Despite the gradual development of the SDF, Article 9 has exerted a considerable, concrete impact on Japanese military policy since World War II. Indeed, the existence of the pacifist Article and movements to safeguard the Constitution prevented a total and radical remilitarization of postwar Japan. To remilitarize Japan in sharp contradiction with the pacifist Article of the Constitution, the government has presented many strained and even acrobatic constitutional interpretations.
In July 2014, the Cabinet meeting announced a change in the governmental constitutional interpretation of Article 9. This change of the Government’s interpretation of Article 9 widens the practical scope of the right of self-defense, because even if there is no direct military attack against Japan, when the strict conditions under the following are satisfied: ‘as a result threatens Japan’s survival and poses a clear danger to fundamentally overturn people’s right to life, liberty and pursuit of happiness, and when there is no other appropriate means available to repel the attack and ensure Japan’s survival and protect its people’, Japan is constitutionally able to use the minimum necessary force. Within the context of constitutionalism this criticism has been very influential politically. Despite one’s political position towards the military-diplomatic policy of the government, we ask if this change in the government’s constitutional interpretation regarding the right of collective self-defense is a constitutional crisis. We wonder
whether it is legally appropriate to argue that this change in the government's interpretation leads to a crisis of constitutionalism.
Not only the Cabinet Legislation Bureau, but every authority is able to change its interpretation of law and rules if they judge it more appropriate to do so in a considerable change of situation.
What other provisions of the 1947 Constitution that are in contrast with the Japanese identity are currently marked by public debates? How does the country – including its government and courts – aim to protect constitutional identity and how vivid the debates are to this end?
Influenced by Confucianism, some conservative people insist that we are interdependent socially in national community, therefore
it is quite unnatural to have more legal rights than legal duties in the Constitution.
However, an overwhelming majority of people aren’t favorable to a constitutional amendment that aims to impose more duties than present ones at constitutional level. Consequently, it is not marked very much by public debates.
One can remark that one of the themes of the vivid public debates is the problem of separate surnames of Japanese married couples. In fact, according to the current Article 750 of the Civil Code, a husband and wife shall adopt the surname of the husband or wife in accordance with that which is decided at the time of marriage. 96% of wives have accepted to change their family name following the established social custom. However, recently more and more people would like to reform the family name system to permit the married couple to be able to keep their family names separately after the marriage encouraged by gender equality movements. Yet, the conservative camp is eager to maintain such a family name system because they consider it constitutes one of the most important elements of Japanese traditional social order. The Supreme Court of Japan judged this surname system has no constitutional problem in relation to equal protection of law and right to self-decision in 2015 and 2021. It means the judicial power has protected one of the legal systems based on Japanese socio-cultural identity against arguments for reform based on the constitutional principle and the constitutional right.