Subcommittee on Ideal Constitution as Supreme Law (Third Meeting)

Thursday, March 25, 2004

Meeting Agenda

Matters concerning the role of the Constitution as the supreme law (constitutional guarantees, especially the constitutionality trial system and the role of the Supreme Court)

After an explanation of the above matters was heard from representatives of the Supreme Court and a statement concerning the above matters was heard from Professor SASADA Eiji, questions were put to them. This was followed by free discussion among the members.

Representatives of the Supreme Court

  • TAKESAKI Hironobu, Secretary General of the Supreme Court
  • NAKAYAMA Takao, Director, General Affairs Bureau, General Secretariat of the Supreme Court
  • SONOO Takashi, Director, Administrative Affairs Bureau, General Secretariat of the Supreme Court

Informant

  • SASADA Eiji, Professor, Graduate School of Law, Hokkaido University

Members who put questions to the Supreme Court representatives and the informant

Main points of the explanation by representatives of the Supreme Court

1. The Court's system for hearing cases

[1] The arrangements for hearing cases

>> Cases that come before the Supreme Court are normally heard by one of three Petty Benches, each made up of five justices. The justices are undeniably busy; each is involved in an average of two thousand cases annually.

[2] The aims and effects of the 1998 revision of the Code of Civil Procedure

>> In the revision of the Code of Civil Procedure that took effect in 1998, a discretionary system was adopted for appeals to the Supreme Court in order to lighten the burden on the Court.

>> The justices' caseload is undeniably still heavy, but I think that most of the justices currently serving on the Supreme Court would say that, however busy they may be, questions of constitutionality can always be decided. Former justices have commented that the heavy caseload made it impossible for them to address questions of constitutionality; however, in the case of justices from an academic background, for example, this may have been an expression of a feeling that they were unable to give these questions the amount of research that they considered sufficient for constitutionality rulings.

2. The appointment of Supreme Court justices

[1] Qualifications required

>> Justices of the Supreme Court shall be appointed from among persons over the age of 40 with broad vision and extensive knowledge of law. At least ten of the justices must be selected from among those who have a career of at least ten years as president or judge of a high court, or a career of at least twenty years as a judge, public prosecutor, lawyer, professor or assistant professor in legal science at a university.

[2] Appointments in practice

>> In practice, the need to maintain a balance among appointees from different professional backgrounds is taken into account. Appointees seem to fall into three categories: judges, lawyers, and legal experts (university professors, prosecutors, administrative officials, and diplomats).

>> It is customary for the Chief Justice to give his opinion on the nomination of his successor, taking into account the current situation of the Supreme Court, including the composition and state of progress of the caseload of each of the Petty Benches. The Chief Justice advises the Prime Minister directly, to the extent necessary, on the nominee's field of experience and competence as a Supreme Court justice, while recognizing that the decision is the exclusive prerogative of the Cabinet.

3. The personnel and physical resources of the courts

[1] The judicial budget

>> In Japan, the judicial budget makes up 0.4 percent of the total state budget. It is sometimes suggested that the judiciary does not function well because it is underfunded. However, before assessing how well the judicial system functions, it is essential to conduct an analytical study to determine whether the requirements of the law are being met with regard to individual items.

[2] The so-called "20 percent judiciary" theory

>> "The 20 percent judiciary" is a term introduced by the media, meaning that only about 20 percent of the public have any contact with the judicial system in their lifetime. It should not be taken as literally true, but should be seen as pointing to the need to improve and strengthen the workings of the judiciary as a way of resolving disputes.

4. Guarantees of the independence of judges

[1] Constitutional guarantees of the independence of judges

>> As institutional guarantees, first, judges have a guaranteed status, which is fundamental to their independence, and their compensation is also covered by a substantial guarantee. There are also related guarantees concerning the independence of the judicial administration.

[2] The question of reduction of judges' compensation

>> Proposals to revise the courts' scale of compensation are considered by a judicial conference. Conferences convened for this purpose in 2002 and 2003 concluded that the proposed reductions in pay were inevitable and would have no impact on the status or independence of judges.

