1996.08.28

1996 (Gyo-Tsu) 90

Judgment upon case of constitutionality of the forced leasing of land for U.S. Bases in Okinawa prefecture

Judgment of the Supreme Court, Grand Bench, August 28, 1996

Appellant: Masahide Ota, Governor of Okinawa Prefecture
Appellee: Ryutaro Hashimoto, Prime Minister of Japan
A Jokoku appeal was filed by the appellant against the judgment that Naha Branch of Fukuoka High Court handed down on March 25, 1996, in a case concerning a petition for mandamus on the basis of Article 151-2(3) of the Local Autonomy Law (Naha Branch of Fukuoka High Court, (Gyo Ke) No. 3 of 1996). The appellant's petition requested reversal of the judgment; the appellee requested a judgment dismissing the Jokoku appeal. Accordingly, this court renders judgment as follows:
DECREE
The Jokoku appeal is dismissed.
The appellant shall bear the costs of the Jokoku appeal.

The following abbreviations shall be used for the corresponding treaties and legislation.

(abbreviation/full title)

The Japan-U.S. Security Treaty/The Treaty of Mutual Cooperation and Security between Japan and the United States of America

The Agreement on the Status of U.S. Armed Forces / The Agreement under Article VI of the Treaty of Mutual Cooperation and Security between Japan and the United States of America Regarding Facilities and Areas and the Status of United States Armed Forces in Japan

The Special Measures Concerning Land for U.S. Armed Forces Law/The Law of Special Measures Concerning Land etc. Implementing the Agreement under Article VI of the Treaty of Mutual Cooperation and Security between Japan and the United States of America Regarding Facilities and Areas and the Status of United States Armed Forces in Japan

The Agreement on the Restoration of Okinawa/The Agreement between Japan and the United States of America Regarding the Ryukyu Islands and the Daito Islands

I. Concerning Section 4 of the grounds for Jokoku appeal by the attorneys for the appellant (Nakano, Ikemiyagi, Niigaki, Oshiro, Kato, Kinjou, Shimabukuro, Nakayama, Maeda, Matsunaga, Miyakuni, Enomoto, Kamagata, Sai, Nakano, and Miyasato):

1. The question of whether proxy signing is a duty assigned to a governor as an organ of the State

(1) The State essentially has the power to expropriate and utilize private land for a public purpose, but the specific conditions and procedures for the expropriation and utilization of private property should follow the regulations of related legislation. The Land Expropriation Law stipulates that the subject for the expropriation and utilization of land is not the State, which essentially has this power, but a promoter who requires the land for the purpose of an enterprise for the public interest as cited in Article 3 of the law. From the point of view of achieving a balance between promotion of the public interest and private property rights (Article 8(1) and 16), the law also stipulates the conditions and procedures relating to the expropriation and utilization of land (Article 1). In other words, after defining the expropriation and utilization of land necessary to serve the public interest as the work of the promotes while endeavoring to make adjustments with the guarantee of private property rights, the law, in order to conduct this work in a smooth manner, adds administrative regulations to the execution of this work by, for example, instituting stage-by-stage administrative disposition under the power of the minister of construction or other administrative agency stipulated by the law. From this structure of proceedings, it is clear that the duty of assigning power for the expropriation and utilization of land to promoters is a duty of the State, in the sense that the duty is based on the aforesaid power essentially held by the State, and it is appropriate that imposing administrative control on the promoter's undertaking in order to balance the smooth execution of the undertaking for the public interest with the guarantee of private property rights is an obligation of the State that grants the power of expropriation and utilization of land to the promoter. Also, it is appropriate by its nature to regard the work for this purpose as an affair of the State. It is not possible to regard this duty as being a task of a local government.

(2) From the above perspective, a duty assigned to a governor under Article 36(5) of the Land Expropriation Law is a duty that contributes to the smooth execution of the promoter's administration of expropriation and utilization of land in the sense that it is a task by which the promoter can complete the land and property reports required to request a decision for the expropriation and utilization of the land. Also the administration through which the fairness of the process of compiling the land and property reports is guaranteed by officially confirming that the process is accomplished fairly. From the above-said nature of the proxy signing, it reasonably follows that it is the administration of the State.

Although this proxy signing is regarded as the duty of the State as mentioned above, it is possible to make all or a part of it the task of a local government. In other words, it is possible to delegate the power to a local government. Furthermore, Paragraph ii of Article 2(6), which exemplifies the administration executed by a local government, sets forth the administration concerning the expropriation of land and determines the range of the prefecture's administration exemplified in respective paragraphs of Article 2(3) in relation to those of cities, towns, and villages. In particular, the "administration concerning the expropriation of land" specifies the range of a prefecture's administration exemplified in paragraph xix of Article 2(3) namely, the "administration utilization or expropriation of movables and immovable for public interest according to statute". Thus, from the terms of Paragraph xix of Article 2(3), Paragraph ii of Article 2(3) indicates the administration executed by prefectures when they, as a promoter, expropriate land as one of the administrative tasks executed by the prefecture. Therefore, it is impossible to regard the duty as a duty delegated to a local government. Moreover, no other statute delegates such power to a local government.

