Subcommittee on Ideal Government and Organizations (Third Meeting)

Thursday, May 15, 2003

Meeting Agenda

Matters concerning ideal government and organizations (judicial system and the constitutional court: from the perspective of the authority to interpret the Constitution)

After statements were heard from Informants TSUNO Osamu and YAMAGUCHI Shigeru concerning the above matters, questions were put to them; this was followed by free discussion among members.

Informant:

  • TSUNO Osamu, Attorney at law and former Director-General of the Cabinet Legislation Bureau
  • YAMAGUCHI Shigeru, former Chief Justice of the Supreme Court

Members who put questions to Mr. TSUNO Osamu and Mr. YAMAGUCHI Shigeru

Main points of Mr. TSUNO's statementstatement

1. Functions and organization of the Cabinet Legislation Bureau

(1) Functions

>> Through its functions of legislative examination and statement of opinions, the Cabinet Legislation Bureau directly assists the Cabinet in ensuring that functions related to the submission of legislative bills by the Cabinet and the faithful application of laws are appropriately undertaken according to the principles of the rule of law. Furthermore, the Cabinet Legislation Bureau directly assists the Cabinet to ensure that the obligation of Ministers of State to respect and uphold the Constitution is being appropriately met.

>> Before any draft legislative bill is submitted to the Cabinet, it is without exception examined by the Cabinet Legislation Bureau (examination function). The first matter to be considered is the constitutionality of the bill.

>> Constitutional interpretations required in the execution of administrative functions are primarily undertaken by the government ministries concerned. However, when questions or differences of opinion arise among government ministries concerning constitutional interpretation, the Cabinet Legislation Bureau is charged with the function of determining and unifying the government's official interpretation (opinion statement function). Within this framework, the views of the Cabinet Legislation Bureau are considered by the government to represent the expert and ultimate opinion on constitutional matters.

(2) Organization and administrative accomplishments

>> The Cabinet Legislation Bureau was patterned after France's Council of State. Similar organizations exist in countries such as Germany and Italy.

>> At the present time, the Cabinet Legislation Bureau examines approximately 100 bills during an ordinary session of the Diet. With regard to its opinion statement function, to date, the Cabinet Legislation Bureau has issued more than 200 legal opinions and more than 1,000 oral opinions. In recent years, the primary focus has been on the presentation of oral opinions.

2. Constitutional interpretations of the Cabinet Legislation Bureau

(1) Significance of constitutional interpretations rendered by the Cabinet Legislation Bureau

>> It is the function of the judiciary to finalize a constitutional interpretation. In this sense, the interpretations of the Cabinet Legislation Bureau have no binding power whatsoever. However, the courts must await a specific suit before rendering an ex post "after the event" ruling on constitutional matters. To ensure a unified execution of administrative functions, the government needs to formulate ex ante interpretations of the Constitution.

(2) Standards for constitutional interpretation by the Cabinet Legislation Bureau

>> Constitutional interpretations should be arrived at through a process which examines the text and the purpose of the provisions, considers the intent of its drafters and pays due attention to maintaining overall consistency in matters that have been repeatedly discussed and examined over time.

>> The constitutional interpretations of the government are the result of such a logical process, and therefore the government cannot freely modify its interpretations.

3. Establishment of a constitutional court

>> The power of abstract judicial review lies beyond the scope and jurisdiction of the "judiciary." Hence, under the present Constitution, I believe that the Supreme Court does not possess such powers.

>> In considering the pros and cons of establishing a constitutional court, it is my personal opinion that the following matters must be carefully and properly considered: (a) the question of the relation between popular sovereignty and the separation of powers when a constitutional court begins making rulings on political matters; (b) the position of the Diet as the highest organ of state power and the sole law-making organ of the State when a constitutional court is granted powers that are similar to that of the enactment of laws; (c) the risk that the political sector may go too far in restricting itself in fear of rulings of unconstitutionality.