>> This decision was reached as a matter of judicial administration. If any judges were to challenge the constitutionality of the pay decrease, naturally this administrative ruling would not be binding, as the decision of the Supreme Court as an organ of judicial power takes precedence. However, if the same justices made up the Court that considered this question, I think that they would most likely reach the same conclusion.

Main points of Prof. SASADA's statement

1. Introduction

>> The present state of the Supreme Court can be characterized as follows: (a) it has a large load of final appeal cases; (b) few cases are referred to the Grand Bench; (c) the Court has ruled a statute unconstitutional only six times, in cases of five types; (d) the Court sometimes attempts to resolve cases at the level of the relevant laws, without bringing the provisions of the Constitution to the fore; (e) with regard to the guarantee of the right to trial, which forms a premise of constitutionality trials, there has been no new development at the theoretical level since 1960.

2. Qualifications for appointment to the Supreme Court

>> Article 41 of the Court Organization Law states that persons who are not legal professionals can become Supreme Court justices provided that they have "broad vision and extensive knowledge of law." Comparison with the legal systems of other countries shows that this is an exception among courts that exercise the power of constitutionality review.

3. Reasons for the low level of constitutionality review activity

>> Compared to the prewar era, the Supreme Court today could be described as centralized. By adopting a system of career judges rather than such alternatives as appointing judges from the legal profession or introducing a jury system, Japan has created a homogeneous judiciary with the Supreme Court at its apex.

>> This system was designed with civil and criminal cases in mind. In constitutionality cases, where the individual character of those who interpret the Constitution inevitably emerges, it may have an inhibitory effect.

>> The caseload of Supreme Court justices has supposedly been lightened appreciably. The revision of the Code of Civil Procedure that came into effect in 1998 is said to have reduced the number of final appeals, but the number of such cases accepted by the Court has actually increased, and it is not a negligible figure.

>> I think that the assessments of the Supreme Court by former justices who came from backgrounds other than career judgeships are an important point in considering the system of constitutionality review.

>> The Japanese Supreme Court's dual role as a court of final appeal and a court of last resort for constitutionality review results in an excessive workload by comparison with other countries. The Court inevitably focuses more on hearing final appeal cases, which make up the greater part of its docket.

4. Various attempts to increase constitutionality review activity

>> Limiting final appeals could be an effective step toward increasing constitutionality review activity if it reduces the Supreme Court's caseload appreciably. However, it is thought that appeals cannot be made entirely discretionary as in the United States, since Article 81 stipulates that the Supreme Court is "the court of last resort" with power to determine constitutionality.

>> In the debate over whether to create a Constitutional Court, problems cited include the fact that it would be impossible to eliminate the influence of such a court on parliamentary politics. Opponents fear that politics would enter the judicial arena as the Constitutional Court took up policy issues, and that judicial decisions would enter the political arena as policy-makers anticipated the rulings of the Constitutional Court.

>> In Germany, 98 percent of the cases tried by the Federal Constitutional Court are "constitutional complaints," that is, constitutional lawsuits claiming a concrete violation of the complainant's human rights. One aspect of the German system is that these human rights trials have gained the public's trust because the Court's decisions get close to the crux of the problem.

>> The advisory opinion system of Canada's Supreme Court is worth noting as a form of abstract constitutionality review in a country with an American-style judicial system.

>> In my view, the best way to reform the organization of the Supreme Court would be to separate its functions into a court of final appeal and a court of constitutionality review.

5. Conclusions

>> It is not fair to place all the blame for the stagnation of the constitutionality review system on the Supreme Court. Legislation to reform the Supreme Court is needed.

>> A multipronged plan should be developed. Among other things, it should include organizational reforms to substantially reduce the Supreme Court's caseload, creation of an advisory council on appointments of Supreme Court justices, and reform of the system for popular review of appointments to the Supreme Court.

