Judicial Review and Civil Rights in Japan: the First Decade With an Alien Doctrine

• Published date: 01 June 1960
• DOI: 10.1177/106591296001300201
• Date: 01 June 1960
• Subject Matter: Articles

JUDICIAL REVIEW AND CIVIL RIGHTS IN JAPAN:
THE FIRST DECADE WITH AN ALIEN DOCTRINE
P. ALLAN DIONISOPOULOS*
Indiana University
HE
AMERICAN OCCUPATION AUTHORITIES who assumed re-
sponsibility for devising a democratic constitution for Japan did not over-
-~- look the possibility of a return of power of &dquo;reactionaries.&dquo; To safeguard
the gains which were made under the Constitution of 1947, the Japanese Supreme
Court was elevated to a new position of authority not unlike that which the
American judiciary had carved for itself in the past 150 years. Armed with the
’
power of judicial review,’ and for the first time in its history enjoying an inde-
pendent status, the court was indeed in a position to become &dquo;Keeper of the Con-
stitution.&dquo; However, the results in the first decade leave much to be desired, at
least when considered by Western standards. For the most part the Japanese
judiciary has approached its newly conferred powers with timidity, with only an
occasional lower court ruling or dissenting opinion from a supreme court justice
to indicate that a revolution has indeed taken place.
&dquo;Timid&dquo; is an appropriate and descriptive word for the Court. From the
lengthy and reasoned opinions we can, on the one hand, claim that the judges are ..
aware of the revolutionary changes; yet, on the other hand, we must note that
they vacillate, moving from a reasoned opinion which offers promise of safe-
guarding civil rights to a decision which, in effect, nullifies what was earlier said
by the judges. They bridge the gap between these contradictory positions by ap-
plying to the fullest degree the legal maxim &dquo;rights are only relative.&dquo; Thus have
a majority of the members of the Japanese Supreme Court reinstated -
in fact,
if not the words -
the limitations on rights which were found in the Constitution
of 1889.
However, this critical judgment does not tell the whole story. Judges in the
lower courts have acted boldly in cases involving constitutional questions, their
language revealing an awareness of the importance of their positions. Moreover,
the several dissents, and the concurring opinions which take issue with the
majority also reflect the noticeable effect of occupation-inspired reforms.
~ I am indebted to the Graduate School, Indiana University, for a grant which made this study
possible. The writer wishes to thank Professor Masaaki Ikeda, Law Department, Tokyo
University, and Y. Richard Tsukamoto, graduate assistant, Indiana University, for assisting
in this project by collecting and translating civil rights cases.
1
While judicial review was not a feature of the Meiji Constitution, there recently came to light
a wartime decision in which the Supreme Court invalidated the April 30, 1942, general
elections on the ground that the Tojo Government intentionally interfered with the normal
functioning of the electoral processes. Several "liberal" candidates were imprisoned; others
were labeled "traitors" and "Reds." Chief Justice Hisashi Yoshida (now professor of law
at Chuo University) and four associate judges rendered the decision on March 1, 1945. The
decision was suppressed by the government, and copies of the decision were lost when the
Supreme Court building was destroyed in an air raid. Rafu Shimpo (Los Angeles Japanese
Language Daily), May 21, 1958.
269

