Newsletter No. 983
News-Analysis
April 19, 2008

 

THE RULERS AND THE RULED

Who on earth does Kunio Aoyama think he is? Just because he wears the robes of a High Court Judge, does he think that his personal opinion on whether or not the ASDF mission to Iraq is constitutional should determine state policy? I mean, from under which rock did this clown emerge? Doesn’t he know how government in Japan functions? The Diet makes the laws. The sitting government administers the laws and decides how they should be interpreted. The role of the judiciary is to be seen and not heard. Judges and courts are there only to provide the illusion of due process for the Hoi Polloi.

This is not a nation in which David is supposed to defeat Goliath. In this society, David is supposed to get stomped. No, that’s not quite the right description. This is a society in which David is trained from birth not to challenge established authority in the first place. If he knows what’s best for his career and his future, David will confine his earnest attentions to the sports page, the department store, and the pachinko parlor. Politics exists in a floating world above him -- he is not entitled to interfere with it.

The Ruling

But every now and then, there are Japanese with more than average courage. Kunio Aoyama, as he was retiring from a long career, seems to be one of those men. He decided to cap his career with a major ruling that is based on what the law actually says rather than what everybody knows that the political masters expected.

The ruling was actually rather complex. Technically, the government won the case because the Nagoya High Court rejected the plaintiff’s demand for about US$100 each as restitution for the government’s alleged invasion of their “right to live in peace.” Judge Aoyama, however, found that “it cannot be said the deployment has violated their right to live peacefully.”

On the other hand, even as he handed down a judgment that was theoretically in favor of the government, Judge Aoyama added an official statement to verdict that said something to this effect: “The fighting in Iraq is an extension of the attack of Iraq that began in March 2003. It is an international conflict between a multinational force and armed elements. This is a region where acts are being committed to kill and maim people and destroy property as part of an international armed conflict. In modern warfare, supply activities, such as transport, are an important part of combat activities. ASDF airlifts of armed soldiers in the multinational force to the Baghdad combat zone were acts that could be identified as being involved in the use of force by other nations, and the ASDF could be said to have conducted use-of-force actions itself. Furthermore, because Baghdad is a combat zone, the ASDF's transportation mission includes activities that breach the special law to allow the SDF to provide humanitarian support for Iraq's reconstruction efforts, which limits their activities to non-combat zones, as well as Article 9 of the Constitution.”

In other words, Judge Aoyama ruled that the ASDF mission violated both the Japanese constitution as well as the government’s own Iraq deployment law.

In Shingetsu Newsletter No. 981 I predicted that the government would immediately appeal the verdict and probably succeed in having it overturned by the Supreme Court in about a year. However, now that we know the details of his verdict, it turns out that the government has no option to do so. Because the verdict did not award damages to the plaintiffs and did not demand any specific action from the government, it was technically a government victory. Only the plaintiffs (who officially lost) can decide to appeal under these circumstances. The plaintiffs, however, are almost completely satisfied with the ruling because the judge ruled that in fact the government was operating illegally. That was all they really wanted in the first place.

According to our immediate understanding, the ruling will therefore automatically become official and cannot be overturned by the government or another court -- until another case comes along.

Voices of the Rulers I -- Government Reactions

It’s fair to say that nobody saw this ruling coming. The government expected that the court would refuse to rule on the legality of the ASDF deployment, and probably most of the plaintiffs themselves expected to lose, but still thought it an important principle to at least go through the legal process. One media report acknowledged that Tokyo was “shocked” by the ruling, and one ruling party member confessed, “We didn't expect such a ruling.”

Chief Cabinet Secretary Nobutaka Machimura, within about an hour or so of news of the verdict, was swift to go public with his defiant response to the court: “I cannot accept such a court ruling when the Japanese government has determined that Baghdad airport is a non-combat zone. If the airport was a combat zone and truly dangerous, there is no way commercial planes could fly there… The ruling will have absolutely no effect on SDF activities.”

Later in the day, Prime Minister Yasuo Fukuda confirmed, “The conclusion of the verdict is that the central government has won the case. I believe there are no problems. I have no intention of doing anything special in response.”

