安保違憲訴訟 司法の真価が問われる

--The Asahi Shimbun, April 29
EDITORIAL: Judiciary can’t afford to duck concerns about security laws
(社説)安保違憲訴訟 司法の真価が問われる
About 500 citizens have sued the government over national security legislation enacted last year, claiming the legislation is unconstitutional because it allows Japan to engage in collective self-defense.

The lawsuit, filed with the Tokyo District Court on April 26, demands a court order to block any Self-Defense Forces deployment under the security laws, which passed the Diet last September and came into force on March 29. Similar legal actions are expected in various parts of the nation.
The judiciary should respond head-on to the vital constitutional questions raised by these suits. The courts should fulfill their judicial responsibility by making their own constitutional judgments on the matter. The Supreme Court, the guardian of the Constitution, should then make the final decision.

We should remember the Diet debate on the security bills submitted last year by the administration of Prime Minister Shinzo Abe.

Many legal experts, including constitutional scholars and former Supreme Court justices, denounced the legislation as “a violation of the Constitution” and “a denial of constitutionalism.” Many Japanese were disturbed by the government’s explanations about its interpretation of related constitutional provisions that were clearly at odds with past government statements.

But the government and ruling camp dismissed all these criticisms, saying it is the Supreme Court that has the mandate to make the final judgment on the constitutionality of laws. The government also argued that one top court ruling is more important than 100 theories. Eventually, the ruling coalition rammed the bills through the Diet by using its dominant parliamentary majority.

The administration’s policy of heeding only what the Supreme Court says in dealing with constitutional issues related to the legislation should not be taken as a sign of respect for the judiciary.

Through personnel changes, the Abe administration effectively stripped the Cabinet Legislation Bureau, the watchdog of legislative actions, of its ability to check bills from the legal point of view.

The Diet, the nation’s legislature, proved to be ruled by the dictates of the majority.

The role of the judiciary as one of the three branches of government under the checks and balances system has never been as important as it is now.

The plaintiffs of the latest lawsuit are demanding compensation for what they say is a violation of their constitutional right to live in peace. They also claim the people’s right to amend and determine the Constitution has been violated by the effective change to war-renouncing Article 9 made by the administration without following the formal procedure for constitutional amendments.

Past court rulings on lawsuits over such constitutional issues indicate that the plaintiffs face high hurdles.

Conventional wisdom in the Japanese judicial community says courts should not judge the constitutionality of specific laws unless there are concrete legal disputes that require such judgment.

A court refused to hear another lawsuit seeking the annulment of the new security laws, saying such a demand is inappropriate for judicial determination.

The consensus view among judicial experts is that even if a court decides to hear such a lawsuit, a constitutional judgment should not be made unless it is necessary for settling a dispute involving concrete interests.

Given the history of court rulings in this type of case, courts may opt to avoid making any constitutional judgment while rejecting the plaintiffs’ demand for compensation.

But the plaintiffs of the latest lawsuit include relatives of SDF personnel and residents living near military bases.

They need to make concrete arguments regarding their specific interests to persuade the court to hear the case.

At the heart of their lawsuit is serious anxiety about the government’s lack of respect for the basic principles of constitutionalism.

The judiciary should make sincere responses to the constitutional questions raised by these lawsuits without trivializing them.

The courts should not act in a way that will only further undermine public confidence in the governing system.

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