Constitutionalism in Asia in the Early Twenty-First Century

The Cabinet Legislation Bureau as the main interpreter of Article 9

Often any change in the interpretation of Article 9 is attributed to the role of both

the judiciary and the government. For example, Robert A. Fisher refers to the

transformation in the interpretation of Article 9 and notes that “this change can be

attributed to the role played by the judicial, executive, and legislative branches in

defining and applying Article 9 .”^13 However, this account seems to be half right and

half incomplete, and somewhat misleading, since it does not distinguish the role of

the courts from the government and fails to identify exactly who has been the main

interpreter.

As Toshihiro Yamauchi wrote, “the discrepancy between constitutional norm

and reality has been the basis for many constitutional cases during the past fifty

years.”
14
Several cases involving constitutional challenges to Japan’s security

arrangements with the United States and the establishment and expansion of the

role of the SDF have reached the courts. Lower courts have on rare occasions

declared the SDF itself or its involvements in US-led operations unconstitutional.

In theNaganumacase,

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local residents brought legal action against the decision

of the minister of agriculture and forestry to reclassify a local forest reserve as land

for the construction of a missile base. In 1973 , the Sapporo District Court declared

the SDF unconstitutional for the first time. According to the court,

the SDF is a military force, since it is clearly “an organization of men

and material which has as its purpose combat activity involving

physical force against a foreign threat.” Accordingly, the Ground,

Maritime, and Air SDF correspond to the “war potential” of “land,

sea, and air forces”, maintenance of which is forbidden by section 2

of Article 9 of the Constitution.

16

Even in April 2008 , in a case in which local citizens challenged a governmental

decision to dispatch the SDF to Iraq, the Nagoya High Court, albeit merely in

obiter dictum, held that the SDF’s activities in Iraq violated the Special Measures

Act^17 and Article 9 of the Constitution, since Baghdad could be seen as a war zone

(^13) Fisher, “The erosion of Japanese pacifism,” p. 408.
(^14) Toshihiro Yamauchi, “Constitutional pacifism: principle, reality, and perspective,” in
Higuchi,Five Decades of Constitutionalism in Japanese Society, 27 , 36.
(^15712) Hanrei Jiho 24 (Sapporo District Court, September 7 , 1973 ). This decision was reversed
by the Sapporo High Court on appeal on the ground that the case became moot, and the
Supreme Court affirmed the judgment of the high court in 1982. The decision was
translated and reprinted in Lawrence W. Beer and Hiroshi Itoh,The Constitutional Case
Law of Japan, 1970 through 1990 (Seattle, WA: University of Washington Press, 1996 ), p. 83.
(^16) Beer and Itoh,The Constitutional Case Law of Japan,p. 111.
(^17) The exact title of this Act is An Act on Special Measures Concerning Humanitarian Relief
and Reconstruction Work and Security Assistance in Iraq, enacted on July 26 , 2003. The
Japanese text of this law is available atwww.kantei.go.jp/jp/houan/ 2003 /iraq/ 030613 iraq.
html, last visited April 23 , 2013.

Major constitutional developments in Japan 59