Abe looks through legal loophole for collective self-defence

Author: Ulv Hanssen, Freie Universität

In his quest to make constitutional reform a reality, Japan’s Prime Minister Shinzo Abe is now looking to invoke a controversial court ruling from 1959 as a pretext for reinterpreting the country’s constitution and authorising the exercise of collective self-defence.

The Supreme Court’s verdict in the ‘Sunagawa case’, as it has come to be known, states that the Japanese constitution does not prevent Japan from taking ‘defensive measures that are necessary in order to maintain the peace and security of Japan’. According to Abe’s advisory board this ruling can be interpreted as allowing collective self-defence. The move has been heavily criticised by Japanese legal scholars and ordinary citizens who are feeling increasingly uncomfortable with Abe’s unabashed desperation for changing and reinterpreting the constitution.

The Sunagawa case came about after, in July 1957, seven Japanese demonstrators were arrested for illegally entering the premises of a US air base in the city of Sunagawa (now, Tachikawa), in protest against the base’s expansion.

The judgment delivered by the Tokyo District Court in 1959 found the presence of the US army in Japan to be unconstitutional. Judge Akio Date ruled that the US army’s presence constituted ‘war potential’, violating the second paragraph of Article 9, which states that ‘war potential … will never be maintained’. The seven defendants were subsequently set free.

The ‘Date verdict’ sent shockwaves through Japan and the United States. Had this ruling been allowed to stand the US-Japan Security Treaty would have been thrown into jeopardy.

Realising the gravity of the situation the Americans took expeditious action. Telegrams (declassified in 2008) between the US ambassador to Japan, Douglas MacArthur II, and the then US Secretary of State, Christian Herter, reveal American interference in the legal procedures of the Sunagawa case. The emerging picture raises questions about Japanese autonomy and judicial integrity, and for the Abe administration to now uphold this case as authority for strengthening Japan’s autonomy is an irony of history.

The cables reveal, among other things, that MacArthur on several occasions met privately with Japanese foreign minister Aiichiro Fujiyama. In the first meeting — the very day after the District Court’s verdict — MacArthur urged Fujiyama to convince the cabinet to appeal to the Supreme Court. Four days later, they did.

But more problematic is MacArthur’s frequent secret meetings with his ‘friend’ the Supreme Court chief justice Kotaro Tanaka who presided over the appeal. The full extent of these exchanges is not known, but it seems clear that Tanaka breached legal confidentiality by revealing vital information about the positions and inclinations of the 14 other justices. It is also speculated that he pressured them to fall in line. Both the Japanese foreign minister and the chief justice were thus unduly influenced by MacArthur.

The US also instructed the Japanese prosecutor’s office to tell misleading half-truths. A Japanese foreign ministry official informed MacArthur that the defence was planning to demonstrate the unconstitutionality of US forces in Japan by arguing that Japan-based units of the US fleet were used in the Taiwan Strait crisis of 1958. The US subsequently told the prosecutor’s office to say that although the Seventh Fleet was used in the Taiwan Strait crisis, it did not operate from Japanese bases (which was true enough) — an argument that was successfully put forward by the prosecution. Comment about other Japan-based US military units that actually did participate in the crisis was avoided, however.

The Supreme Court overturned the Date verdict in December 1959. This would have major implications for Japan as a constitutional state. The American military presence in Japan was ruled neither constitutional nor unconstitutional. In fact, the judgment stated that deciding on the constitutionality of ‘highly political matters’ appertaining to the security of Japan, ‘such as the Security Treaty’, was outside the judiciary’s purview. A dangerous precedent was thus set that, if taken advantage of, would give the government unwarranted leeway for ignoring the constitution.

Abe now looks to use the Sunagawa case as a pretext for exercising collective self-defence.

While the Japanese constitution does not say anything specifically about collective self-defence, the consistent interpretation by all Japanese post-war governments has been that Article 9 prohibits Japan’s participation in collective security arrangements. By blowing the dust off the Sunagawa case, Abe now thinks he has found a loophole.

Abe risks, however, opening Pandora’s box. The Sunagawa case after all originally ruled the US military presence in Japan to be unconstitutional. American interference and Japanese servility is suspected of playing a major role in overturning this original judgment at the Supreme Court. By championing the Sunagawa case, Abe may inadvertently direct attention to the dubious proceedings through which the final verdict was ultimately reached, reopening long-forgotten questions about the constitutionality of the US military presence in Japan.

But the greatest fear is that the Sunagawa case will allow Abe to simply ignore questions of constitutionality on the basis of ‘political importance’, and that collective self-defence marks the beginning of the emasculation of Japan’s constitution. The Sunagawa case would be far better left in the dustbin of history.

Ulv Hanssen is a PhD candidate at the Graduate School of East Asia Studies, Freie Universität, Berlin.

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