The single-most arrogant public response came from the somewhat surprising source of Foreign Minister Masahiko Komura, who is thought to be relatively moderate: “There are many experts of the law in the legal profession, and they have various views. Although it has often been said that the judgments of the court take precedence over the judgments of the administration, there is only one part of a verdict that the administration must follow. The other parts of a verdict are not of particularly great importance. This side commentary by the judge thus represents just one man’s opinion. Perhaps, after I have retired from my post as Foreign Minister, I might have some free time to read it.”

Here are some other government responses that were reported in the press:

Bunmei Ibuki, LDP Secretary-General: The ruling won't affect SDF activities in Iraq.

Fumio Kyuma, former Minister of Defense: The SDF is supporting countries that are engaged in activities to help restore Iraq and maintain security in the country, and their activities are not integral to the use of force by other countries.

Akihiro Ota, New Komeito leader: The ruling is a bit odd.

Nariaki Nakayama, former Minister of Education: The presiding judge was the problem here, and he issued this weird verdict. Since he was retiring at the end of March, this was just his last little hurrah.

More and more, we are also finding that the media is starting to quote the political opinions of the Defense Ministry and even uniformed military officers as well. This would have been unthinkable in Japan just a few years ago, and it is dramatic confirmation of the point I made in Shingetsu Newsletter No. 928.

Shigeru Ishiba, Minister of Defense: This ruling is extremely regrettable… I can’t quite understand why the judge felt compelled to add these side comments. At any rate, we are under no obligation to follow it… There is no problem at all in continuing the mission.

Kohei Matsuda, Vice-Minister of Defense: It is quite regrettable that the ASDF activities have been determined as unconstitutional. We believe the activities are within the scope of the Constitution and based on the special law as well as the SDF Law... We will not review the activities and they are not affected by the ruling.

Admiral Takashi Saito, Joint Chief of Staff: The ASDF's airlifting mission does not play an integral part in the use of force… No further comment.

Anonymous, Defense Ministry official: The ruling is hard to accept because it is strange in that it considers the ASDF mission unconstitutional while rejecting the plaintiffs' demands. This judge just took advantage of the ruling to express his personal view on the ASDF deployment.

Anonymous, ASDF lieutenant colonel: Actually, the conclusion that the dispatch is unconstitutional is reasonable. Anybody would be able to find Baghdad is a war zone if they go there. It's an area where the staff of foreign missions cannot go outside… but this mission is a national strategy. It's a matter that has a larger dimension.

On the morning of the 18th before a meeting of the full cabinet, Chief Cabinet Secretary Machimura, Foreign Minister Komura, and Defense Minister Ishiba had a small joint conference in which they agreed on their approach to this issue. We don’t know exactly what they decided, but after the meeting Machimura announced: “We agreed that a continuation of the ASDF mission presented no problem… In his interpretation of the use of force, I wonder if the judge understands the realities? Does he really understand the concept of how to determine a non-combat zone? On this point, we all had the impression that he is mistaken.”

The same day, a “senior Foreign Ministry official” said: “Unless we draw a line in the sand, all activities may be seen as being integrated into the use of force. The government says that the ASDF mission is not integrated into the use of force because Japan conducts activities based on its own judgment inside non-combat zones.”

The Yomiuri Shinbun further explained: “Putting the legal arguments to one side, the question of how long the ASDF unit will operate in Iraq also is an issue, as the law for reconstructing that country expires in summer next year. But the government has not been able to draw up withdrawal plans, as this decision will largely depend on the policies of the next US administration scheduled to take the reins of government following this autumn's US presidential election.”

Another government official confided that there is an “effort to keep the impact [of the ruling] as low-key as possible.”

Voices of the Rulers II -- The Conservative Media

Most of the media took a stance critical of the government, but a few of the usual suspects allowed themselves to become mouthpieces for the views of the ruling class:

Yomiuri Shinbun: The high court's verdict seems to be full of problems, including a misinterpretation of laws and facts related to activities of the Self-Defense Forces in Iraq… The presiding judge mentioned in an obiter dictum commentary that part of the ASDF's mission is ‘unconstitutional.’ Was this comment really necessary?... The government cannot appeal to a higher court because it technically won the case. Since the plaintiffs also do not intend to appeal, the high court's decision will be finalized. However, it is undesirable for a ruling of this sort to be left as judicial precedent… Mop-up operations against armed insurgents by multinational forces are based on UN Security Council Resolution 1483, which was passed in May 2003, and other decisions made to help Iraq's stability and safety. The Iraqi government itself supports the operations. They are legitimate activities to maintain security… Even if those operations are considered uses of force, it still does not pose any constitutional problem, as the ASDF's mission to airlift soldiers of multinational forces is not integral to the use of force… We hope ASDF members are not discouraged by the high court's ruling and continue their important mission dutifully.

