The verbal war over the national security bills is heating up now that Japan’s constitutional scholars have clearly branded Prime Minister Shinzo Abe’s reinterpretation of war-renouncing Article 9 and all legislation based on it as unconstitutional.

But when all is said and done, it will probably be the Supreme Court, not the nation’s scholars, that makes the call on the validity of Abe’s attempt to broaden Japan’s military reach through the government-sponsored legislation without amending the Constitution first.

Will the Supreme Court be asked to issue a ruling? Who would it favor, Abe or the scholars?

Let’s take a closer look at the Supreme Court’s role as Japan’s watchdog on legal matters.

What is the focus of the debate?

Last July, Abe declared a change in the government’s long-standing interpretation of Article 9 that would allow Japan to exercise the right to collective self-defense as defined under the United Nations charter.

Based on this decision, the Abe administration submitted bills to the Diet to allow the Self-Defense Forces to engage in joint operations to defend the military of an ally, presumably the United States.

Collective defense allows a country to use force to aid an ally under attack, even if that country itself is not being attacked.

But Article 9 of the Constitution had long been interpreted as limiting Japan’s use of force exclusively to the minimum needed for its own defense.

Scholars of constitutional law argue that Abe is arbitrarily reinterpreting the Constitution just to achieve his political goals.

What process would the Supreme Court follow to issue a ruling on the reinterpretation and the bills based on it?

Unlike Germany, Italy and Australia, Japan does not have a constitutional court dedicated to reviewing the constitutionality of laws.

The Supreme Court, consisting of 15 judges, would basically only weigh whether a law was constitutional in cases where the specific interests of a certain party were actually affected, said Ryuichi Ozawa, professor of constitutional studies at Jikei University School of Medicine.

“So the court won’t pursue a judgment unless the Self-Defense Forces were actually dispatched and, say, someone in the SDF filed a lawsuit,” he said. “And (the lawsuit) would start at the district court and would take a long time before it reached the Supreme Court.”

According to Setsu Kobayashi, professor emeritus of constitutional studies at Keio University, it usually takes about four years for the Supreme Court to hand down such a ruling.

Would the Supreme Court actually make a ruling on such a weighty issue? 

Nobody knows for sure, but given its history, many observers believe the Supreme Court would avoid ruling on the bills’ constitutionality, thus allowing Abe’s reinterpretation of Article 9 to stand.

The Supreme Court has been extremely reluctant to rule on highly political issues, particularly those involving the SDF. Throughout the Cold War, in fact, the mere existence of the SDF was a hot-button issue because the Constitution bans Japan from maintaining “land, sea, and air forces, as well as other war potential.”

To this day, the Supreme Court has never issued a judgment on the legitimacy of the SDF.

In a 1959 landmark ruling on what is now called the Sunagawa Incident, the Supreme Court ruled that courts must not judge the constitutionality of a highly politicized issue involving national security, because it is the government, formed via a democratic election, that should make that call. This is widely known as tochikoi ron (theory of the act of government).

These days, top government officials and senior ruling bloc lawmakers, speaking officially or unofficially, suggest that they expect the Supreme Court to stick to this theory if a lawsuit involving Abe’s reinterpretation of Article 9 is filed.

“The Supreme Court itself has ruled that national security questions, which could affect the survival of Japan, should be left to the decisions of the Cabinet and the Diet,” Tomomi Inada, policy chief of the ruling Liberal Democratic Party, told a news conference on June 11. “So I don’t think it is very meaningful to keep discussing if (the security bills) violate the Constitution.”

Do the scholars believe the court should be more aggressive when addressing highly political matters?

Not necessarily. Some point out that the 15 judges are appointed by the Cabinet without Diet endorsement.

So if the Supreme Court became more active in ruling on politically contentious issues, the Cabinet would be tempted to appoint judges who side with the government, Yasuo Hasebe, a professor of constitutional studies at Waseda University, said at a news conference at the Japan National Press Club on Monday.

How was Article 9 interpreted before Abe’s move?

Article 9 was long interpreted as banning collective self-defense.

Article 9 says:

“The Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.

“In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.”

Despite this, the government has maintained that the Constitution doesn’t deny Japan the right to self-defense because it is considered an inherent right for any independent state. Thus the existence of the SDF is also deemed constitutional, though use of force should be limited to “minimum necessary level” for self-defense, the government says.

At the same time, the government had also maintained that collective defense was banned because defending another country would exceed the minimum force rule.

In recent years, however, collective defense has worked its way into the political discussion due in part to the United States, which is obligated to defend Japan by treaty. Washington now wants Tokyo to shoulder more of the security burden in politically volatile Asia.

How does Abe’s Cabinet justify the way it reinterpreted Article 9?

Abe says Japan is in the midst of an increasingly threatening security environment and that the self-imposed ban on collective defense should be lifted to remove a potentially critical weakness in the Japan-U.S. military alliance.

Abe is now arguing that his reinterpretation is based on the Supreme Court’s ruling on the Sunagawa Incident — the only verdict in which Japan’s right to self-defense was mentioned.

That ruling said the nation is permitted to take “measures for self-defense” to “maintain the peace and security of Japan and ensure its survival,” despite Article 9.

Abe is apparently stretching the meaning of this ruling to say that Japan is allowed to use collective defense if Japan’s “survival” is at stake and if it limits the use of force “to the minimum necessary level.”

How are the nation’s constitutional scholars responding to Abe’s argument?

Scholars point out that the focus of the dispute in the Sunagawa case was whether the U.S. military presence in Japan violated Article 9, not whether the SDF or Japan’s right to self-defense was constitutional.

They also agree that collective defense was not part of that ruling.

“The value of a Supreme Court ruling is substantiated based on a specific point of focus in the lawsuit. (The government’s argument) conflicts with this basic rule,” said Hasebe of Waseda University.

“The nature of individual self-defense . . . is essentially different from that of collective self-defense, which is to defend another country,” he said.

The Abe administration’s reinterpretation of Article 9 of the Constitution can be found online in PDF form with its explanations of the security legislation.

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