The recent high court ruling in the legal battle between the state and the Okinawa prefectural government over a controversial plan to build a new U.S. military base in the southernmost prefecture is a totally unacceptable judicial approval of an outrageous central government action.
The ruling by the Fukuoka High Court’s Naha branch on Oct. 23 effectively endorsed the way the central government has brutally violated the spirit of the law and thereby made a mockery of the role of the judiciary as the guardian of law.
The court dismissed a lawsuit filed by the Okinawa prefectural government seeking a halt to the reclamation work to build a U.S. military base off Henoko, a district in the city of Nago in the prefecture. The lawsuit concerned approval for the reclamation work for construction of a U.S. military facility that will take over the functions of U.S. Marine Corps Air Station Futenma in Ginowan, also in the prefecture.
The fresh legal battle over the long-running dispute started in August 2018 when the prefectural government revoked the permit granted by a former governor to reclaim land off Henoko to build the Futenma replacement facility, citing new related developments and findings, including the discovery that the seafloor in some parts of the reclamation area is extremely soft.
The Defense Ministry responded by filing a formal request to the minister of ｌand, infrastructure, transport and tourism at that time to invalidate Okinawa’s decision. The minister, who is in charge of issues concerning the law governing land reclamation, predictably ruled in favor of the ministry, allowing it to resume the reclamation work.
In asking the land minister to invalidate the decision, the Defense Ministry invoked the administrative complaint review law, designed to handle cases in which the rights of citizens have been violated by administrative acts.
The Defense Ministry’s response was clearly a cynical manipulation of the law and has been questioned and criticized by many experts in administrative laws.
The prefectural government argued that the Defense Ministry was not eligible to file a request to the infrastructure minister under the administrative complaint review law, which only allows “private” individuals and businesses to take the action.
The court ruling acknowledged that there are elements in the public water body reclamation law, which defines requirements for land reclamation, that treat the state and the private individual in different ways. But it asserted that there is no essential difference between the two, giving a virtual nod to the central government’s attempt to take advantage of a legal loophole to overcome the problem.
The ruling was also outrageous concerning another key issue.
The prefectural government argued that the minister’s verdict was illegal because he, as a member of the Cabinet, cannot be expected to render a fair decision in response to a request from a government body.
The land reclamation work, formally approved by the Cabinet, has been one of the administration’s top-priority projects.
But the court off-handedly dismissed the local government’s case, saying it cannot be said that the Cabinet decision inevitably forced the minister’s verdict.
That may be true, theoretically. But the prime minister has the power to appoint and dismiss ministers.
Given the process leading to the land minister’s ruling and the political situation surrounding the Henoko issue, there is no doubt that the minister was unable to try to make an independent and neutral decision on his own.
The court ruling also said there is no clear evidence indicating that the prime minister gave instructions or otherwise put pressure on the land minister.
The court refused to see the reality and disregarded the central government’s shenanigans by imposing an impossible burden of proof on the prefectural government. That’s the only possible description of the court’s decision.
If the central government’s questionable approach to responding to Okinawa’s lawsuit is declared legitimate by the judiciary, it can be used in the future for other issues over which the state and a local government disagree in such policy areas as diplomacy, defense and energy.
This is by no means a problem that only concerns Okinawa. That is why Okinawa Governor Denny Tamaki said in the courtroom that the Henoko dispute raises questions that have a direct bearing on the relationship between the central government and local administrations.
But the court simply ignored the issue raised by Tamaki.
The court may point out that an action, whether taken by the government or a private individual, must not be declared illegal even if it runs counter to common sense unless there is indisputable evidence of a violation of a specific provision.
If, however, the court continues handing down rulings that ignore the essence of the issue, public trust in the judiciary will only decline.