The government’s reactions to the Nagoya High Court’s April 17 decision that Japanese operations in Iraq are unconstitutional, raise profoundly disturbing questions about the rule of law and the democratic separation of powers in Japan.

Representatives of the government, and of the military, have made public statements contradicting the findings of the court, rejecting its conclusions, and dismissing the relevance and significance of its constitutional interpretation. The prime minister has stated that the judgment will have absolutely no impact on the government’s continued use of the military in Iraq.

This response by the executive branch of government to a judicial decision in a constitutional democracy is difficult to comprehend. It raises questions about the extent to which the rule of law is respected. It provokes concerns about the continued normative power of the Constitution. It creates serious doubts about the proper distribution of power among the three branches of government within the democratic structure of the state.

The case arose when approximately 1,100 plaintiffs commenced the lawsuit in an attempt to prevent the continued operation of the Self-Defense Force (SDF) in Iraq. It was one of more than a dozen cases around the country challenging the deployment of the SDF in support of operations in both Afghanistan and Iraq. The Nagoya High Court, while dismissing the claims of the plaintiffs for token compensation (for mental distress) and an injunction prohibiting further deployment of the Air Self-Defense Force (ASDF) in Iraq, held that the activity of the ASDF was in violation of Article 9 of the Constitution.

Specifically, the court held that ASDF activity was being conducted in a combat zone in violation of the Iraq Special Measures Law (Iraq SML), which authorized the deployment of the SDF. It also held that the ASDF activity was a necessary and integral component of the use of force by coalition forces in Iraq, and thus itself constituted the use of force in violation of Article 9 of the Constitution, which prohibits Japan from using force as a means of settling international disputes.

The court dismissed the plaintiffs’ claims because they lacked standing. While recognizing that the Constitution conferred upon the plaintiffs a personal right to live in peace, the court held that the ASDF operations did not directly infringe that right, or any other individual or direct legal interest of the plaintiffs, so as to give them a legal basis to advance their claims. But the determination that the plaintiffs did not have standing for their specific claims did not in any way prevent the court from also deciding that the government deployment of the ASDF in Iraq was in violation of Article 9(1) of the Constitution.

The Constitution provides that the Supreme Court, and such other inferior courts as are established by law, are the sole repository of judicial power in Japan (Art. 74). It further provides that the Constitution is the supreme law of the land, and that no law or other act of the government that is inconsistent with it is to have any force and effect (Article 98). Finally, the judiciary, ultimately the Supreme Court as the court of last resort, has the sole power to determine the constitutionality of any law or other act of government (Article 81).

It is very clear, therefore, that the Nagoya High Court had every authority, and indeed a responsibility, to interpret the constitutionality of the operations of the ASDF and the Iraq SML. It was also acting within its jurisdiction in determining whether the operations violated the limits prescribed by the Iraq SML itself. One of those limits restricted all SDF activity to noncombat zones.

The question of whether Baghdad constituted a combat zone as defined in the Iraq SML, and whether the ASDF transportation of armed coalition forces to the combat zone in Iraq itself constituted the use of force, were therefore proper questions for the high court to consider.

Its judgment with respect to those questions, on the basis of evidence before it, and its application of the law and interpretation of the Constitution for that purpose, was a fulfillment of its constitutional role.

Yet Chief Cabinet Secretary Machimura stated publicly that the government “could not accept such a court ruling” because it was inconsistent with the government’s own determination that Baghdad airport was not a combat zone.

Such comments suggest that the executive is spurning a proper legal determination by the judiciary, and substituting its own judgment on a legal question, for which the executive has no constitutional authority (ironically, there was actually evidence given in the trial, by a representative of the Defense Ministry, that the Baghdad airport was susceptible to attack and had occasionally come under attack).

Similarly, the prime minister stated that the decision of the court, which held that his government’s policy was in violation of one of the three fundamental principles of the Constitution, would have no impact on the continued deployment of the ASDF to Iraq. This tends to reflect contempt for the judiciary’s sole authority in interpreting the Constitution and the constitutionality of the laws and acts of government. In the context of the careful separation of powers in a constitutional democracy, the executive is thereby emasculating the judicial branch and trying to usurp its authority.

Most egregiously, Adm. Takashi Saito, the chief of staff of the SDF, publicly stated that the ASDF mission in Iraq does not play an integral part in the use of force, directly contradicting the judicial determination by the Nagoya High Court. Whether it constitutes a use of force or not is a question of law, which the courts have the sole authority to decide.

Given Japan’s history of militarism in the 1930s, during which the military disdained and then usurped the fundamental democratic institutions of the state, such a flagrant demonstration of disrespect for a judicial decision by the most senior military officer ought to be viewed as being entirely unacceptable and the cause for serious concern.

Because the high court held that the plaintiffs lacked standing to claim the remedy they sought, the requested injunction was not issued, and so the government’s response is not formally in contempt of a court order. But that does not mean that the high court’s judgment that a government policy is unconstitutional can be simply ignored and dismissed as irrelevant. To ignore judicial determinations of unconstitutionality is to weaken the institutional power and authority of the judiciary and thus unbalances the separation of powers, and undermine the integrity of the Constitution itself. Ultimately, such practice may threaten the democratic structure of the state.

As the government continues to work toward Japan taking a more active role in the international collective security system, it will need to convince both the Japanese people and the other countries in the region that the rule of law and other institutions of constitutional democracy are secure and respected in the Japanese political system.