Main points of questions and comments to the representatives of the Supreme Court and Prof. SASADA

NAKAYAMA Taro, Chairman

(To Prof. SASADA)

>> When one looks at actual systems of constitutionality review and the powers of Constitutional Courts around the world, compared with other countries that have a single judicial system like Japan's, such as the United States, what are the problems facing the Supreme Court and constitutionality trials in Japan?

(To the representatives of the Supreme Court)

>> There has been a recent increase in cases involving science and technology and the natural sciences, especially medical technology. Given this trend, I think we need justices who are versed in these fields. What system does the Supreme Court presently have for deciding cases in these areas? Also, what is the current status of development of an information network in the judicial field? Further, what systems do you plan to create in the future in connection with these points?


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

(To Prof. SASADA)

>> Does your plan to increase constitutionality review activity assume that the relevant laws will be revised under the existing Constitution, or does your position include constitutional revision?

>> Even if your plan did allow for constitutional revision, would you describe your position on the creation of a Constitutional Court as cautious?

(To the representatives of the Supreme Court)

>> Critics have long argued that the system of popular review of Supreme Court appointments has become a mere formality. What is the Supreme Court's view in this regard?

(To Prof. SASADA)

>> As matters stand, the Cabinet Legislation Bureau is treated as if it had the effective right of final interpretation of the Constitution. This situation could be described as a distorted form of "judicial decisions entering the political arena." It seems to me that abstract constitutionality review by a Constitutional Court would be preferable to the present situation. Would you like to comment on this point?


AKAMATSU Masao (New Komeito)

(To the representatives of the Supreme Court)

>> You stated that the Supreme Court justices are very busy. Am I correct in thinking that this means that follow-up work by judicial research officials is important?

(To Prof. SASADA)

>> I agree with your comments advocating judicial reform under the existing system rather than the creation of a Constitutional Court, but what do you think about establishing a Constitutional Division within the Supreme Court?

(To the representatives of the Supreme Court)

>> It is sometimes suggested that the independence of judges has been overemphasized, with the result that they have become cut off from the public. Would you please explain what presentations the Supreme Court holds to enable the public to understand how judges work?


YAMAGUCHI Tomio (Japanese Communist Party)

(To the representatives of the Supreme Court)

>> According to the material you distributed, between FY 1997 and FY 2003 there was an almost threefold increase in final appeals on the grounds that "the appellant claims that the appellee's acts violated the Constitution, but the lower court ruled that these acts did not constitute a violation." To what do you attribute this increase? Also, what articles of the Constitution were involved? If you know of any classification or special characteristics of these cases, please describe them.

>> I am not in favor of revising the Constitution to introduce a Constitutional Court, as I believe that we need to increase the activity of the constitutionality review system laid down by the existing Constitution. What is the Supreme Court's view regarding a Constitutional Court?

(To Prof. SASADA)

>> A major problem in the existing judicial system is the fact that the judicial branch and its judges lack sufficient independence. Underlying this is the problem of the use of appointments to the Supreme Court for political advantage, together with the strict control over lower court judges in what is known as "judicial bureaucracy." (a) Do you think that establishing an advisory council on appointments of Supreme Court justices would lead to reform of this situation? (b) How do you view the much-criticized judicial bureaucracy?

>> In Germany, during the Nazi era the judiciary played a part in the destruction of the constitutional order. Am I right in thinking that this experience influenced Germany's creation of a Constitutional Court?


DOI Takako (Social Democratic Party)

(To Prof. SASADA)

>> Moves such as creating a Constitutional Court are currently under discussion because the Supreme Court, citing theories such as the "acts of state" doctrine, tends not to decide questions of constitutionality. However, this whole debate stems in the first place from the fact that Article 81 has not been implemented in a concrete form. If we were to interpret Article 81 simply as it stands and put it into practice, the calls for innovations such as a Constitutional Court might well cease. In this connection, how do you view the "acts of state" doctrine?

(To the representatives of the Supreme Court)

>> What position does the Constitution occupy in the curriculum of the Legal Research and Training Institute?