On the other hand, the duties listed in Appendix 3-1(108) and Appendix 4 -2(43) as the administration of the State executed by governors of prefectures or mayors of cities, towns, and villages have the purpose of balancing the smooth execution of the administration of the expropriation and utilization of land for the public interest with the guarantee of private property rights. Accordingly, it has the same basic nature as proxy signing.

From the above-mentioned, it reasonably follows that Article 36(5) of the Land Expropriation Law assigns the task of proxy signing to a prefectural governor.

(3) Article 14 of the Special Measures Concerning Land for U.S. Armed Forces Law stipulates that the Land Expropriation Law is applied to the expropriation and utilization of land according to Article 3 of the Special Measures Concerning Land for U.S. Armed Forces Law except in the case in which a special rule is provided in the law. Since there is no reason why the same interpretation as stated in (1) and (2) should not be applied to the expropriation and utilization of land for the purpose of facilitating U.S. armed forces in Japan, the task of proxy signing stated in Article 36(5) of the Land Expropriation Law which is applied to the expropriation and utilization of land according to Article 3 of the Special Measures Concerning Land for U.S. Armed Forces Law, which is applied under Article 14 of the law, should be seen as the State's duty assigned to prefectural governors.

2. The competent minister for proxy signing under Article 36(5) of the Land Expropriation Law that is applied to the expropriation and utilization of land according to Article 3 of the Special Measures Concerning Land for U.S. Armed Forces Law on the basis of Article 14 of the law.

The purpose of the Special Measures Concerning Land for U.S. Armed Forces Law is to implement the Agreement on the Status of U.S. Armed Forces in terms of the expropriation and utilization of land for U.S. armed forces (Article 1). From this purpose, it follows that the administration concerning the expropriation and utilization of land regulated by the Special Measures Concerning Land for U.S. Armed Forces Law is a duty relating to the security of Japan and the peace and security of the Far East region, which relate closely to each other, and to the duty of Japan to the United States to provide facilities and areas under the Japan-U.S. Security Treaty. Moreover, Article 5 of the Special Measures Concerning Land for U.S. Armed Forces Law provides that the prime minister has the power to approve the expropriation and utilization of land. Accordingly, it is impossible to regard the task of balancing the smooth execution of the expropriation and utilization of land with the guarantee of private property rights, which is empowered to the director of the Defense Facilities Administration Agency by the Special Measures concerning Land for U.S. Armed Forces Law, as one of the duties concerning the expropriation and utilization of land empowered to the Ministry of Construction (Article 3(37) of the Ministry of Construction Law). Moreover, no other legislation empowers other ministries to carry out this administration. Thus, it reasonably follows that duty should be carried out by the Prime Minister's Office according to Article 4(14) of the Prime Minister's Office Law, and this interpretation matches the nature of this administration. Consequently, the competent minister for the proxy signing provided in Article 36(5) of the Land Expropriation Law, which is applied to the expropriation and utilization of land according to Article 3 of the Special Measures Concerning Land for U.S. Armed Forces Law, on the basis of Article 14 of the law, is the appellee.

3. Therefore, the conclusion of the judgment of the court concerning Section 4 of the grounds for the Jokoku appeal can be approved, and the appeal, which criticizes the judgment of the court from a different viewpoint, cannot be accepted.

II. Concerning Sections 1, 2, 3, 5, 6, and 7 of the grounds for the Jokoku appeal:

1. The purview of the power of judicial review in mandamus

(1) The governors of prefectures shall be elected by popular vote within their communities and naturally shall be independent of the organs of the State; however, in the case in which they manage affairs of the State as authorized by legislation, they shall have the status of organs of the State, and the competent minister of state exercises control and supervision over them (Article 15(1) of the National Government Organization Law, Article 150 of the Local Autonomy Law). If the minister of state exercises control and supervision over them in the same way as with usual administrative organizations under his or her command when they manage affairs of the State, however, it might violate the natural independence of the status of the governors of prefectures and go against the principle of local autonomy. So Article 151-2 of the Local Autonomy Law introduces the system of mandamus in order to harmonize the control and supervision over the status of governors managing affairs of the State with respect for the natural independence of the status of prefectural governors. Then, the reason why the article involves courts is that the court shall make the decision whether or not the mandate made to the governor of a prefecture by a competent minister of state is lawful, and the minister of state can directly manage the affairs instead of the prefectural governor as long as the court decides that it is lawful. This helps the aforesaid harmonization.

After considering from the above perspective, the court in mandamus proceedings should not judge whether the governor of a prefecture must obey the mandate on the premise that the order by the competent minister of state has superiority but should judge objectively whether the mandate by the competent minister of state in meets the conditions or not.

