Re Validity of Cabinet Order (Sakagami Case)
| Jurisdiction | Japón |
| Court | Supreme Court (Japan) |
| Date | 22 July 1953 |
Belligerent Occupation — Effects of — Termination of Occupation — Continuance of Validity of Legislation Enacted by Government of Occupied State — Law Contrary to Constitution of Occupied State — Allied Occupation of Japan — Acceptance of Potsdam Declaration — Directives of Supreme Commander for Allied Powers.
The Facts.—As one of the terms of her surrender in 1945, Japan undertook to issue whatever Orders were required by the Supreme Commander for the Allied Powers (hereinafter referred to as “S.C.A.P.”) for the purpose of giving effect to the Potsdam Declaration. In accordance with this provision, the Japanese Government on September 20, 1945, promulgated Imperial Ordinance No. 542, which provided in effect that
“The Government may in case of special necessity stipulate for matters and by order enact necessary penal provisions for the purpose of giving effect to matters concerning the requirements of the Supreme Commander for the Allied Powers in consequence of the acceptance of the Potsdam Declaration.”
Under this Ordinance, Cabinet Order No. 325 of 1950, entitled “Order for the Punishment of Acts Prejudicial to the Occupation Objectives”, was enacted. Such acts were defined in the Order as, inter alia, acts which violated directives issued by S.C.A.P. to the Japanese Government.
On April 28, 1952, the Treaty of Peace with Japan came into force, and the Allied occupation ceased. On the same day, Imperial Ordinance No. 542 of 1945 was repealed by Law No. 81 of 1952, which also provided that Orders issued under the Imperial Ordinanance should remain effective as law for 180 days unless before the expiry of that period other legislation provided for their abolition or continuance in force (as the case might be). In due course Cabinet Order No. 325 was repealed with effect from May 7, 1952, with a saving for the punishment of acts committed prior to that date. On the same day as the Treaty of Peace came into force, the accused was convicted under Cabinet Order No. 325 of 1950 of committing an act prejudicial to the occupation objectives, namely, publishing a periodical called “Heiwa no Koe” (“Voice of Peace”) contrary to directives issued by S.C.A.P. on June 26 and July 18, 1950, suspending a publication called “Akahata”, its successors and affiliates (the Court of first instance having found that “Heiwa no Koe” was a successor of “Akahata”).
The accused appealed against conviction on the grounds, inter alia, that the Imperial Ordinance and the Cabinet Order were invalid; that the directive of S.C.A.P. ordering the suspension of “Akahata” and its successors, etc., was contrary to Articles 19 and 21 of the Japanese Constitution (which guarantee fundamental human rights, in particular freedom of speech); and that the penalty imposed under the Cabinet Order had been abolished since the date of the conviction. On his appeal being dismissed, the accused appealed to the Supreme Court.
Held: that the appeal must succeed and the judgments of the Court of first instance and the High Court must be quashed. The accused had not been wrongly convicted, but the penalty had been abolished after his conviction. He must now be acquitted.
The opinion of Judges Mano, Kotani, Shima, Fujita, Tanimura and Irie was as follows:
“… Imperial Ordinance No. 542 of 1945 was enacted in implementation of the occupation administration by the Allied Powers in consequence of the unconditional surrender of our country. As it is generally known, our country had accepted the Potsdam Declaration, signed the Instrument of Surrender, and proclaimed unconditional surrender to the Allied Powers. In consequence thereof, the Supreme Commander for the Allied Powers acquired the authority to take such measures as he deemed proper to give effect to the terms of surrender, and to that extent the power of the Japanese Government to rule the country was made subject to the prerogatives of the Supreme Commander for the Allied Powers (Instrument of Surrender, para. 8). The Japanese people were commanded to comply with all requirements imposed by S.C.A.P. or by the agencies of the Japanese Government at the direction of the Supreme Commander (idem, para. 3). All civil officials were ordered to obey and enforce all proclamations, orders and directives deemed by S.C.A.P. to be proper for the effectuation of the surrender, and issued by him or under his authority (idem, para. 5). Our country has pledged itself to carry out the provisions of the Potsdam Declaration in good faith, and to issue whatever Orders and take whatever action may be required by S.C.A.P. or by any other designated representative of the Allied Powers for the purpose of giving effect to that Declaration (idem, para. 6). Furthermore, Japanese civil officials and private...
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