Such high-handed flouting of the Constitution, the law and the judiciary as was reflected in this case does not help.

As the debate continues in Japan’s Diet this month over a new Antiterrorism Special Measures Law (ASM Law) authorizing Japanese naval force activities in the Indian Ocean, serious attention must be paid to the issues of exactly how such activity is to be limited, and how the Diet can meaningfully monitor compliance with such limitations.

These are not simply political or operational issues, but constitutional issues.

The current draft of the ASM Law purports to authorize the Maritime Self-Defense Force (MSDF) to supply fuel to coalition forces engaged in maritime interdiction operations related to Afghanistan. The law would restrict, among other things, the MSDF’s area of operations, its involvement in any use of force, and the purpose for which the fuel it provides may be used. These limitations have been explained as being necessary to ensure that Article 9 of the Constitution is not violated.

Yet the U.S. government has recently made clear that it will not agree to respect any limitations that Japanese law may seek to impose on the use of fuel provided by the MSDF.

From the U.S. perspective, Operation Enduring Freedom, the U.N.-authorized ISAF (International Security Assistance Force) operations in Afghanistan, the U.S. operations in Iraq, and, for that matter, potential activities in other areas in the region, are all part of a broader campaign, and U.S. naval assets are not dedicated exclusively to any one operation. Operational flexibility is paramount.

The Japanese government has been desperate since November to renew its contribution to U.S. efforts, and may feel the pressure now to agree to ill-defined or legally ambiguous naval operations. Canada went through a similar process in 2003.

In February 2003, Canada assumed command of a multinational naval task force — TF 151 — operating near the Persian Gulf in support of operations in Afghanistan. The Canadian Department of National Defense (DND) had agreed to take command on the assumption that Canada would likely participate in the looming invasion of Iraq.

The Canadian government decided in March 2003, however, not to support the U.S. invasion of Iraq, but it was clear by then that TF 151 would be involved in support of operations relating to both Afghanistan and Iraq.

This created an enormous dilemma for Canada. The DND was of the view that it could not continue in command of TF 151 under such circumstances. It had internal legal opinions that concluded that any Canadian participation in maritime interdiction operations related to the war in Iraq would make Canada a belligerent in that war under international law, regardless of what position the government adopted publicly.

The Ministry of Foreign Affairs was opposed to Canada relinquishing command of TF 151, fearing that doing so would further antagonize Canada’s most important ally. The prime minister went along with Foreign Affairs, and publicly stated that Canada’s naval forces would continue to operate in TF 151, but only with respect to the operations in Afghanistan.

This was possible for some countries in the task force, as their ships were assigned to sectors far removed from Iraq. But in practical terms, this was impossible for Canada, as it was exercising command of the task force, and the task force as a whole could not be so limited. In practice, Canada continued with a “double-hatted” operation (serving two mandates simultaneously), but one mandate was in respect of a war that Canada had publicly refused to join and whose legality Canada had publicly questioned.

Canada continued in command of TF 151 until June 2003. It is still not known to what extent Canadian forces were involved in operations relating to Iraq. It was only due to extreme good fortune that Canada was saved from potential legal and public relations nightmares arising from direct engagement with Iraqi assets or the detention of high-profile Iraqi officials during that period.

Canada was actually engaged in interdiction operations — not merely logistical support — but then again Canada has no constitutional constraints on its involvement in the use of force either.

Notwithstanding these differences, Japan can take some lessons from the Canadian experience. For one, it should be recognized that many naval operations in the region are “double-hatted.” More importantly, Canada got into a legally untenable situation primarily due to a perceived need to satisfy its American ally, which made no distinctions between operations in support of Afghanistan and those in support of war in Iraq.

In practical and legal terms, Canada’s conduct was inconsistent with its public political posture. It was lucky to have avoided any serious embarrassment, but then the integrity of its constitution was not at stake either. Finally, political monitoring for compliance with the public position was difficult.

In Japan there have already been incidents of the MSDF providing false information to politicians regarding its fueling operations in the Indian Ocean, leading to members of Cabinet making false statements to the public about the nature of Japan’s military involvement in so-called antiterrorism operations.

Yet the current ASM Law has less Diet oversight and control over the MSDF than the previous one. Without specific legal requirements, oversight and control of operations will be difficult. But consider the effect if it were later disclosed that the MSDF had supplied U.S. ships that were shortly thereafter involved in strikes on “terrorist sites” in northern Pakistan, or engagements with Iranian vessels.

To the extent that the Japanese government and people believe that support for military activity other than maritime interdiction operations related to Afghanistan could violate Article 9 of the Constitution, then the new ASM Law ought to contain clear limitations to that effect, and provide clear and effective mechanisms for the Diet to monitor MSDF operations to ensure compliance.

Moreover, the new ASM Law ought to specify that the MSDF may only supply fuel to those coalition countries that formally agree to limit their use of such supply for those purposes.

Several coalition nations have limited their naval forces to support for operations relating to Afghanistan. Japan’s efforts are in support of NATO as a whole, and if the United States finds such limitations overly restrictive for its own operational effectiveness, it will nonetheless benefit from Japanese supply to other NATO forces.

On the other hand, if such limitations are determined to be truly unworkable from an operational perspective, then Japan needs to rethink whether it can provide the logistical support requested. But Japan cannot allow itself to slide into a legally ambiguous situation that could result in a violation of a core principle in its Constitution, merely to accommodate the operational flexibility requirements of the U.S. Navy.