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1959 (A) 710

1959.12.16
1959 (A) 710
Judgment upon case of the so-called "SUNAKAWA CASE" [Violation of the Special Criminal Law enacted in consequence of the Administrative Agreement under Article III of the Security Treaty between Japan and the United States of America
Judgment of the Grand Bench, quashed and remanded
THE CONSTITUTION OF JAPAN

We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution. Government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people, and the benefits of which are enjoyed by the people. This is a universal principle of mankind upon which this Constitution is founded. We reject and revoke all constitutions, laws, ordinances, and rescripts in conflict herewith.

We, the Japanese people, desire peace for all time and are deeply conscious of the high ideals controlling human relationship, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving people of the world. We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize that all peoples of the world have the right to live in peace, free from fear and want.

We believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations.

We, the Japanese people, pledge our national honor to accomplish these high ideals and purposes with all our resources.

Article 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.

2. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

Article 31. No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.

Article 73. The Cabinet, in addition to other general administrative functions, shall perform the following functions:

(1) Administer the law faithfully; conduct affairs of state;

(2) Manage foreign affairs;

(3) Conclude treaties. However, it shall obtain prior or, depending on circumstances, subsequent approval of the Diet;

(4) Administer the civil service, in accordance with standards established by law;

(5) Prepare the budget, and present it to the Diet;

(6) Enact cabinet orders in order to execute the provisions of this Constitution and of the law. However, it cannot include penal provisions in such cabinet orders unless authorized by such law.

(7) Decide on general amnesty, special amnesty, commutation of punishment, reprieve, and restoration of rights.

Article 76. The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law.

2. No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power.

3. All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and laws.

Article 81. The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.

Article 94. Local public entities shall have the right to manage their property, affairs and administration and to enact their regulations within law.

Article 98. This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity.

2. The treaties concluded by Japan and established laws of nations shall be faithfully observed.

Article 99. The Emperor or the Regent as well as Ministers of State, members of the Diet, judges, and all other public officials have the obligation to respect and uphold this Constitution.

THE COURT ORGANIZATION LAW

(Jurisdiction of courts)

Article 3. Courts shall, except as expressly provided for in the Constitution of Japan, decide all legal disputes and shall possess such other powers as are specifically provided for by law.

2. The provisions of the preceding paragraph shall in no way prevent preliminary determinations by executive agencies.

3. The provisions of this Law shall in no way prevent the establishment of a jury system for criminal cases elsewhere by law.

THE PENAL CODE

Article 92. (Damage or Destruction of Foreign Flag, etc.) A person who, for the purpose of insulting a foreign state, damages, destroys, removes or defiles the national flag or other national emblem of that state shall be punished with imprisonment at forced labor for not more than two years or a fine of not more than 200 yen, but the crime shall be dealt with only on the request of the government of such state.

Article 130. (Intrusion upon a Habitation) A person who, without cause, intrudes upon a human habitation or upon a guarded home, a structure or a vessel, or who refuses to leave such a place upon demand shall be punished with imprisonment at forced labor for not more than three years or a fine of not more than 50 yen.

THE CODE OF CRIMINAL PROCEDURE

Article 405. Jokoku appeal may be lodged against a judgment in the first or second instance rendered by a High Court in the following cases:

(1) On the ground that there is a violation of the Constitution or an error in construction interpretation or application of the Constitution;

(2) On the ground that a judgment has been formed incompatible with the judicial precedents formerly established by the Supreme Court;

(3) In cases for which there exist no judicial precedents of the Supreme Court, on the ground that a judgment has been formed incompatible with the judicial precedents formerly established by the former Supreme Court (Dai Shin In) or by the High Court as the court of Jokoku appeal or, after the enforcement of this Code, by the High Court as the court of Koso appeal.

Article 410. The court of Jokoku appeal shall quash the original judgment, by means of a judgment, if it finds out that there exists any of the grounds for quashing provided by each item of Article 405. However, this shall not apply, if the existence of the ground does not affect the judgment at all.

2. The preceding paragraph shall not apply to the case where, though there exist some grounds for quashing the original judgment so far as the application of Items (2) and (3) , Article 405 is concerned, yet the court of Jokoku appeal deems it rather proper to break or change the judicial precedent in question instead of quashing the original judgment.

Article 413. When the original judgment is to be quashed on any ground other than the grounds mentioned in the preceding Article, the case shall be either sent back to the original court or the court of the first instance, or transferred to another court in the same class as these courts, by means of a judgment. However, if the court of Jokoku appeal recognizes that it may immediately render a judgment on the basis of record and evidences already made and examined by the original court or court of the first instance, it may render the judgment for the case.

Article 414. The provisions of the preceding Chapter shall apply mutatis mutandis to the trial of Jokoku instance, except as otherwise provided in this Code.

THE MINOR OFFENSE LAW

Article 1. Any person who falls under any of the following items shall be punished with detention or with minor fine:

(1) Any person who has, without justifiable reason, concealed himself in an uninhabited and unguarded house, building, or ship;

(32) Any person who has entered a place where it is forbidden, or who has, without justifiable reason, gone in a rice field or cultivated lands of other person:

THE LAW FOR SPECIAL MEASURES CONCERNING CRIMINAL CASES TO IMPLEMENT THE ADMINISTRATIVE AGREEMENT UNDER ARTICLE III OF THE SECURITY TREATY BETWEEN JAPAN AND THE UNITED STATES OF AMERICA

Article 2. Any person who, without due cause, enters any place the entrance of which is prohibited or does not leave any place when requested, within facilities or areas in use by the United States armed forces (facilities or areas as defined in paragraph 1, Article II of Administrative Agreement; hereinafter the same) shall be sentenced to penal servitude for not more than one year or a fine of not more than 2,OOO yen or minor fine. Provided that, the Penal Code (Law No. 45 of 1907) shall apply when it contains the provisions punishing the offense
Judgment of the Original Court shall be quashed.

The case shall be remanded to the Tokyo District Court.
Regarding the substance of the appeal submitted by Mr. Satao Nomura, Chief Procurator, Tokyo District Procurator's Office:

The substance of the original judgment is that Article 2 of the Special Criminal Law Enacted in Consequence of the Administrative Agreement under Article III of the Security Treaty between Japan and the United States of America is null and void, as it contradicts Article 31 of the Constitution on the premise that the stationing of the United States armed forces in Japan contravenes the provisions of the first part of paragraph 2, Article 9 of the Constitution and, therefore, cannot be permitted to stand.

1. The Court will first examine the meaning of the first part of paragraph 2, Article 9 of the Constitution. It may be stated at the beginning that Article 9 of the Constitution was promulgated with a sincere desire for lasting peace by the people of Japan who, in consequence of the acceptance of the Potsdam Declaration as a result of the defeat of our country and reflecting upon the errors of militaristic activities committed by the government in the past, have firmly resolved that never again shall we be visited with the horrors of war through the action of the government. In conjunction with the spirit of international cooperation expressed in the Preamble and paragraph 2, Article 98 of the Constitution, it is an embodiment of the concept of pacifism which characterizes the Japanese Constitution. The Constitution proclaims in paragraph 1 of Article 9 that "the Japanese people sincerely aspire to an international peace based on justice and order", and that "the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes". Under paragraph 2 of the same Article it is further provided that "In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized".

Thus, this Article renounces the so-called war and prohibits the maintenance of the so-called war potential, but certainly there is nothing in it which would deny the right of self-defense inherent in our nation as a sovereign power. The pacifism advocated in our Constitution was never intended to mean defenselessness or nonresistance.

As it is clear from the Preamble of the Constitution, we, the people of Japan, desire to occupy an honored place in international society, which is striving for the preservation of peace and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth, and affirm that we have the right, along with and in the same manner as all the people of the world, to live in peace, free from fear and want.

In view of this it is only natural for our country, in the exercise of powers inherent in a state, to maintain peace and security, to take whatever measures may be necessary for self-defense, and to preserve its very existence. We, the people of Japan, do not maintain the so-called war potential provided in paragraph 2, Article 9 of the Constitution, but we have determined to supplement the shortcomings in our national defense resulting therefrom by trusting in the justice and faith of the peace loving people of the world, and thereby preserve our peace and existence.

This, however, does not necessarily mean that our recourse is limited to such military security measures as may be undertaken by an organ of the United Nations, such as the Security Council, as stated in the original decision. It is needless to say that we are free to choose whatever method or means deemed appropriate to accomplish our objectives in the light of the actual international situation, as long as such measures are for the purpose of preserving the peace and security of our country. Article 9 of the Constitution does not at all prohibit our country from seeking a guarantee from another country in order to maintain the peace and security of the country.

Now, therefore, let us consider the legal intent of paragraph 2 in the light of the purport of Article 9 elucidated above. It is entirely proper to interpret that the prohibition of the maintenance of war potential contained in this paragraph was intended for the purpose of preventing Japan from maintaining the so-called war potential of its own, exercising its own control and command over the same, and thereby instigating a war of aggression renounced forever in the first paragraph of the Article. Putting aside the question of whether paragraph 2 prohibits the maintenance of war potential even for self-defense, what has been prohibited by this paragraph is the possession of war potential of our own over which we can exercise the right of command and supervision. In final analysis, it means the war potential of our country; and consequently, it may be properly construed that the provision of paragraph 2 does not include foreign armed forces even if they are to be stationed in our country.

2. The next point in issue is whether the stationing of the United States armed forces in Japan is contrary to the purport of Article 9; paragraph 2, Article 98; and the Preamble of the Constitution. Inasmuch as the stationing of the United States troops in Japan is predicated upon the Security Treaty between Japan and the United States, now under consideration, determination of the constitutionality of this treaty must of necessity precede the determination of this point.

The Security Treaty was concluded on the same day as the Treaty of Peace with Japan (Treaty No. 5, 28 April 1952), and it maintains a very close and inseparable relationship with that treaty. That is to say, under the proviso contained in Article 6 (a) of the Treaty of Peace, it is stated that "Nothing in this provision shall, however, prevent the stationing or retention of foreign armed forces in Japanese territory under or in consequence of any bilateral or multilateral agreements which have been or may be made between one or more of the Allied Powers", thus, recognizing the stationing of foreign troops within the territorial limits of Japan. The Security Treaty is a treaty concluded between Japan and the United States regarding stationing of the United States armed forces, the foreign armed forces recognized in the above provision of the Treaty of Peace. This provision was approved and signed by a majority of forty countries out of sixty United Nations countries.

According to the Preamble of the Japan-United States Security Treaty, the Treaty of Peace recognizes that in consideration of the fact that Japan will not have the effective means to exercise its inherent right of self-defense at the time of coming into force of the Treaty of Peace, and since there is a necessity of coping with the danger of irresponsible militarism, that Japan, as a sovereign nation, has the right to enter into collective security arrangements. Further, the Charter of the United Nations recognizes that all nations possess an inherent right of individual and collective self-defense. It is clear, therefore, that the purpose of the Japan-United States Security Treaty is to provide, as a provisional arrangement, for the defense of Japan, and to stipulate matters necessary to insure the safety and defense of our country, such as granting of the right to the United States to deploy its armed forces in and about Japan to guard against armed attack upon the country. Consequently, it must be stated that the Security Treaty, in its essence, bears a vital relationship with peace and security and also with the very existence of our sovereign country.

In the formulation of the treaty, the Cabinet of the Japanese Government then in power, negotiated with the United States on a number of occasions in accordance with the Constitutional provisions, and finally concluded the same as one of the most important national policies. It is also a well-accepted public knowledge that, subsequent thereto, the question of whether the treaty was in accord with the Constitution was carefully discussed by both Houses and finally ratified by the Diet as being a legal and proper treaty.

The Security Treaty, therefore, as stated before, is featured with an extremely high degree of political consideration, having bearing upon the very existence of our country as a sovereign power, and any legal determination as to whether the content of the treaty is constitutional or not is in many respects inseparably related to the high degree of political consideration or discretionary power on the part of the Cabinet which concluded the treaty and on the part of the Diet which approved it. Consequently, as a rule, there is a certain element of incompatibility in the process of judicial determination of its constitutionality by a court of law which has as its mission the exercise of the purely judicial function. Accordingly, unless the said treaty is obviously unconstitutional and void, it falls outside the purview of the power of judicial review granted to the court. It is proper to construe that the question of the determination of its constitutionality should be left primarily to the Cabinet which has the power to conclude treaties and the Diet which has the power to ratify them; and ultimately to the political consideration of the people with whom rests the sovereign power of the nation.

This is true whether the question of constitutionality of the Security Treaty or the action of the government stemming from the treaty obligation, is directly before the court, or where such a question is to be determined as prerequisite to determining another problem as it is in this case.

3. Accordingly, the Court in proceeding to deliberate over the Security Treaty relating to the stationing of the United States armed forces and the provisions of the Administrative Agreement based on Article 3 of the said treaty, finds that these Security Forces are foreign troops, and naturally they are not a war potential of our country. All command and supervisory authorities are vested in the United States, and furthermore, it is clear that our country has no right to command or supervise such armed forces as we do over our own armed forces. These armed forces are stationed here in accordance with the principle set forth in the Preamble to the Security Treaty, and as stated in Article I of the Treaty, these forces are to be utilized to contribute to the maintenance of international peace and security in the Far East and to the security of Japan against armed attack from without, including assistance given at the express request of the Japanese Government to put down large-scale internal riots and disturbances in Japan caused through instigation of, or intervention by, an outside power or powers. Its objective is to maintain the peace and security of Japan and the Far East, including Japan, and to insure that never again shall we be visited by the horrors of war. It can readily be seen that the reason for permitting the stationing of these forces was none other than to supplement the lack of our own defense power, by trusting in the justice and faith of the peace loving people of the world.

