Subcommittee on Ideal Government and Organizations (First Meeting)

Thursday, February 19, 2004

Meeting Agenda

Matters concerning the ideal government and organizations (the judicial system, with a focus on reforms to enable public participation in the administration of justice and to make the system more accessible)

After a statement was heard from Professor ICHIKAWA Masato concerning the above matters, questions were put to him. This was followed by free discussion among the members.

Informant

Members who put questions to Prof. ICHIKAWA

Main points of Prof. ICHIKAWA's statement

1. The constitutional status of judicial power, and judicial reform

[1] The significance of judicial power in the Constitution

>> Judicial power supports the "public arena" in several ways: (a) settling private disputes and providing redress for the infringement of rights therein; (b) exercising the power to impose punishment for crimes speedily and fairly in an impartial process; (c) exercising control over the constitutionality and legality of acts of state.

>> Judicial power is required to be exercised in the form of "concrete disputes at law" for two reasons, on the understanding that the meaning of the law becomes clear in relation to the specific facts of a case: (a) to avoid unnecessary conflict with the political branch, and (b) to secure the parties and the occasions necessary for the exercise of judicial power.

[2] The Constitution's guarantee of the right of access to the courts

>> The right of access to the courts not only means that access cannot be refused, but also signifies (a) the right of access to the courts according to due process, including substantive guarantees of access; (b) the right to receive effective relief from infringement of rights by public authority in administrative cases. The guarantee of the right of access to the courts should be verified not only by ensuring that the access provided is constitutional in the sense that it does not violate the Constitution, but also at the level of ensuring that it is consistent with the Constitution's ideals.

[3] Judicial reform

>> There are several factors behind the current judicial reforms: (a) the extremely small number of legal professionals in Japan; (b) the fact that it is difficult to take disputes to court; (c) the narrow range of administrative litigation; (d) the fact that companies that undergo administrative guidance rarely contest it through administrative litigation; (e) the tendency to judicial passivism. An additional factor is the rising expectations of society toward the administration of justice.

>> The secret to success in reforming the judicial system is the second main point of the reforms, expanding the personnel basis of the judicature. Graduate schools of law have a very important role to play in this.

2. Making justice readily accessible

[1] Better access to the courts

>> Legislative moves to provide better access to the courts have made positive progress, but careful judgment must be exercised in such areas as making the losing party in a lawsuit pay the legal expenses. There is also a need to improve trials in civil court and ensure that the proceedings are impartial and expeditious, provided that care is taken to guarantee fairness and due process.

[2] Reform of the administrative litigation system

>> Under the current Administrative Litigation Law, the courts have restricted the types of litigation they accept and have put a strict interpretation on the requirements for bringing suit. The present moves to overhaul the law are to be welcomed, but in some areas, such as expansion of the standing to sue, the proposed revisions do not go far enough. I hope that when the Diet discusses them, it will move in the direction of bolder reforms of the system.

3. Public participation in the administration of justice

[1] The significance of public participation in the administration of justice

>> Basically, I have no objection to the introduction of a quasi-jury system of lay judges as a way of promoting public participation in the administration of justice. It is inevitable that the courts reflect public attitudes and accepted ideas, but, in light of the "undemocratic" nature of the administration of justice, they must do so without distorting the character of a trial as an impartial process in which a judgment is reached by relying only on the Constitution and the laws.

[2] The constitutionality of the "lay judge" system

>> Provided that professional judges retain the sole right to interpret the law in the narrow sense, I believe that a "lay judge" system in which professional judges and "lay judges" deliberate jointly on the finding of facts and sentencing is basically constitutional.

[3] The significance of the "lay judge" system, and issues involved

>> Opinion is divided over whether the "lay judge" system will trigger a major change in criminal trials as we know them, or merely serve as a fig leaf for judicial severity. Its introduction can be described as a "high-risk, high-return" reform whose results will depend on how the system is designed.

4. Concluding remarks

>> The establishment of a Constitutional Court should be studied carefully as it would be a high-risk, high-return reform. In my view, the present reforms of the judicial system will help activate the existing incidental system of constitutionality review.

Main points of questions and comments to Prof. ICHIKAWA

FUTADA Koji (Liberal Democratic Party)

>> I think that the question of litigation costs is important if we are to ensure that the right of access to the courts is guaranteed effectively. Do you agree?

>> To solve the problem of the shortage of legal professionals, efforts are under way to provide professional education and training in graduate schools of law. What do you think should be done to ensure the quality of legal professionals?

>> In my view, the methods of administrative litigation need to be made simpler, clearer, and faster. What are your views in this regard?


TSUJI Megumu (Democratic Party of Japan and Club of Independents)

>> With regard to the introduction of a "lay judge" system, the requirement that the accused be guaranteed the right to trial should take precedence over the benefits of public participation in the administration of justice. I think that, in a "lay judge" system, the principle that the accused is presumed innocent until proven guilty by the prosecution may be weakened because, as a rule, only evidence presented beforehand in the preparatory proceedings can be submitted during the public trial. What are your views on this point?

>> In the quasi-jury system, a public trial in the presence of "lay judges" takes place after preparatory proceedings conducted with only the judges, prosecutors, and defense lawyers in attendance. But if a brief public trial is held after lengthy preparatory proceedings, won't this amount to a revival of the prewar preliminary hearing, which allowed judges to form a preconceived opinion? And in that case, will it be possible for the lay judges to influence the verdict?

>> I think that the "lay judge" system will be reduced to a mere formality unless several conditions (granting of bail, discovery of evidence, increasing the transparency of criminal investigations) are put in place as an integral part of its introduction. What are your views in this regard?


