Constitutional precedents in Japan: a comment on the role of precedent.

• Author: Matsui, Shigenori
• Position: Response to article by Hiroshi Itoh in this issue, p. 1631 - Symposium: Decision Making on the Japanese Supreme Court

Introduction

Japan is a civil law country, and the precedent of the Supreme Court is not binding on either the Supreme Court itself or lower courts. Judges are supposed to return to the text of the statute for each legal dispute and apply the rules to specific cases. Judicial decisions are not "law" to be applied by the courts. (1)

Despite this assumption, judges have followed the precedent of the Supreme Court most of the time. The Supreme Court will follow its precedent in normal situations, and the lower courts will usually follow the precedent of the Supreme Court as well. Thus, although the precedents are not legally binding, they have a de facto binding power. (2)

In this Comment, I will focus on constitutional law precedents to illustrate the Supreme Court of Japan's approach toward its own precedent. (3) As Professor Itoh pointed out in his Article, the theory of precedent may be a convenient measure to justify or rationalize the outcome the Supreme Court has already reached. (4) Yet, precedent plays a very important role in constitutional adjudication, constraining the decision making of the Supreme Court.

1. Precedents of the Supreme Court

   The precedents of the Supreme Court are tremendous authority for later Supreme Court inquiries. After the Supreme Court established the "purpose and effect test" to determine the permissibility of government involvement with Shinto under the separation of state and religion principle in the Tsu City Ground-breaking Ceremony Case, (5) for instance, the Supreme Court has consistently applied this purpose and effect test in subsequent cases.

   Article 20 of the Japanese Constitution provides for the principle of separation of state and religion in addition to protecting freedom of religion. At issue in the Tsu City Ground-breaking Ceremony Case was the constitutionality of the city's hosting and using public funds for a ground-breaking ceremony by a Shinto priest in accordance with the Shinto ceremony style. The Supreme Court held that government involvement with religion that has either a purpose of advancing the religion or an effect of promoting the religion is precluded by the Constitution (6) It then concluded that hosting the ground-breaking ceremony and paying public money was not a constitutional violation because the ground-breaking ceremony was commonly practiced before construction. (7) The ceremony had neither the purpose nor effect of promoting Shinto. (8)

   The Supreme Court later cited the Tsu City Ground-breaking Ceremony Case precedent and applied the purpose and effect test in subsequent cases. In one case, the Supreme Court held that the participation of Self-Defense Force (SDF) officers in the joint enshrinement of a deceased SDF officer at the Shinto shrine, despite opposition from the deceased's wife, did not have the purpose or effect of promoting or advancing Shinto. (9) In another case, the Supreme Court held that using public funds to move a memorial stone enshrining deceased soldiers, providing property for free use, and allowing the participation of school officials in the annual memorial service held at the memorial stone did not have the purpose or effect of promoting or advancing Shinto. (10) The Supreme Court also held that providing a public subsidy to the local chapter of War Bereaved Association, an association of families of deceased soldiers that hosted the annual memorial service at the memorial stone, did not have the purpose or effect of advancing or promoting Shinto. (11) However, it was only in the Ehime Tamagushi Case (12) that the Supreme Court applied the purpose and effect test and concluded that the mandate of separation of state and religion had been violated. In that case, the Supreme Court found that the public spending for tamagushi--a twig of the sakaki tree wrapped with folded white paper, which is a religious offering to the Shinto shrine--had a deeper involvement with Shinto such that it had the effect of promoting Shinto by providing the impression that the Shinto shrine is special. (13)

   These cases vividly show the impact of Supreme Court precedent upon later Supreme Court decisions. Of the four seperation of state and religion cases following the Tsu City Ground-breaking Ceremony Case examined above, all were decided using its precedential purpose and effect test, and three of the four resulted in the same outcome. Clearly, the Supreme Court is likely to follow its precedent if any precedent can be found.

2. Blindly Following the Precedents?

   However, since the principle of stare decisis is not accepted in Japan, judges tend to make no sharp distinction between ratio decidendi and obiter dicta. Moreover, judges tend to simply follow the precedent without inquiring into the specific fact situations that led to the creation of the precedent. In other words, judges have a tendency to ignore the factual differences between the case that created the precedent and the case before them.

   An example is the Gifu Prefecture Youth Ordinance Case. (14) At issue was the constitutionality of the Gifu prefecture Youth protection ordinance, which banned the use of vending machines to sell books and magazines found to be harmful for minors. The ordinance listed books and magazines that were either sexually explicit or extremely brutal and were harmful for the healthy development of minors, and it prohibited their distribution if they were found to be harmful by the governor or if they fell into a prohibited category. The defendant company was prosecuted for violating this ordinance and challenged its conviction as an infringement of the freedom of expression protected in Article 21, paragraph 1 of the Constitution, and as a violation of the prohibition on censorship in Article 21, paragraph 2. The Supreme Court rejected the defendant's challenge with the following holding:

   Among the arguments made by respondent counsel Manabu Yamaguchi and counsel Kouji Iguchi, with respect to argument on appeal on violation of article 21, paragraph 1 of the Constitution, since it is apparent that the ban on selling books harmful to minors under article 6, paragraph 2, article 6-6, paragraph 1, main text, article 21, paragraph 5 of the Gifu prefecture Youth protection ordinance (hereinafter cited as said ordinance) does not violate article 21, paragraph 1 of the Constitution in light of each of our grand bench precedents (Supreme Court, March 13, 1957, 11 Keishu 997; Supreme Court, October 15, 1969, 23 Keishu 1239; Supreme Court, October 23, 1985, 39 Keishu 413), the argument has no merit. With respect to argument on violation of article 21, paragraph 2, of the Constitution, since it is apparent that the designation of books as harmful to minors under the said ordinance is not a prohibited censorship under that paragraph in light of each of our grand bench precedents (Supreme Court, December 12, 1984, 38 Minshu 1308; Supreme Court, June 11, 1986, 40 Minshu 872), the argument has no merit.... (15) However, among the three cases cited as...