Japan’s new security legislation: Debate over constitutionality moves to the legal arena

Japan’s new security legislation is big news in Japan, though has been given little coverage here in England apart from the fighting which took place in parliament on 19th September following its enactment. The following is our translation of a Nikkei article which surmises the current state of play quite well. The original article can be found here.

Translation: On Friday 19th September the Japanese upper house enacted a series of security measures which have been more hotly debated than any other law in recent years. The debate as to whether the law is unconstitutional will likely now be continued in the courts. The highest court (Supreme Court) is delegated authority by Article 81 of the constitution to decide on the constitutionality of laws, though any lawsuit must be brought before courts of first and second instance before being appealed to the Supreme Court.

The Supreme Court has a history of handing down judgments which do not meet expectations. In 1952 the then Police Auxiliary Force was to become the Self Defence Force (comment from translator: the rearmament of Japan by the United States in light of the Korean War was the background to this). The constitutionality of the transformation was brought before the Supreme Court which commented, “we cannot rule abstractly on the constitutionality of laws”, that is to say, it requires a substantive incident in order to do so.

As a result, it is likely the Supreme Court would throw out a lawsuit claiming psychological injury caused by the increased likelihood of war occasioned by the introduction of the new security legislation for being too ‘abstract’.

The type of case envisaged to fall within the Supreme Court’s definition of ‘substantive’ would be, for example, a compensation claim by the relatives of a self defence force worker who died in action sanctioned under the new collective self-defence measures introduced by the security legislation. Another example would be a claim by a self-defence force worker to deem unfair a job dismissal imposed after the worker refused to follow orders sanctioned under the new security legislation.

Even if these cases are not thrown out for being insufficiently substantive, the Supreme Court may still avoid ruling on their constitutionality because of the deference it must pay to cabinet and parliamentary decisions in ‘highly politicised matters’ unless they are clearly unconstitutional.

The Supreme Court avoided making a decision on the constitutionality of the American and Japanese mutual cooperation treaty in 1959 in a case known as the ‘Sunagawa incident’. The Supreme Court commented, “it is not in principle amenable to pass judgment on such a highly politicised matter”.

On this point, a former Supreme Court judge has commented, “this constitutional theory (in dealing with ‘highly politicised matters’) is based on the principle that politicians have acted in accordance with the will of the people”. In respect of the new security legislation he added, “difficulties will be encountered as to whether it can justifiably be applied given the Supreme Court cannot appraise whether due process has been followed in understanding the will of the people (for example, whether an election has been fought over it)”.

Before its enactment, individuals from all areas of the Japanese legal profession spoke out against the new legislation. About 300 lawyers and academics attended the Japanese Bar Association’s meeting at the end of August, at which a former Supreme Court Judge, a former Cabinet legislation bureau chief and a number of constitutional law academics were all in agreement the security legislation breaches Article 9 of the constitution (translator’s note: Article 9 proclaims Japan is a pacifist state).

On September 15th a group of 75 former judges submitted a demand to the chairman of the Upper House for careful consideration of the security legislation, proclaiming, “the positions we have held as guardians of the constitution will not allow us to close our eyes to what is now happening.”