91. Please tell us about any constitutional litigation concerning Article 9 of Japan’s Constitution

8 October, 2016


     First, there was the Eniwa case in the Sapporo District Court where the judgment was passed on March 29, 1967. In this case, two brothers, who were dairy farmers and had suffered damage from live-fire training by the Ground Self-Defense Force, cut the communication line for the exercises. The public prosecutor indicted them for violation of Article 121 of the Self-Defense Forces Law. The defendants insisted on the unconstitutionality of the Self-Defense Forces (Self-Defense Forces Law), and a trial was held on this issue. However, the court judged that it could only exercise its review power on the constitutionality of the SDF if the court needed to pass judgment on a concrete controversy. and since the cutting of Since the communication line did not harm “others in their efforts to defend” correspond to “others for the use of defense use”, it declared the defendants are innocent, so the court felt that there was no need to judge on the constitutional issue because the problem of constitutionality was not deemed relevant to this case.

     Next, the Naganuma suit in the Sapporo District Court where the judgment was passed on September 7, 1973, is significant. The Minister of Agriculture had decided to withdraw the specification of the area as conservation forest so as to allow the construction of an Air Self-Defense Force base in Maoiyama, Naganuma Town, Hokkaido. Townspeople sued to reverse this decision, reasoning that the construction building of the base, being a violation of Article 9, failed to meet the conditions that would allow for a withdrawal of the specification of the area as conservation forest under Article 26 of Forest Law, and thus the minister’s decision was unconstitutional and illegal. The Sapporo District Court judged that the Self-Defense Forces are actually military and correspond to the “forces” prohibited by Clause 2 of Article 9, but. tThe. The district court’s judgement was overruled by the Sapporo High Court, and the appeal to the Supreme Court on September 9, 1982, was dismissed. However, the reasoning of the Supreme Court decision was that the plaintiff’s suit interest had disappeared with the completion of alternative facilities, and this allowed the Supreme Court not to deliver judgement on the unconstitutionality of the Self -Defense Forces.

     Thirdly, there is the Nagoya High Court judgement ruling of April 14, 2008, on the Self-Defense Force Troops being Sent to Iraq is Unconstitutional Suit. Plaintiffs sought an injunction on the dispatch of the Self-Defense Forces to Iraq and a confirmation of their unconstitutionality, together with a request for damages as a result of the infringement of their right to live in peace. The Nagoya District Court dismissed the plaintiffs’ request, and the Nagoya High Court rejected the appeal but judged that the Air Self-Defense Forces did violate Clause 1 of Article 9 and admitted the plaintiffs’ concrete right to live in peace. To sum up, in every litigation of this kind, there has been no court judgment as yet on the constitutionality of Japan’s Self-Defense Forces.    

     Concerning the constitutionality of the Japan-US Security Treaty, there is the Sunagawa Case where citizens were prosecuted for entering the U.S. base in protest against the enlargement of the U.S. Forces’ Tachikawa Airport. The first trial court judged that the stationed U.S. Forces fall under the “forces” that Article 9 forbids Japan from maintaining. In the final appeal, the Supreme Court judged sentencedreached the decision on December 16, 1959, that the stationed U.S. Forces do not come under the forces prohibited under Clause 2 of Article 9. It decided that a judgment on the constitutionality of the Security Treaty lay outside the judicial review power of the judiciary and that “the stationing of U.S. Forces based on the Security Treaty is not plainly unconstitutional and invalid unless admitted as extremely clearly unconstitutional and invalid at a glance.” Recently, the personal correspondence between Chief Justice Kotaro Tanaka and the American Ambassador in to Japan over the Sunagawa Case became open to the public with the disclosure of American diplomatic documents. This matter raised raises the issue of the independence of Japan’s judiciary.


Masaki Ina




Tadakazu Fukase, Eniwa Saban niokeru Heiwa Kenpo no Bensho (Dialectic of the Peace Constitution in the Eniwa Trial), Nihonhyoronsha, 1967.

Tazakazu Fukase, Naganuma Saiban niokeru Kenpo no Gunshukuheiwashugi (Constitutional Disarmament Pacifism in the Naganuma Trial), Nihonhyoronsha, 1975.

Masaki Ina, “Naganuma Jiken (Naganuma Case),” in Osamu Ishimuram, Ichiro Urata and Hitoshi Serizawa (eds.), Jidai wo Kizanda Kempo Hanrei (Constitutional Precedents that Ticked Away the Time), Shobunsha, 2012.

Hajime Kawaguch and Hideshi Otsuka, Ima Aratamete “Jieitai no Iraku Hahei Sahsitome Sosho” Hanketsubun wo Yumu (Rereading the Judgement of the “Iraq Dispatch Injunction Suit”), Seikaisha, 2015.

Reiko Nunogawa and Shoji Niihara (eds.), Sunagawa Jiken to Tanaka Saikousaichokan (Sunagawa Case and Tanaka Chief Justice of Japan), Nihonhyoronsha, 2013.

Toshihiro Yoshida, Shoji Niihara and Suenami Yasuji, Kensho Hochikokka Hokai, (Inspecting the Collapse of the Rule of Law State), Sogensha, 2015.