Sankei News: This is a High Court ruling that looks down on the efforts at peace-building and reconstruction support carried out by the ASDF… We cannot forget that the ASDF’s activities are based on resolutions of the UN Security Council which authorize the presence of the multinational army. Japan shares the determination together with international society not to allow Iraq to become a hotbed of terrorism. Article Nine of the Constitution’s prohibition on the use of force was only meant in the case of wars of aggression. This judgment that our international peace cooperation activities are unconstitutional -- viewed in light of the international environment in which Japan is placed -- is difficult to understand… The government’s decision to continue the ASDF mission is simply natural.

Voices of the Ruled I -- The Opposition Parties

Since they now control the upper house of the Diet, it may seem a little strange to describe the opposition parties under the heading of “the ruled,” but up to the present the ruling coalition has shown little inclination to compromise with them and has repeatedly threatened -- and once carried out the threat -- to use their lower house supermajority to push through their bills. After the next lower house elections, the opposition parties are basically guaranteed a much stronger voice, but for now they are still at a distinct disadvantage in the political game.

Naoto Kan, Democratic Party of Japan Acting President: The ruling was handed down based on the same ground that we argued from at that time [in the Diet debates of 2003].

Keiichiro Asao, DPJ Shadow Defense Minister: The government must take this judgment seriously: The ASDF mission in Iraq should be wound up immediately… We at the DPJ believe that what the Iraq Special Measures Law calls a ‘non-combat zone’ can, in an instant, be transformed into a combat zone… The government still refuses to even clarify the conditions under which the SDF is operating in Iraq. They have not shown us any kind of exit strategy. They just follow the United States. Also, they still refuse to acknowledge that the war was launched under the false premise that there were weapons of mass destruction. They need to own up to their mistake in judgment.

Keiji Kokuta, Japan Communist Party: We cannot accept the government’s excuses. It is absolutely clear that the ASDF is giving material support to the occupiers of Iraq… The SDF must be withdrawn now.”

Mizuho Fukushima, Social Democratic Party chief: I’m really happy. This judgment reflected the Japanese people’s belief that we should not be contributing to the Iraq War. I really hope that Koizumi, Abe, and Fukuda start listening to these voices… This is the first verdict that has found the deployment of the SDF to Iraq as being unconstitutional. We think this a huge, historical ruling and we evaluate it highly… The Social Democratic Party calls on the government to follow this verdict. We demand that the SDF must be withdrawn from Iraq at once.

Voices of the Ruled II -- The Liberal and Regional Press

The main body of the newspaper press seems to have had opinions must more in line with the opposition than with the government. This included not only center-left national papers like the Asahi, but also many regional papers too.

Asahi Shinbun: On Thursday, the Nagoya High Court provided clear answers to a number of nagging questions about the Air Self-Defense Force's transport operations in Iraq. Are there really any ‘non-combat zones’ in Iraq? Is it possible to make a convincing argument that the ASDF is not involved in the use of armed force in any way when its mission is to transport armed American soldiers? In ruling that the ASDF's airlift mission in Iraq is unconstitutional, the court effectively said the answers to these questions are "no." Four years have passed since the government first sent troops to Iraq. The landmark decision confirmed smoldering doubts among many Japanese about the constitutionality of the operations… The ruling addressed key constitutional issues raised by the SDF dispatch. It clearly rejected the argument presented by the government of former Prime Minister Junichiro Koizumi when it decided to send SDF personnel to Iraq -- a position that was maintained by the administrations of Koizumi's successors, Shinzo Abe, and incumbent Prime Minister Yasuo Fukuda. The current situation in Iraq, the court said, should be described as a morass of stalemated war that makes a mockery of any argument about the level of public security. The situation in Baghdad, where the ASDF is operating, is particularly belligerent and bloody, making the capital qualify as a ‘combat zone’ as defined by the special law enacted to dispatch the SDF to Iraq… Japanese courts have shown a clear tendency to eschew making constitutional judgments on politically sensitive issues. This has generated criticism that the judiciary is effectively confirming the government's interpretations of the Constitution. Because of this background, Thursday's ruling probably came as a refreshing surprise for many Japanese. It is a key duty of the judiciary to check the government and the Diet. But the high court surprised the public when it only performed this duty by making constitutional judgment on the government's policy initiative. The Supreme Court, which is supposed to act as the guardian of the Constitution, should take this fact seriously.