If such be the case, it cannot be acknowledged that the stationing of the United States armed forces is immediately, clearly unconstitutional and void, contravening the purport of Article 9, paragraph 2 of Article 98, and the Preamble of the Constitution. On the contrary, it must be held that it is in accord with the intent and purpose of these constitutional provisions. This is true, regardless of whether the provisions of paragraph 2 of Article 9 were intended to prohibit the maintenance of war potential even for self-defense. (The Administrative Agreement was not specifically ratified by the Diet, but it was signed by the Government on 28 February 1952. The Agreement itself and the Minutes pertaining thereto were prepared at the time of the conclusion of the Agreement and were submitted to the Foreign Affairs Committee of the House of Representatives during the first part of March of the same year; and thereafter, various interpellations were made and answers given in this Committee as well as in the Judicial Affairs Committee of the same House. In respect to the Administrative Agreement there was some discussion to the effect that it should also be ratified by the Diet, but the Government has asserted that since the Security Treaty, which contains the basis for the Administrative Agreement, was ratified by the Diet there was no need for this Agreement to be specifically ratified by the Diet. On the 25th of March, 1952, the Plenary Session of the House of Councillors rejected a resolution which advocated that since the Administrative Agreement is a treaty within the meaning of Article 73 of the Constitution it should also be ratified by the Diet according to its provisions. In the House of Representatives, on the 26th day of the same month of the same year, a resolution that the Administrative Agreement went beyond the scope of the disposition clause pertaining to the United States armed forces delegated to the Government by virtue of Article 3 of the Security Treaty and that it contains substance which requires processing through the Diet under Article 73 of the Constitution was also rejected at its Plenary Session. In view of these facts it must be considered that the Administrative Agreement, which provides for conditions of disposition of the United States armed forces, was already recognized as coming within the scope of the delegation set forth in Article 3 of the Security Treaty, which has already received the sanction of the Diet. Therefore, the contention that it is void and unconstitutional because it had not especially been ratified by the Diet cannot be recognized.)

The original decision, which adjudged that the stationing of the United States armed forces cannot be permitted as it contravenes the first part of paragraph 2, Article 9 of the Constitution, went beyond the scope of the right of judicial review, and constituted an error in interpreting the Preamble of the Constitution and other constitutional provisions cited above. The original court also committed an error when it ruled that Article 2 of the Special Criminal Law was unconstitutional and void, based on the assumption that the stationing of the US troops was illegal. On this point, it is considered that the prosecution's argument, in its final analysis, was well taken. The original judgment cannot escape reversal even without the necessity of arguing other points contained in the appellate brief.

Therefore, this Court renders judgment as set forth in the main text in accordance with the provisions of paragraph 1, Article 410; Item 1, Article 405; and Article 413 of the Code of Criminal Procedure.

This judgment is based on the supplementary opinions of Justices Kotaro Tanaka, Tamotsu Shima, Hachiro Fujita, Toshio Irie, Katsumi Tarumi, Daisuke Kawamura and Shuichi Ishizaka, and a separate opinion of Justices Katsushige Kotani, Kenichi Okuno, and Kiyoshi Takahashi, and on the unanimous opinion of all justices.

THE SUPPLEMENTARY OPINION OF JUSTICE KOTARO TANAKA IS AS FOLLOWS:

I support both the main text and the Reason of the judgment in this case, but desire to supplement the reasons given on the following two points:

1. I shall dwell on the points not taken in issue in the Reason for the judgment of this case. The legal issues in this case are essentially simple and clear. The case merely concerns the defendants, who, without proper justification, entered a facility, entry to which was prohibited by the Special Criminal Law. It would have been sufficient for the court of original instance merely to apply Article 2 of the said law to the facts in the case. However, the original judgment tied Article 2 of the law with the constitutional question involving the stationing of the United States armed forces under the Security Treaty between Japan and the United States, and declared that the stationing of the troops contravened paragraph 2, Article 9 of the Constitution and adjudged that Article 2 of the Special Criminal Law was unconstitutional.

The original judgment thus extended the problem into a realm totally unnecessary for the solution of this case, and uselessly complicated the issue.

Even if the stationing of the United States armed forces is deemed to be unconstitutional for the purpose of argument, I consider that Article 2 of the Special Criminal Law is significant in its own right and is valid. In other words, even if there is a dispute as to the constitutionality of stationing of foreign troops, or even going a step further and assuming that the presence of the troops is unconstitutional, as long as the presence of such troops is an actual reality, it behooves us to respect such presence. To provide appropriate protection for the troops is a simple measure which could be accorded as a matter of legislative policy.

Generally speaking, when a certain situation does in fact exist, even if such a situation is considered to be contrary to law, there exists a legal technique which would make it possible to deal specifically with various legal relationships which might arise therefrom. This on the premise that we recognize the de facto presence of such a situation. This is a general principle which could readily be acknowledged from the point of view of jurisprudence. To expel such an illegal fact in the future is one thing, but to respect an accomplished fact and maintain legal stability is a basic mission of the law. By treating the matter this way, it is possible to avoid indefinite spreading of an improper effect or confusion of law and order, resulting from the presence of such an illegal situation. There are many situations of this nature. Take the simplest example at hand, the presence of illegal entrants, in Japan. As long as they remain within our country, their life, liberty, property and other rights must be protected. This is true all the more so in view of the fact that the stationing of the troops in this instance is contrary neither to law nor to the Constitution.

In this case, if we take into consideration the fact that the stationing of the Security Forces in Japan is an actual reality, the existence of Article 2 of the Special Criminal Law based upon this pre-existing fact can amply and logically be justified in reason without resorting to international practice or comity. Equitable balance of legal penalty prescribed in Item 32, Article 1 of the Minor Offense Law and one prescribed for the offense of intrusion upon a habitation mentioned in the original judgment, is in the final analysis, a matter which falls properly within the province of legislative policy.

Essentially, the question of constitutionality of the stationing of the United States armed forces under the terms of the Japan-United States Security Treaty, is not of such a nature as to be determined as a matter prerequisite to determining problems such as the one before us now. There is absolutely no connection between this problem and that of the validity of Article 2 of the Special Criminal Law. The original judgment fancied that there was such connection and regarded the stationing of troops contrary to the Constitution. In view of this, the original judgment which declared Article 2 of the same law unconstitutional was in error, and the judgment cannot escape reversal even on this one point alone.

2. The original judgment, following the mental process contrary to logic as pointed out in part 1 above, delved into various important problems relating to Article 9 of the Constitution such as the question of self-defense, the Japan-U.S. Security Treaty, and the concept of pacifism in connection with the question of constitutionality of the stationing of the United States armed forces. For this reason, it became necessary for this court to express its view on these points in the Reason for the judgment in this case. With a view to supplementing the Reason for the judgment to a certain extent from the standpoint of the principle of international cooperation embodied in our Constitution, I wish to express my opinion as follows:

The fact that a state possesses the right of self-defense for the sake of preserving its national existence is universally recognized. Self-defense is one of the most fundamental missions and functions of the state. Conceding this, then, what kind of policy should a state undertake in order to achieve effectively the objectives of self-defense? In this connection it is conceivable that in addition to looking to the fulfillment of defensive power of one's own nation, a state may rely upon the guarantee of security by such an international organization as the United Nations, or go a step further and conclude a security treaty with various friendly nations. The determination as to the scope of defensive power, the extent of its fulfillment, or what policies or methods should be adopted in this pursuit is purely a matter of political nature within the discretion of the Government, to be determined in the light of the world situation prevailing at a given time and such other considerations as are pertinent. That which can be determined in the field of law is the mighty principle that the state can and must take some necessary and appropriate measures for self-defense in fulfilling its duty toward its people.

Furthermore, self-defense of a nation is a moral obligation assumed unto itself by the state in the community of international society. In this day and age, the mutual interrelationship of the people of various nations has been magnified and intensified to such an extent that a crisis of one people would inevitably and directly affect the nationals of other countries. Therefore, the problems of self-defense of one country should not be considered severally only from the standpoint of that nation alone. Self-defense by one nation against aggression would, at the same time, constitute defense of another country; and to cooperate in the defense of another country would ipso facto mean the defense of one's own country. To express this thought in another word; in this day and age, the concept of self-defense in its strictest sense no longer exists. The only formula of correlation that exists may be expressed as self-defense means "the defense of another"; the defense of another, equals self-defense. Consequently, whether it be for self-defense or for extending cooperation for the defense of another, it is now an accepted fact that each nation is charged with the duty of assuming its share of responsibility.

In the realm of domestic problems for one to defend himself and others against pressing, unlawful infringement is commonly termed as "Struggle for the rights" which is a natural demand of justice. This refers to the protection of the entire system of law and order. This tenet is the same in the realm of international relationship. The obligation to defend does not necessarily stem from a treaty; neither is it of such character that its performance can be compelled. The duty to defend springs from the concept of natural, universal moral order, that is, the concept of an international cooperative system which constitutes the basis for mutual interdependency and joint relationship existing between and among various peoples of the world. This concept can also be perceived from the spirit of international cooperation referred to in the Preamble of the Constitution. For the Government to take measures in conformity with this spirit would also mean acting within the scope of its discretionary power in the matter of politics which has to be carried out on its own responsibility.

The Security Treaty between Japan and the United States now under consideration in this case can be appreciated only from this point of view, and its substance cannot be said to be incompatible with the spirit of pacifism embodied in Article 9 of the Constitution. The spirit of this Article lies in the prohibition of war of aggression. It does not prohibit us from taking a necessary and effective measure in case of necessity, nor does it deny us the right to provide for self-defense in the event of a state of belligerency resulting from an aggression from without regardless of the desire of our country in the matter.

From time immemorial, the legality of war based on lawful cause such as a war in the nature of self-defense, in which the very life and existence of the state is at stake, has long been justified. The purpose of the Japan-U.S. Security Treaty is to defend Japan against possible aggression which may be induced by the "vacuum of power" within Japan and to maintain peace and security in the Far East which is inseparably related to world peace in general. Inasmuch as the conclusion of the treaty was necessitated by such a dire situation, it cannot be concluded that the stationing of the United States armed forces in Japan as a result of the Treaty was contrary to the provision of this Article. Accordingly, whether or not the "stationing" of such armed forces in Japan constitutes the "maintenance" of war potential within the purview of paragraph 2 of the same Article, although it is our interpretation that it does not, is a matter that has no relation to the substance of the question. If the logic contained in the original judgment is to be admitted, then it would follow that the American armed forces would constitute the maintenance" of war potential even if they were to be standing by outside without being stationed in Japan, and by the same token, any treaty which recognizes such an arrangement would also be unconstitutional.

On the one hand, Article 9 of the Constitution must be interpreted in the light of the concept of eternal peace and international cooperation as proclaimed in the Preamble in its entirety, including paragraph 2 over which the present controversy exists; and on the other, by discerning the present day international situation and its future trend. It is generally recognized as a common principle in the interpretation of law on all occasions, to apply the teleological interpretation based on rational intention, rather than on basis of psychological intention which might have been harbored by the legislators in the beginning, without adhering too closely to the mechanics of expression. This approach must particularly be emphasized in connection with the interpretation of the Constitution.

The spirit of pacifism embodied in Article 9 of the Constitution, taken in conjunction with the concept enunciated in the Preamble is immutable. In essence, it forever renounces aggressive war and the use of force as a means of settling international disputes. However, it must not be misunderstood that Japan, by so doing has been, as a matter of course, exempted from the duty of maintaining peace and security in the community of international cooperative entity. Unless we break away from the self-centered premise of placing national interest first, and take the stand that we will adhere to the universal principle of political morality as it is so reflectively stated in the Preamble of the Constitution; that is, unless we give due consideration to the matter from the standpoint of international dimension, It will be an impossible task to interpret Article 9 of the Constitution.

Considering the issue at hand from this point of view, the strength necessary for self-defense to be maintained by a nation would, in its true substance, aside from its formalistic legal status, assume the characteristic of an international force for the maintenance of peace and security of the international cooperative entity, embracing various states of the world, while at the same time accomplishing the purpose of defense of its own country. Even if it is to be assumed that there still exists a belief that the threat of aggression has not yet been wholly dissolved, and that the peace and security of the international cooperative community cannot be entirely entrusted to the power of the cooperative entity itself, such a view cannot completely be denounced in this period of transition which we face today. If that be the case, the "balance of power" maintained heretofore cannot very well be dissolved categorically under the present day condition. If, however, in the future, certainty of peace should increase, the necessity of maintaining the balance of power may gradually diminish, and disarmament may progressively be brought to reality. Should such time ever arrive, the power which is now being maintained and utilized by the individual peace loving nations for the defense of their own nations in this transition period may gradually change its character to that of an international police force. A power which possesses such a characteristic cannot be reviewed in the same light as a war potential prohibited under paragraph 2, Article 9 of the Constitution.

In short, it is incumbent upon us to interpret the principle of pacifism professed in the Constitution not only from the standpoint of one nation, but also in such a way to be in harmony with the legal conviction of the democratic, peace-loving nations of all the world, bringing it into the realm of the dimension of world law, transcending above the interests of one nation. An attitude which completely disregards one's own defense, and that which assiduously considers only its own defense having no enthusiasm or interest in the defense of other countries are both equally guilty of international egoism, within the meaning of the Preamble of the Constitution which states, "no nation is responsible to itself alone", and cannot be said to be faithful to the concept of true pacifism.

We "aspire sincerely to an international peace", but that peace must be one "based on justice and order" as declared in the opening words of Article 9 of the Constitution. Peace is a dream come true of justice and order, inseparable with "rule of law". The true endeavor for self-defense is the demand of justice, a duty imposed upon all the peoples of the world for the realization of international peace.

For the reasons stated above, I believe that it was proper for this court to rule that the judgment of the original court in declaring that the stationing of the United States armed forces contravened the first part of paragraph 2, Article 9 of the Constitution and therefore cannot be permitted, committed an error in interpreting Article 9 and the Preamble of the Constitution.

THE SUPPLEMENTARY OPINION OF JUSTICE TAMOTSU SHIMA IS AS FOLLOWS:

I agree with the interpretation of the majority opinion that Article 9 of the Constitution of Japan did not deny the right of self-defense of our country per se, that the war potential referred to in paragraph 2 of the said Article meant the war potential of our own under the command and supervision of our country, and that it did not mean the war potential of foreign armed forces over which we have no control.

