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Government and Economy

Who’s protecting the Constitution? — “Twilight” of the Cabinet Legislation Bureau

Eiji Sasada
Professor, Faculty of Political Science and Economics, Waseda University

Guardian of the constitution

The Japanese Supreme Court is most likely the first to come to mind as the protector of Japan's constitution. The Supreme Court, which conducts final hearings regarding legislation, addresses abuses of power on grounds of constitutionality. If claims do not revolve around the violation of certain rights or legal interests, the courts do not get involved.

Constitutional issues regarding governance often do not involve such specific cases. For example, if a law was passed to dispatch the Self-Defense Forces to areas of conflict overseas, other than cases made by Self-Defense Forces personnel, it would be difficult to suggest that such a law violates citizens’ rights or legal interests. In this area of governance, the Cabinet Legislation Bureau is burdened with the role of protecting the Constitution by reviewing the constitutionality of bills submitted by the Cabinet. As former Chief Justice of the Supreme Court, Shigeru Yamaguchi, explained, strict constitutional review by the Cabinet Legislation Bureau has lessened the number of Supreme Court decisions on unconstitutionality.

Security-related bills and opinion polls

Opinion poll results may be misleading depending on how questions are asked, but it is worth mentioning that all recent surveys regarding constitutionality of security bills have produced similar results, regardless of the biases of media organizations (newspapers and TV stations) that conducted them.

In short, while over 50% of the people surveyed replied that the bills were unconstitutional, less than 30% said that they were constitutional. These figures indicate that the public’s trust in the Cabinet Legislation Bureau, the organization which determines the constitutionality of bills, has declined. An inquiry into what has caused this decline shows that in addition to many constitutional scholars, several former Director-Generals of the Bureau claimed the bills are unconstitutional. This greatly affected the survey results. When the act concerning the Cooperation for United Nations Peacekeeping Operations (PKO) was revised in 2001, none of the former Director-Generals of the Bureau insisted it was unconstitutional.

Rights to individual and collective self-defense

On July 1, 2014, the Abe Cabinet permitted the right to collective self-defense. Prior to that decision, the government’s opinion was as described below.

Exercising the right to self-defense is permitted under Article 9 of the Constitution (1) if it is in response to an urgent, unjust situation in which foreign military attacks endanger citizens’ lives and fundamentally threatens their rights to pursue freedom and happiness, (2) if it is an unavoidable measure to safeguard citizens’ rights and (3) if it remains within the scope of the minimum, necessary use of armed forces to achieve the desired outcome (October 1972).

Previous governments had been of the opinion that while exercising the right was constitutional if it remained within the minimum, necessary scope to defend the country, defending other countries under military attack even if Japan was not under military attack (right to collective self-defense) was not permitted under the Constitution. The invocation of the right to collective self-defense does not meet requirement (1) mentioned above.

Referring to (1), the July 1 decision by the Cabinet adds that the right can be exercised if any countries with a close relationship with Japan come under military attack, and if there is fundamental threat to Japan and the citizens' rights to pursue freedom and happiness. This cleared the way for drafting bills to permit the right to collective self-defense. Nonetheless, since the previous governments’ opinions were based on the broadest possible interpretations of the Constitution that were allowed under Article 9 of the Constitution, a new framework for constitutional interpretations becomes necessary to justify such a major change. That is the “new” interpretation of the Constitution based on the Supreme Court ruling on the Sunagawa Case. Director-General Yusuke Yokobatake of the Cabinet Legislation Bureau presented the interpretation that judgments exercising the right to collective self-defense within the minimum, necessary scope are permitted under the ruling handed down by the Grand Bench of the Supreme Court on the Sunagawa Case (December 16, 1959).

Supreme Court ruling on the Sunagawa Case and the right to collective self-defense

This “new” interpretation has come under harsh criticism from not only constitutional scholars but also some of the former Director-Generals of the Bureau. Such criticism is justifiable, but I would like to touch upon one point of contention.

