Subcommittee on Fundamental and Organizational Role of Politics (Fourth Meeting)

Thursday, May 23, 2002

Meeting Agenda

Matters concerning the fundamental and organizational role of politics

After a statement was heard from Professor MATSUI Shigenori concerning the above matters, questions were put to him; this was followed by discussion among the members.

Informant

Members who put questions to Prof. MATSUI


Main points of Prof. MATSUI's statement

1. What is the nature of the powers vested in Article 81?

>> My understanding is as follows: (a) Article 76 invests the Supreme Court with judicial powers only; (b) Article 76 does not contain provisions concerning procedures for constitutional review above and beyond the exercise of judicial power. As such, I am in agreement with the interpretation of the Supreme Court that the provisions of Article 81 provide explicit confirmation of the same kind of powers of "judicial review" as exercised by the U.S. courts.

>> Given this interpretation, it follows that the powers of "judicial review" are inherent to judicial powers, and that in the case of both the Supreme Court and the lower courts, "judicial review" is to be exercised in conjunction with the exercise of judicial powers (concomitant power of the review of constitutionality) based on a "legal dispute or suit."


2. Has the Supreme Court exercised this power appropriately?

>> Since the Constitution came into force, the Supreme Court has ruled a law to be unconstitutional on only five occasions and has been generally reluctant to exercise the powers of "judicial review." This has been frequently criticized by public opinion and in academic debate. The situation presents two problems: (a) the small number of rulings of unconstitutionality; (b) the difficulty experienced by the public in petitioning for "judicial review."

>> In judging whether the power of "judicial review" has been properly exercised, it is necessary to first consider what role the Constitution expects the Supreme Court to play.


3. What is the appropriate role of the Supreme Court in exercising this power?

>> The Supreme Court and other courts are responsible for preserving and protecting those rights that are essential and indispensable to the democratic process. Hence, when such rights have been violated, I believe there is ample justification for the courts to undertake a rigorous review. On the other hand, concerning rights other than those that are indispensable to the democratic process, the courts should respect laws duly enacted by the Diet which consists of the people's representatives. If laws have been enacted which undermine the interests of the people, I believe that democratic principles dictate that they be rectified through the expression of the people's will as asserted in the next elections.

>> This mode of thought is referred to as a "process-based theory of judicial review." According to this theory, the courts are the "protectors of the democratic process." This perspective assumes the interpretation of the Constitution as a process-oriented document which prescribes governing procedures, and also assumes a "process-based view of basic human rights" which asserts that basic human rights are procedural rules that must be preserved and protected.

4. Is there a need to amend the Constitution? If so, what amendments are necessary

>> If we accept the interpretations of the Supreme Court, the Constitution certainly needs to be amended in order to establish the type of Constitutional Court that has been the subject of recent discussion. However, there is no compelling reason to conclude that a Constitutional Court would in fact rigorously review existing laws. Therefore, the establishment of a Constitutional Court would not resolve the problem which is at the root of the reluctance of the Supreme Court to exercise its powers of "judicial review." Furthermore, the idea of "judicial review" functioning outside the scope of a specific "legal dispute or suit" remains doubtful.

>> What is needed now is "consciousness raising" and systemic reforms that will prompt the courts to take an active stance in exercising their judicial powers in light of the responsibilities that have been delegated to them. For this purpose, the following fundamental changes must be made. First, the system must be changed to allow both the filing of suits for the suspension of laws and the confirmation of their constitutionality. Second, the rigidity in the appointment of Supreme Court justices must be rectified and younger justices appointed. Third, steps must be taken to increase the population of legal professionals.


Main points of questions and comments to Prof. MATSUI

ITO Tatsuya (Liberal Democratic Party)

>> How would you describe an ideal judge? In your opinion, how sensitive are our judges to the Constitution, and what is their perspective on the Constitution? Also, I would like to hear any specific recommendations that you may have concerning judicial reform.

>> You say that the Constitution assumes a certain type of individual, and you have defined that individual to be a "citizen" who joins others in organizing a political community characterized by mutual respect and co-existence. The principle of the sovereign power of the people can refer to individuals invested with the right of self-determination, as well as to the totality of the people in whom sovereignty resides. Based on your definition of the individual, what do you interpret the sovereignty of the people to mean? Finally, based on your concept of the "citizen," what is your understanding of local autonomy?