Main points of Mr. YAMAGUCHI's statement (including a supplementary statement made in response to questions posed by Mr. SAITO)

1. Constitutional review systems in foreign countries

(1) U.S.A

>> The Marbury vs Madison case of 1803 established the principle of ex post judicial review of constitutionality. The principle of positive judiciary is apparent in varying degrees throughout the history of judicial review in the United States. With the passage of time, the general trend has been for an advancement in positive judicial function. The reason for this is that the expanding scope of government activities has given rise to a growing number of policies which are subject to conflict and dissension.

(2) Germany

>> The Federal Constitutional Court has systems of both specific and abstract judicial review and for constitutional complaints. Responding to the criticism that the Weimar Constitution allowed the Nazis to seize power, the Basic Law for the Federal Republic of Germany aspires to a "fighting democracy." For this reason, the Federal Constitutional Court is expected to perform a positive judicial function, and as a matter of fact engages without hesitation in ruling on constitutional matters.

(3) French Constitutional Court

>> France's Constitutional Council (Conseil Constitutionnel) was created in response to the growing power of the executive branch in relation to the legislature, and to cope with the traditional distrust of the judiciary. The Constitutional Council functions as an institution for ex ante review of newly enacted legislation which is submitted to it for examination prior to being signed into law by the president. The 1974 constitutional amendment expanded the scope of persons empowered to file suit with the Constitutional Council. Consequently, almost all important new legislation is now submitted to it.

2. Features of Japan's judicial review process: a comparison with foreign countries

(1) Differences and similarities in judicial environment

>> Multi-ethnic countries, such as the United States and Germany, have a need to create unity out of an environment of diversity. The constitution and the judiciary stand as important centripetal forces in this process. In comparison with Japan which is a homogeneous country, such societies tend to be highly litigious. In such an environment, constitutionality frequently comes into question.

>> Countries with federal systems, such as the United States and Germany, tend to have a significantly larger number of laws than centralized states such as Japan and France. Furthermore, prior examination of legislation is not always adequately performed. In this environment, the courts must play a more important role in maintaining the unity of the federation.

>> Because of frequent changes in government administration in the United States, Germany and France, important legislative bills have become the subject of judicial review. On the other hand, Japan has experienced few changes in administration, and Japan's parliamentary cabinet system adds stability to the political and judicial frameworks. As a result, unresolved political problems are very seldom referred to the courts.

>> In the U.S. Congress, new legislation is most frequently drafted and sponsored by members of Congress. The tendency is to enact legislation which has not necessarily undergone rigorous examination. In the case of Japan, most of the laws are drafted and sponsored by the Cabinet and have already been rigorously examined by the Cabinet Legislation Bureau to affirm their constitutionality.

>> In the United States, the introduction of a discretionary appeals system (certiorari system) has encouraged a more positive approach to the law-creating function by allowing the Supreme Court to take up particularly important cases and to respond speedily to emerging social problems. In the case of Japan, until the Jokoku appeal system was introduced in civil litigations, the Supreme Court was too busy handling appeals and therefore hesitated to convene the Grand Bench.

(2) Exercise of judicial review by Japan's Supreme Court

>> Thus far, rulings of unconstitutionality regarding laws and ordinances in Japan are limited to five civil cases (Pharmaceutical Affairs Law, Public Offices Election Law, Forest Act, Postal Law) and three criminal cases (Criminal Code, Article 200, etc.). This has been criticized as judicial passivism. However, this situation can be attributed to the factors enumerated under (1). It is my understanding that the small number of rulings of unconstitutionality are a natural outcome of the system.

>> Judges must take various factors into consideration when making a constitutional ruling. Because the judiciary lacks a popular foundation, as a rule, the judiciary should respect the decisions of the Diet whose members are determined through elections. On the other hand, I believe the judiciary must undertake rigorous review of the freedom of expression, the freedom and equality of minorities and other matters which form the foundation of a democratic system.

>> The justices of the Supreme Court must always consider the impact of their rulings on the lives of the people. They must always be conscious of where the national consensus lies and must take responsibility for their decisions.

3. Conclusion: Future directions in rulings on constitutionality

>> If established, a constitutional court would become deeply involved in political issues, leading people to question the justification and authority of such a court.

