It has surfaced that the Cabinet Legislation Bureau did not keep any records of internal discussions leading up to the Abe administration’s reinterpretation of the war-renouncing Article 9 of the Constitution last year in the form of public documents. This will make it almost impossible to examine the process of the constitutional reinterpretation, which paved the way for a major change in Japan’s postwar security posture by lifting a self-imposed long-standing ban on collective self-defense — a step that allows the Self-Defense Forces to fight overseas to protect an ally under attack even if Japan is not attacked. Since the bureau is tasked with giving its opinions on legal issues regarding constitutional interpretation and government policies as well as ensuring that government bills conform to the Constitution, its omission undermines the nation’s democratic process. As such it can’t be condoned.
The bureau has kept only three kinds of materials on the issue as public documents, which the public can view under the official information disclosure system — materials related to Prime Minister Shinzo Abe’s private advisory body of security experts, which in May last year issued a report saying that Japan can exercise the right to collective self-defense under Article 9, the consultations between the Liberal Democratic Party and its coalition partner Komeito, and a draft of the July 1, 2014, Cabinet decision that reversed the government position on collective self-defense. It is reported that on June 30 last year, the National Security Bureau, the secretariat of the National Security Council, sent the draft to the Cabinet Legislation Bureau and that on July 1, an official of the legislation bureau telephoned the security bureau to say that the legislation bureau had no opinions on the matter.
If true, it is incredible that the legislation bureau would opt to reply over the phone on such an important matter instead of expressing its view in writing. The reported episode raises the suspicion that the bureau either did not fully examine the Cabinet’s reinterpretation or just accepted it. The reported behavior by the legislation bureau is appallingly nonchalant given that the decision could lead to Japanese troops fighting overseas for the first time since World War II.
Two weeks after the Cabinet decision, Yusuke Yokobatake, head of the legislation bureau, told the Upper House Budget Committee that after Abe’s advisory panel resumed discussions on the issue in February 2013, officials of his bureau examined the government’s past explanations to the Diet on the interpretation of Article 9, written questions on the issue submitted by lawmakers and the government’s answers to them. But he must not forget the principle of the Public Records and Archives Management Law. Declaring that public documents are common intellectual resources that support the foundation of a healthy democracy and that the law’s purpose is to ensure that the government fulfills accountability for the present and future generations, the law, among other things, requires government officials to prepare public documents so that the process leading to a decision, including one by the Cabinet, and activities of a government organization can be traced and verified in a rational way. By failing to record the legislation bureau’s discussions on matters related to the reinterpretation of Article 9 in the form of public documents, the bureau has hidden this important information from the public — thus contravening its legal obligation of accountability.
After the omission came to the surface, Chief Cabinet Secretary Yoshihide Suga said the legislation bureau has properly kept records in accordance with the law. But if the bureau had followed the law, its discussions would have been kept in the form of public documents accessible to the public. There are reports indicating that the bureau has the records of its discussions but keep them outside the purview of the law. The Abe administration should immediately change the records into public documents under the law so that people can review them.
Until Abe returned to the government’s helm in December 2012, the Cabinet Legislation Bureau took the position that the Constitution prohibits Japan from engaging in collective self-defense. In his quest to change the government’s interpretation of Article 9, Abe broke from the conventional practice of tapping the bureau’s No. 2 official as its chief and appointed Ichiro Komatsu, a diplomat who supported Japan exercising the right to collective self-defense, as its new director. Komatsu led the bureau until he became ill and his position was taken over by Yokobatake in May 2014. Komatsu died the following month. The omission by the bureau keeps in the dark what role Komatsu played in the discussions over the issue of collective self-defense.
The administration has in effect deprived citizens of the chance to examine the process and internal discussions that led to the Abe Cabinet’s decision. The suspicion that the Cabinet Legislation Bureau failed to fulfill its duty of closely examining the constitutionality of the decision is unavoidable. If the bureau is confident that it had fulfilled this duty, it would have prepared official documents that recorded its discussions in a manner that conformed the requirement of the law on the management of public documents.
The episode further deepens suspicions about the legal legitimacy of the Cabinet decision and the subsequent security legislation, which the ruling coalition railroaded through the Diet last month.
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