The Tokyo High Court on Jan. 31 set aside a lower court decision dismissing a Ground Self-Defense Force (GSDF) member's lawsuit claiming he was not duty-bound to follow deployment orders issued under controversial security legislation as it violates the Japanese Constitution's war-renouncing Article 9.
The Tokyo District Court had dismissed the suit in March 2017 as having no merit for the plaintiff. However, "The lawsuit has merit, as it is possible the plaintiff could be subject to criminal penalties or disciplinary measures if he did not obey a deployment order," high court Presiding Judge Norihiko Sugihara stated in his appeal decision, which sent the case back to the district court.
The ruling is thought to be the first to recognize the merit of a suit brought against the Japanese government by a serving Self-Defense Forces member over the security legislation, which was passed in September 2015 under a government reinterpretation of the Constitution to allow Japan to exercise the right to collective self-defense.
The plaintiff serves with a logistics unit in the Kanto area, and filed the suit in 2016. The suit points out that "at the time of joining (the GSDF), the plaintiff did not agree to obey orders related to the exercise of collective self-defense. There is a risk the plaintiff would be severely injured or killed if he followed such orders."
The district court had ruled that the case could not even be contested in court, stating, "It is impossible to say that there is any concrete or realistic chance that the plaintiff will be issued such a deployment order. That being the case, the plaintiff's fear of criminal penalties or other consequences for not obeying orders is entirely abstract."
The Jan. 31 high court ruling sending the case back to district court rejected this argument, however, while also pointing out that it would be difficult for the plaintiff to seek legal redress for any punishment imposed, such as filing to have it revoked after the fact.
"We will closely examine the high court decision and take appropriate action," the Defense Ministry stated.