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山口繁・元最高裁判所長官

「安保法案は憲法違反」「立憲主義をわきまえていない」（英文）

Ex-chief justice blasts Abe's lack of respect for constitutionalism

September 03, 2015

THE ASAHI SHIMBUN

A former chief justice of the Supreme Court has added his voice to a growing judicial backlash against new national security legislation that legal experts denounce as unconstitutional.

“I am bound to conclude that legislation to allow the exercise of the right to collective self-defense, at the very least, goes against the Constitution," Shigeru Yamaguchi told The Asahi Shimbun in an interview on Sept. 1.

While several former Cabinet legislation bureau chiefs and many constitutional scholars have expressed their strong opposition to the legislation, it is the first time for a former chief of the Supreme Court, known as the “guardian of the Constitution,” to publicly speak out against the package of bills.

Yamaguchi, 82, also blasted the decision by the Abe Cabinet in July last year to backpedal on the traditional interpretation of the Constitution to allow for the exercise of the right to collective self-defense.

"If the government claims there is logical consistency in the decision (to change the constitutional interpretation), then it is obliged to clearly state that the interpretation by successive administrations was wrong," he said.

The ruling coalition of Prime Minister Shinzo Abe’s Liberal Democratic Party and Komeito has said it expects the contentious legislation, which would greatly expand the role of the Self-Defense Forces overseas, to gain Upper House approval in mid-September.

Yamaguchi noted that the vast majority of Japanese has supported the way successive administrations have compiled annual budgets and passed laws on the basis of the traditional interpretation that Article 9 of the Constitution prohibits the exercise of the right to collective self-defense.

"The conventional interpretation of Article 9 has taken root as a norm, and if the government wants to change it, it must do it fairly and squarely by amending the Constitution to obtain public support," Yamaguchi added.

While Abe and other government and LDP officials have asserted that the top court's 1959 ruling over the so-called Sunagawa Incident provides a legal basis for the constitutionality of the security bills, Yamaguchi took issue with that argument.

In handing down the ruling, the court ruled that Article 9 does not deny Japan’s right to self-defense and the presence of U.S. military bases in Japan does not violate the Constitution.

“It is least likely that the Supreme Court at the time handed down the ruling with the constitutionality of the right to collective self-defense in mind,” Yamaguchi said. “In fact, it was not necessary for the court to make a decision on the constitutionality of the right to collective or individual self-defense whatsoever.”

Yamaguchi also blasted the Abe Cabinet’s approval of the change in the constitutional interpretation to allow the exercise the right to collective self-defense on July 1, 2014, based on a proposal by a panel of experts handpicked by the prime minister.

“It is clear that the government has no respect for such principles as the rule of law and constitutionalism,” Yamaguchi said. “I wonder if they even respect the function of Article 9 of the Constitution that puts restraints (on the government).”

(This article was written by Junko Takahashi, an editorial writer, and Shuichi Yutaka, a senior staff writer.)