【PART 1】 Mystery of Okinawa: Military Bases and the Constitution

 

【23】 Hocus-pocus of the “governing act doctrine”

 

Japanese conservatives call the basis of this verdict the “governing act doctrine” (literal translation of the Japanese term touchikoui ron), and treat it as a “legal principle.” They claim that the judiciary should reserve judgment on crucial issues related to the governing of the nation, and instead leave it for the citizens to decide by vote. According to them, this is a method accepted in such developed countries as the U.S. and France.

At first glance, the reasoning looks convincing. I wouldn’t have questioned it either, when I used to believe unconditionally what famous university professors said. However, if you look at it with even the slightest critical eye, you’ll see that this argument is more deeply flawed than it appears.

For instance, let’s take the example of lawsuits regarding noise pollution made by U.S. aircraft. Advanced fighter planes make unbelievably loud blasting noises, so naturally there are health hazards. What they generate are more like tremors, rather than just sounds. Your whole body feels it and suffers from the effects.

At one point, the locals couldn’t take it anymore. They have filed a lawsuit demanding the suspension of aircraft operations, claiming it is a violation of basic human rights. Nonetheless, suspension is impossible. Even though Supreme Court verdicts have recognized that residents are suffering damage from excessive noise and tremor, they do not suspend aircraft operations.

The Court’s strange explanation for this is that “U.S. Forces are a ‘third party’ that the Japanese government cannot directly command, so it is not possible to demand that the Japanese government suspend such aircraft operations.” The logic of this argument is completely incomprehensible. It is generally called the “third party act doctrine,” but clearly it is based on the “political question doctrine” (which claims that the Supreme Court does not have to judge whether matters of a highly political nature, such as the Security Treaty, are constitutional).

Everyone should let the significance of this sink in. The Supreme Court’s use of the “political question doctrine” to avoid a decision on hazardous health conditions — a violation of citizens’ human rights — is a negation of the separation of powers. This is a simple matter that any junior high school student would understand.

As a matter of fact, Professor Hiroshi Segi of Meiji University, a former judge, has condemned this Supreme Court ruling, saying:

The state of Japan was the one who signed the Japan-U.S. Security Treaty with the U.S. in the first place. It means that the state permitted U.S. aircraft operations.…If the state were to claim that it has no responsibility about what the U.S. does, then what is the Constitution for? (The Court of Despair, published by Kodansha)

Of course, it’s undeniable that this argument is the one that holds water.