CLB consists mostly of legal experts. Unlike other elite bureaucrats of the adminis-
trative agency, the CLB has no entrance examination and no “incoming class”
(^24) of
college graduates. Members of the CLB are recruited from among judges or other
administrative bureaucrats with equivalent legal ability and expertise for extended
periods of time.
The CLB has two formal tasks. First, it examines drafts of all bills, regulations,
Cabinet orders, and treaties, for both consistency and coherence with the legal
system, and especially for their constitutionality. In postwar Japan, most of the bills
enacted into statutes are those proposed by the Cabinet. Any bills proposed by the
Cabinet must first be submitted to the CLB for legal examination prior to Cabinet
approval. Second, the CLB has authority to provide opinions to the prime minister
and the Cabinet on legal issues. CLB director generals are invited to Diet meetings
to answer questions from Diet members. Sometimes the CLB drafts “unified
government interpretations” of legal problems when questions with respect to the
legal position of the government are raised by opposition party members in Diet
proceedings.
With its capacity and authority, the CLB has had a disproportionate, if not
always decisive, voice in governmental interpretations of Article 9. Richard
J. Samuels describes the role of the CLB as follows:
The CLB has emerged as a quasi-constitutional court with ade facto
monopoly on interpreting the constitution...By exhaustively and
authoritatively reviewing all proposed policies and by issuing “unified
government interpretation” (toˆitsu kenkai), the CLB effectively inter-
preting “collateralizes” the authority of bureaucrats, lawmakers, and
jurists alike.^25
Exercising this second authority, the CLB filled a legal vacuum left by the
Supreme Court on the limits of defense policies.
The CLB’s interpretation of Article 9 consists of three propositions. First, Article 9
does not deny the right of self-defense. However, this does not ultimately decide the
constitutionality of the SDF since the CLB has adopted some limits on the exercise
of the right of self-defense.
Second, the CLB has taken the position that Section 2 of Article 9 prohibits
Japan from maintaining “war potential,” whether for aggression or for self-defense.
The CLB has defined “war potential” as a force with the equipment and organiza-
tion capable of conducting modern warfare. Given that defining what constitutes
war potential requires a concrete judgment about the surrounding states’ capabil-
ities and about international conditions, the CLB has admitted to evolving its
definition of “war potential” and thus allowing for greater and greater expansion
(^24) Richard J. Samuels, “Politics, security policy and Japan’s Cabinet Legislation Bureau,” p. 2.
(^25) Ibid., pp. 2 , 3.