Why has judicial review failed in Japan?

Author:Law, David S.
Position:Symposium: Decision Making on the Japanese Supreme Court
 
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TABLE OF CONTENTS I. INTRODUCTION II. Cultural Explanations A. The Culture of the Kan B. Mainstream Japanese Political Culture C. Cultural Aversion to Open Conflict D. The Non-Axial Character of Japanese Society III. HISTORICAL EXPLANATIONS A. The Postwar Legacy of the Meiji Era B. Judges as "Second-Class Bureaucrats" C. The Alien Character of Judicial Review D. The Impact of the Cold War IV. POLITICAL EXPLANATIONS A. Political Constraints upon Judicial Review: External or Self-Imposed? B. External Constraint: Government Influence Via the Appointments Process C. Self-Restraint: Normative or Strategic? V. INSTITUTIONAL EXPLANATIONS A. Pre-Enactment Review by the Cabinet Legislation Bureau B. The Influence of Personnel Exchanges Between the Judiciary and the Ministry of Justice C. The Bureaucratic Structure and Internal Discipline of the Judiciary VI. CONCLUSION: BREAKING THE GRIP OF THE BUREAUCRACY I. INTRODUCTION

Judicial review in Japan can be characterized as a failure in more than one sense. On the one hand, the Saiko saibansho, or Supreme Court of Japan (SCJ), strikes down government actions so rarely that the judicial enforcement of constitutional limits on government power exists more in theory than in practice. on the other hand, even on those rare occasions that the SCJ does exercise the power of judicial review, its practical ability to secure government compliance in all but the most trivial of cases is open to question. Over the course of its entire existence--a period spanning over six decades--the SCJ has struck down only eight laws on constitutional grounds (1) and thus cemented its reputation as "the most conservative and cautious in the world" with respect to the exercise of judicial review. (2) By contrast, the German Bundesverfassungsgericht, a slightly younger court, has already struck down over six hundred laws, (3) while the United States Supreme Court, with a docket similar in size to that of its Japanese counterpart, (4) has struck down roughly nine hundred laws over the same time frame. (5) Worse still, in the one area where the SCJ has struck down legislation of any political or ideological significance (6)-- namely, the electoral apportionment of the House of Representatives (7)--the government has failed for decades to comply with the Court's rulings. (8)

This Article surveys and critically evaluates a wide range of historical, cultural, political, and institutional explanations for the effective failure of judicial review in Japan. Some accounts depict the judiciary as an ideological ally or servant of a long-ruling conservative government. (9) Other explanations portray the judiciary's behavior as the product of extreme deference to the wishes of the government, or the public, or both. (10) Still other accounts posit that, for reasons that are easily overlooked, the judiciary simply has not been confronted with many laws that are constitutionally suspect. (11) Some of these arguments feature prominently in the existing scholarly literature on Japanese constitutional adjudication; others are not widely discussed and surfaced instead in the course of discussions with academics and off-the-record interviews with judges and other officials in Tokyo. (12) This Article concludes by arguing that the SCJ is unlikely to discharge its responsibility for performing judicial review with greater vigor absent institutional reforms that reduce its dependence upon the bureaucracy for personnel and resources, and it discusses a number of reforms that might have such a liberating effect on the Court.

  1. CULTURAL EXPLANATIONS

    1. The Culture of the Kan

      Some have suggested that government officials, or kan, share a characteristic outlook, and that judges, as saibankan or "court officials," are no exception. (13) This shared outlook can be distinguished, moreover, from mere partisanship or conventional left-right ideology. A number of the judges I interviewed were relatively quick to express distaste for the party that has ruled Japan for most of its postwar history, the Liberal Democratic Party (LDP), which they view as corrupt, if not also increasingly incompetent. At the same time, however, they feel a sense of obligation to help maintain stability and have, at least in the past, experienced a reluctance to interfere with the government and bureaucracy that delivered the economic miracle of postwar Japan. Scholars, too, have argued that Japanese judges are imbued by their positions with a sense of both responsibility and restraint. (14)

      It may be true that many Japanese judges think this way, but the argument proves too much. The SCJ has not always toed the line. For example, under the leadership of Chief Justice Masatoshi Yokota, the Court rendered pro-labor decisions in the late 1960s that aroused the ire of conservatives and frustrated the government's efforts to prevent the public employee unions from striking. (15) The LDP was, at the time, locked in a fierce political struggle with organized labor, which was a bastion of support for the Communists and Socialists. The Court did not change course until the subsequent appointment of the conservative Chief Justice Kazuto Ishida and several other like-minded justices. (16) Its initial willingness to defy the LDP in a high-stakes struggle over the direction of postwar Japan demonstrates that not all judges possess an outlook that renders them unwilling to defy the government.

