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Monthly Archives: December 2015

Don’t look to Japan’s Supreme Court for Social Change

16/12/2015
japan, politics

Japan’s Supreme Court today announced a pair of decisions that are attracting significant media and public attention. The one dominating most of the headlines, it seems, is the ruling that a law forbidding married couples from keeping their original names (rather than one party changing their name) is perfectly constitutional, a decision which is already attracting a degree of scorn from commentators. The other, arguably much more interesting from a political and legal standpoint, is a ruling that a law demanding that divorced women wait six months before remarrying is unconstitutional.

The ruling on “waiting periods” for divorced women is a blindingly obvious piece of law – Article 14 of the Constitution guarantees “no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin”, and the six-month rule applied only to women. The law pre-dated the 1947 Constitution – it was introduced in the late 1800s as an attempt to ensure clear parentage for children born after a divorce, and aside from being discriminatory, is clearly outdated in the modern era of DNA testing (edit: I should note that the court hasn’t demanded that the law be entirely removed, only that it be dropped to a 100-day period, but this is because that’s what the plaintiff in the case asked for, and to the best of my knowledge the Court isn’t empowered to demand that the Government go beyond that in its legal revision. There’s still no waiting period for men who wish to remarry, so the law remains unequal. Hat tip to @anjin_miura on Twitter for pointing this out.). Despite being the sort of ruling on constitutional law that a reasonably bright five year old could manage given sufficient candy incentives, this is still a landmark ruling for the simple reason that it’s incredibly, vanishingly rare for Japan’s Supreme Court to declare a law unconstitutional. Since it was first convened in 1947, the Court has only struck down laws on ten occasions. By comparison, the US Supreme Court (which is, in theory, the model for Japan’s Supreme Court) has struck down over 165 Acts of Congress and almost 1000 state laws on the basis of unconstitutionality in its 226-year history, with the vast majority of those occurring in the 20th century. This underlines the importance of any occasion on which the Japanese Supreme Court actually chooses to rule against a law – no matter how past its sell-by date the law may be.

It also explains, in broad, contextual terms, why the challenge against demanding the adoption of a partner’s surname failed. Even the non-Americans among us are very used to seeing extensive reporting of the US Supreme Court, which regularly turns the tiller of American society with sweeping rulings on social issues, from civil rights to equal marriage. There’s an expectation, perhaps, that the Japanese Supreme Court should be willing and empowered to do the same thing, and a degree of disappointment and even disbelief when they turn out to be far more tame and conservative than their US counterparts.

There are, however, solid legal and political reasons why the Japanese Supreme Court is how it is – and they’re mostly grounded in the 1946 Constitution itself, a document which is revered by Japanese liberals for its pacifist stance but which, in many regards, was flawed from the outset and is now really starting to show its age. The 1946 Constitution established both the Diet and the Supreme Court, and unwittingly created an ill-defined relationship between them, in which the powers and responsibilities of each body are problematically vague. Article 41, establishing the Diet, states that “the Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State”; Article 81, establishing the Supreme Court, says that it “is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act”. So which of them, then, is the highest organ of state power? Does the Supreme Court have the power to command the Diet? Does the Diet have the capacity to disagree with Supreme Court rulings and plough ahead regardless? The language of the Constitution leaves that frustratingly vague, and in a forehead-slap inducing Catch-22, the only bodies with the power to interpret the Constitution’s meaning in this regard are the very bodies whose roles are uncertain in this instance.

The compromise that’s been in effect since 1947 is very straightforward and typically Japanese; the Supreme Court doesn’t rock the boat. When a law is utterly, blatantly in violation of the Constitution, it strikes it down (these are often laws predating the constitution’s promulgation). When a law is in a gray area, in which clauses of the constitution seem to conflict with one another or where there’s a simple lack of clarity, the Supremes shrug their berobed shoulders and toss it back to the Diet, bowing to parliament’s role as the “highest organ of state power” and requesting that they draft legislation to clear things up one way or another. This compromise is made altogether easier by a peculiarity of the Japanese legal system by which it’s impossible to simply request a judicial review of the constitutionality of a law; individuals wishing to challenge a law have to prove that they have standing (i.e. demonstrate that they have suffered damages due to the unconstitutional legislation they’re challenging) in order for their case to be heard. As a consequence, some attempts to challenge laws in the Japanese courts fail not because the law is found to be constitutional, but because nobody can prove to the court’s satisfaction that they’ve personally suffered damages on account of the law; the arguments over constitutionality aren’t even broached before the case is thrown out.

