Chance for court to right a wrong

Three former defendants and the eldest daughter of a deceased former defendant convicted of illegally entering a U.S. air base in the western Tokyo suburb of Sunagawa in 1957, filed a petition with the Tokyo District Court on June 17 for a retrial.

On the basis of U.S. documents showing contacts between the Supreme Court chief justice and the U.S. ambassador to Tokyo over the case, the four contend that the head of the top court violated people’s right to receive a fair trial.

The district court should squarely examine the documents and make a convincing decision on the case without avoiding the key issue at stake — how the nation’s judiciary should maintain its independence.

On July 8, 1957, 23 demonstrators protesting the planned expansion of the Sunagawa air base were arrested for entering the base premises in violation of a 1952 special law related to the Japan-U.S. Security Treaty, and seven of them were indicted. In March 1959, the Tokyo District Court acquitted them, ruling that the Japanese government violated Article 9 of the Constitution, which bans the nation from possessing war-making potential, by allowing the United States to station its armed forces on Japanese territory.

The prosecution directly appealed the ruling to the Supreme Court, skipping the normal procedure of appealing to the high court. Nine months after the district court ruling, the Supreme Court’s 15-member Grand Bench unanimously ruled that Article 9 does not deny Japan the right to self-defense and that the U.S. forces stationed in Japan do not constitute war potential as prohibited by the same article because they are not under the Japanese government’s control.

The top court also ruled that it is not appropriate for a court to make a judgment on the constitutionality of highly political matters like the Japan-U.S. Security Treaty unless they expressly violate the Constitution.

After the case was sent back to the Tokyo District Court, the defendants were eventually convicted and fined ¥2,000 each.

However, declassified U.S. documents unearthed in and after 2008 at the U.S. National Archives and Records Administration showed that the U.S. government exerted pressure on Japan after the original Tokyo District Court ruling and that Supreme Court Chief Justice Kotaro Tanaka conveyed the prospect of the Supreme Court ruling to the U.S. side.

A telegram dated March 31, 1959, to the U.S. State Department from Ambassador to Japan Douglas MacArthur II (a nephew of Gen. Douglas MacArthur, former supreme commander of the Allied occupation forces in Japan) shows that in meeting with Foreign Minister Aiichiro Fujiyama earlier that day, the envoy urged the Japanese government to appeal the case directly to the Supreme Court.

The government complied.

Another telegram dated April 24 the same year from MacArthur to Washington shows that in a private conversation, Justice Tanaka told the ambassador that the case would be given priority. Yet another cable dispatched to Washington on Aug. 3 that year shows that Tanaka told the U.S. that he “hoped” the top court deliberations would proceed in a manner “which would produce substantial unanimity of the decision and avoid minority opinions which could unsettle public opinion.” These records point to clear signs of political intervention in the 1959 Supreme Court decision.

Behind the former defendants’ decision to seek a retrial after more than 50 years is the Abe administration’s current attempt to reinterpret Article 9 of the Constitution in a manner that would justify a decision by Japan to engage in collective self-defense by partially using the top court ruling on the case as a legal precedent to back it up.

Liberal Democratic Party Vice President Masahiko Komura and a private advisory body to Prime Minister Shinzo Abe have employed the theory that Japan is constitutionally able to exercise the right to collective self-defense because the Supreme Court, in ruling that Japan can take necessary measures in self-defense to ensure the nation’s existence, did not rule out acts of collective self-defense.

This is a far-fetched theory because the right of Japan to defend its allies under attack even when the nation itself is not being attacked was not the issue in the Sunagawa case. It would not be off the mark to say that they are skewing the interpretation of the top court decision to their advantage while failing to make serious efforts to form a national consensus on Japan’s defense policy.

The former defendants said they sought the retrial because the Abe administration’s attempt has caused them to fear that the government is trying to make Japan tread the path toward war by perverting the Supreme Court ruling. They are urging the court to reconsider its judgment in the Sunagawa case and to dismiss the charges that led to the convictions of the defendants.

The U.S. records raise serious questions over the process in which the Supreme Court handed down its 1959 decision. The Tokyo District Court should handle the evidence objectively and deliver a ruling that will help to rebuild public trust in the nation’s judiciary.