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270
_1
A,!
;
_
_.
.
I
The limited time in which General MacArthur had to accomplish his self-
imposed task of constitution-making may have prompted the use of available
American models.2
2
Within the short space of ten days there emerged from
Major-General Whitney’s &dquo;constituent assembly&dquo; a draft which relied largely on
Anglo-American ideas. The foreign influence on the chapter on the judiciary was
especially noteworthy, the &dquo;founding fathers&dquo; having decided upon a complete
break with the past by granting the courts independence from the executive and
establishing the Supreme Court as the absolute authority in all civil rights cases.
At the same time the Government Section (obviously borrowing from American
experience), considered means to prevent the judiciary from usurping legislative
prerogativeS.3 If we can accept as reliable a reproduction of the &dquo;MacArthur
Constitution&dquo; which appeared in a Japanese journal in 1954, we find this Ameri-
can proposal:
Article 73. The Supreme Court is the court of last resort: Where the determination of the con-
stitutionality of any law, order, regulation or official act is in question, the judgment of the
Supreme Court in all cases arising under or involving Chapter III of this Constitution is final;
in all other cases where determination of the constitutionality of any law, ordinance, regulation
or official act is in question, the judgment of the Court is subject to review by the Diet.
A judgment of the Supreme Court which is subject to review may be set aside only by the
concurring vote of two-thirds of the whole number of representatives of the Diet. The Diet
shall establish rules of procedure for reviewing decisions of the Supreme Court.’
Clearly, the Americans were insisting upon parliamentary supremacy in all
matters except civil rights. However, only in the so-called &dquo;First Government
Draft&dquo; were the spirit and letter of Article 73 retained.5 Article 77 of the second,6
6
third,’ and fourth8 drafts, and Article 81 of the final version9 changed the lan-
guage and even modified the intent of the SCAP proposal. The modified clause
2
MacArthur had rejected the Matsumoto Committee’s "revised" constitution, and he did not
want the newly established Far Eastern Commission to take over this task. Space does not
permit treatment of a topic already adequately covered elsewhere. See Political Reorientation
of Japan, September 1945 to September 1948, Report of Government Section, Supreme
Commander for the Allied Powers (Washington, 1949), I, 82-118; George H. Blakeslee,
The Far Eastern Commission; 1945 to 1952 (Dep’t State Pub. No. 5138, Washington, 1953);
Harold S. Quigley and John Turner, The New Japan; Government and Politics (Minneapo-
lis : University of Minnesota Press, 1956); Robert E. Ward, "The Origins of the Present
Japanese Constitution," American Political Science Review, L (1956), 980-1010; Courtney
Whitney, MacArthur: His Rendezvous with History (New York: Knopf, 1956); and Harry
Emerson Wildes, Typhoon in Tokyo (New York: Macmillan, 1954).
3
Political Reorientation of Japan, I, 104.
4
"The MacArthur Draft Constitution," Kokka Gakkai Zasshi, LXVIII (September 1954), 28-30.
Professor Ward found a similar Article 73 in other Japanese publications. Ward, op. cit.,
p. 1000, n45.
Of the several party proposals for a revised constitution, only the Progressive party’s
included a provision for judicial review. Political Reorientation of Japan, pp. 95-96; and
see Profesor Toshiyoshi Miyasawa, "Japanese Constitution and Political Parties," Japan’s
Problems (Tokyo: Ministry of Foreign Affairs, 1954), pp. 1-2.
5
Article 81 of the first draft was essentially the same as SCAP’s Article 73. Political Reorienta-
tion of Japan, II, 628.
6

Ibid., p. 635.
7

Ibid., p. 641.
8
Ibid., p. 647.
9

Ibid., p. 675.

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271
states: &dquo;The Supreme Court is the court of last resort with power to determine
the constitutionality of any law, order, regulation or official act.&dquo; While neither
Americans nor Japanese have explained why the judicial review article was
modified, we can make an inference from the things that we know. The Japanese
government’s first draft was the subject of discussions between Japanese and
Americans on March 4-5, 1946; the second draft, a product of these discussions,
made its appearance on March 6. Since American approval had to be given, we
may assume that the occupation authorities were willing to accept the substantial
change, believing that parliamentary supremacy was guaranteed by Article 4l.l0
This assumption is supported by General MacArthur’s statement in which he
noted that the proposed constitution established the authority of government
&dquo;with the predominant power vested in an elected legislature, as representative of
the people, but with adequate check upon that power, as well as upon the power
of the executive and the judiciary, to insure that no branch of government may
become autocratic or arbitrary in the administration of affairs of state.&dquo; il
The Constitution of 1947 contains two checks on the judiciary: (1) impeach-
ment, including removal when &dquo;judicially declared mentally or physically incom-
petent to perform official duties&dquo;; and (2) popular review of the appointment of
judges at the first general election of members of the House of Representatives fol-
lowing appointments and at ten-year intervals thereafter. 12 Along with these
checks upon judicial powers are guarantees which make the judiciary independent
of the political branches of government in a way unknown in prewar Japan. 13
Since the power of judicial review would be meaningless in the hands of
judges who were neither aware of the importance of their independent position
nor asserted their independence, we should consider first what this newly found
position has meant to the Japanese courts. We may then turn our attention to
civil rights cases to determine what the court has understood its constitutional
responsibilities to be.
’
II
The first challenge to judicial prerogatives occurred in 1948-49 when the
Judiciary Committee of the House of Councillors assumed...