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Suga's rejection of science nominees spurs constitutional storm

Scholars in Japan slam decision on council positions as infringing on academic freedom

Japanese Prime Minister Yoshihide Suga, left, speaks during an interview on Oct. 5. A general meeting of the Science Council of Japan, right, was held on Oct. 2 (Source photos by Kyodo and Uichiro Kasai)

TOKYO -- Just weeks into his tenure, Prime Minister Yoshihide Suga is stirring controversy by breaking with careful precedent in rejecting the appointment of six scholars nominated to join the prestigious and apolitical Science Council of Japan, a surprising move that has quickly turned into a sharp debate over the country's constitution.

Critics are raising the alarm over what they see as a dangerous decision infringing on academic freedom, a sensitive issue in a nation that in many ways remains wary of political interference in intellectual life given the history of military influence on government in the years leading up to and through World War II.

Succeeding long-serving Shinzo Abe as Japan's leader in late September, Suga launched his Cabinet with high public approval and vows to tackle vested interests and improve livelihoods, such as through lowering mobile phone charges. But his unprecedented rejection of the normally rubber-stamped appointments has overshadowed those policies and raised questions about his motives.

His stance has provoked strong protests from constitutional and other scholars. University of Tokyo professor Kenji Ishikawa claims that the rejection "is an intervention in personnel affairs for the autonomy of professional areas and directly linked to academic freedom."

Suga so far appears unfazed over the controversy and is standing firm, flatly rejecting the views of Ishikawa and others. "The decision has nothing to do with academic freedom," he said in an interview with Nikkei and other media on Oct. 5. "There is no question about that."

Academic freedom is guaranteed under Article 23 of Japan's basic law, written under the postwar U.S.-led occupation of the country and that includes other key clauses such as equality for women and, famously, the renunciation of war. The latter has led the document to be referred to as the "peace" constitution.

Suga is adamant that the rejection of the scholars "absolutely has nothing to do" with Article 23, justifying it on the grounds that the prime minister is responsible for the selection and dismissal of public officials under Article 15 of the constitution.

His predecessors automatically appointed nominees recommended by the council and Suga repeatedly said he wondered if he should do the same, linking the rejection of the six scholars, which substantiates the prime minister's authority over personnel affairs, to his new Cabinet's pet policy of defying precedents.

Takaaki Kajita, the new president of the Science Council of Japan and a Nobel laureate, met with Suga and handed him a written request to explain why he rejected the appointment of six scholars to the body.

Even in an Oct. 9 interview with reporters who cover the Cabinet, Suga refused to give specific reasons for his rejection, insisting the decision was to ensure the council's "comprehensive and panoramic" activities.

Suga later acknowledged that he had not even seen the list of 105 nominees, spurring speculation over who effectively decided to drop the final six.

The council was established in 1949 under the Science Council of Japan Act to represent some 870,000 scholars at home and abroad. Placed under the prime minister's jurisdiction, it is a special organization within the Cabinet Office and receives an annual budget of around 1 billion yen ($9.47 million).

The law stipulates that the council is allowed to independently carry out its duties of providing policy recommendations to the government and society as a cross-sectional network of academics. Though it has a certain amount of influence over the allocation of budgets for research and development programs, the council has maintained a cautious stance on military research.

It consists of 210 members and some 2,000 associate members. The 210 members, who are national public servants employed in special service, work for a six-year term without reappointment. Half are appointed every three years.

According to the law, the council selects nominees from scholars with outstanding records of research or achievement and recommends them to the prime minister, who appoints them "based on the recommendation."

Initially, council members were elected directly by scholars. But in 1984, academic societies began selecting nominees for appointment by the prime minister based on the council's recommendation.

From 2005, incumbent members began recommending candidates to the council for screening and submitting a list of shortlisted nominees to the prime minister.

Since the current system of member appointments, no nominee had been denied until Suga turned down the six earlier this month. The rejected scholars are known for being critical of policies pursued by Abe, including his push to reinterpret Japan's pacifist constitution. Suga himself has provided no reasons for why they were deemed unfit to sit on the council.

But Suga in general questions the current system as "a mechanism enabling incumbent members to name their successors."

At a session of the Education, Culture and Science Committee in the upper house of the Diet on May 12, 1983, then Prime Minister Yasuhiro Nakasone said the council's recommendation system was similar to each academic society or group of scholars having the right to recommend candidates and that academic freedom and independence could be guaranteed if the appointment of members by the government was viewed as "a formality."

At the same session on Nov. 24 of that year, Hyosuke Niwa, then director-general of the Prime Minister's Office, said the government would not reject the council-recommended nominees but appoint them "as a mere formality."

The Cabinet at that time clearly stated that the prime minister would not reject but rather automatically appoint the council-recommended nominees.

Nakasone even stepped into a constitutional debate as he stated that academic freedom was guaranteed because the government's appointment of council members was a mere formality. Suga's statement thus denied the stance taken by Nakasone.

Abe's administration wrested the political initiative from bureaucrats by executing power on personnel affairs after the Liberal Democratic Party regained power in a landslide victory in the 2012 lower house election. In a rare move, Abe named former Foreign Ministry official Ichiro Komatsu to head the Cabinet Legislation Bureau in 2013, while then Chief Cabinet Secretary Suga also consolidated the power to reshuffle senior ministry officials to the newly created Cabinet Personnel Bureau. The Cabinet also demanded the Supreme Court recommend several candidates when appointing a justice.