What’s happened in the case of the surnames issue, then, is that the Court has decided that the Constitution doesn’t have anything direct or blunt enough to say on the matter, and thrown it back to the Diet for a legislative solution. Could the court have ruled otherwise? Sure; the plaintiffs argued under Article 13 of the Constitution (“All of the people shall be respected as individuals. Their right to life, liberty and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.”) that demanding that one partner give up their family name was an undue interference in people’s lives, and a more activist-minded court could absolutely have agreed with that position. It would, however, have risked a run-in with the government, which takes a conservative stance on family issues, and that would have sailed the ship of state far too close to the awkward questions over the roles of Diet and Supreme Court that nobody wants to ask or answer. The safe ruling, which is on rock-solid legal ground, is to say that the Constitution doesn’t really say anything one way or the other on this issue, giving the Diet free rein to implement whatever legislative solution it likes (in this instance, most likely a continuation of the status quo).

Incidentally, this is a somewhat gloomy preview of what’s going to happen if and when legal challenges on equal marriage work their way through Japan’s courts. Article 14, as cited above, does not offer protection from discrimination on the basis of sexual orientation, and Article 24 defines marriage as being “based only on the mutual consent of both sexes… maintained through mutual cooperation with equal rights of husband and wife as a basis.” An activist or progressive court could happily rule that Article 14’s list of protections is non-exhaustive and that its protection from discrimination on the grounds of gender directly implies protection for sexual minorities, which takes legal precedence over Article 24’s mention of both sexes since equal marriage would extend, rather than curtailing, the protections Article 24 is designed to provide. Japan’s Supreme Court is not an activist or progressive court; it will rule that the present marriage rules are constitutional, and throw the whole issue back to the Diet (where the Abe Cabinet, deeply socially conservative, will bat them it of the field).

There’s no point being angry or disappointed in the Supreme Court over these rulings; it is what it is. The Court is operating from a far weaker and less well-defined position than its US counterpart, its capacity to carry out judicial review is hobbled by legal restrictions, and the Constitution on which it must base its rulings is riddled with contradictions and anachronisms. The Court’s long-standing habit of passing responsibility for decision-making on most issues back to the Diet is pretty much the only option open to it – and simply means that, for those who decry slow progress on social change in Japan, the buck stops with the democratically elected government, not with the Supreme Court or, for the most part, the Constitution. It also, incidentally, means that for significant progress to be made on an issue like equal marriage, a constitutional amendment would be required – meaning that perhaps some liberals could find common ground with conservatives who are determined to change the (extremely high) bar for constitutional amendment.

Syria: A Triumph of Action over Intelligence

03/12/2015
politics, UK

Insanity, we are so often told, is doing the same thing over and over again and expecting different results. Quotes to that effect are regularly attributed to both Albert Einstein and Benjamin Franklin, though there’s no evidence that either man ever said it. Even shorn of the weight of authority that comes from being uttered by men of genius, the concept sticks with you because it makes obvious, intuitive sense. You don’t stick your hand into the fire a second time to see if it burns again; “once bitten, twice shy” is a powerful instinctive behaviour for good reason.

The comparisons between Tony Blair committing the UK to war in Iraq in 2003 and David Cameron committing the country to bombing Syria, as passed by Parliament yesterday, have often referenced this convenient definition of insanity. Blair’s misadventure in Iraq, its horrific consequences and the calculatedly dishonest “intelligence” which supported it remain a millstone around the neck of the Labour party. The strides the country made under Blair’s premiership are forgotten under the weight of opprobrium heaped upon his arrogance and egotism over the war and his stubborn refusal to acknowledge, even now, the awful mistake it represented. Twelve years later, Cameron’s insistence that Britain must join in raining bombs on Syria certainly feels like deja vu, and has left many wondering out loud if another Prime Minister will find himself so despised over another committment to another hopeless war.

