National / Media | MEDIA MIX

Japan's courts are being asked to define the role of the SDF

by Philip Brasor

Contributing Writer

As discussed in Media Mix last week, news organizations are on the lookout for signs of whether the country’s Self-Defense Forces are becoming politically active. There have been indications the SDF wants to be the conventional military that the ruling Liberal Democratic Party has in mind, but that doesn’t mean the entire organization agrees with this direction.

After the Cabinet decided in 2015 to allow the SDF to participate in collective self-defense overseas, an active Ground SDF member brought a suit against the government demanding that it clarify if he would have to go abroad if the SDF was ordered to do so. As explained in an Asahi Shimbun editorial published in February, Japan might issue such an order if faced with sonritsu kiki jitai, meaning a “security crisis that threatens the nation’s survival” due to conflicts that affect an ally of Japan. The SDF plaintiff argues that the Constitution, which disavows armed aggression in any form, prohibits Japan from carrying out collective self-defense. The SDF member simply wanted the government to confirm that it would send him overseas if an ally requested it.

Last year, the Tokyo District Court dismissed the suit out of hand because it found “no specific possibility of such an order being issued.” In other words, the court couldn’t rule on a theoretical scenario. The SDF member filed an appeal, so while Prime Minister Shinzo Abe used the threat of North Korean missiles as a means to justify his call for greater security during last fall’s election campaign for the Lower House, government lawyers were in court claiming that a conflict with North Korea was merely an “abstract and hypothetical assumption.”

On Jan. 31, the Tokyo High Court rejected the appeal and sent the case back to the lower court, saying that the plaintiff deserved to know if he was obligated to follow such an order since he could be prosecuted if he disobeyed it.

This case is only one of the most recent in a series of lawsuits whose purpose has been to define the role of the SDF within the scope of the Constitution. All ended in the government obfuscating that role so that it never has to address the issue. The apparent thinking of the SDF plaintiff in the current lawsuit is that he signed up to defend Japanese soil and Japan’s citizens only, and so he is demanding that the

government definitively state what he is expected to do.

Coincidentally, NHK aired a documentary on April 28 describing two court cases that addressed similar matters.

In the first, two Hokkaido dairy farmers cut communications cables on a neighboring SDF base in 1962 because the loud drills that took place on the base were disturbing the cows and the farmers’ livelihoods. The government prosecuted them for violating Article 121 of the SDF Law, which prohibits destruction of SDF property. Although the pair wanted the drills to stop and damages to be paid, a civic group supported them and helped raise public awareness about the case. Among those who supported the brothers was a law professor who helped raise funds for their defense with the aim of using the case to challenge the existence of the SDF, which had been established in 1954 even though the Constitution prohibits Japan from maintaining armed forces. The lawyers’ immediate strategy was to prove that the farmers were not breaking any laws, and in order to do that they aimed to show that the SDF itself was illegal based on Article 9 of the Constitution.

After a long trial the judge found the farmer innocent, but not due to any constitutional violation. The judge said the cut cable was not vital to SDF operations and so the farmer did not break the SDF Law. He made no mention of the Constitution. The defense lawyers, as well as the media covering the case, saw through this ploy. By acquitting the farmer, the judge prevented any possibility of the case being appealed by the defense, and the government didn’t want to discuss the constitutionality of the SDF, so it didn’t appeal the verdict. According to NHK, the judge’s daughter, years later, said that her father had been instructed by his superiors in the Sapporo District Court to decide the matter in that way.

The second case covered by the documentary also took place in Hokkaido, and only a few years later. In the late 1960s, the SDF wanted to build a Nike-J missile base on a plateau above the town of Naganuma, but since the forest on the mountain was protected, the SDF had to receive a waiver from the government. The residents were afraid that by cutting the trees in the watershed, flooding would increase in the town, so they filed an injunction to stop the waiver. The judge, Shigeo Fukushima, told NHK that he also received instruction from the Sapporo District Court to reject the injunction but he refused. Naturally, the government appealed his decision and won in the higher court. Naganuma then sued the government over the missile base, thus paving the way for another challenge to the constitutionality of the SDF.

Fukushima was again the judge, and he stuck by his guns, saying in the end that the plaintiff’s lawyers successfully argued that the SDF’s existence violated the principles of heiwa-teki seizon ken, the “right to peaceful existence,” as outlined in the introduction of the Constitution. It was the first time a judge had found the SDF’s existence to be unconstitutional but, of course, the government appealed and had the decision reversed in a higher court, which asserted that the right to peaceful existence was “not relevant” to this trial. As with the current case brought by the SDF member, the government argued that the principles invoked by Naganuma’s lawyers were too abstract to have any legal force.

NHK made a direct link between the Hokkaido cases and Okinawans who oppose U.S. military bases. In lawsuits, residents have claimed that the bases violate their right to peaceful existence. Though they are still fighting, former judge Kunio Aoyama told NHK he thinks it’s only a matter of time before they win.

“Understanding of the right to peaceful existence has matured,” he said.