Reserved seats on Japan's Supreme Court.

• Author: Repeta, Lawrence
• Position: Symposium: Decision Making on the Japanese Supreme Court

INTRODUCTION

The first Supreme Court appointed under Japan's present Constitution took office in August 1947. This was during an early stage of the country' s occupation by Allied military forces, just two years from the end of the Great War. The Court was appointed a few months after Japan adopted a revolutionary Constitution that transferred sovereignty from the Emperor to the Japanese people and began to implement numerous legal reforms crafted to conform to the new order.

As the final arbiter of disputes to arise under this Constitution and these laws, the Supreme Court would play a role of incalculable importance in Japan' s evolution as a democratic society. Key features of the Court' s structure were defined by the new Constitution and Courts Act, each of which took effect on May 3, 1947.

Foreign students of Japan's Supreme Court are inevitably drawn to a series of customs surrounding appointments to the Court that are not prescribed by the Constitution, the Courts Act, or any other formal law. The first is the custom of total secrecy that surrounds the process. The Japanese people learn little about the individuals selected to serve on the Court and learn the identities of new Justices only after appointments are finalized by Cabinet order. Another custom is the general limitation of appointments to individuals of relatively advanced age. With few exceptions, appointees are at least sixty-four years old. Because the Courts Act requires that all Justices retire by the age of seventy, individual Justices tend to have relatively short terms of service.

But one might argue that the most distinctive custom is the practice of allocating a relatively fixed number of seats to candidates from different segments of the legal community. Foreign observers use terms like "vested right," (1) "quota," (2) and "well-established patterns of selection" (3) to describe this closely followed custom by which court membership is apportioned among career judges, private attorneys, prosecutors, academics, and bureaucrats. Perhaps it is best described as a system of reserved seats.

The most remarkable aspect of this practice is its extraordinary continuity. The rigid adherence to an allocation formula has its roots in the selection of the first group of fifteen Supreme Court justices who took office in August 1947. There was a significant shift in the allocation during the period from 1969 through 1973, a turbulent era for Japan's judiciary and for society at large. But when this shift was complete, a new equilibrium appeared and the adjusted allocation would remain essentially unchanged at least until the present, a period of nearly four decades.

Part I of this Article describes the genesis of the allocation custom and the revolutionary nature of the decision to assign a significant number of seats to private attorneys and scholars, the only members of the Court who have spent a significant portion of their careers outside government service. Part II describes the reallocation of reserved seats engineered between 1969 and 1973, during the term of Chief Justice Ishida Kazuto. As described in greater detail below, the reallocation reduced the number of seats held by attorneys and scholars and institutionalized a new appointment pattern better designed to produce a Court that would enforce the agenda of conservative political leaders and limit the individual rights declared in Japan's Constitution.

1. THE FIRST ALLOCATION OF RESERVED SEATS ON JAPAN'S SUPREME COURT

   1. An Independent Judiciary

      The Potsdam Declaration provided overall direction for the comprehensive reforms to Japan' s legal system that were adopted during the immediate postwar era. Key language required Japan' s government to "remove all obstacles to the revival and strengthening of democratic tendencies" and declared that "[f]reedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established." (4)

      Japan remained under the occupation of Allied military forces from their arrival in September 1945 until their withdrawal in 1952 with the conclusion of the San Francisco Peace Treaty. Occupation officials were intimately involved in drafting Japan' s Constitution and in the development and review of legal reforms, especially during the early years when the most fundamental changes were made. When they considered reforms to Japan' s legal profession, occupation officials found some obvious targets.

