Why is the Japanese Supreme Court so conservative?

• Author: Matsui, Shigenori
• Position: Symposium: Decision Making on the Japanese Supreme Court

INTRODUCTION

The Constitution of Japan, enacted on November 3, 1946, and effective as of May 3, 1947, gave the judicial power to the Supreme Court and the inferior courts established by the Diet, the national legislature, and gave the power of judicial review to the judiciary.

Equipped with the power of judicial review, the Japanese Supreme Court was expected to perform a very significant political role in safeguarding the Constitution, especially its Bill of Rights, against infringement by the government. Yet, it has developed a very conservative constitutional jurisprudence ever since its establishment. (1) It has refused to decide many constitutional questions by insisting on rigid threshold requirements for constitutional litigation and has rejected almost all constitutional attacks by accepting the arguments of the government or by paying almost total deference to the judgment of the Diet and the government. It is quite appropriate to claim that the Japanese Supreme Court has developed a very conservative, noninterventionist constitutional jurisprudence. (2)

This Article examines why the Japanese Supreme Court has developed such a conservative constitutional jurisprudence. First, the Article will examine the power of judicial review and the system of judicial review in Japan. Second, it will show how the Japanese Supreme Court is reluctant to entertain constitutional litigation and how the Japanese Supreme Court is unwilling to apply close scrutiny or strike-down statutes. Then the Article will explore the historical, organizational, institutional, and strategic reasons for the conservative constitutional jurisprudence. This Article argues, however, that the most fundamental reason lies in the reluctance of Japanese judges to view the Constitution as a source of positive law to be enforced by the judiciary.

How can we change the constitutional jurisprudence of the Japanese Supreme Court? Is there any way to make the Supreme Court more active? This Article will critically examine the proposal to establish a Constitutional Court by amending the Constitution. It proposes rather drastic changes to the appointment practices and institutional design of the Supreme Court in order to allow the Supreme Court to exercise the power of judicial review more actively. It is important to make judges aware of both their obligation to enforce the Constitution and the unique demands of constitutional interpretation. On the one hand, the Japanese judiciary must come to view the Constitution as positive law that the judiciary is obligated to enforce, no less than it is obligated to enforce ordinary statutes. On the other hand, judges must be reminded as a matter of interpretive methodology that it is not merely a statute, but a constitution, that they are construing. (3) In light of the democratic principle underlining the Constitution, the judiciary is better off if it exercises the power of judicial review to promote the representative democracy.

1. THE JAPANESE CONSTITUTION AND THE SUPREME COURT

   1. The Supreme Court

      The Japanese Constitution, enacted in 1946 during the occupation after the defeat in the Pacific War, (4) proclaims the popular sovereignty principle and declares itself as the supreme law of the land. (5) It is a constitution enacted based on the draft prepared by the Supreme Commander of Allied Powers (SCAP), General Douglas MacArthur, (6) and it reflects a very strong American influence. The Constitution vests "whole judicial power" in the Supreme Court and the lower courts established by the Diet in Article 76 (7) and grants the power of judicial review to the Supreme Court in Article 81. (8) The Diet enacted the Judiciary Act in 1947 to establish the Supreme Court, as well as lower courts. (9)

      The Supreme Court consists of the Chief Justice, who is to be designated by the Cabinet and appointed by the Emperor, (10) and the Associate Justices to be appointed by the Cabinet. (11) The Judiciary Act stipulates that the number of Associate Justices should be fourteen. (12) A Supreme Court Justice has to be over the age of forty and have an intellectual grasp of the law, (13) but there is no requirement that a Supreme Court Justice be a lawyer. (14) However, at least ten out of fifteen Supreme Court Justices must have either a combined ten years of experience as chief judges of the High Court or judges, or a combined twenty years of experience as chief judges of the High Court, judges, Summary Court judges, prosecutors, attorneys, or university law professors. (15) The appointment is not lifelong; Justices are supposed to retire at the age set by statute, (16) which is currently seventy. (17) There is a system of public review for the appointment of the Supreme Court Justices:

      The appointment of the judges of the Supreme Court shall be reviewed by the people at the first general election of members of the House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the House of Representatives after a lapse of ten (10) years, and in the same manner thereafter.... [W]hen the majority of the voters favors the dismissal of a judge, he shall be dismissed. (18) As a formal matter, Supreme Court Justices are selected at the discretion of the Cabinet. Although the initial appointments of Justices were based on recommendations of an advisory board, (19) no permanent advisory board was established thereafter. (20) The Prime Minister has unbridled discretion to make appointments from candidates who satisfy the legal requirements.

