By Lawrence Repeta
The author is a professor of law at Meiji University, Tokyo, Japan.
Japan’s open government activists hailed the adoption of the national Public Records and Archives Management Act (“Public Records Act”) as a milestone in government accountability. When that law took effect on April 1, 2011, government agencies were legally required to make and preserve records of their decisions for the first time. Information requesters everywhere are painfully aware that if no record exists, there’s nothing to request.
Japan’s national government agencies are now bound by law to create documents to formally record “the process leading to decisions, including background information and the record of the administrative work and operations” in order to “enable a rational tracing of the process or subsequent investigation” of important government decisions. The Public Records Act applies to all significant government decisions, including laws, Cabinet resolutions and other government actions.[1]
Nonetheless, readers of Japan’s Mainichi News were recently dismayed to learn that the Abe administration circumvented the 2011 Public Records Act as it made critical decisions that changed Japan’s national defense policy.
Responses to information requests filed by Mainichi reporters show that when the Abe Cabinet approved its July 2014 resolution asserting legal authority to dispatch Japanese military forces abroad, it avoided the standard review by the Cabinet Legislation Bureau (“CLB”), a specialized agency charged with reviewing proposed legislation and Cabinet action. According to the Mainichi, when requested to provide its opinion concerning the proposed Cabinet resolution, the CLB produced no record of deliberations at all, delivering a “no comment” opinion by telephone the day after receiving the request.[2]
This blatant refusal to follow the law is especially disturbing because it concerns such an important and dramatic change in national policy.[3] The July 2014 Cabinet decision would lead to legislation adopted on September 19 of this year that purports to allow Japanese troops to fight abroad for the first time since World War Two.[4] The Mainichi called the CLB’s action a “complete about-face” on its constitutional interpretation. At the helm of large majorities in both houses of parliament, in 2015 Prime Minister Shinzo Abe and his Liberal Democratic Party forced the adoption of highly unpopular laws that drop a ban on “collective self-defense” — fighting to defend friendly countries even though Japan itself is not under attack.
So why would the Abe administration short-circuit the ordinary review process and ignore the statutory requirement to create a documentary record?
The answer is found in the extraordinary nature of the CLB and the Prime Minister’s attitude toward the rule of law.
Throughout Japan’s postwar history, the CLB has been one of the most highly respected guardians of the nation’s constitutional order. In a well-known 2004 essay, MIT Professor Richard J. Samuels wrote that “No administrative agency of the Japanese state enjoys higher prestige or greater independence than the CLB.” Samuels further explained that “The CLB has two formal tasks: 1) to provide opinions to the Prime Minister and the Cabinet on legal issues; and 2) to examine drafts of all bills, regulations, Cabinet orders, and treaties for consistency with the constitution and legal precedents.”[5] This is precisely the service that was called for when the Cabinet addressed the Prime Minister’s demand for a resolution contradicting Japan’s longstanding interpretation of Constitution Article 9.
According to Article 9, “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.” For more than four decades, the CLB has steadfastly held a consistent position on the practical meaning of these words: Article 9 does allow Japan to use force in self-defense, but it requires that such action be limited to the minimum necessary to defend the country. Therefore it prohibits “collective self-defense,” in other words military action when Japan itself is not under attack.[6]
In July 2014, the CLB reversed this longstanding interpretation without leaving a documentary record of any discussion, debate, consideration of other alternatives or other rational process that led to its momentous conclusion.
It seems highly unlikely that the CLB would take such action unless it was subject to extreme political pressure. At least two former CLB Directors have come forward to condemn the Bureau’s action and to declare the government’s legislation unconstitutional. They have been joined by a retired Chief Justice of the Supreme Court and the vast majority of Japan’s constitutional scholars, not to mention the tens of thousands of people who have demonstrated before the Diet.[7]
Unfortunately, we may never know the true opinion of the agency with the “highest prestige” and “greatest independence” in Japan’s government because there is no documentary record of its deliberations.
Throughout his career, Prime Minister Abe has sought to change many features of Japan’s Constitution, but especially the restraints of Article 9. He has long seen the CLB as a significant obstacle to this campaign. When Abe returned to the Prime Minister’s chair in December 2012, neutralizing the CLB was undoubtedly high on his priority list. He made the critical stroke eight months later by intervening in the customary CLB appointment practice. The source of the prestige and independence cited by Professor Samuels is the appointment of highly respected and politically neutral bureaucrats to the Bureau. From the time of its postwar launch until Abe intervened in August 2013, the chairperson had always come from within the Bureau itself.
Abe became the first prime minister to go outside the Bureau to select a new chair. He appointed Ichiro Komatsu, a Foreign Ministry official known to agree with Abe’s position on Article 9. His tenure would be brief. Komatsu was diagnosed with cancer and resigned in May 2014. This time the new CLB Director did come from within the Bureau. A career prosecutor who was originally assigned to the CLB in 1993, Yusuke Yokobatake had risen to the number two position by the end of 2011. He was passed over when Abe selected Komatsu, but when the latter resigned, Yokobatake expressed his willingness to reconsider constitutional revision and took over the top spot. He has zealously represented the Abe Administration position since.[8]
It was Yokobatake who authorized the telephone call with the message that the Bureau had no opinion. He played a key role defending the national security legislation in Diet hearings.
Future historians are likely to see Abe’s action as the moment when Japan turned a historic corner, becoming a nation empowered to engage in war for the first time since 1945. The Japanese people deserve a complete documentary record.
[1] Public Records and Archives Management Act, Law No. 66 of 2009. The government translation of the Act is available here: http://www.archives.go.jp/english/basic_laws/prama.html.
[2] “Cabinet Legislation Bureau has no record of Constitution reinterpretation deliberations,” http://law.e-gov.go.jp/htmldata/H21/H21HO066.html
“Cabinet Legislation Bureau’s job undermined by government intervention,” at http://mainichi.jp/english/english/newsselect/news/20150928p2a00m0na028000c.html
[3] The influential Japanese NGO Info Access Clearinghouse Japan issued a formal statement condemning the violation of the Public Records Act, available here: http://clearinghouse.main.jp/wp/?p=1089 (Japanese only).
[4] Professor Craig Martin commented on the pending Cabinet Resolution here: http://www.japantimes.co.jp/opinion/2014/06/27/commentary/japan-commentary/reinterpreting-article-9-endangers-japans-rule-of-law/#.VheXjrSqqkp
[5] Richard J. Samuels, “Politics, Security Policy, and Japan’s Cabinet Legislation Bureau: Who Elected These Guys, Anyway?,” http://www.jpri.org/publications/workingpapers/wp99.html
[6] For an authoritative discussion of Article 9, see Craig Martin, “Binding the Dogs of War: Japan and the Constitutionalizing of Jus Ad Bellum,” University of Pennsylvania Journal of International Law, Vol. 30, pp. 267-357, 2008, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1296667.
[7] Regarding the constitutionality of the legislation, see Lawrence Repeta, “Japan’s Proposed National Security Legislation — Will This Be the End of Article 9?” in The Asia-Pacific Journal, Vol. 13, Issue. 24, No. 3, June 22, 2015. http://www.japanfocus.org/-Lawrence-Repeta/4335/article.html.
[8] See “Mr. Yokobatake is promoted to CLB Director; He is positive on change to constitutional interpretation,” Kyodo News, May 16, 2014, available at http://www.47news.jp/CN/201405/CN2014051601001041.html (Japanese only)
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