>> Has there been any increase in the number of students at the Institute who want to become judges?

>> Critics contend that judicial conference has become a mere formality. What is your view on this point?


ONO Shinya (Liberal Democratic Party)

(To Prof. SASADA)

>> If the Court ruled that the imbalance in the number of seats in the Diet was unconstitutional, the Diet would no longer be able to exist, and it would thus be unable to take action to correct the imbalance. How do you think this problem should be resolved legally?

>> In my view, the failure to enact a system for national referendums on constitutional amendments is what might be called "legislative nonfeasance," and the lack of such a system could be ruled unconstitutional. What are your views on this question?


YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)

(To the representatives of the Supreme Court)

>> When the Diet requests the attendance of the Chief Justice of the Supreme Court, it often receives the response that he cannot attend because this would be a constitutional problem. What does this mean?

(To Prof. SASADA)

>> In the event of a legal challenge to a decision whose constitutionality is doubtful, such as a reduction in judges' pay or a provisional court injunction banning a publication before its release, the courts would be reviewing their own decision. It would be a different matter, however, if such decisions were reviewed by a Constitutional Court. I think this would be easier for the public to understand, and it would also help expedite lawsuits. What are your views in this regard?


SHIMOMURA Hakubun (Liberal Democratic Party)

(To Prof. SASADA)

>> Yesterday, the Supreme Court decided in favor of a person who was denied a pension because he had become disabled while still a student and therefore had never made contributions; the Court ruled that legislative nonfeasance had occurred and that this was unconstitutional. But revision of the laws does not always keep pace with the times. How do you view legislative nonfeasance? Also, it seems to me that there has always been a strong tendency to judicial passivism and dominance of the executive branch. How do you view the stance of the judiciary?

>> What is your opinion with regard to making explicit provision for environmental rights in the Constitution?

>> Revision of the Administrative Litigation Law is presently under discussion. I think that if the administrative litigation system were improved, the public would have better channels to claim their rights vis-a-vis the administration and the judiciary. This would lead to the development of a mature democracy, and thus to a strong administration and a strong nation. How do you view revision of the Administrative Litigation Law?

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

FUNADA Hajime (Liberal Democratic Party)

>> I have long felt that Japan's Supreme Court does little in the area of constitutionality review, but I now understand the situation somewhat better, as Prof. SASADA and the representatives of the Supreme Court explained that one reason is the large number of final appeals that come before the Court in general cases not involving constitutionality. I think that introducing a discretionary appeal system would be an effective way to address this situation.

>> We should not reach a hasty conclusion in this matter. Creating a Constitutional Court may be one way to increase constitutionality review activity, which is currently one of the functions of the Supreme Court, but shouldn't we first undertake organizational reform of the Supreme Court and related measures under the existing system of judicial courts?

>> Among the ideas proposed by Prof. SASADA, I think that creating "special high courts" to screen constitutionality cases and to hear general final appeal cases would have its drawbacks. In a sense, this could create a court system with four stages, and cases could take longer to go through the system.

>> I think that, although it was eventually dropped, the 1957 bill proposing partial revision of the Court Organization Law contained some very realistic and desirable reforms. These included proposals that (a) the Supreme Court should handle only important cases such as those involving constitutionality and breaches of judicial precedent; and (b) general final appeal cases should be tried by Petty Benches which would be established as auxiliary organs of the Supreme Court.


SENGOKU Yoshito, Deputy Chairman

>> The judiciary, the last bastion of constitutional guarantees, must function soundly if we are to achieve the rule of law. In practice, however, the Japanese judiciary (a) requires concrete disputes, and (b) has a strong tendency to avoid ruling on questions of constitutionality. This has resulted in both direct and indirect violations of human rights. It has even led to a sense of resignation among the public at large, because they cannot hope for judicial rulings on the constitutionality of actions by the administration and other public entities. We must consider every possible concrete measure to achieve the rule of law and dispel this feeling of resignation on the part of the public.

