Abstract
Abstract
The Cabinet of Japan has in early July last year reinterpreted Japan’s Constitution to allow the nation to exercise the right of collective self-defence. Under this reinterpretation, the Japanese military could come and aid allied forces if the situation was dire. Just a week prior to the deadline for submission of abstracts to this conference Japan and the United States announced that they had finalized a set of updated guidelines for security cooperation, reflecting Japan’s newly revised defence posture and highlighting for the outside world, its moment of constitutional change. This way, through an executive reinterpretation, formal amendment procedure of the constitution was effectively by-passed and circumvented, straining the constraints of the separation of powers to its limits. While formally, it is the Supreme Court that is vested with the exclusive authority to interpret and enforce the Basic law of Japan, it has generally refrained from doing so often invoking the ‘political question’ doctrine. In the past, the Court struck down only eight laws on constitutional grounds, which has helped it to build up reputation as one of the most conservative and passive constitutional courts around the globe. The situation had come to a point when lower instances courts had weighed in on the issue. This Article offers a political and institutional account of why the Court has failed to take an active role in the enforcement of Japan’s Post-war Constitution and articulates reasons why it should do so now and abandon its path dependency or indeed “forever remain silent.” It also purports to analyse previous jurisprudence of the Court on the subject, which lays in the heart of contentions over the stability of Japan’s Constitution and offer a perspective on the course of action the Court could take to address this constitutional puzzle.
The Cabinet of Japan has in early July last year reinterpreted Japan’s Constitution to allow the nation to exercise the right of collective self-defence. Under this reinterpretation, the Japanese military could come and aid allied forces if the situation was dire. Just a week prior to the deadline for submission of abstracts to this conference Japan and the United States announced that they had finalized a set of updated guidelines for security cooperation, reflecting Japan’s newly revised defence posture and highlighting for the outside world, its moment of constitutional change. This way, through an executive reinterpretation, formal amendment procedure of the constitution was effectively by-passed and circumvented, straining the constraints of the separation of powers to its limits. While formally, it is the Supreme Court that is vested with the exclusive authority to interpret and enforce the Basic law of Japan, it has generally refrained from doing so often invoking the ‘political question’ doctrine. In the past, the Court struck down only eight laws on constitutional grounds, which has helped it to build up reputation as one of the most conservative and passive constitutional courts around the globe. The situation had come to a point when lower instances courts had weighed in on the issue. This Article offers a political and institutional account of why the Court has failed to take an active role in the enforcement of Japan’s Post-war Constitution and articulates reasons why it should do so now and abandon its path dependency or indeed “forever remain silent.” It also purports to analyse previous jurisprudence of the Court on the subject, which lays in the heart of contentions over the stability of Japan’s Constitution and offer a perspective on the course of action the Court could take to address this constitutional puzzle.
| Original language | English |
|---|---|
| Publication date | 2015 |
| Number of pages | 15 |
| Publication status | Published - 2015 |
Keywords
- Faculty of Law
- Japanese constitutional law
- Supreme court
- Renunciation of war
- Judicial restraint