    2. Mainstream Japanese Political Culture

      One might argue that, to the extent that the SCJ approaches judicial review in a conservative manner, it does so simply because Japanese society is conservative, and the Justices who make up the Court are members of that society and share that sensibility. A number of judges suggested that the SCJ's behavior merely embodies the views and values of mainstream Japanese society. Notwithstanding a steady drumbeat of criticism from Japanese constitutional scholars--who tend to be politically progressive--it is plausible that the SCJ may actually be "somewhat in line" with public opinion. (17)

      There can be no doubt that many judges sincerely believe that their actions merely reflect the views of mainstream Japanese society. And it is both difficult and unrealistic to deny that judges behave in ways that reflect the values of the society to which they belong. Nevertheless, it seems unlikely that the conservatism of the SCJ can be so easily explained. Several interviewees expressed the seemingly contradictory view that Japan's judges are, as one Justice put it, "aloof from daily and political life" and "out of touch with regular people." (18) It is difficult to see how the behavior of judges who are "aloof" and "out of touch" can be explained as the product of affinity with mainstream opinion. Likewise, it is hard to believe that Japanese political culture is so conservative as to entail the rejection of nearly every constitutional claim that comes before the SCJ. As in other countries, some constitutional plaintiffs happen to be highly sympathetic figures, such as the Christian widow who fought in vain to prevent a government-supported veterans' group from enshrining the spirit of her husband in a Shinto shrine. (19) Finally, even if it is true that Japanese judges merely behave in sync with the political mainstream, that begs the question of why their role as guardians of the constitution almost never leads them to defy mainstream sentiment, as judges in other countries more often do.

    3. Cultural Aversion to Open Conflict

      A frequently offered explanation for the SCJ's reluctance to strike down laws is the concept of wa, which defies precise translation but refers roughly to a Japanese ideal of harmonious coexistence. (20) on this account, one way in which the Japanese avoid conflict is by declining to take language literally, and judges behave in precisely such a manner when faced with seemingly unequivocal constitutional language. one Justice described the SCJ's failure to enforce the letter of Article 9, the pacifist provision of the postwar constitution, (21) as the product of a characteristically Japanese way of dealing with legal principles and their application: the Japanese "do believe in the power of words, but not in the literal meaning of words expressed." (22) Another Justice offered evidence that such attitudes are deliberately inculcated in the judiciary. This Justice explained that, during his time as an instructor at the Legal Research and Training Institute (LRTI)--which provides mandatory training to everyone who passes the bar, including judges, lawyers, and prosecutors alike (23)--he sought to train would-be judges to value harmony and reconciliation over candor. In his words: "Communication with other people is most important. What is true comes second." (24)

      There are a number of reasons to view wa-based explanations for the near-absence of judicial review with suspicion. First, invoking cultural norms is a way for judges to shift responsibility for their own behavior to the culture at large. A judge's choice to uphold the status quo and avoid rocking the boat at the expense of vindicating constitutional rights is precisely that--a choice. And it is a choice that cannot be reduced to a matter of compliance with cultural norms. Culture does not dictate such choices; Japanese judges are no more slaves to cultural mores than American judges are. Instead, conservatives can be expected to invoke the concept of wa precisely because the status quo is already to one's liking. As one Japanese legal scholar put it, elites invoke the notion of wa to discourage others from disagreeing openly with them. (25) To insist upon wa is tantamount to rejecting disagreement, and thus to enshrining the status quo. It is therefore convenient and self-serving for conservatives to respond to disagreement by appealing to the notion of wa, simply because they are in power; conversely, it is unlikely that the Communists would ever do so as...

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