Inasmuch as paragraph 2, Article 9 of the Constitution is interpreted in accordance with the principles set forth above, there is no alternative but to conclude that our Constitution does not directly provide how our country may, other than by having war potential of our own under our own command and supervision, maintain its existence, (that is to say, by entrusting the defense of our country to foreign troops not under the control of our country) . The Constitution intended to leave the matter to the discretion of the political department. As long as the basic premise of our Constitution is pacifism and international cooperation, it is only natural to expect that the political department, in dealing with this matter, would adhere faithfully to this principles as much as possible; and in this respect, it must be construed that the spirit of pacifism and international cooperation should serve as the basic guide line for the political department in its determination of policies or in the exercise of its discretionary powers. Consequently, there is a limit to the discretionary power of the political department in this respect, and it is to be understood that any ruling which clearly betrays the spirit of pacifism and international cooperation cannot be permitted to stand. On the other hand, when it is recognized that the policy determination made by the political department has not stepped beyond the bound of its discretionary power, it is natural that the court of law, which by its very nature is precluded from participating in politics, should not make any determination as to the propriety of such determination.

The issue at hand in this case is whether or not it is to be admitted that the political department of our country, in making its determination to maintain our national existence by concluding the Treaty of Guarantee of Security (hereinafter referred to as the Security Treaty) and permitting the stationing of the United States armed forces, clearly violated the spirit of pacifism and international cooperation and overstepped the bounds of its discretionary power. Considering the issue from this point of view, it may be stated that the Security Treaty was concluded on the belief that it was necessary to provide a temporary measure for our defense, since our country has been disarmed and lost effective means of exercising our inherent right of self-defense, while militarism had not as yet been driven from the world. It is also clear from the expressed text of the treaty, that the treaty will lose its force and effect when the security measures to be undertaken by the United Nations troops shall have been effectively established in the Japan area. In view of these facts, it seems clear that the political department of our country has arrived at a conclusion, on the basis of realization, that there still exists in the community of nations a danger of aggressive war, and in view of the fact that the international situation is such that the organs of the United Nations, established to maintain peace and security of the world, are still unable to demonstrate their idealistic design, that, for the time being, it is most appropriate to conclude the Security Treaty with the United States and have its armed forces stationed in Japan in order to maintain our national existence, endeavoring at all times, as much as possible, to adhere to the spirit of pacifism and international cooperation embodied in our Constitution. Since it cannot be adjudged that the estimation of the international situation which served as the basis for the foregoing determination was not clearly in error, it is only natural that it can neither be adjudged that the determination of the political department based upon such estimation was clearly opposed to the spirit of pacifism and international cooperation and that it extended beyond the scope of its discretionary power. Admittedly, in the estimation of the international situation, it is not impossible to reach a conclusion different from that expressed above; and as a matter of political discussion. It is not necessarily impossible to argue, on the basis of such different political estimation, that the peace and security of our country can much better be maintained by not having any foreign troops stationed in Japan. However, we are unable to find any basis for declaring which one of the two conflicting estimations of the world situation is clearly wrong, and it seems impossible for anyone, under the present day world situation, clearly and accurately to give proof beyond any doubt that the peace and security of Japan can better be maintained by not having any foreign troops stationed here. So, in ultimate analysis, the issue at hand is, under the existing world situation, which one of the two formulae, not to have any foreign troops stationed in Japan, or to conclude a security treaty and have the United States armed forces stationed in Japan--would better bring about the peace and security of our country in conformity with the spirit of pacifism and international cooperation. It is our opinion that we cannot conclude that the political department has acted beyond the scope of its discretionary power only because it happened to choose the latter formula, unless we can discover a clue which would indicate that the latter formula was clearly improper compared with the former. What is more, the determination of this point involves a vital political decision which has a great bearing upon the fate of our country. The Cabinet has seen fit to conclude a treaty through established procedure; the Diet has ratified the same; and it has received the support of a great majority of the people through elections held on several occasions. Thus, it is natural that such determination of the political department, made within the scope of the discretionary authority delegated to it by the Constitution, must be respected as final and conclusive. For the court of law, which was from the beginning not designed to participate in politics, to step into the arena to review the propriety of determination of such political policy must be declared as not being within the expectation of the Constitution. For the reasons stated above, inasmuch as it cannot be clearly stated that the act of the political department in concluding the Security Treaty and allowing the stationing of the United States armed forces in Japan was unconstitutional, the original decision, which adjudged that the provision of Article 2 of the Special Criminal Law was null and void on the premise that the stationing of the United States armed forces was unconstitutional, was erroneous, and cannot escape reversal.

THE SUPPLEMENTARY OPINIONS OF JUSTICE HACHlRO FUJITA AND JUSTICE TOSHIO IRIE IS AS FOLLOWS:

We agree with the majority opinion, but we wish to present the following supplementary opinion to clarify why we agree with the majority opinion.

1. The Japanese Constitution established the separation of three powers--legislative, executive, and judiciary--and provided that the entire judicial powers shall be exercised by the court. (paragraph 1, Article 76). The Court Organization Law, in turn, stipulated that all disputes of a legal nature shall be tried in a court (paragraph 1, Article 3) , thus making all civil, criminal, and administrative cases, without restricting the subject matter, amenable to judicial tribunal. The Constitution further granted to the court the power to review the constitutionality of all laws, orders, regulations or official acts (Article 81). As a result, whenever a legislative or administrative act becomes a legal issue, including the question of its constitutionality, the whole matter comes under the power of judicial review of the court. This is called the concept of superiority of the judiciary, under which a power superior to that of the legislative and executive is recognized in the judiciary. This is one of the characteristics of the Japanese Constitution. There is, however, a limit even to this superior judicial power. The basic foundation underlying the concept of the separation of powers within the framework of the Constitution is the theory of check and balance among the three powers, as well as a clear cut separation of the respective powers. So, in speaking of the separation of powers, it must be clearly borne in mind that the Constitution never intended that the judicial powers shall be almighty above all things else. For instance, an act of a government of high political nature, having direct relationship to the sovereign act of the state, is beyond the province of judicial review, even if it results in a legal dispute and even if it is legally possible to render judicial determination as to its validity or invalidity. It must be admitted that such determination should be entrusted to such a political department like the Government or the Diet, which owes political responsibility to the people, with whom rests the sovereign power of the state, and ultimately to the political decision of the people themselves. This limitation imposed upon the judicial power, in its final analysis, is derived from the principle of separation of three powers: Although there is no express provision in the Constitution to this effect, it must be interpreted that such is the design inherent in the Constitution because of the very nature of the thing, when viewed in the light of the highly political nature of the act of the government now under consideration, the nature of the court as a judicial organ of the state, and the procedural limitation which inevitably accompanies the trial.

Although we cannot escape from the fact that there are divergent views regarding the origin, the basis for the theory, or the scope of the acts which would fall within the purview of such restriction, such is a well established precedent and an accepted academic theory in the European and American countries, as may be perceived from such expressions as "acte de gouvernement" in French decisions; "act of state" in England "political question", appearing in American cases from the olden days; and "Regierungsakt" or "Hoheitsakt", mentioned in connection with Article 19 of the post-war Bonn Constitution of West Germany. In Japan, too, it is a well-known fact that after the promulgation of the Constitution of Japan, this theory has come to be recognized by many scholars of public law under the concept of the sovereign act of the state.

2. The original judgment in this case ruled that Article 2 of "the Special Criminal Law Enacted in consequence of the Administrative Agreement under Article III of the Security Treaty Between Japan and the United States of America" was unconstitutional and void, and declared that defendants were not guilty, rejecting the plea of the procurator that this law be applied to the case. Upon close scrutiny, the reasons for holding Article 2 of the Special Criminal Law unconstitutional, as contained in the original decision, may be summarized as follows: The provisions of the Article were enacted for the purpose of protecting the legal interests of the United States armed forces stationed in Japan regarding their peaceful use of the facilities and areas, but since "allowing the stationing of the United States armed forces constitute the maintenance of war potential prohibited under the first part of paragraph 2, Article 9 of the Constitution,.........The existence of the United States armed forces stationed in Japan cannot be permitted under the Constitution". Consequently, Article 2 of the Special Criminal Law, established for the purpose of protecting the legal interest regarding their peaceful use of the facilities and areas, in its final analysis, contradicted Article 31 of the Constitution and was, therefore, null and void.

As it may be seen from this ruling, it is clear that the original decision declared Article 2 of the Special Criminal Law null and void on the assumption that the act of permitting the stationing of the United States armed forces in Japan was unconstitutional and void. The basis for permitting the stationing of the United States armed forces in Japan is the "Security Treaty between Japan and the United States", and the United States armed forces are stationed here in implementation of the Security Treaty. Consequently, in reviewing the propriety of the original judgment, this court must first examine whether or not the Security Treaty cited above is itself contrary to the Constitution. This premise has been well pointed out in the majority opinion.

3. The Security Treaty between Japan and the United States was signed on the same day, that is, on 8 September 1951 when the "Treaty of Peace with Japan" was signed between Japan and the allied powers (Treaty No. 5, 1952). It was concluded with the United States of America, according to the proviso contained in Article 6 (a) of the Treaty of Peace, as a measure to insure security for Japan after the effective date of the Peace Treaty, and it maintains an inseparable relationship with the Peace Treaty. The origin of the Security provision of the Peace Treaty may be traced to the Principle No. 4, "Guarantee of Security", contained in the Seven Principles of Peace with Japan. It may be recalled that after the disarmament of Japan, our country was left in a state of vacuum without any means of self-defense; in order to bridge the gap, the United States has endeavored to find ways and means to guarantee our national security, and finally after negotiation with other allied powers, it was decided to include the said security provision in the forthcoming Peace Treaty as one of the basic precepts. Therefore, it may not be an exaggeration to say that the Security Treaty constituted a part of the Peace Treaty itself.

The Treaty of Peace terminated the state of war between Japan and the allied powers, restored complete sovereignty to Japan, and made it possible for Japan thereafter to occupy an honored place in the international society among the powers of the world as an independent nation. It is needless to say that it is a very important treaty and one which has great bearing upon the destiny of our nation. It must be admitted that it is a treaty of this type which possesses an extremely high degree of political nature, going to the very foundation of the sovereign act of the state. In deliberating upon the nature of the Security Treaty, a special care must be taken to remember that Japan was a defeated nation, that at that time she was still under the status of occupation, and that she was not in a position to enter into a peace treaty on a free and equal basis with the other countries. It is needless to say that negotiation for a treaty of this nature under the complicated and ever-changing international situation involves a very high degree of political consideration. In this sense, both the Treaty of Peace and the Japan-United States Security Treaty, which is inseparable from the Treaty of Peace, possess a very high degree of political nature.

4. We believe that the concept that the sovereign act of the government constitutes a limitation on the judicial power should be recognized as inherent in the judicial power itself, even under the Constitution of Japan. With regard to the concept of the sovereign act of the state, there may be many varied problems as to the extent to which it should be recognized; but as long as we do recognize such concept, it must be considered inevitable that a treaty like the Security Treaty now under consideration would come within the application of the concept. Naturally, when the government concludes a treaty and the Diet ratifies the same, it is to be expected that the government, under the duty imposed by law, would on its own responsibility investigate and make a determination of the constitutionality of a treaty involving the question of a sovereign act of the government; and the court, as a rule, should accept such determination. In another word, it must be concluded that the question of constitutionality would necessarily fall outside the purview of the judicial power of the court. The same analogy can be drawn with respect to the case at hand in which the validity of the Security Treaty is not directly before the court for determination, but was taken up for consideration only as a matter prerequisite to the determination of the validity of Article 2 of the Special Criminal Law as applied in the case before us. They are all outside the limit of the courts' power to review; and consequently, this court has no alternative but to proceed to make its adjudication on the premise that the treaty under consideration is constitutional and valid. (It must, however, be pointed out that we do not assert that the Security Treaty is outside the scope of judicial examination because it is a treaty. Neither do we concur with the claim that a treaty does not come within the purview of the court because it is a supreme law of the land on the same basis as or above the Constitution, or that it cannot be subjected to the judicial review of a court of any nation because all treaties possess international characteristics. We believe that a treaty too, so far as its internal, domestic application is concerned, does, as a rule, come within the purview of the court. We believe that a treaty which belongs to the sovereign act of the government, such as the Security Treaty in the instant case, would fall outside the scope of court's power, even with respect to its application in the realm of domestic law, because it is an act of the sovereign power, having high degree of political nature as explained heretofore.

There is another problem which should be given due consideration. That is, even if it is to be admitted that an act of sovereign government, as stated above, is beyond the power of judicial review, the question of whether or not a certain given problem belongs to the category of the so-called sovereign act of the government must, of course, be determined by the court. Furthermore, where an act is claimed to be the act of the sovereign power, the question of whether or not it does in fact exist, or where such an act clearly violates the provisions of the Constitution, such as when its unconstitutional nature is conspicuously clear at a glance (although such a case may be practically non-existent as a matter of actual practice), we would still contend that those questions would be decided by the court as an exception. In those cases, we see no logical reason why the court should be precluded from exercising its power to review. It is my understanding that the reason why the majority opinion ruled that the court, as a matter of rule, had no authority to review the constitutionality of the Security Treaty and yet indicated that, to this extent, and in the sense explained above, there is no element of unconstitutionality in the Security Treaty, was based upon this line of thinking.

5. Nevertheless, the original judgment went beyond the scope of court's power as described herein above, examined the various provisions of the Security Treaty as to their constitutionality, made its determination that the stationing of the United States armed forces under the said treaty was unconstitutional, and adjudicated that Article 2 of the Special Criminal Law was null and void on the premise that the stationing of the troops was unconstitutional. The court, in so ruling, committed an error in the interpretation of the scope of court's judicial review power regarding the sovereign act of the government. The original judgment cannot escape reversal on this point.

