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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Supreme Court of Japan (Saikô saibansho)

Hans-Peter Marutschke

Judicial review — Constitutional courts/supreme courts

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Historical Overview

1.  Japans efforts to establish a modern legal system after full power had been restored with the emperor Meiji (Meiji-Tennô) in 1869 (Beasley) were dominated by the necessity to create a system compatible with those existing in the western countries (Auslin). Essential for achieving this goal was not only to create new, unified law in substance, but also with respect to procedure, which was only possible after the feudal structures of the Shogunate and diversified rules in the Domains of the Daimyô were abolished. The new government made this important step in August 1871 by issuing the Imperial Edict on the abolition of domains and the creation of Prefectures (Haihan chiken) (Umegaki 91), bringing to an end the confusions which had come along with the early years of the Meiji period. As a consequence, the just then newly established Ministry of Justice was able to create a unified judicial system.

2.  In October 1871 the judicial competence of the Tokyo municipal administration was assigned to the Ministry of Justice, in February 1872 this division was named the Tokyo Court (Tôkyô saibansho); it was the first time that the word saibansho was applied to an organ of jurisdiction. But, as the Tokyo Court remained a division of the Ministry of Justice, it was also clear, that jurisdiction still was looked at as a section of the administration.

3.  Fundamental reforms took place shortly afterwards, when Etô Shinpei (1843–1874) became Minister of Justice on June 2nd 1872. He unified the courts of law under his Ministry and only these courts were entitled to dispense justice, with the only exception for cases to be submitted to the emperor or affecting the government.

4.  A key role with respect to judicial reform played the so-called Shihôsho shokumu teisei (Office Regulations for the Ministry of Justice), enacted in September 1872. This law, which can also be called Japan’s first Judicature Act, formed the basis for the further organization of Judicature in Japan. The role of the Ministry of Justice within this structure was clarified in Art. 2of the Office Regulations: ‘The administration of Justice all over Japan is under the control of the Ministry of Justice, which has supervisional power over all courts of law.’

5.  A three-level court organization was established, with Local courts (Ku-saibansho) on the lowest level, Prefectural courts (Fuken-saibansho) on the second and a Justice Ministry Court (Shihôshô-saibansho) on the highest level.

6.  Besides that, two courts for special purposes were established (Röhl 719; Fraser 589).

7.  The Justice Ministry Court had the function of an appellate court (appellate courts) against decisions of the prefectural courts. The Minister of Justice himself presided this court, which meant, that he was responsible for the jurisdiction as well as for the administration of the judicature. Furthermore, the prefectural courts were obliged to consult the Minister of Justice in important cases. So in fact, separation of power had not yet been implemented full scale at that stage.

8.  This situation changed in the course and as a result of the Osaka Conference (Osaka kaigi) of January 1875, where the prominent politicians Kaoru Inoue, Hirobumi Ito, Taisuke Itagaki, Takayoshi Kido and Toshimichi Ôkubo assembled in order to clarify the principles of modern constitutionalism and thus strengthen the Meji government (Röhl 39). With regard to law and jurisdiction the main result of this conference was the establishment of a French Court system, as French law had been considered at that time as the most systematic and advanced form in the world. Modelled after the ‘Cour de Cassation’ in Paris a ‘Great Court of Cassation’ (Daishin’in, Taishin’in) was instituted as the highest judicial organ of judicature. It replaced the Justice Ministry Court and was composed of civil and criminal divisions, with five (originally seven) judges empanelled for any given case. It had to deal with appeals on questions of law, to quash judgments of lower courts infringing the law and to safeguard the conformity of law within Japan as a whole. Besides dealing with cases of offences committed by judges and concerning serious political crimes, the Daishin’in had also to check the adequateness of death sentences imposed by the high courts (death penalty), and to refer the case back, if all judges of the respective panel disapproved the high court’s judgment. As far as matters were concerned that did not fall within the competency of a special Court, the Daishin’in had the competence to decide, for instance in cases concerning crimes against the emperor.