>> Specifically, we must act without delay to study the creation of quasi-judicial agencies such as a human rights commission, a human rights court, or an ombudsman, and to get these agencies up and running. We also need to construct a system which will allow direct challenges, in the abstract and in judicial courts, to actions of the administration and other public entities. Otherwise, the public will only become increasingly cynical and resigned, and ultimately we will fail to achieve the rule of law.

ONO Shinya (Liberal Democratic Party)

>> It was explained that the term "20 percent judiciary" means that only 20 percent of the public utilize the judicial system. But while seeking a court ruling as a last resort is one possible approach, another is for the parties to solve their dispute in a spirit of self-restraint and mutual concession before going to court, rather than relying on the law to decide everything. For that reason, among others, I believe that, together with rights, we should write into the Constitution a provision calling for a spirit of "self-restraint and harmony."

YAMAGUCHI Tomio (Japanese Communist Party)

>> I would like to mention that moves are under way to introduce legislation in the wake of the lawsuit brought by the person who was unable to collect a pension as a consequence of being disabled while still a student.

>> While I grant that the Constitution can be read within the context of the changing times, it should nevertheless be interpreted strictly. From that viewpoint, the existence of the Self-Defense Forces violates Article 9, as is generally agreed by experts on public law, and as the lower courts have ruled a number of times. We must question the fact that politicians created the Self-Defense Forces regardless of their unconstitutionality.

>> Whereas Germany's Federal Constitutional Court was created as an institution to protect the postwar constitutional order, drawing on the lessons of the Nazi era, Japan's system of constitutionality review started out as an institutional guarantee of human rights. The system works only if the justices weigh each case on its own merits, adopting an independent standpoint and a broad vision. This point should be taken into account in studying reforms of the judicial system.

YAMAHANA Ikuo (Democratic Party of Japan and Club of Independents)

>> I would argue that a body other than the courts themselves should handle challenges to court decisions, because having the courts review their own decisions militates against rulings of unconstitutionality, and also because external review would speed up the disposition of cases.

>> With regard to injunctions banning publication on grounds of privacy, I suggest that one possible approach would be to issue provisional injunctions within the judicial court system while having a Constitutional Court, separate from the judicial court system, make rulings on constitutionality in these cases.

HAKARIYA Keikou (Democratic Party of Japan and Club of Independents)

>> It seems to me unreasonable to expect the existing courts to serve as active keepers of the Constitution. Among other reasons, they can rule on constitutionality questions only when a concrete case is brought before them; any ruling of unconstitutionality that they may issue affects only the parties to the case at trial; and they cannot declare a law void. I would contend that we need a Constitutional Court since, for one thing, proceedings before such a court can be initiated even in the absence of a concrete case.

DOI Takako (Social Democratic Party)

>> Prof. SASADA took the view that adequate provision can be made for the system of constitutionality review within the existing trial system, without revising the Constitution, and I agree. Article 81 stipulates that the Supreme Court has the right to determine the constitutionality of "any law, order, regulation or official act." However, Article 81 is not currently being put into practice; for example, the Court often rejects lawsuits on grounds such as the "acts of state" doctrine. This is also problematic in terms of the obligation to respect and uphold the Constitution stipulated in Article 99. We should not be viewing Article 81 in light of the realities; we should be making the article itself a reality. One means to that end, I suggest, would be to improve the Administrative Litigation Law.

NAKAYAMA Taro, Chairman

>> At the session held on May 25, 2000, this Commission heard an explanation of major postwar verdicts of unconstitutionality from representatives of the Supreme Court. It was stated in that session that the Supreme Court laid down its basic thinking on the "acts of state" doctrine in its rulings on the Sunagawa case (concerning the constitutionality of the 1951 Japan-U.S. Security Treaty) and the Tomabechi case. Ms. DOI has asked how we can solve the tendency to avoid judgments of unconstitutionality that is represented by the "acts of state" doctrine. This Commission must conduct a full investigation to determine what problems are present in the existing Constitution, including a study of Constitutional Courts, ombudsman systems, and related institutions.