(2) Concerning this matter, the judgment is as follows. The examination of the lawfulness of the mandate, except for the examination of the requirements provided by Article 151-2 of the Local Autonomy Law, means as examination of whether or not the governor of a prefecture has an obligation to administer the affairs ordered by the mandate. The governor of the prefecture shall examine whether the conditions for the administration are met within the purview of the power that is permitted by laws and regulations and shall have the obligation to administer the affairs of the State when he or she decides that the requirements are met. Therefore, the courts, which also shall examine whether or not the governor of a prefecture has the obligation, are not able to examine matters beyond the purview of the power permitted by the laws and regulations.

However, if the laws and regulations that are legal grounds for the administration by the governor of the prefecture are unconstitutional, it can be said that the executing order is unlawful and lacks legal ground, even though it is not permitted from the viewpoint of the general rule of the government organization for the governor of a prefecture to refuse to administer affairs on account of their unconstitutionality- Thus, an order to administer affairs is not always lawful just because the governor of a prefecture has an obligation to administer it. Therefore, the judgment that the examination of the lawfulness of the mandate means an examination of whether or not the governor of a prefecture has an obligation to administer the affairs ordered by the mandate is not proper.

So, from now on we shall consider the appellant's criticism of the judgment that this mandate from the appellee to the appellant by the appellee is lawful from the viewpoint mentioned in paragraph (1).

2. Constitutionality of the Special Measures concerning Land for U.S. Armed Forces Law

(1) As stated above, the question of whether or not the Special Measures Concerning Land for U.S. Armed Forces Law, which is the legal ground for the aforesaid mandate, is constitutional is within the purview of the power of judicial review in this lawsuit, in which the court should judge whether the aforesaid mandate meets the conditions or not. On the other hand, the appellant contends on this issue that it violates the right to live in peace, which is guaranteed by the Preamble and Articles 9 and 13 of the constitution, and infringes Article 29(3) of the Constitution, even though the stationing of armed forces authorized by the Japan-U.S. Security Treaty and the Agreement on the Status of U.S. Armed Forces itself does not violate the Constitution.

Article 6 of the Japan-U.S. Security Treaty and Article 2(1) of the Agreement on the Status of U.S. Armed Forces provide that Japan has the obligation by the treaties to grant the use by U.S. armed forces of facilities and areas provided that it is agreed between the two governments though the Joint Committee under Article 25 of the Agreement on the Status of U.S. Armed Forces. It is natural that the treaties concluded by Japan shall be faithfully observed (Article 98(2) of the Constitution), but land necessary for the observance of the obligation provided by the Japan-U.S. Security Treaty is not always acquired through agreements with owners. When land cannot be acquired through agreement, it is held to be necessary and reasonable to use force or expropriate the land in the case in which the conditions (it is proper and rational to use the land for the stationing of U.S. armed forces) are met. This means that private property is taken for public use (Article 29(3) of the Constitution). If the appellant contends that it infringes the Preamble and Articles 9 and 13 of the Constitution if the government does something necessary and reasonable to observe the treaties, then it is the same as saying that the treaties themselves are unconstitutional. However, unless the Japan- U.S. Security Treaty and the Agreement on the Status of U.S. Armed Forces are obviously unconstitutional and void, the courts should examine whether the Special Measures concerning Land for U.S. Armed Forces Law is constitutional or not on the premise that the treaties are constitutional (see Supreme Court, Grand Bench, judgment; case (A) No. 710, 1959, decided on December 16, 1959, Keishu vol. 13, No. 13, p. 3225). The appellant also states clearly that he does not contend that the treaties are unconstitutional. Accordingly, the Special Measures concerning Land for U.S. Armed Forces Law does not violate the Preamble and Articles 9, 13, and 29(3) of the Constitution.

(2) The appellant also contends that the Special Measures Concerning Land for U.S. Armed Forces Law violates Article 31 of the Constitution.

It is not proper to conclude that administrative procedures are naturally beyond the guarantee of Article 31 of the Constitution merely because administrative procedures differ from criminal procedures. However, even in cases covered by the guarantee of Article 31, the contents of the guarantee should be decided through an overall balancing of various factors, including the content and nature of the rights or legal interests restricted by the administrative disposition; the extent of the restriction; and the content, extent, urgency, etc. of the public interest sought to be achieved by the administrative disposition (see Supreme Court, Grand Bench, judgment; case (Gyo Tsu) No. 11, 1986, decided on July 1, 1992, Minshu vol. 46, No. 5, p. 437).

Examining the procedure for utilizing and expropriating land under the Special Measures Concerning Land for U.S. Armed Forces Law from this viewpoint, the procedure is not insufficient to guarantee the rights of owners or interested parties and does not prevent fair decision, because the appellee, who is one of the agencies of the Japanese Government, shall make the decision for the Japanese Government to utilize and expropriate the land. Therefore, the Special Measures Concerning Land for U.S. Armed Forces Law does not violate Article 31 of the Constitution.

