【PART 1】 Mystery of Okinawa: Military Bases and the Constitution
【24】 Even in the U.S. and France, the “governing act doctrine” like that in Japan is not allowed
In truth, even in such countries as the U.S. and France, the “governing act doctrine” like that in Japan does not exist. Let’s look first at France. The French phrase “acte de gouvernement” is the origin of the Japanese term for the doctrine today. Nevertheless, Emeritus Professor Setsu Kobayashi of Keio University, one of the leading experts on this issue, writes disparagingly of the doctrine, as follows:
[In the French academic world] the governing act doctrine does not attract support from the majority of theories, because of its anti-nomocratic nature.
No [French] legal precedents have defined the concept of “acte de gouvernement,” nor provided theoretical evidence for it. Moreover, no laws have generally been cited as its basis. (Doctrine of Political Issues, published by Nippon Hyoron Sha)
He also points out that the the easy acceptance of the governing act doctrine “can obstruct the protection of human rights by the judiciary, or cause the absolutization of the administration’s power,” and “could potentially lead to the complete denial of judicial review rights.” This is very true. It can be said that the Japanese Supreme Court has been doing what Professor Kobayashi feared for more than half a century, since the Sunagawa Case.
To move on to the U.S., the English term used to signify this concept, “political question,” is very different from “acte de gouvernement” or its Japanese equivalent. One of the first instances of its use occurred in the 19th century, when a conflict in Rhode Island led to two state governments claiming to be the legitimate one. At the time, the U.S. Supreme Court ruled that it “cannot decide independently which is the legitimate government of the state.” Since rival state governments was an issue that could lead to anarchy, depending on the verdict, the court had decided that it was more appropriate to leave the decision to the President.
The difference from France is that this concept of “political question” is more widely accepted in the U.S. Especially in fields such as diplomacy or war, there are cases where the judiciary avoided making a decision, claiming it was a “political question.”
However, this position only supports the temporary integration of power into the hands of the President in order, for instance, to secure national interest. This is based on the view that “it is wise to integrate the battlefront (in other words, the point of contact for your country) in external relations” (Gaines Post). This principle is completely different from the Japanese theory, which puts treaties and agreements about foreign armed forces permanently over our own Constitution.
History has shown that the Japanese Supreme Court never declares a human-rights infringement to be unconstitutional when it is related to a government or state policy issue. The “governing act doctrine” of Japan plays the role of pardoning the Supreme Court’s extreme obedience to the government. Japanese constitutional scholars are using various sophisms to defend this policy, but everyone should examine Article 81 of the Constitution of Japan, which states: “The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.”
Could anything possibly be more clear? Reading this makes it evident to anyone that the Supreme Court itself, which never makes constitutional judgments on the most important issues, is completely unconstitutional in its present form.