>> In any case, the judicial process will be speeded up through the Jokoku appeal system, and the courts can be expected to perform their essential mission of protecting the rights of individuals while resisting the forces of majority rule.

Main points of questions and comments to statements by Mr. TSUNO and Mr. YAMAGUCHI

TANIKAWA Kazuo (Liberal Democratic Party)

(To Mr. TSUNO)

>> The face-off between the United States and the Soviet Union has come to an end and the pressing issues of the day include international terrorism and how Japan can contribute to the international society. In this contemporary environment, the gap between the Constitution and current realities continues to grow and we are approaching the limits wherein Japan can cope through constitutional interpretation. To properly cope, I believe we must examine the revision of the Constitution itself. What is your view on this matter?

>> I believe it is the function of the Legislative Bureaus of both Houses to support discussions of the Constitution in the Diet. However, in reality it seems that they are positioned below the Cabinet Legislation Bureau. What is your view on this matter?

(To Mr. YAMAGUCHI)

>> Article 76 Paragraph 2 forbids the establishment of any extraordinary tribunal and denies any organ or agency of the Executive final judicial power. On the other hand, the people are anxious to see an earlier resolution to pending administrative cases. From this perspective, I believe that the elimination of the provisions of Article 76 Paragraph 2 should be kept in mind when discussing a new constitution.


SUEMATSU Yoshinari (Democratic Party of Japan and Club of Independents)

(To Mr. TSUNO)

>> I feel that it will be possible to have a fuller and multi-dimensional discussion of constitutional matters by strengthening the Legislative Bureaus, using them to gather information from the people and finally utilizing this information to confront the information that is being provided by the administrative branch of government. What is your response to the idea that the Legislative Bureaus should be strengthened?

(To Mr. YAMAGUCHI)

>> I believe that speed is very important in interpreting the Constitution. I would like to know how much time it takes France's Constitutional Council to handle a matter presented to it. Is the interpretation of the Constitutional Council accepted as the final and authoritative interpretation? Are its interpretations binding on the decisions of the courts?

>> Do you think that by changing the composition of judges we would be able to create courts that are unaffected by political disputes and fully capable of making constitutional interpretations?


SAITO Tetsuo (New Komeito)

(To Mr. YAMAGUCHI)

>> Under the separation of powers, I believe that each branch of government is supported by its own source of authority. In your opinion, what is the judiciary's source of authority?

(To both Informants)

>> Mr. TSUNO says that he is not actively in favor of establishing a constitutional court. I myself feel that the public can readily empathize with the need to create a constitutional court, and that this represents a viable direction in a democratic system. What are your views on this matter?


TAKEYAMA Yuriko (Liberal Party)

(To Mr. TSUNO)

>> Bills sponsored by members of the Diet are relatively easy to understand in terms of both content and language. In contrast, I feel that bills submitted by the Cabinet tend to be extremely difficult to understand in content and language. Has this matter been discussed by the Cabinet Legislation Bureau?

>> Our current legal framework is the product of the long-time accumulation of legislation written by the Cabinet. But certain problems tend to be overlooked. As a result, the government has been found liable in various instances, such as in the suit concerning Hansen's disease. I believe that if we were to have a constitutional court, the position of the government would become apparent much more quickly, and as a result the rights and lives of the people would be preserved much sooner than is possible under the current judicial system. What is your view on this matter?

(To Mr. YAMAGUCHI)

>> As part of the ongoing judicial reform, the idea of introducing a jury-trial system patterned after the U.S. system is being considered. Suppose such a system is in fact adopted. I believe that it would prove extremely difficult to operate a jury-trial system which is founded on the spirit of Japanese culture and history. What is your opinion on this matter?


YAMAGUCHI Tomio (Japanese Communist Party)

(To Mr. TSUNO)

>> The government's interpretations of the Constitution should not be at variance with the standard interpretations accepted in academic and legal circles. However, regarding the Self-Defense Forces and the interpretation of Article 9, the government and academia stand poles apart. What is your view of this situation?

