Civil Law Scholar Shigeru Kagayama's Theory of the Constitution
I found something quite interesting.
Since it's in my journal, it might get buried, so I'm going to transcribe it.
From here
cyberlawschool.jp
Sunday, January 23, 2022 Rain
Yesterday, I received a request from a friend to substitute for one of the lecturers at the constitutional law meeting in Hiji-cho because he was not available.
This is what was claimed in the following article
First, Article 98, Paragraph 2 of the Japanese Constitution is being interpreted too broadly and should be restricted. Second, in order to eradicate the harmful effects of the theory of governing acts after the Sunagawa decision, it is important to leave Article 9 of the Constitution as it is and add the following three amendments to Article 9 (Yabe, Senso wo Koku (2016), pp. 304 -page 305).
Additions and Amendments to Article 9 of the Constitution
First Amendment (Right of Self-Defense)
Until such time as the measures taken by the United Nations for the peace and security of Japan and its environs shall have taken effect, the minimum military force and the right of belligerency shall be maintained to repel foreign invasion within the territory under our control.
Second Amendment (Revocation of the Security Treaty, Status of Forces Agreement, etc.)
After the year 2025, no foreign military bases, forces, or facilities shall be permitted in the territory of the United States. All multilateral arrangements contrary to the provisions of this amended Constitution shall be abrogated. Constitutional decisions to that end shall be made by the Supreme Court.
Third Amendment (Three Non-Nuclear Principles)
The manufacture or possession of nuclear weapons, their transit through our territory, and the operation of nuclear power plants, shall not be permitted.
Above.
Response.
I am a complete layman when it comes to constitutional law, but I think I was able to fill in for the crowd, as they asked favorable questions about my speech.
I think I was able to serve as a substitute.
This is not a substitute, but a new theory, or rather a compromise between the right and the left, which is an agreeable amendment.
While there is a limit to how much we can realistically argue that the Self-Defense Forces are not an army, we cannot say that they do not have any coercive power in the country. Police force is necessary in any case, and the boundary between military and police force is ambiguous.
In addition, in reality, something like the right of belligerency (autonomous resistance, voluntary resistance, etc.) would be invoked. It could be partisans....
Or, the current government could surrender immediately and form an independent resistance organization, or the entire Self-Defense Forces could defect to the US and form a temporary resistance government in exile in the US. (Of course, there is no possibility of a literal unresisting surrender, but it is unlikely under the current situation with the US backing. (Of course, there is no possibility of a literal unresisting surrender, but I don't think that will happen with the current situation of the US backing.)
If so, how to position it, the US-style amendment would be a strange idea. Also.
Until such time as the measures taken by the United Nations for the peace and security of Japan and its environs become effective, Japan shall retain the minimum military force and the right of belligerency necessary to repel foreign aggression within the territory under its control.
Because of the limitation on the territory, there is no fear of a broad interpretation. It is also limited to "until such time as the measures taken by the United Nations for the peace and security of Japan and its vicinity take effect. Personally, I think there is room for improvement in the latter part in terms of maintaining police power in the territory. For example, the phrase "countermeasures against interference in the internal affairs of a foreign state within its territory" should be included, as well as cyber attacks and hybrid warfare. As for what constitutes intra-territoriality in cyber, it would be better to consider such language to counter malicious cyberspace behavior as a police capability.
As for the first sentence, I think the absolute focus on the United Nations is problematic. It would be better to say something like "the appropriate international organization. Of course, there is also the point of view that even if the United Nations disappears, the Constitution will not have to be changed.
The second and third points are quite serious, but this is what would happen in the case of a self-defense policy. It is hard to argue with the right, and I think the left would agree with me here.
Since the defense burden tends to increase, and since the US is unlikely to allow this, in reality, new bases should not be allowed, such as "in addition to existing ones," or the year 2025 should not be the year of the revision. It would be better to make the provision more flexible. There is also the question of whether to write this into the Constitution. In addition, the word "military" is used, but is allied military also a no-no? The idea is to leave that up to the courts to decide in the Constitution, so for example, it may be OK to pass over the airspace, or it may be OK for allied forces to be stationed there on a primary basis. If that is the case, I am worried that it will become an empty phrase again.... However, it is necessary to have an amendment that is considerate to the leftists like this.
The 3 nuclear power plants are quite a problem, but since they are allowed to operate, it may mean that existing ones can only be used, those related to nuclear waste disposal are OK, and those that are not nuclear power plants are OK. If we want to be thorough, we can define nuclear power plants as those that use nuclear energy, those that use uranium, or even those that could cause serious damage in the event of an accident. It seems to me that some reservations about "transit through one's own territory and the operation of nuclear power plants" are necessary, but I think there is a good balance between the left's desire to be satisfied and the right's desire to restore the right of belligerency.
In the first place, the passage of one's own country is undetectable, and there is the problem of the definition of nuclear weapons and the problem of territory.
It would be better if it were completely defined as territory, territorial waters, and airspace, but there is also the issue of the relationship with the 1st Amendment, cyber space (cyber nuclear attacks will soon be possible), and the problem of the territory. (Cyber nuclear attacks will soon be possible, such as sending a program to self-destruct a nuclear reactor, or disrupting a nuclear reactor with deep fakes, etc.) There are many things to consider. In fact, the idea of being in the realm is becoming more and more difficult.
Nevertheless...
In general, this is an excellent amendment to the Constitution that pays attention to both the left and the right, and I think it is an excellent starting point for discussion.
The question is whether such a balanced amendment will be debated properly....
*** Translated with www.DeepL.com/Translator (free version) ***