Regarding Approval of the Administrative Agreement:

"The Administrative Agreement under Article III of the Security Treaty between Japan and the United States of America", is, by its very nature, a treaty and there is no doubt but that it required approval of the Diet according to the proviso of Item 3, Article 73 of the Constitution. It is my conviction that it is a demand of the Constitution that its approval, whether before or after the fact, must be had by the Diet after full deliberation of its contents. The fact that the United States Senate, in ratifying the Security Treaty now under consideration, did so only after carefully examining the contents of the Administrative Agreement must be taken as a model example. However, as explained in the majority opinion, the government considered it unnecessary to have a special Diet approval of the Administrative Agreement, inasmuch as the Security Treaty, which serves as legal basis for the agreement, has been duly ratified by the Diet; and in the Diet, the resolution that the Administrative Agreement required special approval of the Diet had been rejected both in the House of Councillors and the House of Representatives. With respect to the facilities and areas granted to the United States armed forces, which is made an issue in the instant case, an interpretation to the effect that when the Diet ratified Article 3 of the Security Treaty it also approved the Administrative Agreement inclusively, so far as it concerns this matter, cannot be said to be improper. And, as far as the court is concerned, I believe it is more in line with the concept of the separation of three powers to accept the view of the Government and the Diet as found hereinabove regarding such an act of the Diet as Diet approval of the Treaty.

For the reasons stated above, we concur with the majority opinion.

THE SUPPLEMENTARY OPINION OF JUSTICE KATSUMI TARUMI IS AS FOLLOWS:

1. Points at issue and composition of the Reasons for the judgment of this court.

The original judgment in its substance maintains as follows: "Japan's consent to the stationing of the American troops under the Japan-United States Security Treaty (that aspect of the Treaty which operates as a domestic law) is tantamount to its maintaining war potential prohibited under the first part of paragraph 2, Article 9 of the Constitution, and consequently, the stationing of the United States Security Forces cannot be permitted under the said provisions of the Constitution. The fact that the Constitution itself does not permit the stationing of the American forces is the only, yet the most convincing reason for the ruling that there is no rational ground to accord greater protection to the legal interests of the United States Security Forces in their peaceful enjoyment of the facilities or areas than to a similar legal interest of the general public. Since Article 2 of the Special Criminal Law, as indicated in the original judgment, carries a heavier penalty for the protection of the American Security Forces than that which is prescribed for the general situation under Item 32, Article I of the Minor Offense Law, this Article, in the final analysis, accords greater protection to the American Security Forces without any logical reason, and consequently it violates the substance of Article 31 of the Constitution which provides in effect that, "No person shall be imposed any criminal penalty except according to due (beware of this word: Tarumi's Note) procedure established by law", and therefore is null and void. The fact that the accused committed the act as stated in the indictment can be established by evidence in the case, but application of Article 2 of the Special Criminal Law, which is unconstitutional and void, is something else. The acts of the defendants do not constitute the offense as alleged in the specifications of the indictment.

With reference to the above, the appellate brief contends that, "Article 2 of the Special Criminal Law is not against Article 31 of the Constitution, because there are several rational grounds to justify providing greater protection to the legal interests of the United States armed forces in their peaceful use of the facilities and areas than that of the general public (Point No. 1); that neither does the Japan-United States Security Treaty, which allows the stationing of the United States armed forces, violate the first part of paragraph 2, Article 9 of the Constitution (Point No. 2); that moreover, the determination of the constitutionality of the said treaty (that aspect of the treaty which operates internally) or of the action of the government in concluding the same or that of both Houses of the Diet in approving the same are all beyond the scope of the judicial review power of the court under the Constitution; and that the holding of the original court that both the Security Treaty and the stationing of the American troops under the Treaty were unconstitutional was an error in the interpretation of the Constitution and is improper as it goes beyond the judicial power. (Point No. 3).

Such being the case, the main issue to be adjudicated in this case is whether or not Article 2 of the Special Criminal Law violated Article 31 of the Constitution for the reasons shown in the original judgment.

Now, then, what is the basic purport of Article 31 of the Constitution, which is relied on by the court of original jurisdiction as its major premise? I believe there are two schools of thought in this country regarding this matter. The theory advocated by the first school of thought may be briefly explained as follows:

The purport of this Article is that no person shall be subject to any criminal penalty or other similar criminal, civil or administrative disadvantages in trial, disposition or any other act except as may be provided for by law enacted by the Diet (Procedural Law); nor shall the substantive laws (Criminal Laws, etc.) which serve as the norm of trial for the court to observe in applying the penal procedures, be so improper or unjust as to clearly violate the basic spirit of the Constitution, which respects humanity, human rights and freedom of men. In this sense, penal provisions which are clearly improper violate Article 31 of the Constitution even if they do not violate any other provisions of the Constitution. (It may be interpreted that the original judgment belongs to this school of thought).

The second school of thought holds that "Article 31 of the Constitution merely means that penalties and other similar disadvantageous dispositions must be imposed in accordance with the procedural laws enacted by the Diet, and it does not go so far as to require that the substantive law (the Criminal Law, etc.) shall be clearly improper and unjust in the sense advocated by the first theory".

If the judgment in this instance were to conform to the second school of thought, it would have been sufficient merely to say that "Article 31 of the Constitution never intended to adopt the principle that the substantive criminal laws should never clearly be lacking in logical reasons. The original judgment, in determining that Article 2 of the Special Criminal Law lacked in logical reasons and in adjudging that it violated Article 31 of the Constitution and, therefore is, null and void, committed an error in interpreting Article 31, regardless of its legal basis for concluding that it lacked logical reason." That was all there was to it.

However, it may be analysed that the judgment of this court did not indicate such reasoning, nor did it follow the purport of the due process theory of the first school of thought. There may be room for interpretation that the judgment of this court followed the first theory, judging from the fact that it went so far as to render an opinion (that the court must render its decision in accordance with the laws), which might be said to be unnecessary, nay, prohibited, if the second theory is to be followed, my interpretation is that it would be premature to conclude that there is a tacit indication that this judgment stands on the premise of the first theory.

In my opinion, the judgment of this court arrives at the following conclusions:

"With respect to a treaty which is featured with an extremely high degree of political consideration and having a direct bearing upon the peace and security and upon the very existence of our country, unlike an ordinary treaty, there is a certain element of incompatibility, as a rule, in the power of the court--the court which is endowed with the mission of exercising a purely judicial function--to render legal decisions as to whether or not its substance is constitutional. The power to make such legal determination is outside the purview of the court (prescribed in Article 81 of the Constitution) unless the treaty can be recognized immediately as clearly unconstitutional and void, and should be left primarily to the determination of the Cabinet, which has the power to conclude the treaty, and the Diet, which has the power to ratify the same. Since it is to be construed that the Security Treaty, which serves as the basis for the stationing of the United States armed forces, including the Air Force, which utilized the land within the Tachikawa Air Base at Sunakawa at the time of the incident on 8 July 1957, and the Administrative Agreement based on Article 3 of the Treaty are the ones endowed with such a high political nature as described above, it follows that judicial determination of the court as to their constitutionality is outside the power of judicial review. (Of course, where such a Treaty can be determined clearly at a glance as being obviously unconstitutional and void, it would fall within the purview of the court's power to review, but there is nothing in the Security Treaty, nor in the Administrative Agreement which can readily be recognized as being clearly against the first part of paragraph 2, Article 9 of the Constitution). The original judgment, which held that the stationing of the United States armed forces cannot be permitted as it contravened the first part of paragraph 2, Article 9 of the Constitution, went beyond the scope of the right of judicial review, and constituted an error in interpreting Article 9 and the Preamble of the Constitution. Consequently, the ruling of the original judgment, based on the assumption that Article 2 of the Special Criminal Law was unconstitutional and void was also erroneous. (Furthermore, since the Administrative Agreement, so far as it relates to Article 2 of the Special Criminal Law, provides for the conditions of disposition of the American forces under Article 3 of the Security Treaty, it is regarded as a Treaty on the same basis as the Security Treaty, and the question of whether or not it is unconstitutional because it lacks Diet approval is also beyond the purview of the court's right of judicial review for this reason.)

According to the judgment of this court, the determination of the original court that the Security Treaty violated paragraph 2, Article 9 of the Constitution, and therefore, Article 2 of the Special Criminal Law violated Article 31 of the Constitution, went beyond the court's power of judicial review, and cannot be permitted to stand under the Constitution and also under the procedural law. Consequently, the ultra vires act of the original court in deciding that Article 2 of the Special Criminal Law lacked rational justification, must be declared,

a. From the standpoint of the First Theory described above to be "unconstitutional and unlawful (unconstitutional because it erred in the interpretation of the scope of court's power to review treaties under Article 81 of the Constitution; unlawful because it erred in the method of interpreting Article 2 of the Special Criminal Law), as it went beyond the proper authority of the court", and therefore, the question of whether its interpretation of the first part of paragraph 2, Article 9 of the Constitution was substantively proper or not, need not even be considered. This matter is not subject to judicial review even by the court of the last resort.

b. If on the other hand, it is to be adjudged according to the Second Theory, it would have been sufficient for this court to rule that, "Since it cannot be said that Article 2 of the Special Criminal Law violated Article 31 of the Constitution for the reason that it lacked rational justification, the conclusion of the original court that it did lack rational justification and therefore violated Article 31 of the Constitution was a mistake in the interpretation of this Article regardless of whether the original court stepped beyond its proper authority in ruling that the provisions of the Special Criminal Law lacked rational justification, and regardless of what the substance of such ruling may be " and reverse the decision on that ground.

It is not clear whether the decision of this court follows the first or the second theory, but whichever theory it adopted, it agrees with the conclusion that Article 2 of the said Special Criminal Law cannot be said to violate Article 31 of the Constitution for the reason advanced in the original judgment, and it may logically be construed that there is no dissent as to the ultimate reason for the court decision.

While still holding that the court had no authority to review the constitutionality of the Japan-U.S. Security Treaty, the decision of this court, nevertheless, proceeded to adjudge whether the treaty conforms to the first part of paragraph 2, Article 9 of the Constitution. In the process of its reasoning, the court began its explanation with the assertion that Japan had the inherent right of self-defense, thus rendering an opinion on the intent of the provisions of the Constitution referred to above and went even so far as to make determination on a substantive constitutional problem and rule that Japan's choice of concluding the Japan-U.S. Security Treaty as a means of defending herself and maintaining peace by relying upon foreign troops over which Japan herself would have no right to exercise control or supervision, and allowing the stationing of the U.S. troops within Japan under the terms of the Treaty cannot be said to be "obviously and clearly" unconstitutional. This approach of the court in this instance, it is needless to say, was followed for the purpose of examining whether a treaty of this nature should not also be subjected to the court's power of judicial review.

The judgment of this court further considered, by way of precaution, whether or not the Administrative Agreement which serves as the legal basis for the Special Criminal Law now under discussion in this case, is unconstitutional and void as it lacked the formality of Diet approval, and adjudged that the court did not have the power to review this point. This opinion may merely be obiter dictum, but it is expected to become a criterion to bind the court under our procedural law, when the case is remanded to the lower court for new trial.

2. Court's Power of Judicial Review. The court has the power to review the constitutionality of any law, including ordinary treaties when applied as a domestic law, orders, regulations or an official act (Article 81 of the Constitution). This is the basic principle. However, under the concept of separation of three powers as embodied in the Constitution; and in the light of the nature of the judicial power and method of its execution and its effect, there are certain matters which should be excluded from the application of the court's power to review as an exceptional case, such as certain acts of the Houses of the Diet or that of the Government for the reason that it is improper for the court to review. I do not claim to know such expressions as the "Act of government", "Act of high authority not subject to the court's examination" or "political questions" as found in the European and American Constitutions, but in our country there is in existence an academic theory to the effect that certain acts of the Diet done in the name of the State or of the government are not subject to the power of judicial review, even though, admittedly, it is difficult to define the term or to list all such acts which would come under such concept. This point is clearly stressed in the third point of the gist of the appeal. The court looked into this point and adjudged that the Japan-U.S. Security Treaty (and the Administrative Agreement under Article 3 of the Security Treaty) is "featured with an extremely high degree of political consideration, having bearing on the very existence and on the peace and security of our country, and are of such a nature that it would be improper to subject the same to the court's power of judicial review." The court thus holds that the determination of constitutionality of the two treaties was outside the scope of judicial power stipulated in Article 81 of the Constitution, clearly indicating that there is a limit to the judicial power and that there are exceptions even to laws which would not be subjected to the examination of the Judicial tribunal (In the decision of this court, the term "treaty" is generally referred to as that which is promulgated as having force and effect of a domestic law by its own language or purport. Consequently, the basic principle is that if it violates the Constitution, it would be declared null and void on the same basis as any domestic law.) The court cannot deny the effect of these two treaties as they apply as international law, but as long as the act of the government in concluding these treaties and that of the Diet in ratifying them are outside the purport of the judicial review power, it follows that so much of these treaties so concluded and so ratified as are applied as domestic laws would also be outside the scope of the court's judicial power.

The original judgment ruled that, "Since the stationing of the American troops under the Japan-United States Security Treaty contradicts the first part of paragraph 2, Article 9 of the Constitution, Article 2 of the Special Criminal Law violates Article 31 of the Constitution". Ruling on this point, this court stated that, "The original court cannot bc permitted to declare that Article 2 of the Special Criminal Law violated Article 31 of the Constitution on the basis of conclusion reached without proper authority, that the said Treaty was unconstitutional. This is so because the constitutionality of a treaty which is featured with a high degree of political nature as stated before, unlike an ordinary treaty or law, would fall outside the review power of the court, unless it is clearly and obviously unconstitutional and void.

There is no other choice but to follow the determination of the Cabinet and the Diet. This is true even with respect to a domestic law, over which the court has no power to review as a matter of exception. It cannot be admitted that the substance of the said Security Treaty and the Administrative Agreement violated provisions of Article 9, paragraph 2 of Article 98, and of the Preamble of the Constitution, and are clearly and obviously unconstitutional and void. On the contrary, it must be stated that they are in accord with the intent and purpose of these constitutional provisions."

