Undermining the Rule of Law – Tokyo Shinbun Interview

(Interview with Yoichi Takeuchi, in the Tokyo Shinbun, Jun. 30, 2014)

Martin-TS.Interview-Jun.2014

法の支配揺るがす ≪解釈改憲≫ 米の法学者はこう見る(東京新聞6月30日)

安倍政権は集団的自衛権の行使容認に向け憲法9条の解釈変更を7月1日にも閣議決定しようとしている。米政府や識者の多くは日本に集団的自衛権の行使容認をかねて働き掛けており、支持している。だが、政府の独断による解釈改憲は「日本の法の支配を揺るがす」と異を唱える法学者もいる。米中西部カンザス州のウォッシュバーン大学法科大学院のクレイグ・マーチン准教授(53)に聞いた。(アメリカ総局・竹内洋一)

-第1次安倍内閣の当時から解釈改憲には反対を主張してきた。その理由は。

「解釈改憲は憲法の改正規定を犯している。時の政権が不都合な条項を思い付きで簡単に変えられるなら憲法はもはや最高法規ではなくなる。『法の支配』を支える最も基本的で本質的な原則にも反している。法の下の平等だ。改正手続きを無視して解釈改憲を閣議決定すれば、内閣を法の上に置くことになる」

-閣議決定までの手続きも有識者会議や与党協議だけだった。

「憲法に定められた国権の最高機関である国会、違憲審査権を持つ最高裁には諮られていない。内閣の独断で改憲を宣言するのは、完全に違法で無効だ。憲法改正には国会での審議が必要だ。選挙に勝利した与党の協議でも、違法な手続きは正当化されない」

-安倍政権は「日本を取り巻く安全保障環境の変化」を憲法解釈を変える理由の一つに挙げているが。 … Read more…

How and Why Japan Should Amend its War-Renouncing Article 9

(Published in The Japan Times, Aug. 4, 2012)

The pressure is mounting to either amend Article 9, the war-renouncing provision of Japan’s Constitution, or to increasingly disregard it and so make it irrelevant. In April the Liberal Democratic Party (LDP) published its proposal for amending the Constitution, and the dangers it posed for Article 9 was analyzed here on June 6 (“LDP’s dangerous proposals for amending antiwar article”). But the response to such amendment proposals by the supporters of Article 9 continues to be one of complete denial — that is, a categorical argument that Article 9 should not be amended at all.

This position is misguided. There are both strategic and legal reasons why the left must develop realistic alternative amendment proposals that would preserve and strengthen the core elements of the provision, but eliminate those elements that undermine it. In a chapter in the book “A Time for Change? Japan’s ‘Peace’ Constitution at 65,” published last month by the Woodrow Wilson Center for International Scholars (the chapter is available online: http://bit.ly/MWGF8T), I explain why Article 9 should be amended, and provide draft language that can serve as a basis for beginning a discussion on alternate amendment proposals.

Flat out rejection of any and all possible amendments to Article 9 is dangerous as a strategic matter. The national security environment of Japan has shifted in the last couple of decades, with the emergence of a nuclear-armed North Korea, and the growing military strength of China. In addition to these perceived threats, there is an increasing sense that Japan should be doing more to fulfill its international responsibilities. Moreover, the Japanese Self-Defense Force (SDF) has participated in non-combat roles in such conflicts as Afghanistan and Iraq with no adverse consequences. … Read more…

A Turning Point in Japan For Equality Rights?

(Initially published in the Japan Times, June 10, 2009)

A year ago this week, the Supreme Court of Japan issued a judgment that struck down a clause in the Nationality Act as being a violation of the Constitution. There are good reasons for everyone in Japan to celebrate that decision. While little noted outside of specialized legal journals at the time, the decision may have been the beginning of a more robust judicial protection of the right to equality in Japan.

The Nationality Act judgment was, of course, hailed as an historic decision — in part because it was only the eighth time the Supreme Court has struck down a law as unconstitutional; and in part because it would extend the benefits of nationality to tens of thousands of children born in Japan to Japanese fathers and foreign mothers who were not married. But much less noticed were the reasons of the court, and what that analysis meant for the right to equality itself.

Prior to this case, the courts of Japan employed a simplistic “reasonableness” test to determine if discrimination constituted a violation of the right to equality enshrined in Article 14 of the Constitution. … Read more…

Piracy and the Constitution

(Initially published in the Japan Times, March 26, 2009)

Once again the issue of Japanese contributions to international security efforts is the subject of tortured debate. And once again the proposed government policy, and aspects of the debate itself, reveals fundamental misunderstanding of the relationship between Article 9 of the Constitution and the relevant principles of international law.

This time, the issue relates to maritime piracy off the coast of Somalia, and the proposed deployment of Japanese naval vessels to the area. Predictably, the issue has triggered debate over the effect of the war-renouncing provision of the Constitution. A careful analysis, however, would suggest that the Article 9 prohibition on the use of force would not apply to the deployment of naval forces, or their use of weapons, to protect shipping from pirates in international waters.

Yet, it is clear that the government policy is being formulated under the shadow of Article 9. While the ships are initially being deployed under the authority of Article 82 of the Self-Defense Forces Law, the government has drafted and submitted to the Diet a permanent anti-piracy law, and it is around this bill that debate has focused. … Read more…