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No Country for Old Men?

By Robbie Gramer

August 17, 2016

Imperial Retirement Sends Japan Into Legal Turmoil

Japan Emperor Akihito

On August 8 Japanese Emperor Akihito, citing his age and failing health, indicated in a rare televised address to the country that he wished to step down from his throne. The speech, which shocked many, churns up new legal questions for Japan as deep-seated tradition, popular public opinion, and legal reforms collide.

"I started to think about the pending future, how I should conduct myself should it become difficult for me to carry out my heavy duties," the 82-year-old monarch said, avoiding an explicit request to abdicate. Japan's constitution, written and adopted while the country was under American occupation following World War II, bars the royal family from making political statements.

Japan's existing laws do not outline any abdication process. Emperors are expected to serve until death, after which point only a male heir can assume the throne. Appealing to the emperor's wishes would require new legislation and parliamentary approval.

It is clear, however, that the emperor's desire to retire quietly has won the support of a majority of the Japanese population. A survey conducted by the Kyodo News Agency after the emperor's address showed that 87 percent of the public would support his abdication.

But public support does not necessarily translate into speedy legal reform. According to Robert Manning, a senior fellow at the Atlantic Council's Brent Scowcroft Center on International Security, the process could encounter political opposition from conservative strains of Japanese society due to "deeply engrained" tradition and the symbolic importance of the emperor.

Prime Minister Shinzo Abe took the emperor's tacit message seriously, saying, "I believe we need to think hard about what we can do."

A Delicate Legal Process

For the emperor to relinquish his throne, the Japanese government would have to amend the Imperial Household Law of 1947. Penned during the post-war American occupation of Japan, the law stripped the emperor of political powers and aligned an earlier version of the law from 1889 with its new constitution.

"There is in the prime minister's office already an effort to put forward such a law . . . with dedicated staff to examine this issue," says Sheila Smith, a senior fellow for Japan studies at the Council on Foreign Relations.

From there, the law would be presented to the Diet, Japan's bicameral legislative body. A majority would be needed to pass the law in both the upper house and lower house. The prime minister's Liberal Democratic Party (LDP) and the Komeito Party, which form the ruling coalition, currently have a majority in both houses.

In formulating such a law, the government has two options, according to Smith. The first is to draft a "narrowly written law that says the emperor may step down," tailoring it specifically to Emperor Akihito. The second is to propose a law that reforms "the entire succession process," including future emperors.

The latter option may face steeper political opposition. This was previewed in 2005 when Japan opened a contentious debate on whether laws should change to allow female successors to the throne. A special advisory council approved the idea of female successors in a 2006 "Imperial House Law Report."

Prime Minister Abe's party opposed such action at the time, but a political battle in the Diet was averted when the birth of a son in the royal family in 2006 secured the male line of succession.

Amending the Imperial Household Act would require balancing deference to the emperor with deeply held traditions and a rich monarchic history. Japan boasts the world's oldest hereditary monarchy dating back over 2,600 years.

Emperor Akihito would be the first living emperor to cede the throne in 200 years. The emperor's eldest son, 56-year-old Crown Prince Naruhito, is next in line.

An Ageing Emperor in a Time of Reform

Amidst the legal debate, Japan must come to terms with bidding farewell to a widely admired figurehead.

"There is a lot of reverence for Emperor Akihito," says Manning. "He is the first emperor not associated with Japan's imperial past." Emperor Akihito's father, Hirohito, ruled from 1926 until his death in 1989, and oversaw Japan's imperial expansion that ended in defeat in World War II.

When the occupying United States created a new constitution in 1947, it "fundamentally transformed the role of the emperor," says Smith, vastly diminishing his power. Before this, the emperor was deified and held the "highest role of the state." According to Smith, this makes Emperor Akihito Japan's "first real post-war emperor."

The 1947 constitution codified the emperor's role in articles 1 through 8. But any legal changes to address the emperor's request would only change the Imperial Household Act, not Japan's constitution.

Imperial legal reform is wholly separate from the constitution, but the debate comes at a time when Japan is embroiled in a separate divisive battle over constitutional reform.

Prime Minister Abe and the LDP have campaigned on a pledge to reform the Japanese constitution by the end of Abe's tenure in 2018. One of their priorities is to loosen the requirements to pass constitutional amendments, outlined in Article 96. Another is amending Article 9, which prevents Japan's self-defense forces from acting as a conventional military.

Under Article 9 of their constitution, the Japanese people "forever renounce war," pledging that the country's "land, sea, and air forces, as well as other war potential, will never be maintained." That provision retains widespread popular support, stitched into the fabric of Japan's postwar culture and politics. Many Japanese see Article 9 as the backbone of Japan's pacifist foreign policy that has kept the country out of foreign military entanglements since 1945.

While Japan maintains military units through its ground, air, and maritime self-defense forces, such forces are in line with its constitution, affirmed by a landmark Supreme Court ruling in 1959 known as the "Sunagawa case." The Supreme Court determined that Japan could sustain a self-defense force as the "pacifism advocated in our Constitution was never intended to mean defenseless or nonresistance."

Prime Minister Abe has pressed for defense reform beyond the Supreme Court's Sunagawa interpretation to respond to new geopolitical tensions in Asia. Japan faces an increasingly belligerent North Korea and China's rising military power. In addition, the United States has 54,000 military personnel stationed in Japan, making bilateral defense cooperation with the United States a top priority for Abe.

Strengthening Japan's self-defense forces or transforming it into a full-fledged military will be difficult without amending Article 9's constraints.

Constitutional changes and the imperial succession debate are "two separate issues in the minds of the Japanese," says Manning. But both have unveiled a deeper struggle in Japanese society: balancing tradition with adaptation to a modern world.

Robbie Gramer is associate director of the Transatlantic Security Initiative at the Brent Scowcroft Center on International Security at the Atlantic Council, where he works on NATO, EU foreign and security policy, defense strategy, and transatlantic diplomacy. Follow him on Twitter at @RobbieGramer

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