It is my opinion that when it becomes apparent that the substance of the Treaty is endowed with high political nature as mentioned heretofore, the court should not rule whether it conflicts with paragraph 2, Article 9 of the Constitution for the reason that it is outside the scope of the judicial power, and it would have been sufficient to rule that all that is required to be done is to respect and apply the provisions of the treaty. Since the determination that a treaty is "unconstitutional and void" and further that "it is immediately clearly unconstitutional and void" can be made only by examining the substance of the treaty through logical thinking, it appears that the decision of this case accepts the proposition that the court has the power to conduct substantive investigation for the sake of formality (examination of the scope of the court's judicial power) to determine whether or not it has the substantive power to review the constitutionality of the treaty. This may be an unnecessary determination in this case, but yet, it would not cause any harm even if such determination is made. (I, however, entertain a belief that perhaps such questionable points, as whether the court should conduct substantive review of the constitutionality of a law even if it may be featured with a high degree of political consideration; whether the court does have such a power; whether in a case of a law endowed with high political consideration the court's authority to review may be delimited, even if the court believes it to be unconstitutional, and therefore it may be prohibited from rejecting the law from application on the ground of its unconstitutionality; and whether the power called the power of judicial power may not be just such a nature of thing, are all worth further consideration.)

3. Article 2 of the Special Criminal Law and Article 31 of the Constitution.

From the procedural point of view, the main reason for the decision of this court is that Article 2 of the Special Criminal Law cannot be ruled as violative of Article 31 of the Constitution for such a reason as advanced by the original court in its judgment. Even if it is to be assumed that the court is to adopt the first theory (the due process theory) described herein before, it is my belief that there is no need to list various justifications for Article 2 of the Special Criminal Law in the decision of the case in this instance. This is quite logical because it would be an impossible task to sort out one provision out of several thousand different laws and to list all of the justifications for this provision as it relates to every one of the provisions of all the laws. The imports of individual laws and their separate provisions, and that of the entire legal system, which is an accumulation of all the laws and their provisions, is indeed, pregnant with a wealth of meanings and is most fluid. Be it as it may, let us touch upon one or two reasons which should be advanced in justification of Article 2 of the Special Criminal Law in this case.

First of all, a criminal act in violation of this provision would not have occurred unless the United States armed forces are specifically deployed in and about Japan under the Security Treaty and Article 3 of the Administrative Agreement and have in fact occupied the facilities and areas so granted to them. The stationing of the United States armed forces in Japan and the use of special facilities and areas are based upon these two treaties, and since illegality of these treaties under our Constitution cannot be held out against the United States under the principle of international law, it cannot be categorically stated that there is no reason to accord greater protection to the United States Security Forces for the peaceful use of these facilities and areas than that extended to the general public for the similar use of other public or private facilities and areas under Item 32, Article 1 of the Minor Offense Law, regardless of whether the said treaties are constitutional or unconstitutional. (It is not that such protection must be accorded, but it could be. It is all a matter of legislative policy.)

Secondly, the facilities and areas to be accorded protection under Article 2 of the Special Criminal Law do in fact maintain a unique existence, completely different from that of other foreign or domestic, public or private facilities and areas located in Japan, in that they are (a) provided under a treaty, (b) located in Japan for the prime purpose of defending peace and security of our country, (c) used by a foreign nation (d) and used by a military force. Military forces must be permitted, as much as possible, in case of emergency to engage in organized activities on a large scale, quickly and promptly with least interference from other people. For this purpose, it is only proper and fitting that freedom of use of the facilities and areas be granted to the fullest extent to the military forces, or to those accompanying the forces, (the freedom of use by members of the Armed Forces, civilian component, and their dependents for their organized livelihood) for the purpose of conducting maneuvers, at the time of movement, and even in time of peace. People may not be permitted to enter such areas without cause or to bring in obstacles unnecessarily. (There may be occasions when members of the Armed Forces residing at their quarters or attending churches or theaters located within their base are required to rush out on an emergency call and assemble at an open space within the area to perform military duties.) This state of affairs also relates to the security of our country. It is also possible that the facilities and areas in use by the Security Forces may contain dangerous instrumentalities. Our police powers do not extend fully to these areas.

Thirdly, inasmuch as the Security Forces are stationed here for the purpose of defending our country, the friendly relationship between the two countries should not be impaired by troubles resulting from mutual misunderstanding which may be induced by unnecessary entering into the restricted areas in use by the Security Forces. For this reason, or even only as an international comity, according to greater protection of the legal interests of the United States Security Forces may be justified. Article 92 of the Criminal Code of Japan provides for punishment of acts designed to destroy, maim or remove flags or coats of arms of a foreign country for the purpose of humiliating the foreign country, without providing for penalty for destruction of the flag or coat of arms of our own country. (It is to be noted that many other countries have similar legislation). In the same sense, it may be regarded as appropriate to extend protection to this type of legal interests.

Be it as it may! Even if it is assumed that the Japan-U.S. Security Treaty and the Administrative Agreement were unconstitutional, as long as our government has not refused the presence of the Security Forces in Japan, but in fact permitted them to be stationed here, they are stationed in Japan under the justification of the law of justice under international law. In short, they have the right to be stationed in Japan. Consequently, even if we contra-distinguish them from a foreign troop temporarily located within Japan on a simple consent of our government without any treaty, and enact a special legislation such as Article 2 of the Special Criminal Law and accord them somewhat greater protection, it is doubtful if such an act can be declared improper and clearly violative of Article 31 of the Constitution.

THE SUPPLEMENTARY OPINION OF JUSTICE DAISUKE KAWAMURA IS AS FOLLOWS:

I concur with the majority opinion, but since I feel that the reason given for the adjudication in regards to the Japan-United States Security Treaty (hereinafter referred to as the Security Treaty) seems somewhat over-simplified, I would like to present my supplementary opinion concerning this point.

1. Our country has renounced war and prohibited the maintenance of war potential under Article 9 of the Constitution. As to how and by what means we are to maintain our peace and secure our existence, the Constitution has no clearly expressed provision, but the fact that we can take appropriate defensive measures for the purpose of maintaining our peace and security and to insure continued existence of our country is a matter within the inherent rights of a sovereign power and is in consonance with the spirit and purport of our Constitution. This fact has already been discussed and explained in the majority opinion.

2. The law, however, does not predetermine uniform policy for the national administration as to what type of policy should be adopted for the purpose of accomplishing the supreme objective of the State--the maintenance of peace and security of our country and preservation of its existence. Consequently, it is proper to conclude that such a matter is ultimately entrusted to the discretion of the political departments of the State and to their teleological consideration. That is to say, the selection of a national administrative policy as to whether a security treaty should be arranged with a foreign country in order to accomplish the objective of the State mentioned above, or whether the policy of permanent neutralism should be adopted, is a matter to be determined by the exercise of this discretionary power taken into consideration which choice is more teleological and suitable for the attainment of the national objective. It must further be remembered that in making a political determination regarding such a national administrative policy, there is no objective standard which could be used to adjudge that one policy is of absolute truth and the other has not a speck of truth. Furthermore, in our actual experience most of the national policy makings we encounter which require political evaluation are multiple and pluralistic in nature, and it is inevitable that there be some conflicts in view regarding evaluation of various aspects. It is, therefore, proper to interpret that as to which one of these conflicting views is to be adopted is a matter to be entrusted to the policy of the political department of the government or to its discretionary power. Even if there arises a question of propriety as to its determination, it cannot be said that this immediately leads to the question of illegality. However, in concluding a treaty, and in the exercise of its discretionary power in determining what formula and substance is to be adopted, it is only natural to assume that the political department should be guided by the basic principle of pacifism and international cooperation embodied in our Constitution and take measures best fitted for the purpose of accomplishing the national objectives described above. The discretionary power of the political department must be respected, but there is a limit to such discretionary power. If it should ever over-step its bounds, or abuse its authority and take measures which are in clear violation of the principle of pacifism and international cooperation or which are in contravention of other provisions of the Constitution (for instance, if it permitted stationing of troops for the purpose of launching an aggressive attack and there existed a clear violation) , then it would be proper to construe such acts of the political department as coming within the purview of the power of judicial review.

3. Now let us review the Security Treaty, which serves as the basis for the stationing of the United States armed forces, from the viewpoint explained above. The Security Treaty (consisting of four paragraphs Preamble and four Articles) was concluded as a temporary measure until there shall have come into existence sufficient security measures established by the United Nations, etc.; and its Preamble proclaims:

"The Treaty of Peace recognizes that Japan as a sovereign nation has the right to enter into collective security arrangements, and further, the Charter of the United Nations recognizes that all nations possess the inherent right of individual and collective self-defense. In exercise of these rights, Japan desires, as a provisional arrangement for its defense, that the United States of America should maintain armed forces of its own in and about Japan so as to deter armed attack upon Japan. The United States of America, in the interest of peace and security, is presently willing to maintain certain of its armed forces in and about Japan......". Thus, it declares that an arrangement concerning stationing of the troops in Japan is for the purpose of the defense of Japan and for the peace and security of the United States of America.

4. Now, in Article I of the same treaty, the purpose of the stationing of the United States armed forces is outlined; and in effect, it is stated that they be utilized to contribute to the maintenance of international peace and security in the Far East and to the security of Japan against armed attack from without, including assistance given at the express request of the Japanese Government to put down large-scale internal riots and disturbances in Japan, caused through instigation or intervention by outside power or powers. With respect to the expression "contribute to the maintenance of international peace and security in the Far East", contained in the purpose clause above, there apparently arose a theory that in such a statement there is an inherent danger of involving Japan in a war which has no relationship with the defense of Japan, and this statement therefore, is unconstitutional.

Determination of whether or not there is such a danger cannot be determined from the context of the treaty alone. Rather, it is a matter which would be affected by how the Far Eastern situation or the international situation is evaluated and assessed.

From another point of view, it can be stated that peace in the Far East has a very close relationship with the peace and security of our country, and the stationing of the American forces for the purpose specified above would serve to maintain peace in the Far East by preventing aggression before its inception and would thereby lead to the defense of peace and security of our own country. At least, it can be concluded that there is no ground to recognize the claim that the evaluation of the political department in concluding the treaty, apparently on the basis of the above analysis, was clearly erroneous in evaluating the situation when compared with the adverse theory and, therefore, is illegal.

There is also a theory that the granting of permission to allow stationing of the American forces would place the Communist block countries in the role of imaginary enemies and this therefore, violates the spirit of pacifism and international cooperation professed in our Constitution. Admittedly, there is no doubt that it would be a most hoped for solution, if at all possible, for Japan to rely upon the aid of the United Nations forces "as well as the peoples of the possible adversary countries" from the standpoint of our Constitution; but under the situation now prevailing in the United Nations, it is clear that such a formula can never be accepted. Neither can we find any evidence which would conclusively establish that adoption of a formula which would not recognize stationing of any troops in Japan as the only way truly to conform to the demand of the pacifism and international cooperation and to secure Japan's existence in comparison with the formula of stationing the American forces under the terms of the Security Treaty. In essence, the Security Treaty, as its express language indicates, was entered into for the purpose of maintaining the peace and security of our country and to preserve our national existence, and we find nothing in the exercise of the discretionary power of the political department regarding the substance of the treaty which is clearly unconstitutional and unlawful.

5. Since it is conceivable that if the Security Treaty conflicts with the Charter of the United Nations, the question of violation of paragraph 2, Article 98 of the Constitution would also arise under the theory of the Supremacy of the Charter (Article 103 of the Charter of the United Nations) . I shall also briefly touch upon the relationship between the said Charter and the Security Treaty. According to the Treaty of Peace with Japan, concluded on the same day as the Security Treaty, Japan has agreed to accept the obligations set forth in the Charter of the United Nations (Article 5 (c)). It further states that "the Allied Powers for their part recognize" that Japan as a sovereign nation possesses the inherent right of individual or collective self-defense referred to in Article 51 of the Charter of the United Nations and that Japan may voluntarily enter into collective security arrangement." (Article 5 (c)) In the exercise of the right to enter into security arrangements recognized in the said Treaty of Peace, it can readily be perceived that Japan, desiring stationing of the United States armed forces, as a provisional arrangement for its defense (paragraphs 3 and 4 of the Preamble), concluded the Security Treaty. Since that time both Japan and the United States have affirmed the principle that all military actions of the Security Forces shall be taken within the limit of the United Nations' Charter. (The Joint Communique of the Prime Minister and the President released on 21 June 1957; The Japan-United States Exchange of Notes between the Foreign Minister and the Ambassador of the United States Regarding Relationship Between the Japan-U.S. Security Treaty and the Charter of the United Nations, dated 17 September 1957). Under the terms of these international commitments, military actions to be taken by the United States armed forces under the Security Treaty may be construed to fall under the permissible limit only when they are based on the resolution or recommendation of the United Nations Organization, or when deemed to be conducted in the exercise of "the inherent right of individual or collective self-defense," as provided in Article 51 of the Charter of the United Nations. Restated, it seems to be a proper interpretation that the Security Treaty does not deviate from the Charter of the United Nations or the Treaty of Peace, but that it is subjected to a certain limitation that military action may only be taken within the framework of the mandates of these basic treaties. In view of this, it must be concluded that neither the Security Treaty nor the stationing of the United States armed forces contravenes the Charter of the United Nations, and that there is nothing to indicate that they violate paragraph 2, Article 98 of the Constitution.

THE SUPPLEMENTARY OPINION OF JUSTICE SHUICHI ISHIZAKA IS AS FOLLOWS:

I concur with the majority opinion, but wish to submit my supplementary opinion as follows:

1. I would like to add herewith some of my views, as I find it difficult to understand fully the explanation given in the majority opinion.

