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Rule of law comes under fire

Government response to high court ruling on SDF operations in Iraq

by Craig Martin

The government’s reactions to the Nagoya High Court’s April 17 decision that Japanese operations in Iraq are unconstitutional, raise profoundly disturbing questions about the rule of law and the democratic separation of powers in Japan.

Representatives of the government, and of the military, have made public statements contradicting the findings of the court, rejecting its conclusions, and dismissing the relevance and significance of its constitutional interpretation. The prime minister has stated that the judgment will have absolutely no impact on the government’s continued use of the military in Iraq.

This response by the executive branch of government to a judicial decision in a constitutional democracy is difficult to comprehend. It raises questions about the extent to which the rule of law is respected. It provokes concerns about the continued normative power of the Constitution. It creates serious doubts about the proper distribution of power among the three branches of government within the democratic structure of the state.

The case arose when approximately 1,100 plaintiffs commenced the lawsuit in an attempt to prevent the continued operation of the Self-Defense Force (SDF) in Iraq. It was one of more than a dozen cases around the country challenging the deployment of the SDF in support of operations in both Afghanistan and Iraq. The Nagoya High Court, while dismissing the claims of the plaintiffs for token compensation (for mental distress) and an injunction prohibiting further deployment of the Air Self-Defense Force (ASDF) in Iraq, held that the activity of the ASDF was in violation of Article 9 of the Constitution.

Specifically, the court held that ASDF activity was being conducted in a combat zone in violation of the Iraq Special Measures Law (Iraq SML), which authorized the deployment of the SDF. It also held that the ASDF activity was a necessary and integral component of the use of force by coalition forces in Iraq, and thus itself constituted the use of force in violation of Article 9 of the Constitution, which prohibits Japan from using force as a means of settling international disputes.

The court dismissed the plaintiffs’ claims because they lacked standing. While recognizing that the Constitution conferred upon the plaintiffs a personal right to live in peace, the court held that the ASDF operations did not directly infringe that right, or any other individual or direct legal interest of the plaintiffs, so as to give them a legal basis to advance their claims. But the determination that the plaintiffs did not have standing for their specific claims did not in any way prevent the court from also deciding that the government deployment of the ASDF in Iraq was in violation of Article 9(1) of the Constitution.

The Constitution provides that the Supreme Court, and such other inferior courts as are established by law, are the sole repository of judicial power in Japan (Art. 74). It further provides that the Constitution is the supreme law of the land, and that no law or other act of the government that is inconsistent with it is to have any force and effect (Article 98). Finally, the judiciary, ultimately the Supreme Court as the court of last resort, has the sole power to determine the constitutionality of any law or other act of government (Article 81).

It is very clear, therefore, that the Nagoya High Court had every authority, and indeed a responsibility, to interpret the constitutionality of the operations of the ASDF and the Iraq SML. It was also acting within its jurisdiction in determining whether the operations violated the limits prescribed by the Iraq SML itself. One of those limits restricted all SDF activity to noncombat zones.

The question of whether Baghdad constituted a combat zone as defined in the Iraq SML, and whether the ASDF transportation of armed coalition forces to the combat zone in Iraq itself constituted the use of force, were therefore proper questions for the high court to consider.

Its judgment with respect to those questions, on the basis of evidence before it, and its application of the law and interpretation of the Constitution for that purpose, was a fulfillment of its constitutional role.

Yet Chief Cabinet Secretary Machimura stated publicly that the government “could not accept such a court ruling” because it was inconsistent with the government’s own determination that Baghdad airport was not a combat zone.

Such comments suggest that the executive is spurning a proper legal determination by the judiciary, and substituting its own judgment on a legal question, for which the executive has no constitutional authority (ironically, there was actually evidence given in the trial, by a representative of the Defense Ministry, that the Baghdad airport was susceptible to attack and had occasionally come under attack).

Similarly, the prime minister stated that the decision of the court, which held that his government’s policy was in violation of one of the three fundamental principles of the Constitution, would have no impact on the continued deployment of the ASDF to Iraq. This tends to reflect contempt for the judiciary’s sole authority in interpreting the Constitution and the constitutionality of the laws and acts of government. In the context of the careful separation of powers in a constitutional democracy, the executive is thereby emasculating the judicial branch and trying to usurp its authority.

Most egregiously, Adm. Takashi Saito, the chief of staff of the SDF, publicly stated that the ASDF mission in Iraq does not play an integral part in the use of force, directly contradicting the judicial determination by the Nagoya High Court. Whether it constitutes a use of force or not is a question of law, which the courts have the sole authority to decide.

Given Japan’s history of militarism in the 1930s, during which the military disdained and then usurped the fundamental democratic institutions of the state, such a flagrant demonstration of disrespect for a judicial decision by the most senior military officer ought to be viewed as being entirely unacceptable and the cause for serious concern.

Because the high court held that the plaintiffs lacked standing to claim the remedy they sought, the requested injunction was not issued, and so the government’s response is not formally in contempt of a court order. But that does not mean that the high court’s judgment that a government policy is unconstitutional can be simply ignored and dismissed as irrelevant. To ignore judicial determinations of unconstitutionality is to weaken the institutional power and authority of the judiciary and thus unbalances the separation of powers, and undermine the integrity of the Constitution itself. Ultimately, such practice may threaten the democratic structure of the state.

As the government continues to work toward Japan taking a more active role in the international collective security system, it will need to convince both the Japanese people and the other countries in the region that the rule of law and other institutions of constitutional democracy are secure and respected in the Japanese political system.

Such high-handed flouting of the Constitution, the law and the judiciary as was reflected in this case does not help.

Craig Martin is a Canadian lawyer, currently working on a doctorate at the University of Pennsylvania on the relationship between constitutional and international law constraints on the use of armed force. He is also a graduate of and visiting lecturer at Osaka University, Graduate School of Law and Politics. www.craigxmartin.com