Strange state of Japan that the treaties and agreements with U.S. are superior to its Constitution
Y: I would like to talk about this next time, but the basis of it is the UN Charter. It has many bad features affecting the Security Treaty, so few Japanese people are aware of it. （But it is clearly stated. ）
T：Japan is defined as an enemy country.
Y: I will talk about it next time.
At this point let’s discuss the Sunagawa Case briefly. As I mentioned earlier, the Japan-U.S. Joint Committee produces the Public Prosecutor General, who is elected from two groups in turns, the Justice Ministry and the office of the prosecutor. The interesting thing is that the Justice Ministry chooses someone in the position of Ministry Secretary and the office of the prosecutor tends to choose someone who was engaged in the Lockheed Scandal.(Note: the former Prime Minister Kakuei Tanaka was arrested in 1976 due to this scandal.)
Even with such a structure, the things I am talking about wouldn’t have happened if the Supreme Court was functioning properly. The reason it doesn’t work is the political situation the Zendo-Kichi formula (or the formula that the entire area of Japan must be regarded as a potential base) and the important incident in 1959.
H：The Sunagawa Case.
Y: Yes, before the revision of the Security Treaty in 1960.
This is a photo from the Sunagawa Case. See. There was an intense campaign opposing the U.S. base in Tachikawa, in the Tokyo area. Protesters were arrested because they went over the fences.
Chief Judge Date of the Tokyo District Court ruled the base unconstitutional, referring to Paragraph 2 of Article 9 of the Constitution, which mandates the “renunciation of forces and war potential.” If it had gone up to the Supreme Court, U.S. Forces would have had to withdraw, so the U.S. maneuvered secretly.
The U.S. ambassador to Japan at the time was MacArthur, General MacArthur’s nephew. He called Mr. Fujiyama, the Foreign Minister.
T：The U.S. ambassador called him?
Y: Yes. He called Mr. Fujiyama and told him what to do.
T：The US ambassador to Japan asked the Foreign Minister to overrule the judgment.
Y: Surprisingly, about two days later, the Ambassador planned to make the rights of U.S. bases firmer by overruling the decision completely. U.S. military authorities and diplomats tend to favor those who take double the payback, getting more by making use of attacks by the other party.
T：That’s the way a bureaucracy can be.
Y: Prospering after the fire. As I understand from an official document, a few days after the judgment of the Tokyo District Court, MacArthur’s plan began to be followed, specifically by Mr. Kotaro Tanaka, the Chief Justice of the Supreme Court. It resulted in the final judgment of the very important Sunagawa Case.
Y: It says “Any legal determination as to whether matters with a high degree of political nature such as the Japan-U.S. Security Treaty is constitutional goes beyond the scope of the court’s right of judicial review.”
Y: Treaties are placed above domestic laws but not above the Constitution. Hence the exemptions in the Civil Aeronautics Law under the Japan-US Security Treaty.
However, since Japan is a democratic nation, the Constitution should take precedence under any treaty, especially when human rights are violated. If a treaty has the potential to violate the right to physical freedom, health, and property, the Constitution has to stop it.
Y: However, the Sunagawa Case decided that issues regarding the Security Treaty are not subject to the Constitution. Treaties with the U.S. are not only above domestic laws but above Constitution as well—which was supposed to have authority over treaties in order to regulate them. Now, therefore, treaties can prevail in lawsuits.
That’s why bureaucrats rebelled against you, Mr. Hatoyama. This final judgment in the Sunagawa Case made illegal, behind-the-scenes operations legal. That’s what induced bureaucrats to disregard the Constitution.
I think this is similar to the NPP issue.
Y: There are children and babies in areas that have higher radiation than in the radiation controlled area, and health damage can be expected, but the government doesn’t do anything. TEPCO, which caused the accident, would never have gained massive profits if the Constitution had been working. I have gone into the details of U.S. bases and NPP issues, and to conclude, the problem is that the Constitution is not working.
H: In the Sunagawa Case, the judgment refers to “such as the Japan-US Security Treaty.”
Y: Right. Not limited to “the Japan-US Security Treaty.”
H：They don’t judge “matters with a high political nature such as the Japan-US Security Treaty” by the Constitution.
Y: Therefore, bureaucrats will decide what is “with a high political nature.” As a result, they can apply the exclusion clause indiscriminately and escape regulation by the law.
T： Consequently, the nation’s important issues cannot be adjudicated by the Constitution. The grounding of it is this Sunagawa case. Referring to the Security Treaty is regarded as taboo and the courts have avoided those issues.
Some argue that Japan should have a constitutional court, but the problem is that the people don’t know what Japan needs or why a constitutional court is necessary.
Y: However, in the current situation a constitutional court will be a secondary supreme court.
Y: Article 81 of the Constitution says “the Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act,” which means the Supreme Court has an obligation to judge according to the Constitution.
So we need a national consensus that the current Supreme Court is violating the Constitution. But there is a serious problem about what the people in a democracy should do when the Supreme Court is against the Constitution.
As I’ve said, 60 years of accumulated knowledge of the U.S. base issues helps make clear the NPP problem as well. For example, the Supreme Court’s secret manual explicitly states the U.S. Forces don’t need to reveal inconvenient information when they cause an accident.
What happened in the NPP accident is very similar. TEPCO, which caused the accident, is allowed to close down the site and withhold information. I researched this aspect of the situation and found the exclusion clause here too.