9.  The promulgation of the Meiji Constitution (Meiji Kenpô; Constitution of the Empire of Japan: 29 November 1890), modelled after the pattern of the Constitution of the German Empire, came along with an organizational shift also in other parts of the Japanese legal system: the dominance of French law was repelled in favour of German law, which influenced substantially among others the Law on the Constitution of Courts (LCC, Saibansho kôseihô, Law No. 6, 1890). Together with the new Codes on civil and criminal procedure this law signified the entry into the modern age and in the society of modern western nations.

10.  As a consequence of the fact, that one of the main tasks of the Daishin’in was to secure the conformity of law, it fell into its exclusive responsibility to give generally binding interpretation with regard to statutes. The Executive power, which had formerly issued directives on interpretation of legal regulations through its administrative offices, lost insofar its competence. Only the law courts had from now on the authority to explain a law in general terms, what as well can be highlighted as an essential point of the modernization of the Japanese judicial system. But although the Daishin’in could forward suggestions for improvement with regard to legal gaps to the Emperor, this could take place only via the Minister of Justice, which continued to hold administrative control over the courts and judges until the end of the Second World War.

B.  The Supreme Court of Japan (Saikô saibansho) – General Remarks

11.  The acceptance of the Potsdam Declaration of 26 July 1945 by Japan, after nuclear bombs had been dropped on Hiroshima and Nagasaki in August 1945, opened the door for various, especially legal reforms under the control of the Supreme Commander of the Allied Powers. On 3 May 1947, the ‘Constitution of Japan’ (Nihonkoku kenpô) came into force as an amendment of the Meiji Constitution. Differently from the latter, the new constitution made now expressively clear in Chapter VI the special role of the Judiciary and the newly organized Supreme Court:

Art. 76:

The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law.

No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power.

All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws.

Art. 77:

The Supreme Court is vested with the rule-making power under which it determines the rules of procedure and of practice, and of matters relating to attorneys, the internal discipline of the courts and the administration of judicial affairs.

Public procurators shall be subject to the rule-making power of the Supreme Court.

The Supreme Court may delegate the power to make rules for inferior courts to such courts.

12.  Following the Anglo-American conception of judicial supremacy, the Japanese Supreme Court has also the function of head of the judicial administration and with respect to that, no authority but the will of the people as laid down in the Constitution is superior to it. As a result, the former influence of the executive power on the judiciary had been abolished. This is also made clear in Art. 78, which says, that no disciplinary action against judges shall be administered by any executive organ or agency.

13.  Within the state hierarchy, the Supreme Court judges have a quite high ranking, with the President of the Court being on an equal level with the Prime Minister and the fourteen other judges equal to ministers (Itoh (1989) 15). Although the Cabinet nominates the President of the Supreme Court—who is then appointed by the Emperor—and appoints the other judges—with subsequent approval by the emperor—this procedure is merely formal and no real dependency on the government exists. More interesting is the regulation in Art. 79 Sec.2 of the Constitution, which says, that the appointment of the Supreme Court judges shall be reviewed by the people at the first general election of members of the House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the House of Representatives after a lapse of ten years, and in the same manner thereafter. This regulation is meant to stress the democratic authorization of the judges. The only bases for this kind of review are the judgments rendered by the court and every judge must make clear his responsibility respectively: According to Art. 11 of the Court Act (Saibanshohô, Law No. 59, 1947), the opinion of each judge has to be disclosed in the written judgment, which takes place either with his vote with the majority of all judges, or by dissenting or modifying vote.

14.  There are some doubts about the effectiveness of this constitutional provision, because up to now, no Supreme Court judge had ever been reviewed negatively. It rather supports the opinion, that due to this provision the Japanese Supreme Court is known for its judicial self-restraint attitude, which is quite the contrary for example in the case of the German Constitutional Court. Other opinions emphasize the symbolic meaning of this provision (Oda 69).