I do not think there can be any objection to the fact that this country has the right to defend itself against imminent and unjust aggression in order to maintain our peace, security and existence; to banish tyranny, slavery and intolerance, and to occupy an honored place in an international society. Neither is there any person who would claim that he must yield to a state or a group which does not desire international peace based on justice and order. It is only natural that our country can exercise the right of self-defense herself, under unavoidable circumstances, to prevent imminent and unjust aggression. If it is to be held that the exercise of such right is prohibited, the right of self-defense would be an empty expression with no substance. As long as it is conceded that our country can herself exercise the right of self-defense, it logically follows that she can possess means effectively and appropriately to meet eventualities.

Although Article 9 of the Constitution provided for the renunciation of war as a sovereign right of the nation and the threat or use of force as means of settling international disputes forever, and declared that war potential will never be maintained for the accomplishment of these purposes, it can hardly be interpreted as categorically prohibiting our country from possessing the means of exercising the right of self-defense, that is, the possession of the means to protect herself.

It is presumed that the purpose of war as a sovereign right of the nation and the threat or use of force as means of settling international disputes is to conquer and subjugate the opponent with an intent to decide the issues in battle, in victory or defeat, thereby concluding the international disputes unilaterally to the benefit of one country. It is my interpretation that Article 9 of the Constitution was designed to prohibit maintenance of war potential for such purpose as this. This is completely different in its legal meaning from the possession of the means of self-defense and the exercise of the right of self-defense, described hereinbefore. A rigid line of demarcation should be drawn between them, and no confusion between the two can be permitted.

With respect to the means of self-defense, we often encounter some people who maintain, listing certain crude and primitive type of weapons, that only such weapons as can readily be devised by the people to meet various circumstances expediently can be permitted and in this connection list certain crude and primitive type of weapons. However, in the light of the actual conditions, such instrumentalities are not worthy of being reckoned among the means of self-defense. In view of this practical situation, it is an inevitable conclusion that it is legally possible for a nation to organize and equip in advance a means which is appropriate and effective.

The aggression such as the one mentioned above may assume milliards of shapes and forms, depending upon the time and situation, and cannot be readily foreseen; and consequently, the manner in which such aggression can be countered effectively and appropriately is also difficult to foresee beforehand. Whether a nation should or should not maintain effective and appropriate means of self-defense to meet the aggression (and if it is to be maintained, then in what form and to what extent) must be determined after a careful analysis of the domestic as well as the international situation and trend. (The form and the scope of such a defensive means must be maintained at that level which is sufficient to meet any aggression, but not to the extent as to constitute aggression toward the others; and the defensive action to be taken must be of a temporary measure to meet the present need until such time as a settlement is made in accordance with the Charter of the United Nations.) These matters by their very nature are incompatible with the function of the judicial tribunal which was not meant to interfere with the matter of politics. These matters should be determined exclusively by the government and the Diet on their own political responsibility and do not belong to the legal sphere of the judicial review. This is a logical conclusion, naturally flowing from the fact that our Constitution is based upon the principle of separation of three powers.

As stated before, under the proposition that it is possible to maintain means of self-defense within the framework of our Constitution, it cannot be concluded that a treaty entered into by our country with a foreign government for the purpose of providing security for our country by arranging for military assistance for defense when our means are either non-existence or inadequate as long as such a treaty has been approved by the Diet. In brief, my opinion with respect to this point coincides with that of Justice Shima in his supplementary opinion and also with that of Justice D. Kawamura as expressed in paragraphs 2 to 4 of his supplementary opinion with only a few minor differences, and I would like to refer to their opinion at this time.

When we stand on such a premise, the only conclusion that can be reached is that the Security Treaty between Japan and the United States does not contravene the Constitution. Consequently, the contention of the original opinion that the stationing of the United States armed forces under this treaty cannot be permitted under our Constitution can no longer be maintained.

2. Whether the Supreme Court has the power to review the constitutionality of a treaty has not necessarily been clarified by the majority opinion.

It would be a gross mistake if we were to reach a conclusion that would deny to the Supreme Court the power of judicial review on the ground that Article 81 of the Constitution, which provides for the review power, did not contain the term "treaty".

Let us assume for a moment that there was concluded a treaty which contravened the provisions of the Constitution dealing with the fundamental organization of the country or with the basic human rights of the people. I do not think that the Supreme Court should idly sit and ignore such a state of affairs.

I take the position that the Supreme Court has the power to review treaties, and concur with the opinion of Justices Okuno and Takahashi which holds that the Security Treaty in the instant case is not unconstitutional. I further support the opinion of Justice Kotani on this point so far as it coincides with that of the two justices referred to above.

3. Reference is made herewith with respect to the appellate argument explanation of which was omitted in the majority opinion.

I concur with Point No. 1 of the Supplementary Opinion of Justice Tanaka and Point No. 3 of the Supplementary Opinion of Justice Tarumi, and will add the following view of my own.

The original judgment ruled on one hand that the stationing of the United States armed forces in our country cannot be permitted under our Constitution, but on the other hand held that, "notwithstanding the fact that Japan is under international obligation, as long as the Security Treaty and the Administrative Agreement do exist, to grant to the United States the right to deploy its armed forces in Japan and the use of the facilities and areas necessary for this purpose and to provide protection for the peaceful occupancy". At least, it seems to hold that so far as the United States is concerned, it has the right to station its armed forces in our country, and for Japan to recognize the obligation that we must respect such a right. This adjudication must have been made on the assumption that even though the treaty may be null and void so far as its domestic application is concerned, under the international law it still preserves its force and effect.

According to this view, under international law as long as the United States armed forces are in fact stationed in Japan, with the consent of our country, regardless of whether such status is constitutional or otherwise from the domestic law point of view, legislation of a criminal law for the purpose of protecting the peaceful use of these facilities by the armed forces cannot even be thought of as being in violation of the spirit of the Constitution, until the effect of the treaty is dissolved in accordance with the international law. Furthermore, the legal interest involved in this legislation differs diametrically from that of the offense of intruding upon the habitation provided under the Penal Code or in the Minor Offense Law. The question of what type of criminal legislation the government is going to enact for this purpose is a matter within the province of legislative policy to be determined by the government and the Diet on their own political responsibilities. In the exercise of their discretionary power in the matter of politics, these agencies of the government provided in Article 2 of the Special Criminal Law a penalty lighter than that under Article 130 of the Penal Code, but heavier than one under Item 32, Article 1 of the Minor Offense Law. It is hard to understand why the original decision pointed out this fact and adjudged that the government provided a heavier penalty against the people without any rational justification. (According to the records, the facilities in use by the United States armed forces involved in this case are surrounded with barbed wire fence, encircling such areas as barracks, quarters, arsenals and runways. It should be remembered that the place where the alleged unlawful entry took place was in the vicinity of one end of the runway, and that a number of people entered from the point where the above-mentioned fence was broken.)

In any event, it must be stated that the conclusion of the original court that Article 3 of the Special Criminal Law violated Article 31 of the Constitution was too hastily drawn.

THE OPINION OF JUSTICE KATSUSHIGE KOTANl IS AS FOLLOWS:

1. Although I agree with the majority opinion as contained in the "Main Text", I disagree with that portion of the gist of the "Reasons" which states in effect that, "the Security Treaty is featured with an extremely high degree of political consideration......therefore, unless the said Treaty is obviously unconstitutional and void, it falls outside the purview of the power of judicial review granted to the court".

The substance of my view in this case is that Article 9 of the Constitution does not deny Japan her inherent right of self-defense, to which she is entitled as a sovereign nation, and aside from the question of whether the provision of the first part of paragraph 2 of the same Article prohibits Japan from maintaining its own war potential even for self-defense, it must be interpreted that this provision does not include war potential of a foreign country over which Japan has no right to command or supervise, unless it is stationed here for the purpose of accomplishing the objectives prohibited under paragraph 1 of Article 9. In the case at hand, under the terms of the Security Treaty between Japan and the United States, the Armed Forces of the United States in Japan are not stationed for the purpose of committing aggression prohibited under paragraph 1 of Article 9; but on the contrary, it is clear from the provisions of the Preamble and Article 1 of the Security Treaty; paragraph c, Article 5 and paragraph a, Article 6 of the Treaty of Peace and Articles 51 and 52 of the United Nations Charter, that they are stationed here in order to maintain peace in the Far East and to contribute to the security of Japan. Consequently, it must be concluded that they do not come within the meaning of war potential prohibited by the first part of paragraph 2, Article 9 of the Constitution. That being the case, it is clear that the provisions of Article 2 of the Special Criminal Law, enacted in consequence of Article 3 of the Security Treaty and designed to protect security of the said United States Security Forces, do not in any way violate Article 31 of the Constitution. For this reason, it is my opinion that error in law was committed in the interpretation of Article 9 of the Constitution, which served as the basis for the decision of the original court. The Appellate Argument of the Prosecutor is well founded, and the original decision should be reversed and remanded for new trial.

2. Hereinbelow, I shall express my opposing view on the question of "Treaty and the Power of Judicial Review" on which point I disagree with the majority opinion.

Paragraph 3, Article 76 of the Constitution provides, "All judges shall be...... bound only by this Constitution and the laws". Article 81 of the Constitution further provides that "the court has the power to determine the constitutionality of any law, order, regulation, or official act". In short, the Court has the power of judicial review. Could it be that under these provisions, the court does not have the power to review constitutionality of a "treaty"? Before proceeding with this question it is necessary to analyse two or three points which would serve as the basic tenet to this problem.

The first point is that treaties are international contracts between and among one country and another, and they may be generally classified into two categories--those that have a binding power only upon the contracting powers, that is, ones which have the force and effect of international law, and those which have binding force also on the nationals of the contracting powers, that is, those that have internal force and effect. Any legal dispute between the contracting powers arising out of interpretation of a treaty or matters relating to its force and effect are matters properly within the jurisdiction of the International Court of Justice (Reference: Article 36. Statute of the International Court of Justice, Treaty No. 2, 1954). However, even with respect to matters falling within the field of application of international law, if they become involved in an internal legal dispute within our country, I believe they will fall within the purview of our judicial scrutiny. Now let us turn our attention to those treaties which have legal efficacy internally. We find that there are those which spell out the purpose of the international commitments in part or en toto in the treaties themselves, and there are those which leave it to implementing municipal laws to carry their purpose into force. In such instance, I am sure there is no question but that such municipal laws would naturally come within the purview of the "law" provided for in paragraph 3, Article 76 and Article 81 of the Constitution and as such would be subject to judicial review of the court. It must also be said that those treaties which are themselves operative internally would have the same legal efficacy as those which operate through implementing local laws. This is so for the reason that in both cases there is no difference so far as their binding power or legal force over the nationals of the contracting powers is concerned.

As for Premise Number 2, the provisions of Article 98 of the Constitution, when they were first proposed in a draft outline as Article 93, read, "The Constitution, and the laws enacted in accordance therewith, and the treaties shall be the supreme law of the nation, and any law, ordinance, imperial rescript or other act of government, or any part thereof contrary to the provisions hereof shall lose all its force and effect". This outline was originally suggested by the occupation headquarters and adopted en toto by the government when it was submitted to the Constitutional Convention. This matter is now a well-known fact. Now, it may be observed that this proposal is of substantially the same as paragraph 2, Article VI of the United States Constitution which states, "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding". Granting that in a country like the United States, where there are Federal Constitution, laws and treaties superimposed over and above the constitutions and laws of various states, it is only natural to expect the Federal Constitution, and the laws and treaties promulgated in accordance thereto to be held out, as against the several states, as the supreme law of the land and that any state constitution or law or any part thereof contrary thereto to the extent it violates the basic laws is null and void. On the other hand, in a unitary state like Japan, there is no need for providing that these three mandates (the Constitution, laws and treaties) , even though both the laws and treaties are based on the Constitution, are the supreme law of the land as stipulated in the proposed draft outline. (Putting aside the question of treaties for a time being, it is a well-known fact that in Japan the Constitution is the supreme law of the nation, that the laws were enacted within the limit of the Constitution, and the orders issued within the limit of the laws. During the fifty years of regime under the old Constitution, however, it was generally understood that the court had no authority to review the constitutionality of a law even if it contravened the Constitution.) Furthermore to provide "the Constitution and......the treaties enacted in accordance therewith......" would appear to anticipate conclusion of an unconstitutional treaty, and therefore, considered to be in bad taste. As a consequence, the draft outline quoted above was amended in the House of Representatives at the New Constitutional Convention, and finally, the substance of the proposed draft was divided into two paragraphs, declaring in the first paragraph that the Constitution alone shall be the supreme law and that any law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions of the Constitution, shall have no validity. This provision, of course. stems from a natural expectation, but the motivating spirit behind it all was to emphasize the supremacy of the Constitution and to render heavier weight to the stipulation in Article 99 immediately following the obligation to respect and uphold the Constitution. And in paragraph 2, it provided for faithful observance of the treaties and established laws of nations. This provision also is clearly self-evident (there was no such provision in the old Constitution); but it should be interpreted to mean that by this Japan has pledged to the world that she would henceforth respect and uphold her international commitments, reflecting upon the criticism directed against Japan by the nations of the world that Japan, in the past, has violated the no-war treaty, Nine-Power Pact, and the established law of nations. Of course, it is needless to say even if the Constitution provides for the laws and treaties separately in separate paragraphs, it should not be interpreted to mean that it provided for the recognition of an obligation to respect and uphold a treaty which is contrary to the Constitution, the basic law of the land. It may be summarized that a treaty is concluded by the Cabinet, ratified and promulgated by the Diet, and becomes binding up the people by promulgation in exactly the same manner as a law.

The Premise Number 3 is the problem of which takes precedence, the treaty or the law, when they conflict with each other. As a conclusion, I believe that it is appropriate to construe that the treaty should take precedence. After all, the treaty is presumed to have been concluded at the time of its conclusion in full consciousness of the existing domestic laws; and consequently, it comes within the relationship of prior law versus subsequent law. The treaty, as a subsequent law, should be accorded priority. Even if the domestic laws are changed subsequent to the conclusion of the treaty, since such a change is being legislated without regard to the intention of the other party to the compact, the treaty should take precedence, as is clear in the light of the basic principle of international trust.