      The first was establishing the independence of the judiciary. Prior to the 1947 Constitution, the judiciary was subject to the control of the executive branch of government. Alfred oppler, who was charged with oversight of a broad range of legal reforms, explained this relationship as follows: (5)

      The courts were under the jurisdiction of the Minister of Justice who was responsible for their budget as well as for the appointment and promotion of judges. obviously, this arrangement endangered genuine independence, inasmuch as ambitious and opportunistic judges were tempted to adjust their opinions to the presumptive wishes of the government. (6) A related goal was to elevate the status of Japan's lawyers. For Oppler, the two objectives were closely linked: "It was clear to us from the beginning that the liberation from government control of the bar had to follow the creation of an independent judiciary." (7)

      The foundation for an independent judiciary was built into the Constitution itself. Key provisions in the SCAP draft (8) clarified that the "whole judicial power" would be entrusted to the courts; that the Supreme Court would determine "the rules of procedure and practice, and of matters relating to attorneys, the internal discipline of the courts, and of the administration of judicial affairs;" that the Supreme Court itself would decide candidates for appointment as lower court judges; and that the compensation of judges would not be decreased during their terms of office. No judge could be removed from office "except by public impeachment unless judicially declared mentally or physically incompetent...." (9) Together with this independence, Article 81 of the Japanese Constitution granted the Supreme Court real power--the unambiguous authority to declare acts of the administration or legislature unconstitutional.

      These provisions were accepted unchanged by the Shidehara Cabinet and then by the Diet. In order to emphasize the new status of the Court, the Diet added language declaring that the Chief Justice would be ceremonially appointed by the Emperor, the only official other than the Prime Minister to enjoy this honor. This new judicial regime was included in the constitutional text promulgated by the Emperor on November 3, 1946, which took effect on May 3, 1947.

      Although Oppler did not work on the draft Constitution, he became the central Occupation figure involved in shaping the Courts Act, which would provide additional protections for judicial independence. Despite the clear direction shown by the constitutional provisions, adoption of the Constitution did not end the battle for judicial independence; Ministry of Justice officials sought to retain control over the judiciary by maintaining authority over its budget and personnel matters. (10) Oppler and his colleagues sided with the judges. As a result, Articles 80 and 83 of the Courts Act specified that the judiciary would submit its own budget to the Diet and would maintain control over other administrative matters.

   2. Elevating the Status of Attorneys

      Meanwhile, the Occupation officials' desire to grant "liberation from government control of the bar" did not progress so smoothly. Throughout their relatively short history as a formally recognized element of Japan' s legal profession, private attorneys had always occupied a position inferior to that of judges and prosecutors. (11) This inferior status was symbolized by the common term for private attorneys, zaiya hoso, which literally means "outside lawyers." This term distinguished them from the "inside," or government, lawyers, comprised of judges and prosecutors.

      Occupation officials sought to raise that status to a level equivalent with other members of the legal profession. (12) The most direct objective in this regard was passage of a law that would guarantee the bar associations autonomy in determining their membership and in disciplining members. But institutional opposition was great. Although the Courts Act and a new prosecutors law were hammered out in time to coincide with enforcement of the new Constitution, passage of the Attorneys Act would be delayed for two more years due to opposition from the Supreme Court and the Ministry of Justice. (13)

      During this interval, occupation officials took other steps to improve the status of attorneys, regularly meeting senior officers of the bar associations and often according their opinions equivalent importance to those of senior judges and Ministry of Justice officials. (14) Regarding the Attorneys Act itself, occupation officials made clear they would not approve any statute that did not provide for bar association autonomy. (15)

      of course, the single step with the greatest symbolic and potentially substantive importance was the appointment of attorneys to the newly created, newly independent Supreme Court. Prior to 1947, Japan's highest court, the Great Court of Cassation or Dai-shin-in, included only career judges and prosecutors. When the first Supreme Court ascended to the bench in August 1947, attorneys were not merely included; they were awarded a number of seats nearly equal to the number allocated to career judges. This represented a radical change in status for the zaiya hoso.

      The addition of attorneys, along with academic experts, to the Court was an important step in the overall plan of democratic legal reform. occupation officials placed a very large bet on the role to be played by the Supreme Court in Japan' s development as a...