SHIMA Satoshi (Democratic Party of Japan and Club of Independents)

>> From the perspective of the separation of powers, it is strange to me that the Cabinet Legislation Bureau, which is no more than an agency of the government, wields such authority over the interpretation of the Constitution. In your opinion, what significance do constitutional interpretations of the Cabinet Legislation Bureau have for the Supreme Court?

>> You have stated that the U.S. system should be adopted whereby suits can be filed for the suspension of a law enacted by the Diet until the law's constitutionality has been confirmed. In that case, is there not a danger that the enforcement of laws would be hampered by a steady stream of court decisions affirming unconstitutionality?

>> Suppose this Research Commission on the Constitution is reorganized into a standing committee, and it is given the authority to investigate the relation between the Constitution and existing laws. In your opinion, would this give rise to any problems pertaining to the separation of powers?


SAITO Tetsuo (New Komeito)

>> I believe the legislative branch (Diet) and the executive branch (Cabinet) exercise their authorities on the basis of democratic grounds. Where does the judicial branch (the courts) derive its justification? >> Is it not a source of concern to have the judicial branch -- which derives its justification solely from the rule of law and due process -- interpret the Constitution which contains abstract prescriptions?

FUJISHIMA Masayuki (Liberal Party)

>> What is your view of the avoidance of judicial judgment based on the "act of state" doctrine?

>> You have spoken against the establishment of a Constitutional Court. But would it not be better to delegate constitutional decisions to an independent and specialized Constitutional Court?

>> When a law has been ruled to be unconstitutional, the legislature may fail to take prompt action, leaving the matter unattended. How do you think the executive branch should respond in such a situation?

>> I believe that judicial decisions should not be made solely by legal experts and that a jury system should be introduced. What is your view on this matter?


YAMAGUCHI Tomio (Japanese Communist Party)

>> It is my understanding that the Constitution of Japan included explicit provisions pertaining to the judicial review process earlier than the constitutions of most other countries. What do you believe the significance of this fact to be, and what is your understanding of the principles underlying this explicit inclusion?

>> I would like to receive your comments on the following two points concerning the problem of judicial passivity: (a) I believe that the realization of the Constitution's principle of judicial review has been hampered by excessive tolerance of the Supreme Court toward the political sector. What is your view on this? (b) What problems do you see in the Supreme Court's past rulings on freedom of expression?

>> As seen in the Naganuma Nike case and the Asahi case, I believe Japan's process of judicial review has been given momentum by the epoch-making rulings handed down by the lower courts in constitutional cases. In your opinion, how should we view the relation between constitutional rulings made by the lower courts and those made by the Supreme Court?


KANEKO Tetsuo (Social Democratic Party)

>> In discussing the role of the courts in the exercise of judicial review, you divided basic human rights into two categories: rights which are essential and indispensable for the people's participation in the political process, and rights which are not necessarily essential and indispensable to this purpose. What specific rights belong to each category in your opinion?

>> The Supreme Court has ruled as constitutional certain provisions contained in the Civil Code which discriminate against children born out of wedlock in matters of inheritance. How would you assess this decision based on your assertion of a "process-based theory of judicial review?"

>> The Supreme Court has ruled that violations of the International Covenants on Human Rights do not constitute grounds for appeal under Article 312 of the Code of Civil Procedure. What is your view on this matter?

INOUE Kiichi (Conservative Party)

>> What is your view on the legislative branch presenting guidelines on the interpretation of the Constitution and existing laws?

>> The judiciary should refrain from ruling on matters which have a bearing on the fundamental status of the State. At the present time, such decisions are avoided based on the "act of state" doctrine. I believe there should be some grounds other than the "act of state" doctrine to justify such avoidance of judicial decision. What is your view on this matter?

>> Article 98 defines the relation between the Constitution and treaties concluded by the government. Currently, the assumption is made that the Constitution holds priority over treaties, but there are those who argue that treaties hold priority over the Constitution. What is your view on this matter?

NUKAGA Fukushiro (Liberal Democratic Party)

>> Your understanding of the Constitution is based on the interpretation that individuals constitute "citizens" who join others in organizing a political community characterized by mutual respect and co-existence. In reality, however, this understanding is not accepted by all people. Reasons for this can be found in the postwar education system and the process in which the Constitution was enacted. Unless and until these matters are cleared up, I do not believe that the view of the Constitution that you advocate can take root. What is your view on this matter?

>> In the Japanese judicial system, judicial review cannot be initiated in the absence of a specific suit. It is argued that this fact has obstructed the invigoration of the judiciary. If judicial review were to be allowed in the absence of specific suits, would this not give rise to the danger of the "politicization of the judiciary?"

