The Defense Ministry resumed construction on the expanded Camp Schwab U.S. Marine base in northern Okinawa on Oct. 29, defying the Okinawan governor’s order that revoked the permit required for the project. Japanese legal experts are virtually unanimous in declaring the ministry’s action unlawful. Gov. Takeshi Onaga demands that the ministry respect his order. The Abe administration refuses. The trucks roll forward. Human bodies lie in their path.
A showdown like this between a prefecture and the national government is unprecedented. It is likely to continue for many months to come. A recent poll in Okinawa showed that Onaga’s action is supported by nearly 80 percent of respondents. He is not likely to back down.
In its eagerness to appease U.S. Marine demands for a superbase in northern Okinawa, the Abe administration has cast aside the rule of law. The abuse of legal procedures employed in this case should alarm anyone who supports the rule of law.
On Oct. 13, Onaga revoked his predecessor’s permit for reclamation of a section of the sea adjoining Camp Schwab. The permit is needed to allow construction of two military runways extending into the ocean. Under the Reclamation Law, the authority to approve or deny such requests is entrusted to prefectural governors, not the national government.
After years of declaring his opposition to the plan, then-Gov. Hirokazu Nakaima shocked Okinawan society on Dec. 27, 2013, when he suddenly reversed position and approved the Defense Ministry’s reclamation request.
Nakaima was turned out of office by a landslide in the election that followed. Onaga took his place, elected on a platform of opposing U.S.-base expansion in Okinawa. His revocation of Nakaima’s action had long been expected. But Onaga, a longtime member of the Liberal Democratic Party, has proceeded cautiously. In January he appointed a six-member panel of experts to study the problem. In July the panel submitted a 132-page report that concluded that Nakaima’s approval failed to meet standards set by the Reclamation Law and was therefore unlawful.
Bolstered by the panel’s report, Onaga revoked the reclamation permit on Oct. 13. The Defense Ministry responded the next day by filing an “appeal” of Onaga’s order with the Ministry of Land, Infrastructure, Transport and Tourism accompanied by a request for an order blocking enforcement of Onaga’s revocation.
Independent legal experts quickly raised a red card. For example, on Oct. 23 a group of administrative law experts declared the Defense Ministry’s appeal to be an “abuse” of procedures “extremely unfair and contrary to the rule of law.” By the following day, it attracted the signatures of 94 of their colleagues nationwide. The Japan Civil Liberties Union declared the appeal “illegal and without effect.” On Oct. 15, the Asahi Shimbun quoted a retired judge as saying “there can be no greater deception (gomakashi) than this.”
The experts objected because the government intentionally used the wrong legal procedure to challenge Onaga’s action. Ordinary administrative appeals are governed by the Administrative Appeals Act, whose purpose is to “open a wide path for citizens to file appeals” to challenge administrative actions. For instance, if your application to open a restaurant or a barbershop or engage in any other regulated activity is denied, you might want to appeal the denial to a higher authority. The act creates a right for you to do so.
The Defense Ministry filed its appeal under this act. But the term “citizen” (kokumin) is unambiguous. It does not include government agencies. The act was clearly not intended to create a right for the national government to appeal to itself. Administrative law experts have explained that a completely different statute, the Local Government Autonomy Act, establishes procedures expressly designed to resolve disputes between the national and local governments like this.
The Abe administration disdained this procedure because the administrative action at the center of the conflict — Onaga’s revocation — would remain in effect until the dispute is resolved. The Abe administration chose an irrelevant procedure in order to allow construction to go forward.
On Oct. 27, land minister Keiichi Ishii duly performed his assigned role by issuing an order that purports to “revoke Onaga’s revocation.” The trucks began to roll two days later. If the Abe administration had followed the correct procedure under the Local Government Autonomy Act, the trucks and all equipment would have remained in their sheds until the dispute was resolved.
Independent experts like the Japan Federation of Bar Associations agree that the conclusion reached by Onaga’s panel is correct — Nakaima’s 2013 approval of the reclamation permit is invalid. Article 4 of the Reclamation Act requires that all reclamation projects fulfill six separate requirements to qualify for a license. The panel concluded that the Henoko project failed on three: proof of “appropriate and rational use of the national land,” proper consideration for “environmental preservation and disaster prevention,” and compatibility with existing plans “regarding land use or environmental conservation.” The project was also deemed incompatible with the Basic Law for Biodiversity.
The Defense Ministry’s environmental assessment found that the Henoko project would not have a significant adverse effect on the environment. But the assessment was dogged by controversy from the beginning. Critics include marine biologists and other scientists, local residents, bar associations and other citizens’ groups. But Japanese law does not allow for court challenges to such assessments. The only independent check is provided by the prefectural governments.
Prior to his sudden conversion in 2013, Gov. Nakaima and his staff had filed numerous challenges to the assessment, raising more than 500 issues. Many of these issues remain unresolved. At the time Nakaima issued the permit, key Okinawan government officials were opposed. According to critics, Nakaima circumvented the prefectural office charged with working on environmental issues. Moreover, he did not prepare any document recording a reasoned analysis to support his decision.
In U.S. law, a decision of this nature — which actually contradicts the evidence — would be labeled “arbitrary and capricious” and therefore unlawful. Japanese legal experts are more likely to simply call it an abuse of power. But the result is the same.
As summarized by professor Shinichi Takeda of Seikei University Law School, when “an administrative action is unsupported by persuasive reasons, that administrative action is illegal. The report’s conclusion that (Nakaima’s) reclamation approval was illegal is unavoidable.”
According to media accounts, on Nov. 9 the land ministry began the correct procedure, issuing a notice required to commence proceedings under the Local Government Autonomy Act. But the Abe administration stands by land minister Ishii’s bogus order of Oct. 27, so the trucks continue to roll. The construction plan requires dumping approximately 21 million cubic meters of landfill into the waters around Camp Schwab. Unless this plan is stopped, there will be many, many more trucks and severe disruption to delicate ecosystems nearby.
Lawrence Repeta is a professor of law at Meiji University and a member of the Washington State Bar Association.