3. I shall now delve into the main discourse of my opinion concerning the treaty and the right of judicial review. There are some who hold that the court has no power to review treaties, since neither paragraph 3 of Article 76 nor Article 81 of the Constitution contains the term "treaty". However, as explained herein above, there is no difference between the law and the treaty in that the treaty becomes binding upon the country and people upon promulgation (Reference: Article 1, Horei (Law Concerning the Application of Laws in General); Article 8, Official Regulation, Imperial Rescript No. 6, 1907 now rescinded), and therefore even if there is no word "treaty" contained in paragraph 3, Article 76 and Article 81 of the Constitution it is reasonable and proper to interpret that it is included in the term "laws" as contained in the said Articles. (This matter may be likened to the term "Jorei" (local ordinance). Even though the term "Jorei" is not contained in Article 81 of the Constitution there is not a thread of doubt that such ordinance is subject to judicial review.) In other words, the treaty, under paragraph 3 of Article 76 becomes binding upon the judges upon promulgation in the same manner as the domestic laws, and at the same time, it must be said that it becomes an object of judicial review under the terms of Article 81. (There is a theory which advocates that Article 81 of the Constitution is not a provision which directly confers the power of judicial review but that such a power intrinsically exists in the court which is bound by the Constitution and the laws. According to this, Article 81 is reduced to a provision which merely stipulates that the Supreme Court is the court of last resort with regard to reviewing of constitutional questions.) Since our court under the existing system is not a court of constitutional problems, but is a judicial tribunal; and therefore, the effect of a decision of unconstitutionality must be primarily taken to mean a declaration that a law or treaty or any part thereof in a given litigation case should be excluded from application as being unconstitutional (or reject its application); not that such an unconstitutional law or treaty be declared null and void. Furthermore, the scope of application of such determination should be limited to the party litigants, the case at hand, and to such other matters as may be included in the main text of the decision, and should not be extended to the general public at large. It should, however, be interpreted that the Cabinet and the Diet are under political obligation to respect the decision of unconstitutionality in the case and take appropriate measures in line with the principle elucidated in the decision. Should it be held that the court's power of judicial review does not extend to the treaties, it would be possible to accomplish revision of the Constitution by treaty without following the procedure for constitutional amendment provided under Article 96 of the Constitution, which requires direct approval of the people. Theoretically, this argument would ultimately affect the system of the separation of three powers and even alter the provisions which guarantee the basic human rights. Would our Constitution ever permit such a conclusion?

The Majority Opinion in the last part of Reason 2 states, "The Security Treaty, therefore, as stated before, is featured with an extremely high degree of political consideration, having bearing upon the very existence of our country as a sovereign power, and any legal determination as to whether the content of the treaty is constitutional or not is in many respects inseparably related to the high degree of political consideration or discretionary power on the part of the Cabinet which concluded the treaty and on the part of the Diet which approved the same. Consequently, as a rule there is a certain element of incompatibility in the process of judicial determination of its constitutionality by a court of law which has as its mission the exercise of the purely judicial function. Accordingly, unless the said treaty is obviously unconstitutional and void, it falls outside the purview of the power of judicial review granted to the court. It is proper to construe that the question of the determination of its constitutionality should be left primarily to the Cabinet, which has the power to conclude treaties and to the political consideration of the people in whom rests the sovereign power of the nation." And further in Reason No. 3, it begins the statement with the expression that, "Accordingly, the court in proceeding to deliberate over the Security Treaty relating to the stationing of the United States armed forces and the provisions of the Administrative Agreement based on Article 3 of the said treaty, finds......", rendering decision on the question of constitutionality of the Security Treaty, and then goes on to state in the middle section, of Reason No. 3, "If such be the case, it cannot be acknowledged that the stationing of the United States armed forces is immediately, clearly unconstitutional and void, contravening the purport of Article 9, paragraph 2 of Article 98, and the Preamble of the Constitution. On the contrary, it must be held that it is in accord with the intent and purpose of these constitutional provisions. It then renders a judicial conclusion in the last part of Reason No. 3 that, "The original decision, which adjudged that the stationing of the United States armed forces cannot be permitted as it contravenes the first part of paragraph 2, Article 9 of the Constitution, went beyond the scope of the right of judicial review, and constituted an error in interpreting the Preamble of the Constitution and other constitutional provisions cited above. The original court also committed an error when it ruled that Article 2 of the Special Criminal Law was unconstitutional and void." (Underscores are added by me).

When the Majority Opinion, pointed out above, is summarized, it renders itself to a conclusion that the Security Treaty possesses an extremely high degree of political consideration, bearing a grave relationship to the very existence of our country, and that the determination as to whether such a treaty is constitutional or otherwise is not, as a rule, compatible with the determination of the judicial tribunal, and consequently the court's power to review is limited only to those which are "immediately clearly unconstitutional and void" and "all other treaties" would fall outside the scope of court's power to review. After so ruling, the Majority Opinion went on to give an interpretation of the intrinsic nature and substance of the Security Treaty and the Security Forces based upon the said treaty and then proceeded to discuss constitutional questions in considerable detail, reaching a conclusion that, "It cannot be acknowledged that the stationing of the United States armed forces is immediately, clearly unconstitutional and void as contravening the purport of Article 9, paragraph 2 of Article 98, and the Preamble of the Constitution. On the contrary, it must be held that it is in accord with the intent and purpose of these constitutional provisions." The court then rendered the decision that the original decision which adjudged that the stationing of the American armed forces under the Security Treaty violated the first part of paragraph 2 of Article 9 is erroneous, and that the court "went beyond the scope of power of judicial review granted to the court."

4. I cannot possibly agree with those portions of the majority opinion I have pointed out herein above. It is needless to say that there are also many laws which have very grave bearing upon the existence of the country, and thus tinged with high degree of political nature. Such a state of being is not confined to the treaties alone. Is it the intention of the majority opinion to limit the court's power to review these laws only in those instances where the laws are clearly unconstitutional in the same manner as the treaties? Unless the answer to this question is in the positive, it seems clear that the reasoning of the majority opinion is not consistent because the treaties are concluded by the Cabinet and ratified by the Diet even as the laws are enacted. The ultimate conclusion reached by the majority opinion in its essence is that the power of judicial review does not extend to important national affairs undertaken by two of the government's branches, the legislative and the executive. This, it is clear, runs counter in the extreme degree to the concept of democratic and peaceful national existence based on rule of law rather than on force as directed in our new Constitution, and is in conflict with the mission of realizing the system of rule of law entrusted to the court. It thus brings about a situation in which the power of judicial review possessed by the judiciary as the only check and balance power over the legislative and executive branches, as envisaged in the Constitution, would not at all extend to matters of grave national importance. (In reality, such a thing as "clearly unconstitutional and void" as claimed by the Majority Opinion cannot exist. It is a spectre which exists only in name), and our system of separation of power would be threatened from its very foundation. As to the holding of the majority opinion that the power of judicial review as a rule is not compatible with the Security Treaty in this case, there is no explanation offered as to the legal basis for such a claim. It must be said that the decision lacks adequate supporting reasons. There apparently exists a theory that certain aspects of the conduct of the Diet or the Cabinet such as the act of government or the discretionary power of the government are beyond the reach of the court's power of review. According to the very nature of the system of separation of powers, the actions taken by or based on the discretionary powers of the Cabinet or Diet within the authorities of these agencies are matters essentially within the province of their respective departments and may not be interfered with by other organs of the government; but when there are elements of unconstitutionality found in the act or in the exercise of discretionary power peculiarity within the power of these organizations, then such would fall within the court's power to review. Not only is there no doubt that such is inherent in the system of judicial review which endeavors to realize a rule of law under which the law is held superior to force, but it is also plain from the clearly expressed provision of Article 81 of the Constitution that, ". . . the court is with power to determine the constitutionality of any law, order, regulation or official act". (It is, of course, conceded that such a matter as the "Surrender document" or the "Treaty of Peace of a defeated nation" would not be subject to judicial review). For the foregoing reasons, I cannot, at least under the Constitution, agree with the theory of the sovereign act of the government or the discretionary power of the government.

Next, while the concept of judicial review should be interpreted to mean "the power to determine whether a given matter is or is not compatible with the Constitution", that is, "the power to review constitutionality" (Article 81 of the Constitution), the majority opinion, in the case of the treaty in this instance, limited the application of the power to review of unconstitutionality only to those which are "immediately, clearly unconstitutional and void", and held that "all others are outside the scope of court's power of judicial review (Note: I construe the term judicial review to mean review of unconstitutionality.)". If this line of reasoning is to be followed, I would conclude that the treaty in this case cannot be recognized as one which is "immediately, clearly unconstitutional and void" and since "all others fall outside the scope of court's power of judicial review" the work of "review of unconstitutionality" has already been completed so far as this case is concerned, and thereafter the court should not adjudge constitutionality or unconstitutionality of the treaty. In other words, since the ruling is that only those which are "immediately, clearly unconstitutional and void" and "all others fall outside the purview of consideration", the court should not at all adjudicate whether it is in conformity with the Constitution or not. If the court should try to adjudicate, this matter, it would constitute an ultra vires act and would be illegal. This point should be self-evident when one takes into consideration a legal axiom that a decision of a superior court binds the court below (reference: Article 4, the Court Organization Law). The purport of the expression "clearly unconstitutional and void" is construed to mean "that which could be discerned as being unconstitutional and void at a glance", but would it be possible to find such a defect in a treaty which has been concluded over a long period of time after marshalling all intellectual faculties and ratified by the Diet and knowledge of the public? In the final analysis, the majority opinion appears to be nothing more than an excuse to satisfy itself on the question of judicial review. Consequently, where the majority opinion ultimately leads to is the same as saying that the court's power to review constitutionality does not extend to a treaty (it may be more accurately referred to as the Security Treaty in the instant case). There is also an opinion that in a matter relating to a treaty and the Constitution a special effort should be made to construe the treaty in such a way as to hold it constitutional. This opinion stands on the premise that the court has the complete power to review a treaty in the same manner as a law, and fundamentally differs from the stand taken by the majority opinion. Next, the majority opinion after concluding that the treaty in this instance is not unconstitutional at a glance, proceeded to determine in considerable detail "all other matters" which itself ruled outside the scope of judicial review, and in conclusion rendered a decision that "the stationing of the United States armed forces conforms to the purport of Article 9, paragraph 2 of Article 98 and the Preamble of the Constitution, and that the original decision contained error in law, which "went beyond the scope of the power of judicial review". To begin with, this is the first trial case since the establishment of the Supreme Court in which the question of treaty versus judicial review was taken up. The nature of the Security Treaty and the Security Forces has been discussed and the constitutionality of the treaty adjudicated in the majority opinion, beginning with the introductory statement of Reason No. 3, and thus, the majority opinion itself has clearly proved the fact that the Security Treaty can well withstand the test of constitutional scrutiny. In view of this state of affairs, it is clear that there was no need for the court in this case to express such an important dictum as, "As to a treaty (more accurately, the Security Treaty in the case at hand) the court has no right to review its constitutionality, unless it is immediately, clearly unconstitutional and void". I see no necessity for such requirement neither from the substantive law nor from the procedural law point of view.

5. Judges are "bound only by the Constitution and the laws" (paragraph 3, Article 76 of the Constitution). Therein lies the inherent function of the Court to interpret and apply the law. It is my belief that it was the recognition of this intrinsic nature of the court which must have been the main reason for the new Constitution to grant to the court the power of judicial review. (In America, in spite of the fact that there is no constitutional provision regarding judicial review, the courts have exercised this power to date from the day of her independence.) What the Constitution has envisaged in this must have been the supremacy of law over force, realization of a society in which justice prevails under rule of law, and bringing into reality the universal principle of "striving for the preservation of peace, and the banishment of tyrany and slavery, oppression and intolerance for all time from the earth". It is further my belief that the end to be attained by this system is not that cases be reviewed for their constitutionality from time to time as they arise, but rather in a negative way to prevent the occurrence of any unconstitutional situation which may arise by the very fact that such a system as judicial review does exist. The majority opinion indicates that, as a rule, the power of Judicial review does not extend to a "treaty with a high degree of political nature, having a vital relationship with the very existence of the nation", thus belittling the Constitution where it relates to matters of national importance. This, it must be pointed out, leads to a thinking which prefers force (powers) over law (the Constitution). Under the old Constitution, there existed the Privy Council as a consultative body for the Emperor. Although its legal responsibility under law was not too clear, it passed on the constitutionality of all treaties (reference: Article 8 of Official Regulation cited previously) and all important proposals of law and imperial rescript and thus protected and preserved our Constitution. As a legal precedent that the Constitution is the basic law of the land and stands above the treaties, there is the following example: Article 1 of Treaty No. 1, 1929, entitled, "Treaty Concerning Renunciation of War", commonly referred to as the Anti-War Pact, contained a provision, "It shall be solemnly declared in the name of the people of each one of the signatories". It was considered that the expression "in the name of the people" contravened our Constitution, and the treaty was ratified with a reservation that that expression would not apply to Japan. (The language of the Declaration of Reservation was, "This is to declare that it is the understanding of the Imperial Government. . . . that under the terms of the Imperial Constitution, the expression 'in the name of the people of each signatory power' contained in Article 1 of the treaty has no application so far as Japan is concerned".) Is it to be understood that the power of judicial review under the new Constitution is weaker than it was under the Meiji Constitution? Take another point for instance. The Japan-Germany-Italy Tri-Party Alliance which served as the motivating force in the outbreak of the Second World War must be regarded as a treaty of high political significance, having vital relationship with the existence of the nation, and I presume that it is possible to arrange its structure in such a way so that it would not at a glance appear "obviously unconstitutional", but would the majority opinion accept it as valid as a matter falling outside the purview of judicial review? The international situation is ever-changing, and the powers of nation too change and shift constantly. When we consider these frailties of nature, we cannot help but feel keenly that the preservation and upholding of the basic law of the land too may not be indomitable. For the sake of the maintenance of peace and preservation of basic human rights I most sincerely pray for the healthy development of the right of judicial review.