C.  Appointment of Judges, Administrative Role and Legal Education

15.  The Appointment and removal of judges of the Supreme Court is regulated in Art. 39 et seq of the Court Act. The Emperor shall appoint the Chief Justice of the Supreme Court as designated by the Cabinet (Art. 39 Sec.1), the other Justices of the Supreme Court shall be appointed by the Cabinet (Art. 39 Sec.2) but the Emperor shall attest their appointment and removal (Art. 39 Sec.3). With regard to qualification for appointment, Art. 41 of the Court Act states that Justices of the Supreme Court shall be appointed from learned persons with extensive knowledge of law, who are not less than forty years old. At least ten of them shall be persons who have held one or two of the positions as President of a High Court or judge for not less than ten years, or one or more of the positions as judges of the Summary Court, Public Prosecutors, Attorneys or Professors or associate Professors of law of universities that shall be determined by law for the total period of twenty years or more.

16.  Although in theory this provision allows a rather diversified composition of the panel, it seems to be difficult in practice to keep a certain balance: Currently (2016), seven out of fifteen Justices come from the career-judges side, four have a background as practicing lawyer, two as prosecutors and two have ministerial experience. Two out of these four groups have held also positions as law professors, but only at the very end of their previous career. From the point of view of comparative jurisprudence, this under- or non-representation of the academia within the Supreme Court makes it additionally difficult to develop a dogmatic well founded jurisdiction. At least, recently the door to become a Supreme Court Judge was opened also for women, now two out of fifteen.

17.  An even bigger difference with regard to appointment regulation compared to other countries is, that judges in Japan are not appointed for life and have limited appointment tenure. Mandatory retirement is required of all judges at ages determined by law, but not consistently. The retirement age for most judges is 65, but 70 for Summary and Supreme Court judges. Especially noteworthy is the fact, that the average appointment age for Supreme Court Justices has been rising and is at present (2016) at 63, 5, which means, that the time spent on the highest Court is relatively short (average 8 years compared to 30 and even more in the United States (‘US’), where Justices have life time appointment or even Germany, where appointment at the Constitutional Court is for 12 years, which in most cases are fully served). Hence there is only little or in fact no time to develop an own judicial philosophy (Goodman 104).

18.  The second important role of the Supreme Court besides its responsibility to standardise the interpretation and application as well as constitutionality of law in the last instance is within the administration of courts and the judiciary as a whole. The extensive authority the Supreme Court is vested with in Art. 77 of the Constitution also includes the power to nominate lower court judges, and determine whether judges, whose 10-year term has expired, should be re-nominated.

19.  The Chief Justice occupies the highest position in the judicial administration and spends most of his time and energy on administrative work, assisted by the Supreme Court General Secretariat (Saikô saibansho jimusôkyoku), which forms the hard core of the elitist judicial administration: several hundred career judges are engaged within the Secretariat in judicial administration at all levels with the support of more than 25000 civil service personnel (Itoh (2010) 27). Through this kind of strict organized hierarchical administration within the jurisdiction, the impact is not only with administrative matters, but also with regard to the decision-making process in the courtrooms. The transfer of the control over judicial personnel and budgets from the Justice Minister to the Supreme Court has engendered and fostered a new form of judicial elitism, which is suspected of having exerted undue influence over judicial decision making at lower courts. For those judges, the General Secretariat annually hosts conferences and seminars to update recent case laws and trial practices on all kind of legal areas (Itoh (2010) 30). In fact this has some kind of disciplinary effect and might also be one explanation, that even though there is no formal rule of stare decisis in Japan, the Supreme Court’s decisions bind all lower court judges.

