Friday, August 02, 2013

Some Thoughts around the Looming Cabinet Legislation Bureau Makeover

I thought that I’d post something that complemented, rather than overlapped with, media reports and also avoided grappling with the polemics that are sure to emerge. I also reserve the right to alter my thoughts on a later, more public occasion since this post represents some of my initial impressions and is largely unedited.

The Cabinet Legislation Bureau (CLB) and the New Komeito are regarded as the two most significant obstacles to a reinterpretation of the Japanese Constitution that would allow Japan to engage in collective self-defense. The Abe Cabinet is about to a) eliminate the first problem while b) keeping bureaucratic dissatisfaction to a minimum by appointing a diplomat who strongly favors reinterpretation as secretary-general of the CLB and nominating the current secretary-general, a former METI official, as the replacement for a Supreme Court justice, a former diplomat, who had retired on July 20 after reaching the constitutional age limit (70).

With regard to the “first problem”, some people have wondered why the Prime Minister (or the Cabinet) can’t simply order the CLB to change its interpretation. After all, the CLB is an agency established within the Cabinet, isn’t it? The answer is twofold. He can’t, and he doesn’t have to. The relevant task of the CLB according to its charter law is to “give opinions concerning legal issues to the Cabinet, and the Prime Minister and the Minister of each Ministry.” It would be an absurdity to seek an opinion and to simultaneously dictate what that opinion should be; indeed the law does not give the Cabinet or the Prime Minister the power to do so. Of course it is just an opinion; the Cabinet, and the Prime Minister and the Minister of each Ministry are free to ignore the opinions of the CLB and do as they please, and take their chances in the courts if necessary. Then why don’t they do so with regard to collective self-defense?

I believe that there is a historical explanation. It must be hard to imagine these days, when you will have difficulty finding any LDP Diet members who oppose reinterpretation, that the early LDP largely took a minimalist approach to self-defense, many not necessarily for tactical purposes—let’s first concentrate on building up the Japanese economy—but from a genuinely pacifist perspective. Some of them had defied the Japanese military and suffered during the long wars, while others had submitted and come to grief. For these otherwise conservative politicians, the CLB’s interpretation must have been exactly what they wanted, while those who opposed it did not have the power to mount a challenge to the leadership around the issue. The LDP has a whole has turned more sanguine in recent decades as the result of the generational shift that has diminished visceral aversion to all matters military and the increasing sense of insecurity over threats emanating from China and North Korea. Thus, the coalition that emerged in the late 1990s with the pacifist Komeito remains as the only structural impediment to the reinterpretation of the Constitution.

This will not be the end of legal hurdles to reinterpretation. With the passing of the years, during which successive cabinets have explicitly or implicitly endorsed this interpretation, significant legitimacy has accreted, precedent that needs to be handled with great care if it is to be breached without serious harm to the rule of law. Still, the institutional obstacle is being removed; the sticks are moving downfield for sure.

The remainder of this post is for people who like inside baseball stuff.

The secretary-general “supervises the activities” of the CLB, which means among other things having final say on opinions regarding the constitution. The position is rotated between officials seconded from the Ministry of Finance, the Ministry of Economy, Trade and Industry, and the former Ministry of Home Affairs, now part of the Ministry of Internal Affairs and Communications, who fulfill several key assignments before they are elevated in their turn to the top post. Of course the other ministries as well as the judiciary and the Public Prosecutors Office also second officials to the CLB and most of the MOF, METI, and (now) MIC officials never make it to secretary-general. But only an official from the three ministries does. Until now, apparently.

The replacement of the secretary-general, however, requires handling with care. First, interpreting the constitution is but a small part of the CLB’s legislation-related work (unless it decides to seriously consider changing its mind on the substantive focus of this post), in which the secretary-general is very much involved. Competence and familiarity with the interpretation process is highly desirable. Moreover, the secretary-general is also the authoritative voice of the CLB, nay, the Cabinet, in Diet sessions and committees on legal matters. It is very different, say, from picking Koichi Hamada as your economic guru, influential, true, but still one of many voices that have a say in making economic policy. An ill-advised choice could spell political disaster.

Second, a Prime Minister does not want to unduly alienate the bureaucracy, and the Abe administration appears to have taken the political and policy outcomes of the DPJ’s experiences in conflicts overt and clandestine with the bureaucracy to heart. However urgent the Abe administration’s desire might be to take the CLB in a new direction might be, taking away the CLB post without compensation could not only be a cause of alienation with the METI bureaucracy—political assignments, which have so far favored METI, are fine but METI should be around after Mr. Abe leaves the political scene—but also send a chill throughout the rest of the bureaucracy. Yet in another case of good fortune for Mr. Abe, a position has just opened up in the Supreme Court, a position reserved for all practical purposes traditionally filled by MOFA, the very ministry that is professionally inclined to favor reinterpretation on collective self-defense and, unlike academics, comes with significant practical experience around the legislative process, if not nearly the equivalent of that of the other ministries on the domestic process. It is hard to gauge the relative value of the two assignments. A Supreme Court justice carries significant constitutional prestige; the CLB secretary-general far less so. But the SCJ is merely one among fifteen, while the CLB secretary-general is the undisputed leader of a major institution. Perhaps the difficulty (at least for me) is its own answer and the trade is about as close to a wash as can be engineered. All this is not to imply that METI would not meekly submit if the matter were put to it without compensation. But friction is being been minimized, and that’s not a small matter to a prime minister whose personal proclivities already lean towards comity.

Oh, and make no mistake, this cannot have been a decision made up on the spur of the moment. The Supreme Court vacancy was a certainty from the very moment of the appointment, a fact that Mr. Abe’s political team could not have missed.

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