(3) Accordingly, the Special Measures Concerning Land for U.S. Armed Forces Law does not violate articles of the Constitution. The judgment, which reached the same conclusion, is proper. The appellant's contention that the law is unconstitutional cannot be accepted.

3. Application of the Special Measures Concerning Land for U.S. Armed Forces Law to Okinawa Prefecture

(1) The appeal claims that, in the present situation in which most U.S. military bases in Japan are in Okinawa Prefecture and the prefecture and its residents consequently suffer serious damage, the application of the Special Measures Concerning Land for U.S. Armed Forces Law to Okinawa Prefecture and the utilization and expropriation of land without consensus by a referendum among the residents of Okinawa Prefecture violates the Preamble and Articles 9, 13, 14, 29(3), 92, and 95 of the Constitution. Understanding that the appeal claims the unconstitutionality of the approval of utilization, the court holds that the claim is not the subject of examination in the case at issue. However, since the claim means that, in the present situation, the validity of the Special Measures Concerning Land for U.S. Armed Forces Law under which the mandate at issue was ordered should be denied in Okinawa Prefecture, the court accepts that the claim should be examined in the case at issue.

(2) The approval of the utilization and expropriation of land under the Special Measures Concerning Land for U.S. Armed Forces Law is issued when land is necessary for the U.S. armed forces and when it is considered to be appropriate and reasonable to supply the U.S. armed forces with the land (Articles 5 and 3). What is required in issuing the approval is not only a political and diplomatic decision through the comprehensive consideration of various factors, including the international situation that is crucial to Japan's security and international peace and security in the Far East, the necessity of the land for the U.S. armed forces and its scale, the degree of burden and damage to the landowners and residents around the land incurred by the supply of the land to the U.S. armed forces, and the possibility of supplying alternative land, but also a specialized technical decision concerning the U.S. military bases, so it should be said that the decision is within the political and technical discretion of the appellee. The various problems allegedly incurred by the concentration of U.S. military bases in Okinawa Prefecture must also be considered and scrutinized in the manner stated above.

In accordance with the above analysis, in spite of the present situation of U.S. military bases in Okinawa Prefecture and the various problems allegedly incurred by this situation, it cannot be said that it is always clearly inappropriate and unreasonable to supply the U.S. armed forces with land in the prefecture and that the application of the Special Measures Concerning Land for U.S. Armed Forces Law in the prefecture through the lawful discretion made by the appellee must always be prohibited. So the appeal, which claims that the application of the above law to Okinawa Prefecture is in violation of the Preamble and Articles 9, 13, 14, 29(3), 92, and 95 of the Constitution, cannot be accepted. In addition, since the Special Measures Concerning Land for U.S. Armed Forces Law is not a special law only for Okinawa Prefecture. the appeal, which claims that the application of the above law to Okinawa Prefecture is in violation of Article 95 of the Constitution, lacks a valid premise.

4. Validity of the approval of utilization

(1) Proxy signing is included in the administrative work that constitutes the series of procedures from the approval of utilization to the adjudication of utilization, and its aim is to complete the land and property reports required to petition for the adjudication of utilization. The petition for the adjudication of utilization is a procedure that must be carried out on the assumption that a valid approval of utilization exists, so when the approval of utilization concerning the plots of land described in the property appendixes of the court No. 1 to 8 (hereinafter, the "plots of land") has a serious and clear defect and therefore must be decided to be invalid per se, the appellee cannot issue the appellant with a mandate for proxy signing. Therefore, the valid approval of utilization of the plots of land constitutes legal requirement for the appellee to issue the appellant with a mandate for proxy signing, and if the approval of utilization has a defect that makes the approval invalid per se, the mandate at issue is also illegal. In the case at issue, we must consider whether or not such a defect exists in the approval of utilization.

Even if the approval of utilization has a certain defect, however, as long as the defect is not serious enough to make the approval invalid per se, a person should execute the affairs that constitute the following series of procedures on the assumption of the validity of the approval of utilization until the approval is separately canceled. Accordingly, even if the approval of utilization at issue has a dischargeable defect, the appellant is not allowed to refuse to execute the task of proxy signing and the appellee can decide, assuming the validity of the approval of utilization, whether or not to issue a mandate for proxy signing. And if this is the case, it cannot be said that the lack of a dischargeable defect in the approval of utilization of the plots of land is a condition for the appellee to issue the appellant with a mandate for proxy signing. Also, it is difficult to say that the law expects that mandamus proceedings, which examine whether or not it is appropriate to order the execution of proxy affairs, should presume that any defect, regardless of its degree, in the procedure or execution that precedes the affairs at issue makes the mandate illegal per se or that it should examine fully whether or not such a procedure or execution is inappropriate. So, unless the defect in the approval of utilization concerning the plots of land is serious and clear, it should be examined not in this case but in the discharge litigation that is filed by those whose rights and legal interests are damaged.

(2) As stated above, we should examine whether the approval of utilization of the plots of land has a serious and clear defect that makes the approval invalid per se.

