The 1959 Supreme Court Grand Bench (en banc) decision in Sakata v. Japan (the Sunakawa case) was the first Supreme Court decision on Article 9 and the constitutionality of Japan's defense policies. In the precedent-setting decision, all fifteen justices endorsed the view that under Article 9 Japan retained a fundamental right of self-defense and could enter into treaties for mutual security. In the absence of an apparent or "clear" violation, the courts, Sunakawa held, must defer to the judgment of the political branches on the issue of constitutionality. The Court thereby established the outer parameters for judicial review and the scope of legislative and executive discretion. For half a century the decision has remained the controlling interpretation of Article 9. Reserving the right to adjudicate future cases only in the event of an apparent violation, the Court enabled successive Governments to make defense policy decisions based on political and public consensus and policy concerns circumscribed by only a possibility of judicial review. The result has been remarkable. Since 1959 Japan has pursued a consistent set of policies that have both expanded Japanese defensive military capacity and enabled effective deterrence within a transforming global context. The varied interpretations of Article 9 that have been expressed over the years, I would emphasize, have been political not legal—or at least not as constitutional law. Yet a political consensus has endured that enables Japan to possess, as detailed below, the most technologically advanced defensive military in East Asia. No amendment of the Constitution has been necessary for the consistent development of defensive forces and a security alliance with the United States that arguably has for three generations ensured peace in East Asia through deterrence. As recently expressed by Satsuki Eda, the chair of the opposition Democratic Party’s research commission on the constitution, under Article 9 Japan has both the legal right of individual self-defense, as well as the right of collective self-defense. Nonetheless, the political constraints have been significant as Japanese Governments with few exceptions have declined since 1960 to enter into any other collective security arrangements much less to exercise a right of individual or collective self-defense.
John O. Haley,
Article 9 in the Post-Sunakawa World: Continuity and Deterrence Within a Transforming Global Context,
26 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wilj/vol26/iss1/3