and the transportation of soldiers by the Air Self-Defense Force could be construed
as a military action.
18
However, despite some exceptional willingness in the lower courts to find
governmental action unconstitutional, Japanese courts in general, and the
Supreme Court in particular, remain unwilling to make a direct ruling on Japanese
defense policy. In the famous case ofSunagawa^19 concerning the constitutionality
of the Japan–United States Mutual Security Treaty,^20 the Supreme Court held in
dicta that Article 9 did not deny Japan’s inherent right to self-defense and since “war
potential,” prohibited by Section 2 of Article 9 , was limited to that over which Japan
could exercise command and control, the American troops stationed in Japan were
thus not a prohibited “war potential.” It then held that the courts could not
examine the constitutionality of the Japan–US Mutual Security Treaty unless it
was clearly unconstitutional on the ground that such a decision presented a highly
political question and should be entrusted to the executive and legislative branches.
However, this does not mean that the Supreme Court has accorded extreme
deference or a margin of appreciation to the legislature in this area. If that were the
case, the Supreme Court should have found the SDF constitutional. Rather,
the Supreme Court has thus far refused to rule directly on the constitutionality of
the SDF and its involvement with international operations, so these problems
remain unresolved.
The lack of a definitive ruling by the Supreme Court on the constitutionality of
Japanese defense policies has left a legal vacuum, which has been filled by the
voices of the Cabinet Legislation Bureau (CLB). “For most of the postwar periods,
Japanese politicians have found it useful to leave interpretation of Article 9 to an
extraordinary group of bureaucrats – the legal scholars in the Cabinet Legislation
Bureau (CLB).”^21 As John O. Haley correctly suggests, “in the end, the Cabinet
Legislative Bureau emerged as the single most influential actor.”^22
Modeled on the French Conseil d’e ́tat, the CLB was established in 1885 when
the Cabinet system was created in Japan for the first time.^23 The core staff of the
(^182056) Hanrei Jiho 74 (Nagoya High Court, April 17 , 2008 ).
(^1913) Keishu 3225 (Supreme Court, G.B., December 16 , 1959 ).
(^20) Security Treaty, April 28 , 1952 , U.S.–Japan, 3 U.S.T. 3329.
(^21) Richard J. Samuels, “Constitutional revision in Japan: the future of Article 9 ,” the Brook-
ings Institution, Center for Northeast Asian Policy Studies, December 15 , 2004 ,p. 2 ,
available atwww.brookings.edu./fp/cnaps/events/ 20041215 .pdf(last visited April 23 , 2013 ).
(^22) Haley, “Waging war,” p. 28.
(^23) As to the organization and the function of the CLB in Japanese politics, see Richard J.
Samuels, “Politics, security policy, and Japan’s Cabinet Legislation Bureau: who elected
these guys, anyway?,” Japan Policy Research Institute, JPRI Working Paper No 99 , March
2004 , available atwww.jpri.org/publications/workingpapers/wp 99 .html(last visited April
23 , 2013 ); Yasuo Hasebe, “The Supreme Court of Japan: its adjudication on the electoral
systems and economic freedoms” ( 2002 ) 5 International Journal of Constitutional Law 296
at 298 – 9.