20.  Legal education in Japan underwent drastic reforms in 2004. Until then there was no restriction to take the National Bar Exam (‘NBE’), especially no requirement to graduate from law faculty; but pass rate was regulated by the Ministry of Justice (Hômushô) to an average of 2 %, thus limiting the size of the legal profession (more details on numbers: Watson, 5). National and international calls for fundamental reforms of the Japanese legal system led to a broad discussion and the establishment of the Judicial Reform Council (‘JRC’) in 1999. On its proposal, professional graduate law schools, with the resemblance to those in the US, were introduced in 2004 (while still maintaining the undergraduate law faculties) and since, in principle, only those students, who successfully graduated from the two years (students with legal studies background) or three years (students without legal studies background) course are admitted to the NBE. At the beginning, 72 universities were admitted to establish the new law schools with a regulated number between 30 and 300 students per annum, the content of education being under the control of the Ministry of Education (MEXT, Monkashô). On the other side, the pass rate of the NBE continued to be under the control of the Ministry of Justice. The JRC’s target of 3.000 new entrants to the legal profession each year (pass rate 48% in 2006) soon encountered resistance, especially from the Japanese Bar Association (JBA), resulting in a gradual reduction of number of law schools and students. In 2014, 20 law schools decided to stop accepting new students, in 2015, pass rate for the NBE was 23.8% (1.850 persons). The system became even more complicated when, in 2011, the so called yobi shiken was introduced, a preparatory exam which, if passed, allows entrance to the NBE without attending a law school. (Watson 16, 42 et seq).

21.  At the final stage, after students have passed the NBE, the Supreme Court takes full control over legal education of future lawyers, prosecutors or judges: Those who were lucky to pass the NBE have to complete a one-year training course of legal apprentices at the Supreme Court’s elite Legal Research and Training Institute in Tokyo, successful completion of which is required to join the legal profession. It consists of eight months of general field training (district court, public prosecutor’s office etc), two months of field training based on legal apprentices’ choices, and two months of collective training. At the final exam (recent average pass rate 97%), also called second NBE (nikai shiken), the Supreme Court will decide on newly to be appointed judges and the Ministry of Justice on the nomination of new prosecutors. All other successful candidates may register with one of the local Bar Associations or choose another profession, preferably in the public administration or company law department. The latter became prominent, because some of the successful candidates were not able to find an adequate position in a law firm.

D.  Procedure and Powers

22.  The Supreme Court is the highest court in Japan, it exercises appellate jurisdiction of final appeal, and appeals against a ruling as provided specifically in the codes of procedure.

23.  From its organizational structure, the fifteen judges of the Japanese Supreme Court are allocated to three Petty Benches (Shohôtei), and most appeal cases are adjudicated by one of these. Three Justices constitute a quorum at the Petty Bench for holding a trial. If an appeal involves material issues of constitutional interpretation, the Grand Bench (Daihôtei), composed of the Chief Justice and all fourteen other Justices, adjudicates the matter. Nine Justices constitute a quorum for the Grand Bench to hold a trial. They are assisted by 40 (2016) research assistants (saikôsai chôsakan), who are selected from lower court judges with an average professional experience of 15 years.

24.  Although the Supreme Court is vested with the power of judicial review and is the only Japanese court explicitly empowered by the constitution to review the constitutionality of laws, it is not a constitutional court in the sense in which this term is used for example in German law (with the → Federal Constitutional Court of Germany (Bundesverfassungsgericht)) being the only court to decide on the interpretation of the constitution), but may exercise appellate jurisdiction in respect of all kind of appeals. It even has self-restricted its competence and held in an early decision, that lower courts also have power to interpret the constitution (Food Case). Furthermore, although modelled after the American judicial system, the Japanese Supreme Court should be differentiated from its US counterpart, whose main role is in fact also judicial review, but in practice has developed on various grounds to an organ for constitutional adjudication (although its legitimacy insofar is still contested; Rosenfeld, 668). The role of the US Supreme Court has also been described as ‘battleground for public policy’ (Collins 17 et seq) and this evaluation has to be seen in relationship with various factors, including historical development of the constitution, political system as well as institutional, structural and contextual factors of the court itself (Rosenfeld 663). Different from Japan, the American constitution emerged from a struggle for independence, with the Supreme Court looking back on a long period of trial to interpret—based on common law principles—constitutional (statutory) rules, at the same time ensuring the supremacy of federal law over state law. With regard to political system and society, the division over fundamental values in American society is reflected in the judicial panel, with the Supreme Court judges being nominated by the President, leading in some important cases to counter-majority votes and an increasing number of separate opinions in recent years (Collins 143 et seq; Rosenfeld 652), with judgments based on very slight majority.