The Special Measures Concerning Land for U.S. Armed Forces Law states that approval of the utilization and expropriation of land should be issued when land is necessary for the U.S. armed forces (Articles 5 and 3) and when it is considered to be appropriate and reasonable to supply the U.S. armed forces with the land. As stated above, the decision is within the political and technical discretion of the appellee. Therefore, the approval of utilization is invalid only when the appellee's decision illegally deviates or abuses the discretion and its illegality is serious and clear.

In the case at issue, according to the facts lawfully found by the court, (1) under the memorandum agreed on June 17, 1971, which was made at the time of Okinawa's restoration to Japan to show the result of discussions on Article 3(1) of the Agreement on the Restoration of Okinawa between the two governments, the plots of land were divided for facilities and sites that would be agreed in the Japan-U.S. Joint Committee to use as U.S. military facilities and sites; (2) the Agreement on the Restoration of Okinawa was issued on March 21, 1972, and validated on May 15, 1972, and according to the agreement in the Japan-U.S. Joint Committee held on May 15, 1972, which was about the supply of facilities and areas that U.S. armed forces can use in Okinawa Prefecture under Article 6 of the Japan-U.S. Security Treaty and Article 2 of the Agreement on the Status of U.S. Armed Forces, the plots of land are included in the above provided facilities and areas; (3) in the Japan- U.S. summit at the time of the restoration of Okinawa, Japanese Prime Minister Eisaku Sato explained the reasons why it was necessary to reduce U.S. military facilities and areas in Okinawa as much as possible after the restoration and U.S. President Richard Nixon answered that he would fully consider these reasons when the two countries would adjust the facilities and areas; (4) later, in such committees as the Japan-U.S. Joint Committee and the Japan-U.S. Security Conference, Japan has negotiated for an adjustment and reduction of the facilities and areas provided for U.S. armed forces, but agreement about restoration of the plots of land in question has not been achieved yet, and all the plots of land are used as U.S. military facility sites, security sites, electromagnetic barrier sites, etc., functioning comprehensively together with many other plots of land in U.S. military bases; cultivation on some of them by the land owners etc. is tacitly approved as long as it does not interfere with the utilization; and (5) in 1979 a tripartite liaison conference of Okinawa Prefecture, Naha Defense Facilities Administration Agency, and the U.S. armed forces in Okinawa was held to discuss countermeasures to reduce problems occurring as a result of U.S. military bases, and they have regulated military plane flights and engine test hours and taken noise treatment measures in residential areas around the bases. According to these facts, even when the present situation in which most U.S. military bases in Japan are concentrated in Okinawa Prefecture and various factors claimed by the appellant about how the plots of land are used are considered, it is impossible to say that the approval of utilization has a serious and clear defect that makes the approval invalid per se.

(3) Therefore, the judgment of the court that validity of the approval of utilization of the plots of land cannot be the subject of examination in this case can be called a failure to interpret the law, but this illegality of the judgment has no effect on the conclusion of the judgment because, according to the facts lawfully found by the court, it cannot be said that the approval of utilization has a defect that naturally makes the approval invalid per Se. So the appeal, which claims an inadequate examination of the appropriateness and validity of the approval of utilization, cannot be accepted.

5. Legality of the application procedure for proxy signing and the compilation of land and property reports.

(1) Article 36 of the Land Expropriation Law, which is applied under article 14 of the Special Measures Concerning Land for U.S. Armed Forces Law with regard to the utilization and expropriation of land based on Article 3 of the aforesaid law, provides that the director general of the Defense Facilities Administration Agency should establish land and property reports after notice of approval of the utilization and expropriation of land (aforesaid Article (1)) and that, in the process of compiling these reports, the director general should have landowners and persons concerned (except for those whom the director general, without negligence, cannot find) attend, sign, and seal land and property reports (aforesaid Article (2)). These provisions can be interpreted as aiming to record and organize the existing situation concerning facts and rights relating to the land to be expropriated and utilized and structures on that land, as well as the opinions of the parties concerned, so that the Expropriation Committee can avoid complexity in the investigation and confirmation of facts in the proceedings and improve efficiency. It is also provided that where any landowner or person concerned refuses to or cannot sign and seal the land and property reports, a mayor should be requested to sign and seal them (aforesaid Article (4)) and that, if the mayor refuses to do so, the prefectural governor should be required to sign and seal instead (aforesaid Article (5)). These provisions are properly interpreted as aiming to enable the compilation of land and property reports requisite to application for a final decision in case the signature and seal of any landowner or person concerned cannot be obtained and to perform the undertaking of the utilization and expropriation of land smoothly, to guarantee the fair compilation of the reports through official confirmation that the reports have been compiled fairly, and also to ensure the guarantee of private property rights through due process.

Considering the matters stated above, it should be said that before the appellee orders the appellant to carry out the proxy signing, it is required that the appellant has been requested to sign and seal by proxy lawfully ill accordance with Article 14 of the Special Measures Concerning Land for [U.S. Armed Forces Law and Article 36 of the Land Expropriation Law and also that land and property reports have been fairly compiled.