There are few commentaries on this decision that mention the right to collective self-defense. This is because the focus of the trial was whether or not the category of “war potential” prohibited under Article 9 Paragraph 2 of the constitution includes U.S. armed forces in Japan. In this context, essays by Shuzo Hayashi, the Director-General of the Cabinet Legislation Bureau, and Yuichi Takano, professor of international law at the University of Tokyo at the time, are exceptions (both were first published in 1960). Hayashi argues, “The question of whether the Japanese Constitution permits the so-called right to collective self-defense is still unresolved,” and added, “The current Security Treaty envisages only the actions of United States and their rights, and does not stipulate those issues of Japan in concrete terms. Therefore, it is quite natural that the decision does not touch upon [the right to collective self-defense].” Takano, meanwhile, wrote that the Supreme Court’s decision “did not offer any constitutional judgment on the Far East clause and the right to collective self-defense, the most controversial of the Security Treaty issues. In this respect, regardless of the conclusion, I cannot help but feel something is missing or feel deeply dissatisfied in terms of the true nature of this decision. Even Takano, who supported the right to collective self-defense, was critical in justifying the right to collective self-defense based on this case.

Based on the entirety of this case, the opinions of Hayashi and Takano are being taken for granted. The July 1 decision by the Cabinet and the new interpretation, the core of the security law system based on it, were justified by Director-General Yokobatake, but completely contradict previous opinions of the Cabinet Legislation Bureau. It would be quite natural that some of the former Director-Generals harshly criticized the security bills.

The Cabinet Legislation Bureau does not deserve to be called “guardian” of the Constitution

Until now, when the administration asked difficult questions concerning Article 9 of the Constitution, the Cabinet Legislation Bureau presented solutions that coincided with previous interpretations. This is the Bureau’s source of authority. It could be said, however, that the recent security legislation was led by the administration and that the Cabinet Legislation Bureau provided the “new” interpretation that suited the administration.

Upon reflection, France’s Conseil d’État (Council of State), which the Cabinet Legislation Bureau was modeled after has the right to administrative jurisdiction, and its members enjoy generous tenure. But the Deputy Director-General of the Bureau, the second highest ranking official of the organization, and lower ranking members are general public officials and do not have the type of tenure that members of the Fair Trade Commission and the Commissioners of the National Personnel Authority do. The appointment of a diplomat who approved the right to collective self-defense to Director-General of the Bureau illustrates how the Bureau is losing its organizational  autonomy. It may have been unreasonable to expect the Cabinet Legislation Bureau to serve as the guardian of the Constitution. Going forward, we should look into having the Supreme Court make decisions on Constitutional issues related to governance (even without specific instances of violations). The “inquiry” system utilized by Canada's Supreme Court may be a good place to start.

Eiji Sasada
Professor, Faculty of Political Science and Economics, Waseda University

[Profile]

Eiji Sasada was born in 1955 and graduated from Kyushu University in 1979 where he later received his Ph.D. in law. After serving as a professor at Kanazawa University and Hokkaido University, he became a professor at Waseda University's Faculty of Political Science and Economics. His major research subjects include constitutional review systems, judicial systems, and the right to stand trial. His writings include Kihonteki Jinken no Jikenbo, Daigohan (A Police Blotter of Fundamental Human Rights, 5th Edition) (co-authored, Yuhikaku Publishing, 2015), Law Practice Kenpo Dainihan (Law Practice: Constitution, 2nd Edition) (edited and written, Shojihomu, 2014), Shiho no Henyo to Kenpo (The Transformation of the Judicature and the Constitution) (Yuhikaku Publishing, 2008), Saiban Seido (Judicial Systems) (Shinzansha Publisher, 1997), and Jikkoteki Kihonken Hosho Ron (A Theory of Effective Guarantee of Basic Rights) (Shinzansha Publisher, 1993).