>> I would think that the quality of personnel has a very important bearing on how the Cabinet Legislation Bureau performs its functions. Do the Counsellors of the Cabinet Legislation Bureau undergo any training on the subject of the Constitution?

(To Mr. YAMAGUCHI)

>> Article 81 empowers the Supreme Court to determine the constitutionality of any law. I believe the Constitution of Japan was one of the first constitutions in the world to contain such a provision. In your view, what is the significance of this matter? >> There are some very fundamental differences between the Meiji Constitution and the present Constitution, such as the location of sovereignty. How has the judiciary interpreted the process of transition from the Meiji Constitution to the present Constitution? How has it acted on this?


KANEKO Tetsuo (Social Democratic Party)

(To Mr. TSUNO)

>> It seems that your position is that the judiciary should not rule on issues related to politics. But there is no guarantee that politicians will always make decisions that are in compliance with the Constitution. Hence, if we adopt your position, we would be left without any institution capable of making constitutional rulings on political matters. From the perspective of the separation of powers, it seems to me that in fact the courts must rule on such issues. What is your view on this matter?

(To Mr. YAMAGUCHI)

>> It can be said that the judiciary's avoidance of ruling on important political matters has only served to broaden the gap between the Constitution and contemporary reality. Is it not the intent of Article 81 that the judiciary should perform the function of forestalling the government from acting on decisions that do not comply with the Constitution? >> In the revisions of the law enacted last year, the compensation paid to judges was reduced. In your opinion, how does this action stand in light of the provisions of Article 79 Paragraph 6?


SATO Tsutomu (Liberal Democratic Party)

(To both Informants)

>> I would like to ask you about authoritative interpretations of the Constitution. In terms of quality, the interpretations of the Supreme Court are obviously important. However, in terms of quantity, it seems to me that the interpretations of the government, so long as these are not contravened by different interpretations made by the Supreme Court, play an extremely important role in that they have the power to govern what is actually happening. What are your views on this matter?

>> Some people argue that the Cabinet Legislation Bureau's prior examination of legislation and constitutional interpretations in effect constitute the final judgment of the nation. What is your response to this?

(To Mr. TSUNO)

>> Former Prime Minister NAKASONE has argued that Japan can exercise the right to collective self-defense under the present Constitution whenever the prime minister claims that this right "can be exercised." What is your opinion on this matter?


NAKAGAWA Masaharu (Democratic Party of Japan and Club of Independents)

(To both Informants)

>> Thus far, Japan has avoided debating the Constitution by relying on the process of "revision through interpretation." But this approach has come to its limits and has become the cause of considerable uncertainty. The government has, for the sake of its own convenience, taken different approaches to legal and political issues. Regarding the exercise of the right to collective self-defense, the first requirement is for the nation to arrive at a decision. But such a decision has been avoided by using the provisions of the Constitution as an excuse. In light of this situation, a very heavy responsibility rests on the judiciary. I believe one of the approaches that the judiciary can take would be for the Supreme Court to adopt a more active stance on making constitutional decisions and to thereby prompt the Diet to face the questions on hand. What is your response to this?

(To Mr. YAMAGUCHI)

>> Suppose a constitutional court is established. Unless the current doctrine that the courts should refrain from ruling on acts of government is modified, the constitutional court would not be able to function properly. Furthermore, in my opinion, there can be no constitutional interpretation which does not contain some element of political judgment. What is your view on this matter?

(To Mr. TSUNO)

>> The Cabinet Legislation Bureau has served and shared its knowledge with the successive administrations that have come to power. Suppose the prime minister decides to make a change in constitutional interpretation. Would the Cabinet Legislation Bureau really be able to make a judgment from a politically neutral perspective?


FUKUI Teru (Liberal Democratic Party)

(To both Informants)

>> I believe there is no established value system shared by the Japanese people which stands as a prerequisite for discussing the Constitution. Rather, I feel that we are in the process of creating new Japanese values by making a series of choices. Given this view of the age that we live in, I think that it is preferable to develop various social systems and institutions which would allow us to make more choices. In my thinking, a constitutional court would be one such social institution. What are your views on this matter?