Mainichi Shinbun: This verdict points the finger of blame of the extraordinarily vague pronouncements of the prime minister of that time [Koizumi]. The government must accept the ruling seriously. If these activities are really in ‘non-combat zones,’ then it is the responsibility of the government to explain the basis of that view to the people.

Shinano Mainichi Shinbun: The government has indicated that it intends to continue the ASDF deployment. Chief Cabinet Secretary Nobutaka Machimura has presented the counterargument that the presence of commercial aircraft at the airport proves that it is a non-combat area. We are growing concerned that there are simply no limits on the government’s view that cooperation with the United States should take priority. The government and the LDP are now talking about a permanent SDF deployment law. We say that they need to take this ruling seriously and stop what they are doing.

Hokkaido Shinbun: The Nagoya High Court’s judgment is clear: The ASDF’s activities in the Baghdad area are taking place in a ‘combat zone.’ This verdict is both of tremendous importance and also in accord with common sense… The ASDF should be withdrawn at once, and we must start a fresh debate that examines the basic presumptions of overseas deployments of the SDF.

Chugoku Shinbun: This was a judgment in which the citizens of this country demanded that the state end its deployment… The ruling party is currently aiming to establish a permanent SDF deployment law. However, it is more important to debate the significance of this verdict. The Diet must engage in serious and deep debates on this issue… We must answer this ruling with both the political world and the citizens engaging in a discussion.

Miyazaki Nichi Nichi Shinbun: An extremely heavy verdict has just been handed down on SDF activities. The Nagoya High Court has just found that the ASDF transport activities ‘run counter to the Constitution.’… The government has indicated ‘we will not follow it. The SDF activities will continue.’ However, if they proceed in that manner they must open more information to the public and present to the people the legal basis for their decision.

Voices of the Ruled III -- The Plaintiffs

Finally, we will present some views that we have seen reported about the reactions of the plaintiffs and anti-Iraq War activists.

Naoto Amaki, former Ambassador to Lebanon and key plaintiff: This is effectively a complete victory for us. It’s historic… I was right for opposing the Iraq War.

Yoshikazu Uchikawa, a lawyer for the plaintiffs: As a framework, this is quite a groundbreaking ruling… While the court's comments on the constitution are non-binding, we plan to work with lawmakers to pursue the issue in the parliament.

Yoshinari Ikezumi, 63-year-old anti-Iraq War activist: In my entire life, this is my proudest day.

Yosuke Itazaka, 64-year-old peace activist: From a court system that had been drifting away from the Constitution, here comes a full-frontal ruling. This is a major ruling. It shows that Article Nine still exists in a big way.

Conclusion: Confronting the Lawless State

It seems to me that the largest question that this ruling and the reaction to it raises is the following: Is the Japanese state to be bound by its own laws, or is it in effect a lawless state? I believe that most Japanese strongly desire that the state obey the laws just as much as ordinary citizens are obliged to. Indeed, this is a fundamental principle of democracy.

The government and the conservative media clearly wish to both minimize the significance of the ruling and to attack the judge that issued it.

If the government is simply allowed to brush off the Nagoya High Court verdict with a dismissive wave of the hand, then Japan will have taken another large step toward becoming a lawless state. The country has been down that road before, and the results weren’t too pretty the first time.

The Bush Administration shares a major part of the blame for this state of affairs. At almost every turn they have encouraged Japan to become more aggressive in its military deployments and have shared the conservative’s dismissive view of the Japanese Constitution. While that may serve the immediate goals of American policy, it is quite possibly planting the seeds of many future debacles.

Both the people of Japan and the United States share a vital interest in ensuring that this country evolves into a healthy and vibrant democracy. Japan is now wavering on the edge of becoming something far less innocuous.

It is past due time for American policymakers -- who are probably the only ones who can tip the balance -- to begin to meet their responsibilities as democrats instead of as global empire-builders. In future years, it may not be possible to go back and change the verdict of our own times.