BANNO Yutaka (Democratic Party of Japan and Club of Independents)

>> I believe one of the reasons that Supreme Court justices avoid constitutional decisions is the abstract wording of the Constitution which permits a wide range of possible interpretations. It is my belief that the Constitution should be written in a style that is understandable to even junior high-school students and in a manner that will lead all readers to the same interpretation. What is your view on this matter?

>> I believe that students should become familiar with the Constitution and the contents of domestic and international laws as part of the compulsory education curricula, and that they should also learn about political participation. What is your view on this matter?

>> What is your understanding of Article 9 in the context of the "process-based view of the Constitution" which you have asserted?


Main points of comments made by members of the Subcommittee (in order of presentation)

SHIMA Satoshi (Democratic Party of Japan and Club of Independents)

>> Given the extremely demanding procedures for Constitutional amendment (Article 96), perhaps the courts had little choice but to adopt a passive judicial stance.

>> In order to truly bring the Constitution to life, amendment procedures should be re-examined. For instance, the possibility should be considered for eliminating the public referendum when an amendment has been supported by a majority of more than two-thirds in both Houses.

>> The idea of a Constitutional Court should be discussed.

NAKAYAMA Masaaki (Liberal Democratic Party)

>> Notwithstanding Article 98 Paragraph 2 which prescribes the due observance of treaties concluded, treaties with Taiwan were summarily canceled in a press conference at the time of the re-establishment of diplomatic relations with China. Such an error could have been avoided if the courts had been carrying out their responsibilities properly. Such errors must not be allowed to be repeated in the future.

OKUNO Seisuke (Liberal Democratic Party)

>> It was commented that the procedures for Constitutional amendment are very demanding. However, is it not the politicians who are making constitutional amendment difficult?

>> I subscribe to the following positions: (a) Japan cannot contribute to the world without a certain level of military power; (b) interpretations of Article 9 allow Japan to maintain a certain level of military power.

>> Compared with when the Constitution was first enacted, Japan's current status and international conditions have totally changed. The Constitution should be discussed in light of this fact. In this discussion, we should not become bogged down with the wording of the Constitution. Rather, we should turn our discussion to our vision for Japan. The Research Commission on the Constitution should engage in free and frank discussions, and consider what kind of constitution would be suitable for the future of Japan.

SENGOKU Yoshito (Democratic Party of Japan and Club of Independents)

>> The consciousness of Japanese bureaucrats remains that of the "imperial bureaucracy" and they are solely concerned with their own interests. As a result, necessary reforms are not implemented although systemic fatigue is endemic throughout Japan today. To resolve this problem, perhaps one option would be to consider the introduction of a system of political appointments to the bureaucracy.

>> In considering the functions of governance, it is important to maintain the perspective that politics and the people must, in every sense of the word, be involved in government and in its decisions.
YAMAGUCHI Tomio (Japanese Communist Party)

>> Mr. Masaaki NAKAYAMA indicated that Japan's national interests and its diplomatic positions have been disgraced. The reason for this is that Japan's current diplomacy has veered from the principles contained in the Constitution. It is crucial that diplomatic efforts be made in conformity with the directions defined by the Constitution.

>> I cannot actively support the idea of a Constitutional Court for the following reasons: (a) it would suffice to actively utilize the existing powers of constitutional review; (b) in view of the current conditions of the Supreme Court, it is doubtful whether a Constitutional Court would actually function if created.

>> It is necessary to examine the problem of the procedures for constitutional amendment as prescribed under Article 96 from the perspective of the people in whom sovereignty resides. The question of whether the hurdle has been set too high or not is not the real issue here.

KANEKO Tetsuo (Social Democratic Party)

>> One of the reasons that various types of problems related to the interpretation of the Constitution exist today is that the Supreme Court has not made proper use of its powers of constitutional review, and that much has been left to the judgment of the political process. This also seems to have contributed to widening the gap between the Constitution and political reality.

>> Even if a Constitutional Court is established, it is doubtful whether the existing problem of the absence of proper judicial review can be resolved.

>> In view of the existing gap between the Constitution and political reality, I believe it is the duty of the Research Commission on the Constitution to examine the relation between the life of the people and how the Constitution has been enforced since its enactment.

FUJISHIMA Masayuki (Liberal Party)

>> I believe that a Constitutional Court should be established.

>> Regarding amendment procedures prescribed under Article 96, I believe the hurdle has been set too high. I also believe that a law to define the necessary procedures for implementation of constitutional amendments should be promptly enacted.