Fall of Constitution Watcher

Cabinet Legislative Bureau has long been working as an organization in executive branch for watching policies that were made by Ministers who were also have status as lawmakers under parliamentary cabinet system of Japan. According to a report of Mainichi Shimbun on Monday, the bureau changed constitutional interpretation over collective self-defense, which had been kept for over four decades, in one day. In the background was pressure from Shinzo Abe administration. It is a significant disturbance on legal stability by politics.

Dubbed as “watcher for Constitution,” CLB worked for judging constitutionality of policies and making opinion to Cabinet. The report revealed that CLB received draft of cabinet decision for new interpretation of Article 9 of the Constitution from National Security Bureau on June 30^th last year. A CLB counselor in charge of constitutional legislation replied to NSB that CLB did not have any opinion on that next day, the same day which Abe Cabinet decided that exercising collective self-defense was constitutional.

CLB Director General, Yusuke Yokobatake, testified in a committee in the House of Councillors this June that constitutionality of exercising collective self-defense was discussed. The report proved that CLB discussed major change over interpretation of Article 9 was made one day. It is highly doubtful that long-lived interpretation that exercising collective defense is unconstitutional, because it exceeds minimum use of force allowed by Article 9, was overwritten in such a short period of time.

In addition, CLB left no document about the process of discussion. When CLB made judge for a policy, counselors would make a document about discussion with bureaucrats in ministries. Public Records Management Act mandates executive organizations to leave documents for reviewing process for decision-making or achievement of policy. Some experts questioned the handling of this issue in CLB.

One thing obvious was that Prime Minister Abe had been enthusiastic for reinterpreting Article 9. Targeting to CLB from the beginning of second term of his administration, Abe replaced CLB Director General to a person who had been close to his idea. Although strength of CLB had been based on independence from politics in constitutional interpretation, bureaucrats in the organization including Yokobatake were daunted by political intervention by Abe.

It is necessary for Japanese people to review relevancy of voluntary check on constitutionality of policies made mainly by an organization under Cabinet. As Abe boasted, it is judicial branch that mainly interprets the Constitution of Japan. Cabinet decision for exercising collective self-defense must be judged by the Supreme Court anyway. Having said that, final decision has to be made by the sovereign people.