The History of the Japanese Supreme Court

1. The History of the Japanese Supreme Court Shigenori Matsui University of British Columbia Faculty of Law June 14, 2008 ASPAC conference at University of Victoria

2. Introduction The Japanese Constitution was enacted on November 3, 1946 and took effect on May 3, 1947. It vested judicial power to the Supreme Court and such inferior courts to be established by the Diet. “The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.” (article 81)

3. Equipped with the power of judicial review, the Japanese Supreme Court was expected to perform significant political rile in safeguarding the Constitution, especially its Bill of Rights, against infringement. Yet, it has developed the constitutional jurisprudence of extreme judicial passivism. What are the reasons for this extreme judicial passivism? What went wrong?

4. 1 Establishment of the Supreme Court After the Meiji Restoration in 1868, the Meiji Government enacted the Meiji Constitution in 1889. Under the Meiji Constitution, the Emperor was sovereign and had all the governmental powers. The judicial courts are supposed to exercise judicial power in the name of the Emperor.

5. Judicial power included only civil and criminal cases and not administrative cases. The citizen must file a suit in the Administrative Court for challenging the actions of administrative agencies. The Administrative Court was regarded as administrative organ. No suit seeking damage award can be filed in the judicial court against government exercise of power.

6. Individual rights were protected only within the confine of the statutes. If the Imperial Diet passed a statute together with the Emperor restricting these rights, there was no way for citizen to challenge its constitutionality. The judicial courts did not have a power of judicial review.

7. The Japanese Constitution drastically changed the constitutional foundations. The people of Japan now has a sovereign power. The Constitution is the supreme law of the land. Any statute or governmental actions inconsistent with the Constitution is void. Fundamental human rights are protected by the Constitution even against legislative infringement.

8. The Japanese Constitution drastically altered the judicial system. Whole judicial power was vested in the Supreme Court and the inferior courts to be established by the Diet (article 76, section 1). Establishment of extraordinary tribunal was explicitly prohibited (article 76, section 2). The judicial courts have jurisdiction on civil, administrative, and criminal cases.

9. The Japanese Constitution does not specifically provide for the organization, structure, and power of the Supreme Court. Chief Justice should be appointed by the Emperor upon designation by the Cabinet (article 6, section 2).Other Justices should be appointed by the Cabinet (article 79, section 1) All the Justices will retire at the age set by the statute (article 79, section 5).

10. The Diet Passed the Judiciary Act to establish the Supreme Court and other lower courts. According to the Judiciary Act, the number of Associate Justices is fourteen (article 5, section 3). The qualification for Justices is the person of high intellectual knowledge over the age of forty (article 41). Ten out of fifteen Justices must have experience of judges, prosecutors, attorneys for over twenty years. The mandatory retirement age is seventy years of age (article 50).

11. The Supreme Court consists of the grand bench and three petty benches (article 9, section 1). Fifteen Justices are assigned to one of the three petty benches. The case accepted by the Supreme Court will be automatically assigned to one of three petty benches. It is only when the Court invalidates the statute passed by the Diet, or when the reversal of precedent is necessitated, or when the Court believes the case sufficiently significant for the grand bench to hear it, that the case will be transferred to the grand bench (article 10).

12. In order to assist the Supreme Court Justices, the Court has law clerks. Law clerks are all veteran judges. They are not assigned to a particular Justices. When a case is accepted, a law clerk will be assigned to a case. He/she will make research and prepare for discussions. When the Court makes a judgment, he/she will prepare the draft opinion.

13. The Supreme Court is literally the highest court in Japan. It is also the supreme judicial administrative organ for the whole judiciary. It has a rulemaking power (article 77) and decides all personnel decisions on the lower court judges. The Supreme Court established the General Secretariat to assist for judicial administration.

14. 2 History of Japanese Supreme Court 1 The Tadahiko Mibuchi Court (1947-1950) 2 The Koutarou Tanaka Court (1950-1960) 3 The Kisaburou Yokota Court (1960-1966) 4 The Masatoshi Yokota Court (1966-1969) 5 The Kazuto Ishida Court (1969-1973) 6 The Tomokazu Murakami Court (1973-1976) 7 The Ekizou Fujibayashi Court (1976-1977) 8 The Masao Okahara Court (1977-1979)

15. 9 The Takaaki Hattori Court (1979-1982) 10 The Jirou Terada Court (1982-1985) 11 The Kouichi Yaguchi Court (1985-1990) 12 The Ryouhachi Kusaba Court (1990-1995) 13 The Touru Miyoshi Court (1995-1997) 14 The Shigeru Yamaguchi Court (1997-2002) 15 The Akira Machida Court (2002-2006) 16 The Nirou Shimada Court (2006-)

16. The basic foundations for exercise of judicial power was established during the first Mibuchi Court. The power of judicial review is to review the constitutionality of statute or governmental actions when the court resolves the specific cases. Article 81 merely affirmed the power of the courts to review the constitutionality of statute when they exercise judicial power, just like the courts in the United States. The National Police Reserve Case, decided during the Tanaka Court, firmly established this understanding.