THE OPINIONS OF JUSTICES KENICHI OKUNO AND KIYOSHI TAKAHASHI ARE AS FOLLOWS:

Paragraph 1, Article 9 of the Constitution provides for renunciation of war as a sovereign right of the nation and of threat or use of force as means of settling international disputes and, consequently, it seems proper to construe that the provisions of paragraph 2 concerning non-possession of war potential also mean prohibition of maintenance of our war potential over which our country can exercise command and supervision. They do not concern themselves with foreign troops over which our country has no right to command or supervise. Since it is clear that the American Security Forces stationed in Japan under the Security Treaty are not forces over which Japan can exercise command authorities, it seems obvious that it cannot be said that they directly contravene the provisions of paragraph 2, Article 9 of the Constitution. However, whether the stationing of the American troops does or does not violate the spirit of the said article or that of the Preamble of the Constitution requires further scrutiny.

Since the American troops are stationed in Japan under the terms of the Security Treaty and in execution of the Treaty, it is necessary to first determine the constitutionality of this Treaty before adjudicating the constitutionality of the stationing of such troops in Japan. The majority opinion held that the court has no power to review the constitutionality of the Security Treaty. It is not clear whether this means that the court does not have the right to review a treaty, or that it does have the right but that it has no power to do so because the Security Treaty belongs to the so-called sovereign act of the Government. In either case we entertain a different view. Properly speaking, a treaty is an international contract between one nation and another. Some treaties are self-executing and have the same force and effect as a domestic law; others are not themselves self-executing and do not have any force and effect internally but operate to bind the people of the country through implementing domestic law. When a treaty is self-executing and bind the people like a domestic law, it stands subservient to the Constitution which is the supreme law of the land. In such an instance it becomes subject to the so-called court's power of judicial review in the same manner as a domestic law under Article 81 of the Constitution. This is true even in a case where a treaty is to be examined as a prerequisite to determining another problem. It is also patent that the domestic laws enacted to implement a treaty are subject to the court's judicial review. There are some who maintain that Article 81 of the Constitution does not contain the term "treaty", therefore the court has no authority to conduct judicial review, but let us deliberate on this point for a moment. Let us assume that the court determines that a certain treaty is unconstitutional. It only means that the treaty is invalid so far as its domestic application is concerned. It does not deny its validity under international law (notwithstanding the question of whether the Government, in such a case, should take steps to abrogate or amend the treaty or assume the responsibility, under international law, for failure to perform duties under the treaty). Under international law it is still valid as a binding treaty, and the court does not rule on the validity of the treaty as it applies under international law. It is for this reason that the term "treaty" was not inserted in Article 81 of the Constitution and this should not be interpreted to mean that the Constitution intended to deny a court's authority to review the constitutionality of a treaty as it is applied domestically. To repeat, Article 81 provided for judicial review of all laws, subservient to the Constitution, including, without any doubt "Jorei" (local ordinances) provided for in Article 94 of the Constitution even if it were not specifically mentioned in Article 81. Similarly, although treaties are not mentioned in Article 81, but as applied internally, it would naturally come within the term "laws" as used in this Article. It is the same with respect to the term "laws" as used in paragraph 3 of Article 76 and paragraph 1 of Article 98 of the Constitution, in that the term includes treaties to the extent such treaties have the same force and effect as a domestic law. In view of the foregoing, it may be stated that there is no basis for the claim that just because the term "treaties" is not included in paragraph 1, Article 98, it does not come under the Constitution or that it is beyond the reach of the judicial review. Neither can we subscribe to the claim that under paragraph 2, Article 98, which provides, for obligation to faithfully observe treaties, that all treaties, even those which violate the Constitution, bind the people and that they are not subject to the review of the court. If it is to be held that the court's power to examine does not extend to treaties, then it would bring about an extremely inappropriate and unjust consequence that constitutional provisions could easily be changed for all practical purposes without going through the procedure required by the Constitution simply by entering into a treaty with another country, incorporating therein provisions contradicting or opposed to the Constitutional provisions.

Now, with respect to the scope of the power of judicial review, we do not necessarily deny the fact that there are certain aspects of the so-called acts of government or matters relating to political problems over which the court's power may not extend, but we cannot concur with the proposition that such is the case where the only reason is that it is a matter of high political order or that it involves vital national policy. In the first place, enactment of a law or conclusions of a treaty generally involves matters of vital national interest or of high political nature, and the court would naturally be called upon to consider important political problems in the exercise of its power of judicial review. Consequently, if it is to be held that the court has no power to review only because of the fact that the matter involves high political consideration or is a vital policy of the country, then it leads to a conclusion that the court would not have the power to review most of the important laws which were enacted as a result of political consideration. This would not only violate the spirit of the Constitution, which included an express provision under Article 81 specifically granting to the court the power to review all laws and official acts so that the sanctity of the Constitution might not be violated by the act of the Diet or the government, but also nullifies the reason for imposing upon the judges the duty to safeguard the Constitution as provided under Articles 76 and 99 of the Constitution. In short, it may be presumed that an anomalous situation is brought about by this decision because the majority opinion tries to find the greatest common measure between the view that the court has no power to review a treaty and that which holds that the court has no power to review this particular Security Treaty because it belongs to that group of treaties resulting from the sovereign act of the government. Be it as it may, the majority opinion holds that the Security Treaty in this case falls outside the scope of judicial consideration and yet states that the court may undertake to review a treaty if it is "obviously clear" that it is contrary to the Constitution. Thus, it not only lacks consistency in its logic (if those who hold the view that the court has no power to review a treaty also harbor this view, then the situation becomes more baffling), but its approach also fails to conform to the principle enunciated in Articles 81, 76 and 99 of the Constitution as explained heretofore. It seems to conclude that since the Security Treaty is one that possesses a high degree of political nature, having an important bearing upon the very foundation of our national existence examination of its constitutionality should be limited only to that aspect which is clearly and obviously unconstitutional, but does not go any further to delve into more substantive constitutional review. (In the concluding remark, the majority opinion states that the Security Treaty cannot be recognized as being obviously unconstitutional, yet it seems that in process of its review, it delved into the substantive constitutional problems). We hold that it is possible for the court, as a judicial tribunal, to review the Security Treaty from the purely legal point of view to determine whether or not it is in conformity with Article 9 and other provisions of the Constitution in its domestic application. Further, we do not find any special reason which would justify avoiding the issue on the ground that it has to do with a sovereign act of the state.

Now, in considering whether or not the Security Treaty contravenes the spirit of Article 9 of the Constitution or the purpose of the Preamble, it is noted that paragraph 1 of Article 9 prohibits "war as a sovereign right of the nation and the threat or use of force as means of settling international disputes," and in its substance it is the same as the intent of the Anti-War Treaty which declares, "It shall be unlawful to resort to war for the purpose of settling international disputes; and war, as a means of executing national policy shall be renounced". It is our opinion that this purport also coincides with that of paragraph 4, Article 2 of the United Nations' Charter. Paragraph 1, Article 9 of the Constitution, therefore, does not touch upon the question of limiting or prohibiting the right of self-defense of our country but rather, it should be interpreted to mean that "the right of self defense of a nation" is an "inherent right" naturally reserved to our country even as it is recognized as inherent in all sovereign powers under international law. Our Constitution recognizes the "right of survival" of our country as it is clear from the proclamation that ".... we have determined to preserve our security and existence" or ". . . . we recognize. . . . the right to live in peace" as contained in the Preamble. If our country were exposed to the danger of an armed attack from another country, it is only natural that our country should take defensive measures to intercept such an attack in the exercise of our right of self-defense in order to preserve our existence, and it must be construed that our Constitution does not prohibit such an action. If it were to be assumed that our country cannot exercise the right of self-defense or to take defensive measures even in the face of an armed attack, it would only mean inviting self-destruction while sitting idly. To hold that such is the intent of the Constitution is clearly contrary to its recognition of the right of survival.

To rely upon the measures to be taken by the United Nations under Article 39 or Article 42 of its charter to guarantee our security and existence, in the face of imminent danger may be most ideal but it must be admitted that under the present state of affairs measures to be taken by the United Nations cannot be demonstrated effectively nor appropriately. It is inevitable, therefore, that we attempt, as the next best measure, to conclude a collective security arrangement with a certain specific country, and provide for adequate defense for our security and existence with the help of the armed forces of such a country. To permit stationing of the armed forces of such a country within the territorial limits of Japan is nothing more than a defensive measure based upon our right of self-defense or in the exercise of our sovereign right, and it would not in any way violate the principle of pacifism professed in the Preamble of the Constitution; neither would it come within the purview of prohibition envisaged under paragraph 2, Article 9 of the Constitution. The Security Treaty is a treaty concluded between Japan and the United States pursuant to the provisions of Article 5 (c) and the proviso contained in Article 6 (a) of the Treaty of Peace, and it is predicated upon the assumption that "irresponsible militarism has not yet been driven from the world" and that there is a danger that Japan may be exposed to a danger of armed attack. (Estimation of the international situation as to whether there actually exists such a "danger" is a so-called political problem beyond the purview of judicial consideration, and since the matter has already been determined by the government and the Diet as expressed in the Preamble of the Treaty, there is nothing for the court to do but to accept such a finding). The treaty provides that Japan, "in the exercise of its right of individual and collective self-defense" recognized to all nations by the Charter of the United Nations, desires that the United States armed forces be maintained in and about Japan so as to deter armed attack upon Japan, and grants to the United States the right to deploy its armed forces in the areas so designated. The United States stipulates that she accepts the above proposal and agrees to utilize her armed forces so deployed "to contribute to the security of Japan against armed attack from without". It is a collective security arrangement concluded within the contemplation of the United Nations Charter and under the general supervision of the United Nations, pursuant to "the inherent right of individual or collective self-defense" principally as a defensive measure "in the event of occurrence of an armed attack" (Reference Joint Communique of 21 June 1957; Exchange of Notes of 14 September 1957).

Thus, this treaty provides for measures to be taken for self-defense predicated upon the right of self-defense inherent in all states, and it can hardly be termed as a military alliance for the purpose of carrying out an aggressive design. In this sense, it must be concluded that the treaty does not contradict the spirit of Article 9 nor the purport of the Preamble of the Constitution. (The following opinion is expressed with regard to the argument that the Security Treaty provides that the United States armed forces may also be used to contribute to the maintenance of the international peace and security in the Far East: as a consequence of such operation, involves our country in a war which has no connection with the defense of our country, thereby exposing our country once again to the danger or horrors of war contrary to the Preamble of the Constitution. The fact that the circumstances under which the United States armed forces can be mobilized pursuant to the provisions of the Security Treaty is limited to the requirements stipulated in Article 51 of the United Nations Charter; or in other instances, follow the resolution or recommendation of the organs of the United Nations. This matter is clearly acknowledged between the two countries in the exchange of notes cited heretofore. This of course, refers to the situation when "armed attack" has "actually occurred" in the Far East. Furthermore, this occurrence of armed attack in the Far East would, at the same time, threaten the peace of security of Japan since her peace and security relates very intimately and inseparably to the peace and security of the Far East. It is, therefore, possible to arrive at an interpretation that use of the United States armed forces in such an event ipso facto guarantees the peace and security of our country. Whether the determination that peace and security of Japan relates very intimately and inseparably with that of the Far East is right or wrong depends upon the estimation of the international situation or the military situation, which rightfully belongs to the province of the Government or the Diet. Inasmuch as those organs have already made their determination and adopted the foregoing stipulations, we believe that the judicial tribunal should not assert itself to conduct judicial examination of such determination).

It is therefore reiterated that the Security Treaty does not violate neither the letter nor the spirit of Article 9 of the Constitution, nor does it run counter to the Preamble of the Constitution. (Although the Administrative Agreement has not specially been ratified by the Diet, since it is acknowledged as coming within the scope of delegation contained in Article 3 of the Security Treaty, which has received the sanction of the Diet, it cannot be criticised as being unconstitutional). Consequently, the stationing of the Security Forces based upon the Security Treaty and the Administrative Agreement must also be admitted as being constitutional. It is only natural for Japan, as the receiving state, to accord protection for the security of the U. S. military installations, and the propriety of enacting the Special Criminal Law under consideration in the instant case for the purpose of protecting the peaceful use of the United States facilities and areas and provide for greater penalty than that provided under Item 32, Article 1, of the Minor Offense Law is beyond dispute. Such a determination rightly within the scope of the discretionary power of the legislative organ and should be left to the legislative policy of the state. It cannot be said to be contrary to Article 31 of the Constitution. Neither can it be argued that the disparity created in the amount of legal penalty between the two laws constitutes unreasonable discrimination, and therefore transgresses the provision of Article 14 of the Constitution, nor can it be said to violate Article 13 of the Constitution.

In view of the foregoing reasons, it must be concluded that the original judgment erred in the interpretation of the Constitution. The appeal in this instance was well founded on reason and the original judgment cannot escape reversal. While we concur with the main text of the judgment in this instance as advanced by the majority opinion, we predicate our conclusion on different reasoning as set forth herein. (The question of whether Article 9 of the Constitution prohibits the maintenance of our own war potential for the self-defense of our own country is not in issue and has not been directly touched upon in the arguments on appeal; and further, since it is recognized that the determination of this point is not relevant or material for the solution of this case, we will not render opinion on this point at this time.)

In the presence of procurators Kuniichi Kiyohara, Tomokazu Murakami, Daikichi Imoto, and Mitsusada Yoshikawa.
Justice Kotaro Tanaka
Justice Katsushige Kotani
Justice Tamotsu Shima
Justice Yusuke Saito
Justice Hachiro Fujita
Justice Matasuke Kawamura
Justice Toshio Irie
Justice Katsu Ikeda
Justice Katsumi Tarumi
Justice Daisuke Kawamura
Justice Masuo Shimoiizaka
Justice Kenichi Okuno
Justice Kiyoshi Takahashi
Justice Tsuneshichi Takagi
Justice Shuichi Ishizaka
(This translation is provisional and subject to revision.)