JURIST Guest Columnist Kenneth Port of William Mitchell College of Law says that the looming amendment of Japan's so-called "pacifist" constitution to overtly allow greater Japanese military involvement in world affairs may prove to be one of the more tragic consequences of the so-called war on terror…

Although few in the West realize it, the Japanese "pacifist" Constitution drafted by post-World War II occupation forces – principally Americans under General Douglas MacArthur – is about to be amended.

The present Constitution already exists in a strange limbo between law and fact. The Japanese populace-at-large is very proud of living in a "pacifist" State. They believe that their Constitution, generally assumed to ban "collective self-defense" (in international law, using force to stop an armed attack on a foreign country with which a state has close relations, even when the state itself is not under direct attack), constrains militarism in Japan. Under the present Constitution, however, Japan has quietly amassed the third largest military budget in the world in total dollars spent. Now the new Japanese government of Prime Minister Shinzo Abe apparently wants to translate fact into legal reality, just in time to cooperate militarily with President Bush's "war on terror."

When Abe and his supporters in the Liberal Democratic Party (LDP) – which is neither liberal nor democratic – talk of "amending" the Constitution, they are not, however, talking about simply altering the wording of one part of the document, or even just adding one or two Articles in the American "amending" style. Rather, the result of amendment will likely be a wholesale redrafting of the document which will have a critical impact on the nature and manner of Japanese international and domestic policy, and the most significant development in Japan since World War II.

A major focus of the amending debate will be Article 9, the so-called "war renouncing" clause of the Constitution. Article 9 is often quoted as requiring that "land, sea and air forces and other war potential will never be maintained." The language "will never be maintained" is, in fact, the standard, accepted translation of that portion of Article 9.

This English translation is not, however, a literal translation of the Japanese document. The English version supports the notion that Japan is a pacifist country, but the Japanese version does not.

The English version is cited whenever the Japanese Constitution and Article 9 are raised. This error has been carried forward for nearly 60 years. The literal Japanese version of Article 9 does not say "will never be maintained." If that were the case, the Japanese version of the Constitution would say something like "issai hojishiteha naranai." It does not. It only says "hojishinai." Translating "hojishinai" as "will never maintain" is incorrect and extremely misleading. This clause merely means the negative form of the verb "to maintain" in the illocutionary force.

This is more than just semantics. This is a major, substantive difference. "Hojishinai", in the illocutionary force of the verb, is like saying something similar to, "I will return at 6." Without more information, the listener does not know if the speaker of that sentence is promising to return at 6 or merely predicting the speaker will return at 6. This is the problem with the actual, literal Japanese version of Article 9. When reading it, one does not know if Japan is promising to not maintain arms or only predicting it will not maintain arms.

The evolution of the language used in this clause of Article 9 is apparent from the legislative history of the Constitution and quite supportive of the Japanese notion that Article 9 manifests Japan's pacifist intentions. In March of 1946, what became Article 9 of MacArthur's draft was initially translated into Japanese as "senryoku no hojiha koreo yurusezu." This version could be translated as "war potential will not be allowed." Later, in the version of March 26, 1946, this clause read "ijisurukotoha koreo yurusanai." The verb for "maintain" was changed from "hoji" to "iji" but otherwise clearly indicates that the maintenance of war potential will not be allowed. An even later version, dated April 13, 1946. once again used the word "hoji" for "maintain" but stayed with the verb "yurusanai" meaning "not allowed."

While the negotiations regarding the Constitution progressed during the spring and summer of 1946, many Japanese Privy Council members went on record concluding that Article 9 prevented Japan from having any war potential for any reason. Many members believed that Article 9 did not allow Japan to possess any military potential for any reason. Moreover, many members believed that if Japan were militarily attacked, someone else would have to come to her defense. Many members believed that there were ways to defend Japan from military attack other than engaging in the use of military might herself. (What that was precisely is not clear from the record.) In the legislative history kept by the National Diet Library, this is all very clear. In fact, the June 21, 1946 version of Article 9 actually said "senryoku ha koreo hojishitehanaranai." This is precisely the current English translation: "military power will never be maintained."

Unfortunately, a short time thereafter, in August of 1946, Ashida Hitoshi, another Privy Council member, proffered what has become known as the "Ashida Amendments." Most relevantly, the clause in question was changed again to its current "hojishinai." This got lost in the shuffle because he also added an introductory clause to that same part of Article 9 restricting the application of the notion of not maintaining arms to "for purposes of paragraph 1" of Article 9. All attention was apparently on that clause and not on the changes made that resulted in "hojishinai." That is, as the Japanese Constitution currently reads, military potential will not be maintained for purposes of waging a belligerent war. Nothing in the current version of the Japanese Constitution says anything like "will never maintain" for any purpose whatsoever. The notion that it does is a fiction perpetuated by many.

One can see this understanding is perfectly in keeping with the spirit of the Japanese Constitution as articulated by Privy Council members during the summer of 1946. The only problem is that is not what the final version of the Japanese Constitution actually says.

This has not stopped the Japanese government from relying on Article 9 of the Constitution as justification for everything from not selling missile guidance technology to America, not engaging in military armed conflict in a collective manner in Iraq (Japan's contingency in Iraq has been limited to non-military roles, such as building water purification plants), and (initially) not sending Aegis-class destroyers to the Indian Ocean to support American troops in anti-terror operations.

The direction the LDP now wants to take Japan in with its proposed amendments is very clear. Article 9, for example, used to be titled "The Renunciation of War." The proposed new title will be "The Guarantee of Security." The clause addressed above (Art. 9-2) will be repealed. It w
ill be replaced with four new Articles that clarify that the Prime Minister shall be the Commander-in-Chief of the armed forces (still called "Self Defense Forces" or SDF), that the SDF will act in accordance with the law or other "approvals" of the Diet, that the SDF will be allowed to engage in collective self-defense when done "to assure international peace and security", and the SDF may engage in activities to secure the life and liberty of Japanese citizens.

Japan is now the third largest military in the world by dollars spent. The Constitution as it currently reads does not prevent this. The legislative history to the Constitution is clearly inconsistent with the final language selected for the Constitution. The understanding that the Japanese Constitution is a pacifist document is in complete and utter error. The Japanese people's intent may be pacifist, but their Constitution is not, and will be even less so when the latest amendments are made.

Therefore, when the Japanese Constitution is amended, accurate translations must be had to determine what the true Japanese intent might be. Certainly the LDP's version of the amended Constitution will no longer perpetuate the myth that the Japanese are pacifists. But amending the Constitution so that Article 9 is no longer an obstacle to Japan's military involvement in world matters and no longer acts as a crutch supporting the Japanese myth of pacifism might prove to be one of the more tragic consequences of the so-called war on terror.

Kenneth Port is a professor at William Mitchell College of Law. Fluent in Japanese and a frequent visitor at Japanese universities, he writes on a host of issues regarding law in Japan.
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