25.  The grounds for appeal to the Japanese Supreme Court can be summarized as follows: In civil and administrative cases, an appeal may be filed with the Supreme Court only on grounds of a constitutional violation or a material conflict with laws and regulations on lower court procedure. Automatic grounds for appeal are set forth in the Code of Civil Procedure (Minjisoshôhô, Law No. 109, 1996). However, upon petition, the Supreme Court may hear a case that it finds to involve a material issue concerning the interpretation of laws and regulations.

26.  In a criminal case an appeal is permitted on grounds of (1)a constitutional violation, (2)a misconstruction in constitutional interpretation, or (3)a conflict with a Supreme Court or with a High Court precedent. However, as with civil and administrative cases, upon petition, the Supreme Court may hear an appeal that it finds to involve an important issue concerning the interpretation of laws and regulations. In rare cases, involving the habeas corpus procedure, the Supreme Court may, when it feels it is specially needed, itself decide the case, even if it is before the lower court (Oda 67).

27.  Although the Petty Benches must forward a case to the Grand Bench for any change in judicial precedent, they may dismiss a challenge lodged against the constitutionality of an alleged act so long as the Grand Bench has upheld its constitutionality. But regardless of the high workload of the Petty Benches (civil (including administrative) cases in 2014: commenced 5,563; ended 5,888; pending 2.077; criminal cases in 2014: commenced 1,906; ended 1,990; pending 419), the Grand Bench has been comparatively inactive if we look at the post-war case law history, which is due to the often-cited self-restraint attitude of the Supreme Court towards constitutional questions.

28.  Many reasons have been given to explain this attitude (Goodman 110) and it is hard to pick a single reason, but in some sense representative might be the following opinion: ‘It might be safe to generalize that the Supreme Court of Japan has continued its judicial self-restraint in fear of judicial usurpation of the power of the political branches to establish and control public policy … The idea of judicial review is a bit too radical for the Japanese version of democracy, and because it cannot be traced to the traditional political values of the Japanese, the Supreme Court has almost never nullified or reversed governmental actions as unconstitutional’ (Hata sec. 54). There are also warning voices concerning this issue: ‘What is most alarming, though, is the fact that the Constitution is regarded with distrust, or at least with caution, by the Justices. Many Justices tend to view the Constitution not as a law, but more as a political document stipulating political principles. The fact that the Constitution has not been regarded as law to be applied by judges is the most unfortunate reason for judicial passivism’ (Matsui (2011) 1413).

E.  Case Law

29.  Some cases of the Supreme Court’s jurisdiction may help to understand the above mentioned critical evaluations:

30.  In the Placard Case the defendant participated shortly after the End of the Second World War in a rally demanding food, carrying a placard saying: ‘Emperor Hirohito said: The body politic was saved. I am full of food. You, the people, die of hunger.’ He was then prosecuted for an insult against the Emperor. The District court held that the insult provision lost effect after the acceptance of the Potsdam Declaration and found the defendant only guilty of defamation. Shortly after this decision, the Japanese Constitution was promulgated and the government gave pardons to all prisoners and defendants accused of committing insult against the Emperor. Nevertheless the High Court believed that the insult provision was still legal and found the defendant respectively guilty. However, it dismissed the prosecution because of the pardon of the government for such cases. The defendant appealed to the Supreme Court arguing that he should be acquitted because the insult provision was unconstitutional. The Grand Bench overturned the High Court, holding that the prosecution should have been dismissed without a decision whether the defendant was guilty and found no reason to rule about the constitutionality of the insult provision (Matsui (2011) 26).

31.  Of even more political and social importance has been the dispute about the constitutionality of Japan’s Self-Defence-Forces (‘SDF’, Jieitai) and Art. 9 of the Japanese Constitution which says: (1) ‘Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.’ (2) ‘In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.’

32.  The first challenge was the National Police Reserve (NPR) Case, where a Diet member filed a suit directly in the Supreme Court asking to declare that all government conduct concerning the establishment of the NPR was unconstitutional. The Supreme Court rejected the suit because it found no pending cases or controversies which were needed to exercise the power of judicial review.

