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Editorial: Supreme Court dodging constitutional questions in Okinawa base case

We must ask: Are the questions raised by Okinawa Prefecture being addressed directly? The response so far has left a number of points in doubt.

We speak, of course, about the coming Supreme Court decision on a lawsuit between the prefecture and the central government over the relocation of U.S. Marine Corps Air Station Futenma to the Henoko district of Nago, in the north of Okinawa. Specifically, Okinawa is fighting to uphold Gov. Takeshi Onaga's decision to revoke permission for land reclamation off Henoko for the new base, based on the legal equality between local governments and Tokyo.

However, the Supreme Court has announced that, even though it is readdressing a high court decision, it will not hear any further arguments on the case before it hands down a final ruling on Dec. 20. This means that it is very likely the high court decision against Okinawa Prefecture will be confirmed.

The central government filed the suit claiming that it was illegal for Gov. Onaga to refuse Tokyo's demand to take back his decision on the reclamation project. The Fukuoka High Court's Naha branch ruled entirely in favor of the central government, declaring Onaga's actions illegal.

Revisions to the Local Autonomy Act in 1999 changed the official relationship between the central and local governments from master and subordinate to one of cooperative equality. The coming Supreme Court ruling will be its first on a local-central government dispute since the revisions took effect.

The top court looks highly likely to rule in favor of the central government's claim that it was illegal for Onaga to refuse to obey Tokyo's "corrective instructions" over the land reclamation. Meanwhile, the bench is also not expected to even consider Okinawa's assertion that imposing construction of the Henoko base on the prefecture violates the local government autonomy guaranteed by Article 92 of the Japanese Constitution.

However, in this pitched battle between the central government -- responsible for foreign and security policy -- and the prefecture -- backed by the will of the Okinawan people -- the Supreme Court should wade into the constitutional question as it considers its decision. And that is because foreign and security policy does not necessarily always trump local government concerns.

The Naha high court branch ruled that, as the Henoko base will be less than half the size of Futenma, the new facility does not infringe on local government rights, and therefore cannot be considered a violation of Article 92.

In response, the prefecture has claimed that to state the new facility does not violate local government rights just because it is smaller than Futenma ignores the harmful impact of U.S. bases on Okinawa, and that the high court's interpretation of the Constitution is mistaken.

Furthermore, Okinawa argues that it is also a violation of the Constitution's Article 41 -- "The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State" -- for the central government to order construction of the Henoko base without legislation duly passed by the Diet.

In 1995, the central government sued then Okinawa Gov. Masahide Ota over forced leasing of land for U.S. bases, and the case went all the way to the Grand Bench of the Supreme Court. There, Ota made a statement emphasizing Okinawa's history, the reality of the bases in the prefecture, and constitutional issues.

Article 10 of the Court Act states that, except in cases where there is an established precedent, the Grand Bench must be convened to decide questions of "the constitutionality of (a) law, order, rule or disposition."

The top court's decision against hearing arguments before the Grand Bench, especially in light of the forced leases case, leaves the definite impression that the justices are skittish about tackling Okinawa's constitutional claims.

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