japanese constitution

The “Yanai Report” on Article 9, Part 4

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The next segment of my analysis of the Yanai Report is long overdue. The final two posts were supposed to be the critical analysis of the report, from both a constitutional and international law perspective. The constitutional criticism was briefly explained in my Op-Ed piece in the Japan Times, which can be found here. Before posting a more developed version of that, together with the international law critique, I am posting below the Japanese translation of the Op-Ed piece. It was declined by the Asahi Shinbun (ostensibly because it was too narrow in focussing exclusively on one fundamental flaw in the report), but I thought that it should be made available somewhere for wider consumption, since there has been little debate on this aspect of the report in the Japanese media. The eloquent translation is thanks to Prof. Norimoto Setsuko.

第９条の新解釈を押し付けようとすることの致命的な欠陥

一般に柳井報告として知られている「安全保障の法的基盤の再構築に関する懇談会」報告は、日本が集団的自衛および集団安全保障活動に参加することを可能にするためには、日本国憲法第９条の再解釈が必要であると主張している。現在は、いずれの活動も、第９条第１項で禁止されていると解されている。しかし、この報告書は、懇談会の分析の正当性を根底から覆す根本的欠陥を明らかにしている。

懇談会は2007年4月に、安倍晋三内閣（当時）によって、憲法の「再解釈」の必要性を検討するために設置された。懇談会は、13人の著名な学者、元外交官、その大部分は国際関係、政治、国家安全保障の専門家である官僚たちで構成されたていた。懇談会のメンバーの中に憲法学者は一人しかいなかった。懇談会は、憲法改正に賛成していることが公に知られているタカ派によって占められていると批判された。座長の柳井俊二は、元アメリカ大使であり、現在は中央大学教授であるが、6月に内閣に懇談会報告を提出した。

当時の福田康夫首相は、この報告書すなわち憲法の「再解釈」にはほとんど興味を示さなかった。しかし麻生首相は、第９条は「再解釈」されなければならないと、国連で繰り返し述べた。さらに柳井報告書が、官僚たちの間で歓迎され、政府内において次第に影響力を行使しそうな証拠がある。したがってこの報告書は、もっと公に吟味の対象とならなければならないのである。

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U.S. Interference in Japanese Constitutional Case

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There was a remarkable discovery announced just this week, that documents uncovered in American archives reveal that the U.S. ambassador to Japan in 1959 actively interfered in the judicial process regarding the determination of a fundamental constitutional issue. While the discovery has been widely reported in Japan, the context and significance of the issue deserve to explored in more depth.

The case in question, commonly known as the Sunakawa case, remains a highly important judgment of the Supreme Court, and the discovery that the U.S. government interfered in the process is important, and may have political repercussions in the ongoing constitutional revision debate.

The Telegram

The discovery itself was made by a Japanese historian on U.S. Japanese relations named Niihara Shoji. While doing research at the U.S. National Archives he uncovered a telegram from ambassador Douglas MacArthur II, nephew to the more famous general who was Senior Commander Allied Powers during the occupation of Japan. In the telegram, sent to Washington in April, 1959, ambassador MacArthur recounted his discussions with both foreign minister Fujiyama Aiichiro, and with Supreme Court Chief Justice Tanaka Kotaro, regarding the ruling by the Tokyo District Court in March, 1959, that the U.S.-Japan Security Treaty was unconstitutional, and that the maintenance of U.S. armed forces in Japan was a violation of Article 9 of the Constitution.

The telegram explains that ambassador MacArthur had initially pressed foreign minister Fujiyama to ensure that the government would appeal the decision directly to the Supreme Court, by-passing the more normal procedure of appealing to the Tokyo High Court. According to the telegram, he “stressed importance of GOJ [government of Japan] taking speedy action to rectify ruling by Tokyo District Court”.

It also recounts how he then had private discussions with Chief Justice Tanaka, after the Supreme Court was seized of the case, in which he sought to determine when the Supreme Court would likely hand down its decision. While the telegram is apparently silent on the issue, it is difficult to believe that the ambassador would not have similarly conveyed to the Chief Justice the American view that it was essential to “rectify” the ruling of the court below.

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The Nagoya High Court Decision on Japanese Forces in Iraq

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The Nagoya High Court handed down a judgment last week on Japan’s involvement in Iraq. While dismissing the applicants’ claims on the basis that they lacked legal standing, the Court held that the Air Self-Defence Force (ASDF) operations in Iraq violated the limits in the authorizing legislation, and the prohibition on the use of force in Article 9(1) of the Constitution.

The judgment, and how the government is responding to it, raises profoundly important issues. The case was one of dozens that have been commenced by citizen groups in opposition to the deployment of the SDF in support of operations in Afghanistan and Iraq. This is the first decision that has held that the operations are unconstitutional, and it is the most important decision involving Art. 9 to be handed down by a court in over 25 years. Below I provide more of the background and the reasoning of the decision, but first, I address the main issues it raises.

The court dismissed the plaintiffs’ claims both for damages in respect of their right to live in peace, and for the injunction against continued deployment of the ASDF. The plaintiffs were found not to have a direct legal interest that would be harmed by the ASDF operations. While finding that the deployment in Iraq was a violation of the prohibition on the use of force in Art. 9 of the Constitution, it held that the plaintiffs did not have standing to claim a remedy for that violation. It was, therefore, a win for the government in terms of the specific demands of plaintiffs. Yet it was a major set-back for the government in terms of its policy having been judged as being unconstitutional.

Representatives of the government, including the prime minister, have not only made statements to the effect that the judgment will not change any aspect of government policy, but are rejecting the validity of the decision. Chief Cabinet Secretary Machimura stated that “I cannot accept such a court ruling when the Japanese government has determined that [Baghdad airport] is a non-combat zone.” The court found as a matter of both fact and law, on the basis of the evidence before it and its interpretation of the definition of “combat area” in the Iraq Special Measures Law, that Baghdad was a combat zone.

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Establish Limits on Japanese Naval Support

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(Initially published in the Japan Times, January 10, 2008)

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.

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