in the fall of 2004 , and released a draft proposal to reform the Constitution in
November 2005 , when the LDP celebrated its fiftieth anniversary.
Article 9 and the issue of the Self-Defense Forces
There have been lively debates on various issues concerning constitutional revision
from Article 9 to new rights. Among these discussions, however, we should ask,
which issue remains the most important? Although many recent proposals refer to
new rights, such as the right of privacy or the right to enjoy a healthy environment,
these do not constitute the main reason for constitutional revision, since these
rights have no legal barrier to overcome. Although the Japanese Constitution has
no provisions expressly protecting the right to privacy, constitutional scholars
generally recognize the right to privacy as a constitutional right, and the Supreme
Court recognizes it as legal right, carefully avoiding categorizing it as a consti-
tutional right as such. As for the right to enjoy a good environment, this should be
an underenforced constitutional right, the protection of which comes mainly from
the legislature.
8
The arguments for the inclusion of new rights appear designed to
rally the support of public opinion and hide the real aim of constitutional revision.
The main contentious issue regarding constitutional revision continues to be
Article 9 , since that Article severely limits Japanese defense policy. Article 9 provides:
1. Aspiring sincerely to an international peace based on justice and
order, the Japanese people forever renounce war as a sovereign
right of the nation and the threat or the use of force as a means of
settling international disputes.
2. 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.Japanese pacifism, as embodied in Article 9 , was the product of negotiation
between the American Occupation forces and the Japanese government at the
end of the Second World War. Although the origins of Article 9 are unclear,^9
(^8) Lawrence G. Sager,Justice in Plainclothes: A Theory of American Constitutional Practice
(New Haven, CT: Yale University Press, 2004 ), pp. 95 – 102.
(^9) There is some dispute over the proper source of the idea behind Article 9. As to the original
intent of Article 9 , see James E. Auer, “Article Nine: renunciation of war,” in Percy R.
Luney Jr. and Kazuyuki Takahashi (eds.),Japanese Constitutional Law(Tokyo: University
of Tokyo Press, 1993 ), pp. 69 , 70 – 4 ; Derek Van Hoften, “Declaring war on the Japanese
Constitution: Japan’s right to military sovereignty and the United States’ right to military
presence in Japan” ( 2003 ) 26 Hastings International Law and Comparative Law Review 289
at 290 – 9 ; John O. Haley, “Waging war: Japan’s constitutional constraints” ( 2005 ) 14 ( 2 )
Constitutional Forum 18 at 21 – 3.