SAITO Tetsuo (New Komeito)

>> How do you evaluate Japan's traditional "small justice system" as opposed to the "big justice system" seen in the United States? Which of these is the existing Constitution oriented towards? Also, if the Constitution is to be revised, is there any need to touch on this point?

>> What do you think is the source of a judge's authority or basis for passing judgment on others? The source of sovereignty is the people; does the proposed "lay judge" system provide a role for them in the administration of justice in order to supply such a basis?


YAMAGUCHI Tomio (Japanese Communist Party)

>> Why has the system of judicial review not worked in Japan, even though provision is made for it in the Constitution? Also, what sort of reforms do you think are necessary to make it work?

>> I think that making the losing party in a lawsuit pay the legal expenses, as mentioned in your statement, would tend to discourage people from taking legal action. You said that careful judgment must be exercised before introducing this measure, but what are the criteria for this decision?

>> Am I correct in understanding that the basis for establishing a balance between the administration of justice and democratic principles consists in judges reaching their judgments according to their consciences and on the basis of the Constitution and the laws?

>> What we really need to do is to fully activate the system of constitutionality review, and I am therefore opposed to the introduction of a Constitutional Court. Could you explain what you meant when you commented that introducing a Constitutional Court would be "high-risk and high-return"?


YAMAMOTO Kiyohiro (Social Democratic Party)

>> How do you think the existing situation of what has been called "judicial passivism" should be changed through judicial reform in order to bring about an effective separation of powers?

>> In my view, it is important that constitutionality review be made to function better, given that the growing number of Members' bills cannot be said to be receiving adequate review by the Legislative Council of the Ministry of Justice. How do you view the relationship of tension between the legislative and judicial branches in the context of judicial reform?

>> Would it not be possible to allow abstract review of constitutionality under the existing Constitution, instead of passing an amendment to establish a Constitutional Court?


NAGAOKA Yoji (Liberal Democratic Party)

>> With regard to the introduction of the "lay judge" system, I expect it will not be easy to simultaneously realize the principle of popular sovereignty through public participation in the administration of justice while maintaining the independence, specialized knowledge, and objectivity of the courts. To achieve both, how should the system be designed?

>> I am not sure that a "lay judge" system will take root in Japanese society, as I doubt whether the right social environment exists (for instance, unlike the United States, plea bargaining is not accepted), and also whether the rule of law is sufficiently mature in this country. What are your views on this point?

>> From the viewpoint of providing a stronger judicial check on the executive branch, which has become oversized, I see a particular need for a check by the judiciary when laws delegate matters to be regulated by Cabinet orders or ministerial ordinances, effectively allowing the executive branch carte blanche. What are your views in this regard? To provide a stronger judicial check in such cases, I would like to see abstract review of constitutionality recognized, or the establishment of a Constitutional Court; would you like to comment?


SUZUKI Katsumasa (Democratic Party of Japan and Club of Independents)

>> If the administration of justice is to be more accessible, I think that it is important to put in place such elements as a judicial network and a system of legal aid. I would like to ask about the role of local public bodies in realizing these elements.

>> Not only does the lengthy nature of administrative litigation create a situation that could be said to violate many citizens' rights, but it is also detrimental to the public administration, and this is another reason why I think the handling of administrative litigation needs to be expedited. Do you agree?

>> In the government's outline proposal of the "lay judge" system, in the event that the system is introduced, at least one professional judge and one "lay judge" must agree to the verdict. How do you view this from the perspective of the accused's right to trial?


MORIYAMA Mayumi (Liberal Democratic Party)

>> When necessary, in the course of its implementation, the Constitution has been reinterpreted in response to changes in the international situation and public views. In your view, what are the limits to reinterpretation of the Constitution?

Main points of comments by members in the free discussion (in order of presentation)

HAYAKAWA Chuko (Liberal Democratic Party)

>> If we, like Professor ICHIKAWA, interpret the right of access to the courts broadly as a right of access to justice, reading into it the need to make trials more expeditious and proper, then we should reflect these aims in the text of the Constitution.

>> In my view, the "lay judge" system presents no constitutional problem from the viewpoint of popular sovereignty or public participation in the administration of justice, and it would be a groundbreaking initiative.

NAKAYAMA Taro, Chairman

>> We in the legislative branch should clarify certain aspects of the Supreme Court which are difficult for the public to understand, such as the composition of the justices and the process by which justices are appointed. Further, this Commission should clarify issues relating to the Supreme Court, such as the question of reduction of justices' pay.

KANO Michihiko (Democratic Party of Japan and Club of Independents)

>> The present moves toward public participation in the administration of justice are too hasty, and there are signs that an adequate popular consensus has not yet been reached.

>> In view of the fact that the judicature protects the rights of minorities, and the fact that the right of access to the courts can be seen as a right to trial by a judge, it might be advisable to hold a national referendum on whether to introduce the "lay judge" system.


HAYAKAWA Chuko (Liberal Democratic Party)

>> The "lay judge" system will be a first step toward a new "judicial culture." I welcome the introduction of such a system as part of the trend toward judicial reform.

>> The existing system of popular review of Supreme Court justices has become an empty formality dissociated from public sentiment.

>> In the future, perhaps the House of Councillors could act as a kind of Constitutional Court, with responsibility for reviewing the constitutionality of legislation in the abstract, and for reviewing the constitutionality of Cabinet orders and ministerial ordinances.


SUZUKI Katsumasa (Democratic Party of Japan and Club of Independents)

>> A five-year preparatory period has been set for the introduction of the "lay judge" system. During that time, it will be important to make efforts to ensure that the public understands the system.