Notes by Judge Involved in Sunagawa Case Discovered: Scoop by Hodo Station

Anchor Ichiro Furutachi

On September 14, a news show broadcasted by TV Asahi (Channel 5) reported that they discovered a memo written by Toshio Irie, one of the judges involved in the Sunagawa case. The memo was written in the margins of a book of Supreme Court decisions archived in a study where he lived while he was alive.  One important sentence was “we said that our country is able to take measures for self-defense,” but “we did not say that our country can have armed forces for self-defense, or facilities for self-defense.”

Hodo Station reported that these sentences prove that Sunagawa case did not talk about constitutionality of self-defense force or the right to collective self-defense. Therefore, it is wrong for LDP to use the Sunagawa case as the basis of their claim that the right to collective self-defense is constitutional.

Answering to a question by Hodo Station about the notes, a senior member of the administration said their unwavering stance on the security legislation would not change.

The transcript is below

Anchor Ichiro Furutachi:

The biggest ground for the administration is claiming the right to collective self-defense is constitutional is Sunagawa case. Approximately 55 years ago, in 1959, there was a ruling called Sunagawa. With respect to the Sunagawa case, people were divided into two camps, those who claim that it is talking only about the US military in Japan (and thus is irrelevant for other issues), and others who argue that the case covers the right to collective self-defense. The latter is the administration’s opinion. When we were looking through the materials located in the study of one of the main judges in the Sunagawa case (who is deceased), we discovered the archives of Supreme Court rulings.

In the archives, we found the judge’s notes on the case, written in beautiful handwriting. The notes were written three year after the Sunagawa case, but as we read them, we discover that they talk about issues that are the same as those we’re discussing with Professor Kimura, who is sitting by my side today.

Professor Sota Kimura at Tokyo Metropolitan University ( right)

Meaning of Sunagawa case written. Notes by Supreme Court judge discovered.

The day before yesterday, we went to a house in Tokyo in order to find clues about what the judges involved in Sunagawa case were thinking at that time.

For the past three months, we have been searching for the families of the 15 Supreme Court judges. Finally, we discovered one of them.  

Kayoko Horiguchi: This space is my father’s study, and the archives of the opinions are organized here.

Narrator: This was the first time that a TV camera entered this study. The books arranged in the bookshelves is the collection of Supreme Court cases decided after the end of WWII.

Toshio Irie

 The owner of this study was Mr. Toshio Irie, who was a Supreme Court judge. After the end of WWII, Irie was involved in drafting Constitution as one of key men of Judicial Bureau, and later he was appointed to be a Supreme Court at the age of 51. This was a young age to be appointed as a Supreme Court judge. He was the longest serving Supreme Court judge and was involved in many constitutional cases, including the Sunagawa case. We discovered an archive of the Sunagawa case. When we turned the page, sentences were written above the verdict.

Irie’s second daughter, Kayako Horiguchi, 78: This is my father’s handwriting

“When he came up with something, he used take notes right away.”

Narrator: It was 1962 when the notes were written. It was three year after the Sunagawa case. What is written? The memo says “It is alright to request for a foreign country to provide security for Japan. Even the American military is stationed in Japan, and it does not mean that our country has a military force.” In Sunagawa case, the constitutionality of the stationed American military was debated. In the notes, Judge Irie explained what kind of meaning he got from the ruling. Of all his notes, the following sentences are most important: “We said that it is possible for our country to take measures for self-defense, but we did not say that we could have armed forces or facilities for self-defense.” The coalition government maintains  that “measures for self-defense” allowed by the Sunagawa case includes the exercise of right to collective self-defense, which enables the Self Defense Forces to protect a foreign country. But, right above the phrase “measures for self-defense” is a comment by Judge Irie. He left notes that say “we said that we can take measures for self-defense,” but “we did not say that we could have armed forces or facilities for self-defense.” In other words, Irie wrote that the Sunagawa case did not decide anything about the legality of the Self Defense Forces. Moreover, regarding the size of Self Defense Forces, he wrote that we can interpret the constitution to allow our country to have the means for self defense. However, is it ok for the Self Defense Forces to have the force to the extent codified in paragraph 2 of Article 9? Or should the Self Defense Forces to have a force smaller that the extent codified in paragraph 2 of Article 9? We should decide that Sunagawa case did not touch on these questions. The decision did not touch on the relationship between Self Defense Force and Article 9 paragraph 2, which codified the prohibition of armed force. The Sunagawa case did not talk about the legality of Self Defense Forces.

