Japan Times FYI on Supreme Court


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Hi Blog.  Here’s a primer courtesy of the Japan Times on Japan’s Supreme Court (JSC).

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

The Japan Times, Wednesday, Sept. 17, 2008


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

By SETSUKO KAMIYA Staff writer

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.

News photo
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.

The Weekly FYI appears Tuesdays (Wednesday in some areas). This time it is published on Wednesday (Thursday in some areas) because Monday was a press holiday. Readers are encouraged to send ideas, questions and opinions to National News Desk

2 comments on “Japan Times FYI on Supreme Court

  • I don’t think it’s correct to ascribe any sort of political leaning to the Japanese judiciary. My conclusion, after viewing the system from law offices and legal departments for a few years, is that judges leave their politics at the door here. They look at the facts, look at the relevant law on the books, and write down their gut feeling as to which legal box the case should fall in. This is exactly the opposite of what most US Supreme Court justices do: they take the case, decide how it should come out and then come up with a legal argument to support that conclusion.

    The problem is that Japanese lawyers and judges (who go through the same system of formal training) don’t have much training in logic. You can see this in how they write. I can’t count the number of paragraphs I have seen in court opinions that effectively say “This is X. It is X because, well, it’s unquestionably X and it would be stupid to think it is Y.” For lawyers it’s forgivable, since they’re supposed to zealously argue for a client, but for judges it’s harder to stomach. The new law school system is supposed to help, but I’m not sure that it makes any difference since there is so little culture of formal debate here.

  • I don’t think it’s possible for judges to be completely disconnected from politics. There are many legal theories that are inseparably connected to political positions. For example, conservative politicians always prefer naming judges who adhere to a literal and historical approach to constitutional interpretation.

    Conservative judges also have a completely different view of the democratic theory. This is very apparent in the way they decide on cases that involve analyzing a statute’s constitutional validity. Conservative judges, seeing the legislature as having the democratic legitimacy, will often be much more hesitant before striking down laws. They’re likely to use justifications such as “we shouldn’t legislate from the bench” or “this is something that needs to be resolved by politicians,” etc. Since judges are not named to their position by a popular, nation-wide vote, they are seen as lacking the democratic authority. This is a version of Montesquieu’s theory of the strict separation of powers.

    The more liberal or left-leaning judges see democracy as more of a procedural thing. They see the “democratic legitimacy” (popular vote) as just one aspect of a democratic system, that resides in the elected officials and gives the law its authority. But they also see democracy as requiring an ultimate referee (the high courts) who can evaluate the impact of the law in light of the interests of the minority among the population (LBGT, ethnic minorities, religious minorities, etc). Because those people are statistically in small percentage, their votes don’t have much of an impact on the legislative debates since elected politicians are not really pressured to take them into consideration. For those people, then, in this vision of democracy, the courts are the ultimate recourse. This view leads those judges to have a much more liberal, evolutionary, approach to interpret the constitution and are much more likely to go forward in finding rights that are not specifically written but rather implicitly alluded to, and declare laws invalid against those rights.
    Another manifestation of this theory is when judges analyze the legislative procedure to see if the interests of minorities were “taken in consideration” while the law was debated.

    This is a very fundamental and very divisive issue among judges and it’s very political. You don’t necessarily see it in civil cases or in criminal cases, but when it’s an ethical question that requires a constitutional control, the judges are usually divided by their vision of democracy. Conservative politicians will almost always try to name judges that believe in the first category I talked about instead of the second. This is why, no matter how much judges try to hide their political beliefs in rational or semi-rational rhetoric, politics don’t truly disappear.

    Of course, a big problem in Japan is how the judges aren’t completely independent once they’ve been named. This is something that really hurts the democratic process because if judges are worried about pleasing the politicians and respecting their political views they can’t really decide impartially on controversial subjects.


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