【PART 2】 The Mystery of Fukushima: Why Japan Cannot Stop Nuclear Power Plants?


19】 “Governing act doctrine,” “Discretionary act doctrine” and “Third party act doctrine”


The discussion returns to the topic of Fukushima here, because this “behind-the-scenes” legal structure must be taken into account when examining the NPP issue. We need to recall what, in the Sunagawa Case, made the Supreme Court declare that it “could not judge” on its constitutionality: It was not the Security Treaty itself, but “matters of a highly political nature significantly related to a basis of our nation’s existence such as the Security Treaty”, which is vague.

Therefore, since the Supreme Court does not judge the constitutionality of “national level security,” it is confirmed to be out of legal control. That’s probably the reason why Article 2-2 was stealthily added to the Atomic Energy Basic Law on June 27, 2012:

“Ensuring security in using nuclear energy should contribute to national security.”

Because of this article, issues regarding the security of NPPs are out of legal control. The Supreme Court cannot make judgments on the constitutionality of such security issues or punish malefactors.

To understand the implication of such policy, consider the statement of Chief Judge Kenkichi Kashiwagi, 36 years ago in 1978. This was the first verdict of the Ikata NPP trial, concerning the security of planned NPPs in Ehime Prefecture: “The issue on the permission of construction of the nuclear reactors, which could be discussed with neighborhood residents of the planned construction site, is left to national discretion as it is closely connected to highly political decision by the nation.”

Moreover, in a ruling by the Supreme Court in 1992, Chief Judge Mikio Ono stated that, concerning the Atomic Energy Commission’s scientific and technical knowledge, reviewing the safety of the NPP should be entrusted to rational decision by the Prime Minister. What is necessary, in this view, is overall judgment based on nuclear engineering and various kinds of high level and cutting edge scientific and technical knowledge.

Anyone can see that this logic is exactly the same as the Supreme Court decision by Kotaro Tanaka, mentioned in PART 1. There is no provision for stopping illicit decisions by the U.S. or the Japanese government through a mechanism like the separation of powers, no recourse but to follow them unconditionally.

The judgment by Kotaro Tanaka is called the “governing act doctrine,” the judgment by Kenkichi Kashiwagi is called the “discretionary act doctrine,” and the lawsuit over noise pollution by U.S. aircraft is called the “third party act doctrine.” But all are the same. As Professor Kobayashi maintained (qtd. In PART 1), these “legal theories” “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.”

Japanese courts have been doing as Professor Kobayashi said for the last half century. Several intellectuals have pointed out that courts may be forced to do so by the Supreme Court Secretariat, which composed the secret instruction manual (1), I mentioned earlier. This is because the Secretariat reportedly takes hold of personnel affairs and budgets, and holds meetings under the name of “Judge Meeting” or “Judge Conference” to essentially induce judges to make rulings that it wants them to make. (Bureaucrats of Judiciary – Muneyuki Shindo, and Nuclear Power Plant Trials – Yuuichi Kaido. Both published by Iwanami Shoten)

The “governing act doctrine” was created by the U.S. Ambassador to Japan and the Japanese Supreme Court for manipulation of the U.S. military base issue, as a legal trick to make the Constitution of Japan dysfunctional. Now Japanese government officials as well as judicial bureaucrats have begun making use of it on various other issues rather than applying it solely to military bases.

This doctrine is a legal structure that freely makes issues extraterritorial if bureaucrats consider them “significantly related to the basis of our nation’s existence.” This has led to the insane policy of resuming NPPs, to the effect that radioactive contamination has spread and many citizens are exposed to radioactivity.