17. The basic constitutional philosophy was established during the Mibuchi Court. Fundamental human rights protected by the Constitution are subject to restriction for the public welfare. The Court would uphold such restriction unless it is unreasonable. The Court would defer to the judgment of the Diet as to whether the restriction is reasonable.

18. During the Second Yokota Court, the Supreme Court showed its willingness to scrutinize the constitutionality of restriction in individual rights. The All Postal Workers Case

19. Yet, this trend was totally undercut during the Ishida Court. The All Agricultural and Forest Workers Case.

20. The Court has developed constitutional jurisprudence of extreme judicial passivism. It has refused to review the constitutionality insisting upon very strict threshold requirements; 1 the political question doctrine, 2 the standing doctrine, 3 the mootness doctrine, or 4 the autonomy of the House doctrine.

21. It has paid almost total deference toward the judgment of the Diet. During the 60 years history, it has held the statutes passed by the Diet unconstitutional only eight times; 1 the parricide provision of the Criminal Code, 2 the proper distance requirement in the Pharmaceutical Act, 3 the limitation on division claim for joint-owners under the Forest Act, 4 the limitation of liability under the Postal Act,

22. 5 absence of voting opportunity for voters living abroad under the Public Office Election Act, 6 the discriminatory treatment for illegitimate children under the Nationality Act, and 7 & 8 gross malapportionment in the Public Office Election Act (the Supreme Court held the provision unconstitutional, but refused to invalidate the election result)

23. The Supreme Court has also handed down four unconstitutional rulings; 1 the punishment of conducts prohibited by the order of the occupation government after the end of occupation, 2 application of mandatory mediation judgment procedure, 3 confiscation of property of third-party without affording proper opportunity to be heard, and 4 spending of public money for tamagushi for the Yasukuni Shrine.

24. In all other cases, the Supreme Court deferred to the judgment of the Diet and upheld the constitutionality of restriction in individual rights.

25. It is true that the Supreme Court has given limiting construction to narrow down the reach of the restriction in several cases. It is also true that the Court showed it willingness to find abuse of administrative discretion. Yet, the fact remains that the Supreme Court is extremely unwilling to scrutinize the constitutionality of restriction and to strike it down as unconstitutional.

26. 3 Why the Supreme Court Has Developed such Extreme Judicial Passivism? Former Justice Masami Itoh pointed out several factors: 1 the philosophy of harmony, 2 aspiration of judges for legal stability, 3 institutional factors constitutional cases are very rare constitutional arguments are frivolous

27. the existence of Cabinet Legislative Bureau constitutional provisions are too broad and too abstract, devoid of strict rules to be applied, 4 division between grand bench and petty bench, and 5 the ideal image of judges in Japan

28. Staffing of Ministry of Justice (Professor Yasuo Hasebe) Expectation for extra-judicial remedies (Professor Yasuhiro Okudaira)

29. Japan has been governed by the conservative Government ever since the second Cabinet and this history has allowed the conservative Governments to choose conservative Justices. Yet, the conservative jurisprudence already started during the first Mibuchi Court. absence of purge for judges lack of understanding on the significance of constitutional change poor-crafted constitutional arguments

30. The possibility of change was undercut by the political factors facing the Supreme Court in 1960s. The custom was developed to appoint Justices upon recommendation of the Supreme Court Chief Justice. It has been also a custom to appoint six former judges, four former attorneys, and five others, including two former prosecutors, twogovernmental bureaucrats, and one academic. Most Justice will be appointed after 64 or 65 and remain on bench for five or six years. Many Chief Justices have been appointed at the age of 66 or 67, serving the Court for only four or three years.

31. The position of the Supreme Court Justices have been treated as a final honorary positions for judges, prosecutors, and attorneys. The heavy caseload of the Supreme Court has also prevented the Justices to concentrate on constitutional cases.

32. The most disturbing reasons for judicial passivism is the fact that the Constitution has not been regarded as law by many Justices. The Constitution is rather regarded as a document proclaiming political principles.

33. Conclusion Despite the fact that the Constitution vested the power of judicial review to the Supreme Court, the Japanese Supreme Court has developed constitutional jurisprudence of extreme judicial passivism. Although we can see some hints of possible change, the overall stance of the Supreme Court has remained the same. In order to revitalize the power of judicial review, some reforms are required. It is time to consider the possible solutions.