In 1959, when the verdict was made, it had been only five years since the formation of Self Defense Forces. At that time, Japan purchased armaments and equipment from the US. The Self Defense Forces were very dependent on US support.  In light of these circumstances, why would Japan even entertain the possibility of exercising a right to collective self defense, which would means fighting alongside an allied country (e.g., the US) if that country was attacked?

Narrator: How does an expert see this memo?

Professor Katsutoshi Takami at Sophia University

Professor Katsutoshi Takami at Sophia University has studied Toshio Irie (the Supreme Court judge on the Sunagawa case) for a long time.

Takami: It is a shock to me, rather than a surprise, to know that Mr. Irie left these notes while he was still working as a judge. First thing I noticed from the notes is how they point out very clearly that the Sunagawa case did not say that Japan can have an armed force or facilities for self-defense. I don’t think they expected a situation where the Self Defense Forces would go into a foreign country and exercise armed force. I think they did think about it, it was not considered to be realistic.

Anchor Furutachi: We asked a senior member of the administration shortly before about these notes. Then, the official mentioned that the notes do not explicitly deny the right to collective self-defense. He claimed that their unwavering stance does not change, even if something like this shows up. That is the response we received. Now, the notes actually support things that you have been saying about this issue.

Professor Sota Kimura at Tokyo Metropolitan University, a sharp young constitutional scholar. He recently released a book, Why the Right to Collective Self-Defense is Unconstitutional?

Kimura: I agree with the opinions expressed in these notes. It is consistent with what I had been guessing that the judges were thinking at that time. I haven’t been giving biased opinions that only I believe, but rather the consensus of most constitutional scholars. If a person who had training in how to interpret laws and analyze precedences reads the opinion, then he or she can understand that it actually says things like what’s in the notes. Especially, he or she could understand that the opinion uses the two phrases deliberately: “to take measures for self-defense” and “to exercise the right to self-defense with armed force.”

Taking measures for self-defense

Anchor Frutachi: “Taking measures for self-defense” and “exercising the right to collective self-defense” are two different things, right?

exercising the right to self-defense

Professor Kimura: Of course, they are. Measures for self defense could include many things, such as diplomatic cooperation and cultural exchanges. It actually includes the concept of letting a foreign military to be stationed in Japan, which was at issue in the Sunagawa case.  Regarding how far the Sunagawa case allowed for exercising the right to self-defense by forming an armed force, just as with measures of self-defense, the Sunagawa case made a ruling only about whether it was constitutional to have US forces stationed in Japan. If the judges had made a decision about the right to collective self defense, they would have written so in the opinion. Therefore, we normally interpret the opinion, we think the judges did not make a ruling about the right to collective self defense.

Anchor Frutachi: I see.

Professor Kimura: Even people who are not versed in interpreting legal precedent can agree that my opinion was proven to be correct.

Anchor Frutachi: I thought that the notes were written because there was stuff happening, like the pressure from the United States about this [the Sunagawa case].

Professor Kimura: Yes. At that time, the courts were under pressure from the United States and the Japanese government. On the other hand, there were tremendous pressure from those who argued that the Self Defense Forces were unconstitutional. There was pressure for the courts to find the Self Defense Forces unconstitutional when the judges made their ruling in the Sunagawa case. In the midst of this, the Supreme Court deliberately chose not to make a ruling on the constitutionality of the Self Defense Forces.

（Source:　Hodo Station, www.youtube.com/watch?v=WooLOpwPH60）