Posted by Dr. ARUDOU, Debito on September 22nd, 2008
I’m not a big fan of the JSC, as my experience with it was when they summarily ruled that the Otaru Onsens Case (which involved racial discrimination, Japan Constitution Article 14) was “unrelated to constitutional issues”. This after only a couple of months of deliberation (it usually takes many years for rulings to come down).
It also refused to hear the case for Gwen Gallagher vs. Asahikawa University case, where she was fired for not being “fresh” (their words) enough to teach. And also, given Japan’s lower court rulings, because she’s a woman.
Yes, the JSC does sometimes issue miraculous rulings, such as this recent one regarding international children and J citizenship laws (causing some speculation that the JSC is in fact becoming more liberal; a bit premature IMO). But given the odd conservatism seen otherwise (such as the Chong-san case a few years back, ruling that denying a Zainichi the right to sit Tokyo medical administrative exams, merely because she’s a foreigner, is constitutional), that’s why they’re miraculous.
Anyway, read on. My favorite bit is at the end on how we can vote on Supreme Court justices. (I’ve done so when I voted.) It’s not much of an indicator–abstaining from voting for someone is counted as a “yes” vote (yes, I asked), meaning it’s not a majority of “yes” vs “no” votes, it’s “yes and no vote” vs “no” votes, meaning it’s highly unlikely the public could ever turf out a Robert Bork type. In other words, it’s a sham. And it’s never denied a JSC appointment, as the article indicates.
Garbage in, garbage out, in Japan’s quite bent judiciary, atop which sits this Supreme Court. Arudou Debito in Sapporo
Supreme Court place of last judicial resort
When parties in lawsuits aren’t satisfied with district and high court decisions, they appeal to the top
In 1889, Japan took its first step toward forming a modern constitutional state by promulgating the Meiji Constitution, dividing power among the legislature, or Diet, the executive branch, or Cabinet, and the judiciary, with the Supreme Court at the top.
|Judicial power: The Supreme Court is located in Hayabusa-cho in Chiyoda Ward, Tokyo.YOSHIAKI MIURA PHOTO|
Under the Meiji Constitution, sovereignty resided with Emperor Meiji. The courts handed down decisions on his behalf and in his name.
Under today’s Constitution, promulgated in 1946 and enforced in 1947, sovereignty resides with the people and the courts exercise judicial power to secure the people’s rights.
Following are basic questions and answers about the Supreme Court:
How many justices work for the Supreme Court and how are they chosen?
The Supreme Court has 15 justices, including Chief Justice Niro Shimada.
While the chief justice is appointed by the Emperor upon nomination by the Cabinet, the others are appointed by the Cabinet and certified by the Emperor.
Their backgrounds vary, from high court judges, prosecutors, lawyers, bureaucrats and legal scholars. This is to reflect various views when they interpret the law as the top court.
Among the current members, only Justice Ryuko Sakurai, a former labor ministry bureaucrat who was appointed Thursday, is female.
Justices must be over 40 years old upon appointment and their retirement age is set at 70. The average age of the current justices is 66.6.
Occasionally, some resign upon request. Sakurai’s predecessor, Kazuko Yokoo, stepped down at age 67 earlier this month. Yokoo was a former labor ministry bureaucrat and head of the Social Insurance Agency, which has been attacked for mishandling of pension records.
Where is the top court?
The Supreme Court is in Hayabusa-cho in Chiyoda Ward, Tokyo, not far from the Diet Building and the prime minister’s office in Nagata-cho, Japan’s political nexus.
Before the current structure was built in 1974, the Supreme Court stood in the Kasumigaseki administrative district where the Tokyo High Court and District Court stand today.
Upon relocation, a major public competition for designing a new Supreme Court building took place. Architect Shinichi Okada’s design was chosen out of 217 entries. This is still considered one of the biggest open design competitions for national institutions in the postwar period.
What are the Supreme Court’s judicial functions?
The Supreme Court is the court of final appeal where questions of law are decided.
A court case is first filed and tried at the district court level and moves on to a high court if one or both sides opposes the lower court decision.
If the parties involved are again dissatisfied with the high court decision, they file a petition of final appeal to the Supreme Court.
The Supreme Court consists of the Grand Bench, where all 15 justices preside, and three Petty Benches, each composed of five justices. Every case is first sent to one of the three. But if a case involves a constitutional issue, the Grand Bench makes the judgment.
In 2007, the Supreme Court received about 4,700 civil and 2,600 criminal appeals.
What are its administrative functions?
Being at the top, the Supreme Court plays various administrative roles.
It is responsible for determining the rules of judicial administration, as well as compiling and submitting its annual budget to the Cabinet.
It also nominates lower court judge candidates who must then be appointed by the Cabinet. It is also authorized to decide the assignments of judges to courts around the country.
Because of this, critics say judges tend to hand down conservative rulings to avoid upsetting the Supreme Court.
The top court is also responsible for running the Legal Training and Research Institute, where people who have passed the National Bar Examination are trained for 16 months. While attending the institute, trainees receive practical training from the judges, prosecutors and lawyers. They must pass the final qualifying exam to obtain their licenses to practice law.
Does the top court have the power to perform judicial reviews?
Lower courts hold the authority to review whether certain laws and regulations passed by the Diet are constitutional, but the Supreme Court is where the decision is finalized.
If the Supreme Court determines a law is unconstitutional, that law is invalidated.
Are the performances of Supreme Court justices reviewed?
Yes. Article 79 of the Constitution stipulates that justices are subject to a national review by voters at the first general election after their appointment. They are reviewed again after 10 years.
A judge who engages in misconduct can be discharged if the Court of Impeachment, composed of 14 Upper House and Lower House members, deems it appropriate.
Only Supreme Court justices are subject to national reviews.
At the next general election, which is expected to take place later this year, six justices will be subject to a popular vote for the first time.
They can be dismissed if the majority of voters reject them. A justice has never been dismissed under the review system, which was started in 1947.
The national review is one of the few chances for the public to have a direct say against authority. But some question whether it is serving its purpose to watch and evaluate justices because many people vote without much knowledge of what sort of decisions the justices have supported.