There are key differences, of course. Cameron has not committed troops to Syria, as Blair did to Iraq; there will be no British soldiers returning in coffins on carrier planes, at least not yet. Cameron has also, bluntly, made little or no effort to make or manufacture a case for war. Blair and his spin doctors burned the midnight oil to create a compelling, if almost entirely dishonest, case for the invasion of Iraq; Cameron, perhaps recognising that the lies supporting the Iraq War were the very petard upon which Blair was hoist, has instead chosen to justify the bombing of Syria in only the most broad, rhetorical strokes. It’s a cynical masterstroke; opponents of the war find themselves grasping at thin air, because there’s no case for war to rebut, no intelligence to question. The logic is as ephemeral as mist; ISIS may back attacks in the UK, as they did in France (though the extent to which ISIS in Syria actually aided or participated in the organisation of the Paris attacks, as opposed to merely lending their name to an attack from domestic extremists, is entirely unclear), so Syria must be bombed, not because bombing will reduce the risk of terrorism – the government isn’t getting pinned down into claiming that, oh no sir – but because something must be done, and suddenly we’re off into the realms of pure rhetoric, where anyone daring to question whether dropping more high explosives on a volatile region that’s already essentially hosting a proxy war between NATO and Russia might be a bad idea is a “terrorist sympathiser”.

You can’t argue with that; you can say it’s mad, or offensive, or grotesquely stupid, but you can’t argue with it because it isn’t a coherent argument in itself. In the absence of a case for war, counter-arguments are like tilting at windmills; Cameron has won the debate by refusing to participate in it, instead sitting back and letting the British media work itself into a froth over the internal politics of the opposition, leaving the position of the government nigh-on unquestioned. What few facts have been permitted to enter the debate are so nebulous as to be almost laughable; 70,000 moderate rebels are ready to liberate the ISIS positions Britain will weaken with bombing, apparently, but who those rebels might be, where they’ve been up until now, and why British bombs are going to accomplish what could not be accomplished already by American bombs, Jordanian bombs, Canadian bombs, Australian bombs, French bombs, by a veritable fusion cuisine nightmare of international high explosive flavours; these things could not be explained, to the exasperation of even many in Cameron’s own party.

Do David Cameron or his closest advisors honestly believe that British bombs falling on Raqqa are going to make the slightest positive difference to the situation in Syria, or to the security situation in the UK and around Europe? I wouldn’t dare to judge – I’d note that for all his dishonesty, one thing that’s clear about Blair’s intervention in Iraq is that he genuinely, truly believed that it was the right thing to do, his failure not being hypocrisy but rather an egotistical belief that the facts should adapt themselves to his gut feelings. Perhaps Cameron, too, is possessed of a genuine and fervent belief that bombing Syria is the correct course of action; but if so, what a terrible indictment of Britain that a man who graduated from its finest university and now resides in 10 Downing Street is unable to articulate or explain his belief to the people he is meant to represent and lead.

It’s hard to escape the notion that what Cameron is actually bowing to here is the powerful one-two punch of the domestic urge to Be Seen To Do Something, and the international need to Be Involved. The former urge is found in every political system; no matter how intelligent or advisable the “do nothing” course of action may be, conventional wisdom and opinion polls alike prefer politicians to be people of action – even if the action is awful. I compare and contrast the UK with Japan a lot in my research work, and here I’d note that in Japan, Prime Minister Abe’s policies are disliked by the majority of Japanese voters – but the same voters seem to like the fact that he’s doing something, even if they don’t like the actual thing he’s doing. Inaction earns you no brownie points, and no votes, it seems.