   2. The Power of Judicial Review

      According to Article 81, the "Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act." (21) What is the nature of this power to determine the constitutionality of law?

      This issue was raised in the National Police Reserve Case, (22) which dealt with the Japanese Constitution's very unique pacifism clause. In Article 9, the Constitution abandoned the war power and prohibited maintenance of any armed forces. (23) At the time of the enactment, it was believed that Article 9 prohibited armed forces even for the purpose of self-defense. (24) Therefore, after the SCAP dismantled the Imperial Army and Navy during the occupation, there were no Japanese armed forces. Yet, when the Korean War erupted in 1950, MacArthur had to move American troops stationed in Japan to Korea and was worried about the reduced defense capability of Japan. (25) He thus allowed Prime Minister Shigeru Yoshida to establish the National Police Reserve. (26) Although it was called as a police reserve, it was apparent that the National Police Reserve was in fact an armed force. The decision of the government to establish the National Police Reserve triggered very strong objections from the opposition parties. In this case, Diet member Mosaburou Suzuki, practically representing the opposition, the Japan Socialist Party (JSP), filed a suit directly with the Supreme Court. He sought a declaration of unconstitutionality and an injunction against the establishment and maintenance of the National Police Reserve. He argued that Article 81 gave the Supreme Court dual roles: roles as both a judicial and a constitutional court. According to Suzuki, the Supreme Court could accept a suit without any case or controversy and review the constitutionality of the law as a constitutional court.

      Yet, the Supreme Court had already held in a previous decision that Article 81 merely affirmed the power of a judicial court to review the constitutionality of a statute in adjudicating a case or controversy, as had been the practice of the United States Supreme Court. (27) In the National Police Reserve Case, the Japanese Supreme Court reaffirmed this previous holding and rejected Suzuki's argument. (28) The Supreme Court held that Article 81 merely confirmed the power of the Supreme Court to review the constitutionality of a statute as a court of last resort when exercising judicial power. (29) This means that there must be a case or controversy that satisfies the requirements for the exercise of judicial power in order for the Supreme Court to exercise the power of judicial review. Believing that this suit was filed without satisfying the case or controversy requirement, the Supreme Court dismissed it. (30)

      As a result of this decision, it was established that in order for the Supreme Court to review the constitutionality of a statute, there must be a case or controversy. The Supreme Court exercises the power of judicial review only incidentally to its exercise of judicial power. This also means that not only the Supreme Court but also all the judicial courts have a power of judicial review. The Supreme Court therefore held that the Supreme Court and all lower courts can exercise the power of judicial review. (31)

      The Supreme Court's view is generally supported by academics. (32) But the Supreme Court in the National Police Reserve Case never elaborated why this case lacked the case or controversy requirement. It may be because the plaintiff did not have necessary standing. However, as a result of this decision, I suspect, the courts came to believe that in Japan a suit seeking declaration of the unconstitutionality of a statute and injunction against its enforcement will fail to meet the case or controversy requirement. (33)

   3. The Process of Judicial Review

      The Supreme Court has repeatedly held that the Constitution gives the Diet the power to define the jurisdiction of the courts, the appeal jurisdiction of the courts, and the permissible reason for appeal, with the exception that the Supreme Court must be assured the power to decide constitutional issues as a court of last resort under Article 81. (34) The Diet has granted only limited original jurisdiction to the Supreme Court (35) and, therefore, the Supreme Court mostly has appellate jurisdiction.

      With respect to...