The Supreme Court of Japan avoids interpreting the constitutionality of the powers of the Japan Self-Defense Forces (SDF).
However, the Supreme Court of Japan has traditionally avoided expressing an opinion on this matter. This has allowed the Japanese government to gradually expand the capabilities of the SDF. In 1991, after the end of the Gulf War, Japanese minesweepers participated in mine clearance, marking the SDF’s first overseas mission. In 2004, the Japanese military was deployed to Iraq, which remained an active conflict zone, to provide humanitarian aid and restore public facilities. The 2015 reform allowed the Self-Defense Forces to participate in operations alongside allied forces under attack if there is a threat to Japan’s existence and no other options for resolving the conflict.
At the same time, cases against the activities of the US military in Japan and the SDF were brought at the local level, with lower courts often siding with the prosecution. Although these cases were subsequently defeated by Supreme Court decisions, they are interesting and demonstrate the polarized opinions on this issue. In this article, we will examine several high-profile court cases that have raised debates about violations of Article 9 of the Constitution.
Sunagawa Case: The New Supreme Court’s Caution Creates a Controversial Precedent
In the second half of the 1950s, a large-scale protest movement raged against the expansion of a US Air Force air base into the nearby village of Sunagawa (near Tokyo). The expansion was to be accomplished through the expropriation of land from farmers. Their discontent was echoed by other citizens, many of whom were students from left-liberal organizations.
During the protests, several demonstrators entered the base, were arrested under the provisions of the US-Japan Security Treaty, and were brought to trial. The defense countered the charges, arguing that the US troops constituted “war potential,” as prohibited by Article 9. The Tokyo District Court agreed with these arguments and acquitted the defendants. One of the judges, Date Akio, urged his colleagues to think independently, using their own judgment and not relying on the Supreme Court.
However, the Supreme Court reviewed the case and overturned the acquittal. It held that the case involved high-level political issues with implications for Japan’s existence as a sovereign state. Therefore, the Supreme Court can only weigh in on such cases if they involve the most obvious violations of the Constitution. Nevertheless, it interpreted that US foreign troops do not constitute “Japanese war potential.”
The Supreme Court continued to adhere to this “political question doctrine,” outlined in 1959, in most similar cases. A number of scholars and legal experts at the time believed that the Supreme Court acted cautiously and hesitantly because it was a newly established body. Its members were not yet certain of the true place of the judiciary in Japan’s postwar political system. However, the Supreme Court gradually asserted itself and issued an increasing number of decisions regarding constitutional violations in various cases. Therefore, it was likely that the Supreme Court would also change its position on Article 9.
However, the judges of this body remained extremely conservative and did not seek to change the status quo on the SDF. At the same time, lower court judges, in the spirit of Date Akio’s ideas, attempted to reconsider this issue.
The Eniwa and Naganuma Cases
High-profile court cases involving the SDF began in the 1960s in Hokkaido, in the cities of Eniwa and Naganuma.
In the Eniwa case, the Nozaki brothers, farmers living near an SDF base, were tried. They unsuccessfully protested against such a neighbour, and in 1962, they cut the SDF’s telephone cables, for which they were convicted (violating the Self-Defense Forces Law). However, the defense chose to focus on whether the SDF constituted a military capability prohibited by the Constitution. The court debated the differences between “military” and “defensive capabilities” and whether a distinction should be made between them.
As a result, the court acquitted the Nozaki brothers on formal grounds: the cables were not equipment belonging to the SDF, and therefore the brothers had not violated the Self-Defense Forces Law. However, the constitutionality of the case was avoided.
In the Naganuma case, events unfolded differently. In 1968, the government planned to cut down a forest reserve on Mount Maoi to build a Nike J missile base. 173 local residents filed a lawsuit against the deforestation, which can only be carried out if it serves the “public good,” and what public good military bases provide is a debatable issue.
The district court ruled in favor of the residents, noting that the existence of the military bases violated the “right of residents to peaceful life” (from the preamble to the Constitution). However, the Sapporo High Court (in 1976) and the Supreme Court (in 1982) overturned this decision. They dismissed the “right to peaceful life” as too abstract a concept and avoided ruling on the constitutionality of the SDF. Nevertheless, the Naganuma case was the first in which a district court acknowledged the existence of a problem with the constitutionality of the SDF.
The Nagoya High Court’s Recognition of the “Right to Peaceful Life”
Since 2004, Japan has been deploying SDF to the Middle East to assist the United States in the Iraq War. In response, more than 5,700 citizens, represented by over 800 lawyers, filed lawsuits in 11 district courts across Japan. The prosecution sought an injunction against the deployment of Japanese troops, citing violations of the “right to peaceful life” and Article 9 of the Constitution.
The Nagoya High Court issued its decision in April 2008, and it was an unusual one. The court rejected the prosecution’s claims but found that the SDF violated Article 9 of the Constitution during the war. However, the Supreme Court had not heard the case. This was the first time a court of this caliber had provided an opinion (and not been overturned by a higher court) that the actions of the SDF were unconstitutional. Furthermore, the court recognized that the “right to peaceful life” is not something abstract but a well-established right that can be defended (the Supreme Court had previously considered this right vague and therefore declined to consider its violations).
Nevertheless, the government made it clear that this court ruling would not affect its actions and refused to withdraw Japanese troops. However, the SDF still left the Middle East by the end of 2008. The government’s official explanation was that Japanese troops had fulfilled their primary mission. However, some argue that this decision was made on the eve of the 2009 elections. The ruling Liberal Democratic Party was losing popularity due to the Iraq War, and the troop withdrawal could have restored the electorate’s favor.
Discussion
This article has not considered all the cases in which the constitutionality of the presence of “military potential” in Japan has been raised in the context of specific local disputes. However, the cited cases allow us to assess the role of Japan’s district, high, and Supreme Courts in cases involving political issues.
The courts acted cautiously and avoided making specific rulings on the SDF issue. However, district courts and even higher courts gradually gained confidence. As did the Japanese government, which began granting increasing powers to the SDF. However, when the Nagoya High Court ruled in 2008 that the government had crossed the line, it had no effect. The government made it clear that the norm of judicial non-interference in political matters had been firmly established by 2008, and the courts could no longer change it.
As the author of this paper believes, the courts still retain a certain influence in high-stakes political cases. They can declare government action to be unconstitutional, which will generate media attention, and if the administration is already unpopular, it may reverse the decision to remain in power. This is likely what happened in 2008, by the end of which the Japanese troops left the Middle East. However, we suggest that under Sanae Takaichi’s administration, such a move is unlikely to have any impact, given that the country’s population has become less opposed to the notion of boosting military capabilities.
Daniil Romanenko, a Japanologist researcher from the Institute of Oriental Studies of the Russian Academy of Sciences
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