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SECURITY > Okinawa

Editorial: Ruling on Henoko base work undermines the role of the judiciary

  • March 19, 2018
  • , The Asahi Shimbun , 2:00 p.m.
  • English Press

The recent local court’s decision to reject the Okinawa prefectural government’s attempt to stop reclamation work to build a new U.S. military base within the prefecture seriously undermined the role and relevance of the judiciary.


The Naha District Court on March 13 ruled against the local government’s request for an injunction to order the central government to suspend ongoing work to reclaim land off the Henoko district of Nago, a city in the southernmost prefecture.


The reclamation work is to build new military facilities to replace U.S. Marine Corps Air Station Futenma, located in the crowded city of Ginowan, also in the prefecture.


Without holding any substantial hearings on the case, the court spurned the Okinawa government’s argument that the work, which involves destroying coral reefs, is illegal because Governor Takeshi Onaga has not given permission to do so. Prefectural regulations concerning fishing rights require obtaining permission from the prefectural governor to destroy coral reefs.


The district court based its ruling on a precedent set by the Supreme Court’s 2002 ruling in a case involving an alleged violation of a municipal ordinance concerning pachinko parlors in Takarazuka, Hyogo Prefecture.


The Takarazuka municipal government launched a lawsuit to stop a pachinko operator from building a new parlor in violation of the city’s ordinance regulating the construction of such entertainment facilities.


The Supreme Court rejected the local government’s request without considering the content of the ordinance, ruling that the central or local government has no right to file a lawsuit simply to have people comply with an ordinance or other regulation.


The Naha District Court used this precedent in ruling on the Henoko case, saying the top court’s argument applies also to cases where the target of the suit is the state, not a private citizen.


There are important questions that remain with regard to rules for destroying coral reefs.


The Fisheries Agency, for example, previously said the governor’s permission was needed to take the step. But the agency has changed its position without offering any detailed explanation about the reason.


Since the district court didn’t address such questions, the Okinawa prefectural government has found it difficult to accept its ruling. There is no settlement of the dispute in sight.


The precedent set by the Supreme Court’s ruling in 2002 has been bitterly criticized by many legal experts.


Critics say it is tantamount to closing the door on any legal attempt by a local government representing the public interest to stop an act suspected of violating the law.


Tokiyasu Fujita, who was involved in administrative reform in the 1990s and became a Supreme Court justice in 2002 after serving as a university professor specializing in administrative law, denounced the precedent for running counter to jurisprudential progress that had been made in this nation since its modernization in the 19th century.


“I felt strong pressure to do something about it after I became a Supreme Court justice,” he wrote in his book.


Since this kind of lawsuit is seldom filed, however, Fujita had to retire in 2010 without having an opportunity to tackle the issue at the top court.


The Henoko case could offer this chance.


Besides being a political issue, the dispute over the work to relocate the Futenma air base also raises a weighty question that strikes at the very foundation of the nation’s social system: What kind of role should the judiciary play in settling disputes in society?


This legal battle also has huge implications for actions of other local governments.


Judges can avoid the trouble of dealing with such sticky and complicated legal questions and complete trials easily if they simply follow the precedents.


If judges keep taking the easy road, however, there can be no progress in debate on these issues, and the people will lose their confidence in the judiciary’s ability to perform its core function.


In November, the Supreme Court ruled that “sexual intent” is not required to convict a defendant of indecent assault, reversing its own 1970 ruling. The landmark decision upheld the argument made by the presiding judge of a district court that took exception to the precedent.


The Okinawa prefectural government plans to appeal the district court ruling. How the high court responds to the local government’s argument should draw much public attention.

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