10th Meeting

Thursday, May 25, 2000

Meeting Agenda

1. Matters relating to the Constitution of Japan (Major postwar judgments of unconstitutionality)

After an explanation of the above matters was heard from an official of the Supreme Court, the official was asked questions.
 

Members who asked questions:


2. Chairman Nakayama reported on the proceedings of the Commission during the current session of the Diet.( Click here )


Main points of the explanation by the official of the Supreme Court

1. Supreme Court judgments of unconstitutionality, etc.

>> The judgment in the National Police Reserve constitutionality case indicated that the power of judicial review in Japan is specific (incidental) in nature.

>> From the mid-1940s to the mid-1960s, partly because the interpretation of the new Constitution and the new Code of Criminal Procedure was not yet established, there were a relatively large number of judgments of unconstitutionality in criminal cases, such as the finding that the determination of guilt by using only the record of a confession as evidence was unconstitutional.

>> Thereafter, as the new Constitution permeated the national life, there were very many constitutional challenges relating to the principle of equality and human rights provisions, such as the judgment of the unconstitutionality of Article 200 of the Penal Code providing for punishment for killing a linear ascendant, of the regulations that limited the number of pharmacies in a given area, and of the restrictions on the partition of forests.

>> Further, during more or less the same period, not only were suits brought by individuals whose rights had been infringed, but constitutional questions affecting public institutions also began to be widely raised, such as the judgment of the unconstitutionality of the apportionment of Diet seats, and of a prefecture's disbursement from public funds to religious corporations which held ritual ceremonies.

2. Outline of the constitutionality review systems of other countries

3. Trends in the number of cases of litigation, average length of trials, etc., in Japan


Main questions and comments to the Supreme Court official

NAKAYAMA Taro, Chairman

>> What are the distinguishing characteristics of Japan's judicial review system and of its actual operation?

>> About how many cases have there been in which a decision on constitutionality was not reached for reasons such as the so-called "act of state" doctrine? What were the reasons for a decision not being reached in these cases?

>> Which articles of the Constitution have been involved in large numbers of constitutionality cases to date?

>> What is the cause of the long duration of trials in Japan? Further, what measures for improvement are under discussion?

>> What are the judicial review systems in other countries such as the United States and Germany, and how do they actually operate?


YASUOKA Okiharu, Liberal Democratic Party

>> Should we not consider introducing a system of abstract judicial review?

>> A bill submitted in 1957 proposed reforms of the organization of the Supreme Court, including splitting the functions of the Court into its role as a court of final appeal and its role of exercising the power of judicial review. What is your opinion of these proposals?


SENGOKU Yoshito, Democratic Party of Japan

>> Under Article 242-II of the Local Autonomy Law, there exists a procedure by which residents may legally contest issues concerning local governments' handling of their fiscal accounts, but is it not a problem that no method is available whereby similar actions by the national government can be challenged in court?

>> Should not the Court, in its judgments, urge the Diet to legislate a means for the public to challenge the national government's actions in court?


KURATA Eiki, New Komeito and Reformers' Network

>> In the interpretation of the Constitution, which is the supreme law and the basic standard of the land, should there not be a certain amount of latitude in order to enable it to respond to changing conditions?

>> I would like to ask your general views on the propriety of incorporating articles stipulating duties in the Constitution, and on the relationship between human rights and duties, and the relationship between human rights and the state, including such questions as where these should be stipulated.


SASAKI Rikukai, Japanese Communist Party

>> In comparison with the Constitution of the Empire of Japan, how do you view the significance of Article 81, which provides for the system of judicial review, and the background to its formulation?

>> The Supreme Court is sometimes referred to as the "guardian of the Constitution"; what do you think of this evaluation?

>> The avoidance of constitutionality judgments on the grounds of the "act of state" doctrine has been criticized as mere evasion; what is your opinion of this criticism?


NAKAMURA Eiichi, New Conservative Party

>> In outline, what was the content of the 1983 judgment of the constitutionality of the provisions on the apportionment of seats of the House of Councillors?

>> How has the Supreme Court ruled most recently on the maximum disparity in the number of electors per seat in the House of Councillors and the House of Representatives?

>> What is the effect on the Diet of the Supreme Court's judgment of constitutionality with regard to the apportionment of seats?


ITO Shigeru, Social Democratic Party

>> To enable the Court to deliver constitutionality judgments in a timely and appropriate manner, should we not take such measures as: (1) establishing a constitutional court on the German model, or (2) revising the Court Organization Law to recognize the power of abstract judicial review?

>> What methods can be considered to gain public trust in the Court, other than existing methods such as popular review of the appointments of Supreme Court justices?


FUTAMI Nobuaki, Liberal Party

>> Does the interpretation that Japan's system of judicial review is a specific system result from the influence of the United States?

>> Is it possible that the interpretation that it is a specific judicial review system will alter in the future?

>> Am I correct in understanding that an abstract system of judicial review cannot be introduced without revision of the Constitution?