a result, Japanese media outlets reported that the LDP had “dug its own grave” and “scored an own goal.”

This shifted the parliamentary debate over the the proposed security legislation. The opposition parties began to demand that the bill be retracted, claiming it to be unconstitutional.

Professor Yasuo Hasebe

Professor Hasebe claimed that the right to collective self-defense is unconstitutional because it cannot be explained within the conventional logic of the Japanese government. According to him, if the right were to be exercised, then it would shake the foundation of legal stability.

Professor Setsu Kobayashi

A Professor Emeritus at Keio University,  who was invited by Democratic Party of Japan, claimed that exercise of this right is unconstitutional because paragraph 2 of Article 9 of the Constitution does not grant Japan the right to engage in war or form a military. Therefore, Japan has not been given the tools or the legal authority to fight in wars abroad.

Professor Sasada

Professor Eiji Sasada at Waseda University, who was invited by Japan Reformation Party, also claimed that exercise of the right is unconstitutional. Professor Sasada said that the security legislation that Liberal Democratic Party and the Cabinet Legislation Bureau had said was constitutional was illegal. In regards to the three conditions of Japan can use armed force, he claimed that the more he read about it, the more he could not understand.

As is evidenced by the meeting on June 4, many constitutional scholars are against the proposed security legislation even though the Abe administration aims for it to be adopted by this summer.  Tokyo Shimbun reports that more than 200 constitutional scholars claim the legislation is unconstitutional.

On June 4, after the Commission on Constitution ended, Chief Cabinet Secretary Suga stated that the legal interpretation of the constitutional interpretation is solid and that the view that the exercise of the right to collective self-defense is unconstitutional is off the mark. He argued that many prominent scholars have said the reforms are constitutional. Later, on June 10, Suga listed the name of three supportive scholars: Professor Akira Momochi at Nihon University, Professor Emeritus Kazuhiro Nagao at Chuo University, and Professor Emeritus Osamu Nishi at Komazawa University.

Some opponents of the reform have complained that three scholars is not “many.” For example, MP Kiyomi Tsujimoto mentioned that if Suga cannot show the evidence that there are “many”  scholars who claim that the legislation is constitutional, then the bills should be withdrawn.

Although it seems to be the consensus of constitutional scholars that the security legislation is unconstitutional, Chief Cabinet Secretary Suga claims that the ultimate judge of the Constitution is the Supreme Court. Thus, it is the Supreme Court that has the authority to judge whether the security legislation is constitutional or not.

Article 81 grants the Supreme Court the power to judge all domestic laws and determine whether they are constitutional or not.  However, unlike some countries like Germany, which has a court only for constitutional cases, the Japanese Supreme Court can judge constitutionality only after a specific incident which allegedly violates an article of the Constitution. Therefore, the Supreme Court cannot convey its opinions over the legislation while the bills are currently being debated in the Parliament or even right after their adoption.

(Source: NHK, Tokyo Shimbun ).

What is a Commission on the Constitution?

Each house of the Japanese Parliament has a Commission on the Constitution, which conducts comprehensive studies of the Japanese Constitution and reviews bills that would enact constitutional reforms. Both Commissions of the Constitution were created in August 2007 after a referendum codified the procedures for constitutional reform. There are 50 members in the Lower House’s Commission and 45 in the Upper House’s Commision. Upon submitting legislation reforming the constitution, the Commission in each house examines legislation after which it must be approved by at least ⅔ of the members of each house. Finally, it is sent to a referendum between 60 and 80 days after parliamentary approval.

(Tokyo Shimbun)