As to the international need to Be Involved, this is also a strong drive in some countries, but Britain suffers from it particularly; it seems intolerable to some parts of the British public, and to a much larger swathe of its political classes, for the likes of France and Australia to participate in a military operation alongside the United States while Britain abstains. Is this a legacy of empire? A deep-seated desire to confirm and reconfirm the “specialness” of the US-UK “special relationship”? It’s impossible to say for certain; perhaps a little from Column A, a little from Column B, but the effects are easy to see. Britain, which since bailing out its financial sector has been aggressively tightening the belts of all the children, disabled people, low-paid nursing staff and single mothers who caused the global financial meltdown with their wanton investments in high-risk financial instruments, is never short a few billion quid to throw at putting Union Jacks alongside the Stars and Stripes while the bombs rain down.

Britain is committed now; the first strikes on Syrian targets begin today, though one wonders how many of them will turn back, as bombing flights from some other nations have, upon finding that there isn’t anything but rubble and civilian homes left at their target coordinates to drop ordinance upon. The origins of ISIS are complex and varied – I don’t buy the simplistic account of their creation being a direct consequence of the invasion of Iraq, though that was clearly a major contributing factor. A catastrophic drought in Syria; the malign influence of Saudi Arabian wahabbism; the machinations of embattled Syrian president Bashar al-Assad, who nurtured the rise of ISIS as a “common enemy” in hope of restoring Western support for his rule; the violent melting pot of the Syrian conflict itself, in which a rapid evolution towards more and more extreme, aggressive tactics occurred as more moderate leaders were killed off; all of these things have fuelled ISIS’ rise. If you want to go right back to basics, the very borders of the Middle Eastern states, drawn for the convenience of the departing Imperial powers and the puppet governments they left behind, and entirely ignoring religious and ethnic divides across the region, arguably made for a volatile group of states effectively ungovernable by anything but strongmen. The bottom line; it’s complicated, and I struggle to think of an instance in history when a complex Gordian knot of politics, economics, religion, identity and history has ever been cleanly cut by bombing it from the sky.

What, then, should Britain do? This question is the trump card of the pro-bombing argument, one that plays directly into the Be Seen To Do Something urge of the political system. If not bombing, then what? If not attacking the vicious, medieval state that is ISIS, then what would you do about them? (And it’s about here that anyone saying “maybe we shouldn’t be doing anything at all” gets called a terrorist sympathiser.)

Well, maybe Britain shouldn’t be doing anything at all. Maybe, bluntly, it’s not Britain’s place to do anything at all; maybe the share of the responsibility for the godawful mess in Syria which is borne by the UK (for some of it most certainly is) is not best assuaged with high explosives, or bullets, or terrifying close encounters with Russian jets in foreign skies. Maybe what Britain should be doing instead is helping those who need help – providing support to refugees in the region, and finding the moral courage and backbone to assist those who have come to Europe fleeing the very Islamist terror it claims to be so committed to defying. Maybe, instead of sending British bombs plummetting after the American ones already raining on Syria, Britain could do far, far more to secure itself and help the Middle East by bringing its diplomatic and economic strengths to bear – by putting actual pressure on Saudi Arabia to pick a damned side and pull its weight against ISIS; helping the embattled Kurds could be accomplished by convincing the UK’s supposed NATO ally, Turkey, to stop attacking them.

Doing these things would require a long overdue reconsideration of Britain’s role in the world, and its relationships with some deeply unsavoury countries (particularly Saudi Arabia) with which it’s altogether too cosy. Far easier, then, to Be Seen To Do Something; to be the Prime Minister who set his jaw, Took The Tough Decisions and decided to drop bombs on some people in Syria. After all, any grumbling in the media will be easily eclipsed by their ongoing hounding of Jeremy Corbyn, whose role in the vote on bombing has been discussed in far more depth than Cameron’s own. There will be a legion of armchair war experts to mumble adages about eggs and omelettes in the event of any unfortunate images of dead civilians being circulated. Finally, should this all go terribly wrong, as Iraq did, and merely spread further extremism across the region and put more lives in the UK and Europe at risk, the proponents of war can always suck at their teeth, shake their heads and wonder out loud why some Muslims are so violent. The utility calculation is a no-brainer. Cameron has Done Something, and for now, at least, he’ll be rewarded for that – even if there’s no sense or reason to what’s actually been done.