Thursday, May 01, 2014

The Banana Defense

Before long in his new post, the voluble Mr. Kahn, shunning "recession" as a euphemism, warned of a "very serious depression" if inflation were not tamed, prompting a private rebuke by the president’s chief domestic policy adviser, Stuart E. Eizenstat.

So instead, Mr. Kahn began referring in public to a possible economic downturn as a "banana," only to be chided by the president of the United Fruit Company and induced to shift once again to a different euphemism, "kumquat."

Source: "Alfred E. Kahn Dies at 93; Prime Mover of Airline Deregulation,", New York Times, 28 December 2010.

Abe Shinzo has a problem.

It is about how to protect Japan, its rights and its interests in the 21st Century.

Prime Minister Abe and many, many members of the Diet wish to vote for legislation enabling Japan to engage in collective self-defense (CSD) with other nations, a legal right it has under Article 51 of the United Nations Charter.

Unfortunately for Abe and his many allies, the Government of Japan declared many decades back that exercising the right of collective self-defense is unconstitutional. Furthermore, as they have discovered to their chagrin over the course of the current Diet session, once the executive branch of government uses the word "unconstitutional," it cannot take it back.

Ostensibly, Article 81 of Japan's U.S.-drafted Constitution grants the Supreme Court the power to undo CSD's unconstitutionality. However, it could only do so as the result of a lawsuit based upon some incident occurring where plaintiffs can complain of injury due to a government action classifiable as CSD, such as a government official (an SDF officer) being reprimanded for refusing an assignment based on his/her personal view that the assignment requires participation in CSD.

In other words, the Supremes cannot just come out tomorrow and say, "We think CSD is entirely cool so go for it, Prime Minister Abe!"

Perversely, even if a lawsuit made its way to the Supreme Court, the Court could toss the issue right back to the executive branch by declaring the issue political and thus outside its jurisdiction. This is what the Court did in its sweeping Sunagawa Decision (1959).

In the face of this constitutional impasse, the Liberal Democratic Party and its coalition partner the New Komeito are weaving webs of words verging on the surreal. The LDP seems to be arguing that while CSD is nominally unconstitutional, a very careful expansion of SDF activities into a limited number of areas that have heretofore been considered CSD might be constitutional. The New Komeito, for its part, has indicated a willingness to go along with many proposed loosenings of restrictions on the actions of the Self Defense Forces as long as these can be plausibly argued to not be CSD but instead a form of ISD.

The response to these manoeuvres from the nation's editorialists has been predictably unenthusiastic. At best the scribbling classes find the ruling coalition's arguments to be gibberish. (Link)

Hence the neat idea bubbling up today. According to the Mainichi Shimbun, some smart puppies in government and the LDP have come up with a new way around the constitutional ban on CSD:

Do CSD -- but don't call it CSD. Call it "self-defense" (jiei) instead -- with the feeble caveat of restricting this evasion to "situations where if we do nothing, Japan could be attacked as well." (Link - J)

Now before we guffaw too heartily at this "I will not say the word 'recession' and cannot say 'depression' so I will say 'banana' instead" subterfuge in order to get around a constitutional ban, should we not admit that this is precisely the way we came to have army, navy and air forces called the Ground Self Defense Forces, the Maritime Self Defense Forces and the Air Self Defense Forces?


Jon Reinsch said...

"Proactive pacifism" is another glaring example of recent language abuse, but it didn't start with "Ground Self Defense Forces," etc. Consider, for example, "Greater East Asia Co-Prosperity Sphere." The existence of precedents for contemptible behavior, however, is no argument for allowing it to continue.

Anonymous said...

The formation of a Ministry of Peace is not too far behind...

Collin Street said...

I'm really not sure what the point is. The JSDF can do all the self-defence needful, and any attack that's not self-defence would be illegal anyway under the UN charter. Not that that would stop anyone, but neither would the constitution, would it?

Are they just embarrassed that they have to play with plastic selfdefencemen instead of proper plastic armymen like the cool kids?