Monday, June 9, 2008

ASDF and the Constitution

"On April 17, the Nagoya High Court ruled that the dispatch of the Air Self-Defense Force (ASDF) to Iraq violates Article 9 of the Constitution. As far as cases on Article 9 are concerned, it was the first time in 35 years for a court to rule against the SDF's constitutionality.

"The last time was in 1973 when the Sapporo District Court, of which I was the presiding judge, handed down its ruling in the Naganuma Nike missile base case. It concerned a lawsuit filed by residents of Naganuma, Hokkaido, who were opposed to the construction of an ASDF missile base.

"When it comes to state affairs of a highly political nature, such as national defense, there is a theory known as tochi koi-ron (act of government theory) that the judiciary doesn't have the right to make judgments.

"But I did not adopt this thinking in passing judgment on the constitutionality of the SDF. This is because I firmly believe that the very idea violates the Constitution.

"Article 81 of the Constitution states: "The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act." Thus, under the Constitution, it can be said there is no room for "state affairs that are not subject to judicial review."

"To begin with, Japan stands by the separation of the three branches of government--legislative, administrative and judicial. Therefore, for the judiciary to avoid passing judgment on sensitive political problems would mean being subservient and conceding to politics. If that happens, Japan will cease to be a country ruled by law.

"Courts must fairly and squarely make judgments based on evidence. By accumulating such judgments, the judiciary is able to promote public debate on the constitutionality of various issues. This is how a law-governed nation ought to be. For this reason, I had no qualms whatsoever in reaching a decision about the constitutionality of the SDF.

"In the 35 years since then, there have been a number of lawsuits asserting that the provisions of Article 9 had been violated. But no court made judgments on the constitutionality issue during this time, apparently because the Supreme Court became more inclined to stand by the idea of the "act of government theory."

"It distresses me that courts had such a passive attitude and avoided making decisions on issues of constitutionality. This was one of the reasons behind the inactive public debate over the reality of the SDF's legality under the Constitution. Unless the public shows interest, judges tend to dodge controversial political questions, thinking there is no need to go to the trouble of making decisions on issues concerning the Constitution.

"As a result, such an unfavorable situation became prevalent. Under these circumstances, the Nagoya High Court's decision on Article 9 after a long interval may serve as an opportunity to change the status quo.

"Referring to the latest ruling, Prime Minister Yasuo Fukuda nonchalantly said: "It's an obiter dictum," meaning it was a court opinion that is not legally binding.

"While the court ruled in favor of the government in its decision, it also stated the unconstitutionality of the ASDF dispatch in citing the reason. Some critics say a judgment of unconstitutionality that does not affect the decision is superfluous.

"I disagree.

"The court first determined facts about whether there were unconstitutional acts as claimed by the plaintiffs. It then judged whether there were sufficient grounds and benefits for the plaintiffs to make the claim based on those facts. Its logic was flawless and perfectly acceptable.

"A top ASDF officer made a comment to the effect that such a decision makes no difference. Many other government officials also made similar comments in an apparent attempt to downplay the impact of the ruling. Properly speaking, when a judgment is handed down regarding the constitutionality of an issue, those concerned should accept the ruling no matter how unhappy they are with it.

"I urge officials in the government to re-examine the contents of its policy regarding the SDF and make an effort to advance public debate.

"If the government shows slights on court decisions, it will undermine public trust toward the judiciary. We must avoid a situation in which the public as a whole falls silent, thinking court decisions are irrelevant."

By Shigeo Fukushima (6/6/2008), Asahi Shimbum, Link to article (last visited 6/9/2008)

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