Takashi Onishi, former president of the Science Council of Japan and professor emeritus at the University of Tokyo, was asked by the Prime Minister's Office in 2014 to notify it of the process of recommending new council members before finalizing the list. When replacing the three council members in 2016, he gave the Prime Minister's Office a list of two prioritized candidates per post before recommendations were made. But he gave up the replacements after being pressured to recommend two nominees with lower priority out of the three.

In 2017, when half of its members were nominated, Onishi showed a list of 105 nominees plus several additions to the Cabinet Office. The list was accepted as it was. Conflicts with the Prime Minister's Office over the appointment of council members continued while Kyoto University President Juichi Yamagiwa served as president.

Efforts to give the prime minister more discretion coincide with the move to consolidate power on personnel affairs to the Prime Minister's Office and strengthen control over bureaucrats. The key figure in this method of personnel reshuffling in the Prime Minister's Office was Deputy Chief Cabinet Secretary Kazuhiro Sugita, a former senior official in the National Police Agency, who remains in the post under the Suga administration.

Deputy Chief Cabinet Secretary Kazuhiro Sugita, a former senior official in the National Police Agency, became the key figure in the effort to consolidate power over personnel affairs in the Prime Minister's Office. Sugita remains in the post under the Suga administration.

The Cabinet Office compiled a new explanatory document in consultation with the Cabinet Legislation Bureau on Nov. 13, 2018. While the document called on the prime minister to fully respect recommendations from the council when appointing its new members, it also said that the prime minister would not be obliged to appoint council members as recommended.

It also presented its views that the prime minister will have the right to call on the council to recommend more candidates than needed so that he can appoint new members from among the list.

The Cabinet Office frequently cited the constitution in compiling the document. As Article 65 stipulates that executive authority belongs to the Cabinet and Article 72 specifies that the prime minister "exercises control and supervision over various administrative branches," the prime minister will have the right to supervise the council, a special organization under the jurisdiction of the prime minister to some degree through personnel affairs, the Cabinet Office document said.

As Article 15 declares that the people have the inalienable right to choose and dismiss their public officials, "the prime minister will have to be responsible to the people and the parliament over the appointment of council members," it added.

In response to a question by Japan Communist Party lawmaker Tomoko Tamura, the Cabinet Legislation Bureau explained that the view the prime minister is allowed discretion even under "appointment as a formality" had been presented in the Education, Culture and Science Committee in the upper house of the Diet on July 24, 1969.

The point in question at the time was the Special Rules for the Public Educational Personnel and Staff Act, which stipulates that the education minister will appoint presidents of national universities "based on offers" of the presidents. Masami Takatsuji, then the Cabinet Legislation Bureau chief, stated that the education minister will have the power to reject appointments based on Article 15 "in cases where an appointment is clearly inappropriate in light of the law."

Save Constitutional Democracy Japan, a group composed of constitutional and political scholars, on Oct. 5 issued a statement urging Suga to appoint the six council members as recommended.

"The Act on the Science Council of Japan clearly stipulates that the council's independence from the government should be respected," the statement said. "It can be understood that the recommending of candidate members by the council, among other things, will bind the prime minister to execute his or her appointing power."

"It may be possible for the prime minister to reject council member nominees in a very rare case, where he or she is found out to be involved in crimes after being recommended, provided that there are good reasons," Waseda University Professor Yasuo Hasebe, a member of the group, said at a news conference. "But this rejection cannot be explained with those exceptions in mind."

Hasebe criticized the Suga administration for using the people's right to choose and dismiss public officials stipulated in Article 15 as the basis for the prime minister's discretion. "From the standpoint of constitutional debate, it is very unreasonable to claim that the prime minister has the power to appoint council members based on the general and abstract Article 15 by ignoring the principles and wording of the articles of the Act on the Science Council of Japan," Hasebe said, adding that he has absolutely no idea why they referred to Article 72.

Chief Cabinet Secretary Katsunobu Kato explained that academic freedom stipulated in Article 23 guarantees scholars have freedom in academic research and presentations of findings especially in universities. Therefore, giving the prime minister authority to appoint council members "will not constitute the violation of academic freedom to which council members as individuals are entitled," Kato said.

That caused Ishikawa of the University of Tokyo to retort: "Chief Cabinet Secretary [Kato] misunderstands the constitution; Article 23 does not stipulate each person's freedom of study."

It is commonly accepted theory among constitutional scholars that academic freedom should be protected by freedom of thought and conscience under Article 19, while freedom of research and presentations should be protected by freedom of expression under Article 21. Ishikawa explained that the core concept of Article 23 is to protect the autonomy of professional areas and systematically guarantee the autonomy of universities.

Furthermore, academic communities operate beyond the scope of universities or borders. "The council plays a role in supporting various scientific societies," Ishikawa said.

"The council is directly related to Article 23. Suga's rejection of science council nominees does not infringe directly on the autonomy of universities itself, but is equivalent to it," Ishikawa warned. "The seawall protecting academic freedom is being broken through by personnel intervention. We cannot let that happen."

Out of the six council nominees rejected by Suga, University of Tokyo professor Shigeki Uno has several times in interviews with Nikkei mentioned his proposed structural reforms in governance systems appropriate for the 21st century to cope with the emergence of challenges such as infectious diseases based on his expertise in the history of Western political thought. They were made from a perspective clearly in line with the "comprehensive and panoramic" description offered by Suga himself.

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