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CABINET LEGISLATION BUREAU

Legislation bureau chief Abe’s window to collective defense

by Ayako Mie

Staff Writer

The appointment of Ichiro Komatsu as director general of the Cabinet Legislation Bureau is a step toward Prime Minister Shinzo Abe’s goal of reinterpreting the Constitution so Japan can engage in collective self-defense.

Komatsu, who was ambassador to France when he accepted the new post, differs from his predecessors in that he was brought in from outside, whereas the previous chiefs had risen from the bureau’s ranks and had all agreed that the Constitution’s war-renouncing Article 9 forbids Japan from collectively militarily defending the United States or any other presumed ally.

Komatsu is believed to be on the same page as Abe on collective self-defense, and his appointment — by Abe — has cast light on the influence the bureau has over the Cabinet, even though its opinions are nonbinding and the Cabinet has the final say.

Let’s take a look at the bureau and how it influences the government:

What responsibilities does the bureau have?

The bureau is essentially the Japanese version of the U.S. White House Counsel. It screens state-sponsored bills and ordinances and offers legal opinions and interpretations to the Cabinet and to regional governments.

When there are conflicting views on the legality of laws or the Constitution within the government, the legislation bureau issues an authoritative opinion. Although nonbinding, its interpretations set the standard and basically prevail through multiple changes in government.

The bureau screens the legality of about 100 government-sponsored bills each year. It checks for compliance and consistency with existing law and the Constitution, and conducts a meticulous review of the grammar and wording as well.

How big is the bureau?

The bureau is divided into four sections and consists of 77 senior bureaucrats chosen from various ministries, each with more than 20 years of experience. The members rotate on average every five years.

Even though the bureau is not an agency or ministry, its leader, the director general, enjoys a status similar to that of a Cabinet minister. He or she is appointed by the Cabinet and included in the list of members, and also attends its meetings to weigh in on legislation. The director general also gets to use a 1,500 sq.-meter official residence, a perk Cabinet ministers do not have.

Upon leaving the post, the director general is often appointed to other executive positions within the government, including the Supreme Court. So far, six former director generals have become justices, including Tsuneyuki Yamamoto, who was just replaced by Komatsu.

Why is the bureau so influential?

Every state-sponsored bill without exception must be reviewed by the legislation bureau. Bills won’t be approved and sent to the Diet unless the director general endorses them.

Bills drafted by ministries and endorsed by the party or parties in power are brought before the bureau for review. Preliminary sessions are held where the ministry and bureau vet the legislation until all of the wording is consistent and legal.

The vetting process is so rigorous and thorough that virtually no state-sponsored legislation has been ruled unconstitutional.

The Cabinet also relies on the bureau to represent legislation or convey the Cabinet’s stance on the Constitution to the Diet.

When the legislature is in session, the director general attends the committee meetings and fields questions from all parties in lieu of the prime minister or other ministers — especially when they pertain to the Constitution. The legislation bureau’s four division chiefs also attend such sessions to defend state bills from opposition criticism.

Does the bureau have any weaknesses?

The bureau’s conservative stance has been blamed for taking too long to approve legislation even when it is considered sensible.

For example, it took five years to rename the labor ministry’s Women’s Bureau from Fujin Kyoku to Josei Kyoku. The word “fujin” (woman) dates back to the war years and was simply regarded as too archaic.

In 1993, then-labor minister Masakuni Murakami said the name was going to be changed because women between 15 and 30 no longer regarded themselves as fujin. But the Cabinet Legislation Bureau said that all extant expressions containing fujin must be changed to “josei” in the name of consistency to go through with the name change. The change took five years.

Has the legislation bureau ever changed its interpretation of the Constitution?

Previous directors general have preserved Japan’s interpretation of the Constitution through multiple Cabinets, arguing that society needs a sense of consistency on how the nation is governed.

But the legislation bureau did change the interpretation of “civilian” as stipulated in Article 66, which provides that the prime minister and other ministers of state must be civilians.

When the Constitution was promulgated in 1946, the bureau’s interpretation of civilians included people who had served as career officers in the Imperial Japanese military and who remained militaristic. Members of the National Police Reserve, the precursor to the Self-Defense Forces, were also viewed as civilians. The reserve was first established as a quasi-police force when the Korean War broke out.

This interpretation changed in 1965, when then-Director General Masami Takatsuji was asked if an SDF member could become head of the then-Defense Agency. Takatsuji answered that an SDF member is not a civilian because the SDF can exercise military power.

Did the legislation bureau reinterpret Article 9 when a law was enacted to allow the SDF to join a U.N.-led peacekeeping operation in 1992?

The bureau has been engaged in a delicate balancing act on interpreting Article 9, given the changing security situation prompted by the end of the Cold War.

When the government, shortly after the Persian Gulf War, submitted a bill that would allow SDF elements to be dispatched on a U.N.-led peacekeeping operation, the bureau justified it by using the phrase “sending the SDF” to avoid the word deployment, saying the mission was a peacekeeping operation and not an act of war.

The phrase “use of weapons” was then used to avoid referring to use of force, language inherent in the defense-oriented article.

Does the director general have the power to change the constitutional interpretation of collective self-defense?

Yamamoto, Komatsu’s predecessor, said the only way for Japan to exercise the U.N. right of collective self-defense is to amend Article 9, because the bureau cannot reverse an already-established interpretation. He even recently suggested this in his new capacity as a Supreme Court justice.

Even though Abe may hope that appointing the like-minded Komatsu may pave the way to a reinterpretation of Article 9 that allows collective self-defense, critics say it won’t be easy.

Abe may present a bill calling for allowing collective self-defense after he receives a report from a government panel tasked with studying the issue by year’s end. But the bill would face the same multilayered screening process before it reaches the director general.

Shinichi Nishikawa, a Meiji University professor, said midlevel officials at the bureau might not approve the bill, meaning it might not even reach the director general. A majority of the bureau’s ranks reportedly uphold the current interpretation of the Constitution.

Nishikawa said that Komatsu, if summoned to the Diet, could simply say Japan won’t be in violation of Article 9 if it engaged in collective self-defense — even if his subordinates issue an opinion to the contrary.

If Abe were to endorse such a position by Komatsu, effectively making it a Cabinet decision, the legislation bureau may have to take this stance under advisement when it reviews any other bills.

“It would set a dangerous precedent if different Cabinets can change the constitutional interpretation in order to pursue their agenda,” said Nishikawa. “That could send the message that Japan is not a nation ruled by law, but instead by arbitrary government.”

The government could also be sued for passing a bill deemed unconstitutional. But Nishikawa predicts the Supreme Court may stand aside because any ruling would carry political weight. The top court has avoided ruling on the constitutionality of the SDF for the same reason.

The Weekly FYI appears Tuesdays. Readers are encouraged to send ideas, questions and opinions to hodobu@japantimes.co.jp