(2) The appeal insists that the application to the appellant for proxy signature and seal violates Article 14 of the Special Measures Concerning Land for U.S. Armed Forces Law and Article 36(2), (4), (5) of the Land Expropriation Law, because the director of the Naha Defense Facilities Administration Agency required the landowners in question and the persons concerned to sign and seal without giving them any opportunity to attend on the sites and required mayors and the appellant to sign and seal by proxy without giving them any opportunity to attend on the sites.

It is proper, however, that the terms of Article 36(2) of the Land Expropriation Law are interpreted as not requiring the granting of an opportunity to attend to landowners and persons concerned in the while process of compiling land and property reports, but as requiring the presentation of the reports to landowners and persons concerned at the stage of signature and seal, when the reports become effective, to let them know the contents well. Even if, as pointed out, the landowners in question and persons concerned sometimes have difficulty in judging whether land and property reports are true or not without seeing the place, on the basis of Article 3 of the law, the landowners and persons concerned can attach an objection as they sign and seal, so they can eliminate any assumption that the contents of the reports are true. In that case, the director of the Naha Defense Facilities Administration Agency must prove the credibility of the contents of the land and property reports in the proceedings of the Expropriation Committee. Accordingly; it cannot be said that the rights of landowners and persons concerned are violated when if they are not given the opportunity to attend.

Also, in consideration of the aforesaid aim of the articles that require proxy signature and seal by a mayor or governor in the process of the compilation of land and property reports, Article 36(4), (5) of the Land Expropriation Law cannot be interpreted as requiring the granting of an opportunity to attend to a mayor, a city official whom a mayor designates, or a prefectural official whom a governor designates.

Examining this case from the above viewpoint, under the facts lawfully found by the court, it can be said that the director of the Naha Defense Facilities Administration Agency applied to the appellant for proxy signature and seal in accordance with Article 14 of the Special Measures Concerning Land for U.S. Armed Forces Law and Article 36(2), (4), (5) of the Land Expropriation Law. The order to exercise the function at issue cannot be illegal just because the director did not give an opportunity to attend.

(3) The appeal also insists that it cannot be admitted that the land and property reports upon the land at issue (hereinafter, the "reports at issue", were compiled legally. Under the facts lawfully found by the court, however, no illegality can be found in the process of investigating the items mentioned on the reports at issue and in the process of compiling the measured drawing that is attached to the land reports. Both of them can be said to have been compiled legally.

(4) For the reasons stated above, the application to the appellant to sign and seal by proxy and the compilation of the reports at issue are not illegal. The similar judgment of the court can be approved, and the appeal, which criticizes the judgment, cannot be accepted.

Also, the appeal insists that a governor can refuse to exercise the proxy signing until the contents of the land and property reports can be confirmed and that it is contrary to the principle of local autonomy that a governor execute the proxy signing in this case. Considering the aforesaid objective of Article 36(5) of the Land Expropriation Law that stipulates proxy signature and seal by a governor, however, a governor should execute the proxy signing if the legality of the compilation of the land and property reports can be confirmed. It cannot be interpreted that a governor cannot execute the proxy signing until her or she examines the contents of the reports and confirms them. Also, it cannot be said that execution of the proxy signing by the appellant would immediately incur a situation that is contrary to the principle of local autonomy; the appeal is based on a false presumption.

So the appeal, which criticizes the judgment of the court concerning its interpretation and application of the Land Expropriation Law, cannot be accepted at all.

6. The conditions of Articles 151-2(1) of the Local Autonomy Law

In this case, it is clear that the appellant has not executed the proxy signing. The appeal says that the judgment of the court that it is difficult to correct the situation by means other than those provided by Article 151(1)-(8) of the Local Autonomy Law and that leaving the situation as it is obviously would undermine the public interest noticeably is mistaken in its interpretation of the aforesaid article.

Under the facts lawfully found by the court, however, the judgment of the court, that it is difficult to correct the appellant's neglect of exercise of the function of proxy signature and seal by means other than those provided by Article 151(1)-(8) of the Local Autonomy Law can be affirmed.

Also, if the appellant's neglect of execution of the proxy signing is left as it is, the director of the Naha Defense Facilities Administration Agency cannot apply for a decision to the Expropriation Committee, despite the fact that the appellee has given approval of utilization, judging that it is proper and rational to let the U.S. armed forces use the land at issue. As a result, it is obvious that difficulties would arise in Japan's performance of its obligation as a state under Article 6 of the Japan-U.S. Security Treaty and Article 2 of the Agreement on the Status of U.S. Armed Forces. Therefore, it is inevitable to say that leaving the appellant's neglect of execution of proxy signing would clearly and noticeably undermine the public interest. The appeal claims that it cannot be said that the appellant's refusal to execute the proxy signing noticeably undermines the public interest, because the appellant is aiming to realize the public interest through the principle of local autonomy by solving the various problems caused by the concentration of U.S. military bases in Okinawa Prefecture. Considering the aforesaid objective of Article 14 of the Special Measures Concerning Land for U.S. Armed Forces Law and Article 36(5) of the Land Expropriation Law, which establish the system of proxy signature and seal by a governor, however, it cannot be interpreted that the system anticipates that the appellant tries to solve such problems by means of refusal to execute the proxy signing. The judgment of the court, that it is obvious that leaving the appellant's neglect of execution of the proxy signing would undermine the public interest noticeably, is also proper.