(To Mr. TSUNO)

>> Responding to Mr. SUEMATSU's question regarding strengthening the Houses' Legislative Bureaus, Mr. TSUNO mentioned such possibilities as the use of a secretary in charge of policy and collaboration with the National Diet Library. If you have any further concrete suggestions, could you share these with us?


INOUE Kiichi (New Conservative Party)

(To both Informants)

>> The role of politics is changing as a result of changes in international conditions. For this reason I believe that the intervention of the judiciary in acts of government should be restricted and pertinent matters left to the decision of the Diet. What is your view on this matter?

(To Mr. YAMAGUCHI)

>> The people's review of Supreme Court judges is not really functioning. I believe this provision should be discarded when revising the Constitution. What is your view on this matter?

(To both Informants)

>> Revising the Constitution is difficult because the amendment procedures are too demanding, and that is why constitutional interpretation has played such an important role. The interpretations of the Cabinet Legislation Bureau are the interpretations of the Cabinet and do not constitute authoritative interpretations based on the popular will. Therefore, I believe we must turn to the Diet for authoritative interpretations of the Constitution. What is your view on this matter?

(To Mr. TSUNO)

>> In my opinion, the unusual thing about the Cabinet Legislation Bureau is that it considers itself to be infallible. For instance, I think the government's interpretations concerning the right to collective self-defense are unsound. In your view, what should be done when the Cabinet Legislation Bureau makes an error in judgment?

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

NODA Takeshi (Liberal Democratic Party)

>> The law was revised last year to reduce the compensation paid to judges. This contradicts the provisions of Article 79 Paragraph 6 and Article 80 Paragraph 2 of the Constitution. It is necessary to revise the Constitution in order to reduce the compensation of judges during their terms of office. No less is expected of a nation that operates under the rule of law.

>> The power to initiate amendments to the Constitution is given exclusively to the Diet, and it is the duty of the Legislative Bureaus of the two Houses of the Diet to assist in the drafting of such amendments. In light of this fact, I believe the two Legislative Bureaus should be amalgamated to create a "Legislative Bureau of the Diet" whose functions would be reinforced and whose status would be elevated. Such a "Legislative Bureau of the Diet" would perform the twin functions of assisting in the drafting of bills sponsored by members of Diet and examining the bills submitted to the Diet by the Cabinet.


FURUKAWA Motohisa (Democratic Party of Japan and Club of Independents)

>> In a nation functioning under the rule of law, we would expect the government to operate in accordance with law. Furthermore, we would expect the judiciary to perform the role of judging whether the government is in fact operating in compliance with the provisions of the law. Under the current conditions, it cannot be said that the judiciary is functioning in a manner that ensures that the nation is operating under the rule of law, or in a manner that wins the confidence of the people.

>> Regarding the temporary nationalization of financial institutions, we have seen how interpretations of the Constitution have been modified on very ambiguous grounds to suit the shifting requirements and conditions of the day. As can be seen from this, the Cabinet Legislation Bureau cannot be said to be the "guardian of the law." Therefore, in considering the future directions of the nation, it is necessary to raise our awareness of the importance of the judiciary, effectively enhance its functions and design a system that permits the participation of the people in the judicial process.


KANEKO Tetsuo (Social Democratic Party)

>> Regarding the reduction of the compensation paid to judges that was implemented last year through the revisions of the law, Mr. YAMAGUCHI stated that this reduction did not violate the provisions of Article 79 Paragraph 6 because it was undertaken as part of a general pay-cut affecting all civil servants. I believe it is highly problematic that no discussions were undertaken from the perspective of legal theory and that the Constitution was simply re-interpreted to match the needs on hand.

>> Regarding court rulings on political matters, Mr. YAMAGUCHI stated that the courts should refrain from such rulings because of the inherent limitations of the judiciary which are attributable to the fact that judges are not elected to office by popular election. But the Constitution is based on this very assumption and goes on to assign the powers of judicial review to the judiciary within the framework of the separation of powers. Therefore, I do not believe that we can accept Mr. YAMAGUCHI's reasoning and thereby conclude that the courts should refrain from ruling on political matters.