Interpreting Article 9 of the Japanese Constitution: institutions, processes and power

Adam Eldridge

PhD student, Asia Institute, The University of Melbourne

Abstract

The Cabinet Legislation Bureau (CLB) is an administrative agency that provides (i) a legal review of all Japanese government legislation and policy and, (ii) official legal opinions to the Prime Minister, Ministers and Cabinet on request.  This conference paper explores the CLB’s institutional role in theory and practice and what impact the executive government has on influencing its legal opinions concerning the interpretation of Article 9 of the Constitution (The “Peace Clause”).

The CLB has enormous yet understudied institutional power. The CLB claims primary authority for advising on government legal issues and effectively functions as a legal gatekeeper on government action in the Japanese political system. In particular, due to the long-standing deference of the Japanese Courts to the Executive, the CLB is arguably a quasi final arbiter on constitutionality of government legislation and action. This includes Article 9 whose interpretation sets the limits on the politically contested questions about the permitted composition and activities of the Japanese self-defence force (SDF).

While the CLB has institutional independence, there are questions about the degree to which its constitutional opinions reflect the preferences of the Executive government.  In particular, there are claims stretching back to PM Shigeru that powerful PMs influence the CLB in relation to Article 9-related issues to achieve favourable outcomes.  This topic is of renewed importance following the Abe government’s violation of long-standing norms relating to the appointment of a Director-General of the CLB, the politically controversial Abe Cabinet Declaration of Article 9 Interpretation in 2014 and the PM Abe’s recent announcement that his government would seek to have Article 9 amended by 2020.