The appeal, which claims a mistake by the court in its interpretation of Article 151-2(1) of the Local Autonomy Law, cannot be accepted.

For the reasons already stated, the appeal cannot be accepted at all. Therefore, this court by unanimous opinion of the Justices of the Bench, except for the supplementary opinion of Justice Itsuo Sonobe and the supplementary opinions of Justices Masao Ono, Hisako Takahashi, Yukinobu Ozaki, Shinichi Kawai, Mitsuo Endo, and Masao Fujii, renders judgment as set forth in the decree in accordance with Article 7 of the Administrative Case Litigation Law and Articles 396, 384, 95, and 89 of the Code of Civil Procedure.



The opinion of Justice Itsuo Sonobe concerning parts 1, 4 of Section II is as follows:

I agree with the conclusion of the court's ruling. However, I would like to make clear my opinion as to the purview of the power of judicial review in mandamus proceedings and the relation between that purview and this case.

The mandamus proceedings provided by Article 151-2 of the Local Autonomy Law are said to be a typical form of litigation between organizations (Administration Litigation Law, Article 6). The court is bound to order the same matter as a competent minister did in case the court finds that the competent minister has a good reason for petition, because the mandamus proceedings are substantially a providing litigation (Party Action, Article 43(3)) based on a public legal relationship between a competent minister and a local governor. The very issue in the lawsuit is whether the order given by the competent minister is legal or not. So the court must determine whether there exists a defect or illegality in the executing order, which is an object to be claimed for, in examining a good reason for petition by a competent minister.

When the court examines the defect in the administrative conduct prior to the petition for the executing order, the gravity of the defect that the court has to examine is different from the one under the mandamus proceedings provided by Article 146 of the previous Local Autonomy Law. The old statute provided that the competent minister had such a strong dominance over the governor that the minister had the power not only to execute on behalf of a governor but also to dismiss him. So, in order to secure local autonomy, the old statute was understood to authorize the competent minister to execute the above-mentioned strong power only in the case that the court found the executing order to be legal.

Under the current revised statute, I think that the court ought only to examine whether it is clear or not that a serious defect exists in the administrative process prior to the petition for the executing order, because the mandamus proceedings are not a precondition for dismissal by a competent minister. The concept of whether the seriousness of a defect is clear here is different from that of the criteria that divides the defect in the administrative conduct into one which renders the conduct void and one which renders the conduct cancelable. Of course, the litigations in which the legality of the administrative conduct is at issue are usually a complaint (revocation litigation or declaration litigation) brought by a person suffering from administrative order or disposal, but I believe that the criteria for telling a so-called cancelable defect from a so-called invalid defect, which is argued in connection with the formula of complaint, does not apply to this case as a standard for legality, because the mandamus litigation is not a complaint.

As to the mandamus proceedings relating to the expropriation and utilization of land, the compilation of land and property reports precedes the process made by the Expropriation Committee and includes the execution of the proxy signing. Although what is very important in the expropriation and utilization procedure of land is the approval of undertaking (the approval of utilization in this case) and the decision made by the Expropriation Committee, there is no provision governing how the governor challenges the approval directly. So I can easily imagine that the governor, for the purpose of complaining against the expropriation and utilization of land initiated by the approval of undertaking, cannot help refusing to execute the proxy signing or challenging as a defendant in the mandamus litigation at last, and such is this case. Therefore, in my opinion, it is necessary and natural that the court should decide whether it is clear that there exists a serious defect in the approval of utilization, which is a preceding administrative conduct, in examining the legality of the executing order.

Nevertheless, I think it would be possibly out of the court's jurisdiction if, in the course of examining the legality of the approval of utilization at issue, the court turns to scrutinize the highly political and diplomatic decision of the government concerning the security of Japan under the Japan-U.S. Security Treaty, the Agreement on the Status of U.S. Armed Forces based thereon, and the Special Measures Concerning Land for U.S. Armed Forces Law, which is like an executing statute thereof. I find serious problems in Okinawa Prefecture caused by the concentration of bases, as the appellant, the status of whom is the governor of Okinawa Prefecture, explained earnestly, and as the court found legitimate facts for a background to the refusal of the proxy signing at issue by the appellant. However, the reason why I do not find the gravity of defect of the approval of utilization at issue to be clear in spite of the above matters is because I cannot help but admit that problems that are not suitable for judicial scrutiny interfere here, as I mentioned above.



The opinion of Justice Masao Ono, Justice Hisako Takahashi, Justice Yukinobu Ozaki, Justice Shinichi Kawai, Justice Mitsuo Endo, and Justice Masao Fujii concerning parts 3, 4 of Section II is as follows:

We would like to supplement the court's ruling concerning the question of whether application of the Special Measures Concerning Land for U.S. Armed Forces Law to Okinawa Prefecture is admissible and the validity of the approval of utilization.

1. The Okinawa branch of Fukuoka High Court found facts concerning the concentration of U.S. military bases in Okinawa Prefecture and the burden on Okinawa Prefecture and its residents as follows:

In 25 out of 52 cities, towns, and villages in Okinawa Prefecture there exist 42 bases of U.S. armed forces, the area of which is 245,260,000 square meters--that is, approximately 10.8% of the whole area of Okinawa Prefecture. Approximately 74.7% of the exclusive facilities in the whole of Japan that U.S. armed forces can always use are in Okinawa Prefecture, although the area of Okinawa is approximately 0.6% of that of Japan. U.S. armed forces do military exercises and training in the air, on and under water, and on land. A lot of aircraft crash, a lot of accidents occur during exercises, such as parachuting out of the facilities, and a lot of soldiers and civil employees attached to the U.S. armed forces commit crimes. Field fires break out in the training places due to live shooting practices, and people living near the bases suffer aircraft noise. In addition, the existence of the bases itself restricts Okinawa Prefecture's local development policy, and base countermeasures place on excessive burden on administrative work. While Okinawa Prefecture has long requested the Japanese government to adjust and reduce U.S. military bases, the central government has not achieved good results that is, only approximately 15% of U.S. military bases in Okinawa Prefecture were returned from 1972 to 1994, while approximately 59% of bases in Japan proper were returned.

The appellant asserts that the application of the Special Measures Concerning Land for U.S. Armed Forces Law to Okinawa Prefecture is unconstitutional, that the approval of utilization of land at issue is also unconstitutional and invalid, and that the expropriation and utilization of land for U.S. military bases is illegal.

2. According to these facts ascertained by the court, we agree that Okinawa Prefecture and citizens there have a great burden because of the U.S. military bases in Okinawa. At the same time, however, the easing of the burden on Okinawa due to the concentration of bases needs an agreement between the governments of Japan and the United States of America and various administrative measures inside Japan, since the existence of the bases of U.S. armed forces is based on international agreements that is, Article 3(1) of the Agreement on Restoration of Okinawa, Article 6 of the Japan-U.S. Security Treaty, and Article 2 of the Agreement on Status of U.S. Armed Forces. In other words, it needs an appropriate exercise of diplomatic and administrative power. This power ought to be used by the administrative government at its discretion and under its responsibility, achieving a balance between easing of the burden on Okinawa Prefecture and its people on the one hand and the necessity of the bases on the other. Therefore, apart from the extreme case in which there is no leeway to consider a balance, it cannot be said that the application of the Special Measures Concerning Land for U.S. Armed Forces Law to Okinawa Prefecture and the approval of utilization on the basis of this law are clearly unconstitutional and illegal. If, as the appeal claims, we declared that the application of the Special Measures Concerning Land for U.S. Armed Forces Law to Okinawa Prefecture were unconstitutional and invalid and declared all the authorization of utilization based on this law to be void, then the existence of U.S. military bases in Okinawa Prefecture would be legally overturned without any international agreement or administrative measure. Such a decision would be beyond the power of a judicial branch.

From the beginning, providing U.S. armed forces with bases in Okinawa is not based only on administrative and diplomatic considerations. Regarding approval of the utilization of individual plots of land, it is necessary to satisfy the condition of "proper and rational" in Article 3 of the Special Measures Concerning Land for U.S. Armed Forces Law. Therefore, even if the approval of utilization is not definitely unconstitutional or illegal, a person whose rights or legitimate interests are allegedly violated is entitled to insist on the defect of the approval of utilization in cancel litigation against the approval of utilization or the decision by the Expropriation Committee. This was the opinion of the court ruling.

However, in determining the unconstitutionality of the application of the Special Measures Concerning Land for U.S. Armed Forces Law to Okinawa Prefecture and the invalidity of the approval utilization for the reason of concentration of U.S. military bases in Okinawa, many administrative and diplomatic factors should be considered. So this issue is not suitable for the court to decide definitely. Therefore, we think it proper that the court should examine only whether there exists a clear reason for unconstitutionality or illegality.

Justice Toru Miyoshi
Justice Itsuo Sonobe
Justice Tsuneo Kabe
Justice Katsuya Onishi
Justice Motoo Ono
Justice Masao Ono
Justice Hideo Chikusa
Justice Shigeharu Negishi
Justice Hisako Takahashi
Justice Yukinobu Ozaki
Justice Shinichi Kawai
Justice Mitsuo Endo
Justice Kazutomo Ijima
Justice Hiroshi Fukuda
Justice Masao Fujii