33.  30 years later, in the Naganuma Case, residents of Naganuma village in Hokkaido challenged the decision of the Agriculture Minister to reclassify local forests for use of the SDF as violating Art. 9. With a surprising decision, the Sapporo District Court upheld the claims of the plaintiffs, holding for the first time the SDF as unconstitutional, because the SDF should be looked at as prohibited ‘war potential’. The Sapporo High Court, who denied the plaintiffs legal interest to challenge the reclassification of land, because in the meantime measures had been taken to prevent possible damages deriving out of the ministerial ordinance, overturned this judgment. The Supreme Court affirmed the High Court’s judgment that the case was moot and dismissed the suit without dealing with the questions of constitutionality of the SDF.

34.  There were subsequent cases questioning this issue (Matsui (2011) 242), which can be described as the single most controversial constitutional question in Japan. Even though it is of a highly political content with regard to national defence, it is remarkable, that the Supreme Court consistently restrained from taking a clear position, obviously waiting for the problem to be decided in a political process rather than by the judiciary (Matsui (2011) 233).

35.  The initiative to start this political process was finally taken in July 2014 by the Abe coalition government, which decided to remove the ban on collective self-defence and the ban on exporting weapons by a Cabinet Decision changing the interpretation of Art. 9. This decision was prepared––as all other cabinet activities—by the Cabinet Legislation Bureau (‘CLB’), one of the government’s most powerful agencies.

36.  The CLB oversees the drafting of most legislation passed by the Diet and provides legal advice to the government, including constitutional interpretations. In performing its advisory role, the CLB has long held in previous interpretations, that Art. 9 of the Constitution does not allow the nation to participate in collective self-defence activities abroad in concert with other nations. The new interpretation now reads, that ‘use of force’ may be permitted not only when an armed attack against Japan occurs but also when an armed attack against a foreign country occurs and could threaten Japan’s survival. The cabinet justified this expansion of scope by referring to ‘shifts in the global power balance, the rapid progress of technological innovation, and threats such as weapons of mass destruction’.

37.  The CLB has the final word when it comes to interpreting the famous ‘no war’ provisions of Art. 9, largely by default: Although constitutionally the Supreme Court is the ‘court of last resort with power to determine the constitutionality of any law, order, regulation or official act’ (Art. 81), it constantly refrained, as mentioned above, to take a clear position, declaring self-defence to be a ‘high-level’ political issue.

38.  Somewhat ironically, modification in the CLB position became possible through a decisive change on the top of its administration: the former director-general Yamamoto was appointed Supreme Court judge in 2013 and could in this position continue to confirm his ‘pacifist’ view of Art. 9, that ‘changing the current interpretation is difficult. To realize the type of right to collective self-defence that can be exercised on the other side of the world, it would be more appropriate to amend the Constitution’ (Jones).

39.  His successors as director general of the CLB instead supported a more aggressive interpretation of Art. 9 and collective self-defence. This process revealed the politicisation of a key constitutional player and fragility of the practices surrounding the CLB which have long maintained its integrity (Jones) and led to an intensive, still on-going discussion on the constitutionality of Cabinet interpretation of the constitution, increasingly criticized as ‘bureaucratic constitutionalism’ (Ghaleigh 195).

40.  With some similarity to the SDF cases, another well-discussed and often to the Supreme Court submitted topic is the problem of electoral mal-apportionment or vote disparity regarding the elections for the Diet. Even after reforms executed in 1994 and a Supreme Court decision of 2011, questioning the constitutionality of the 2008 elections (Equal Vote 2011; Equal Vote 2012), the situation persisted that a single vote in the least populous district carried 2.43 times the weight of one in the most heavily populated district. With regard to the 2012 elections, which brought the LDP under Prime Minister Abe back to power, 16 law suits were filed because of wide disparity in vote weights. High Courts ruled in March 2013, that elections in 31 of the 300 single-seat districts for parliament’s 480-member lower house (Shûgiin) were unconstitutional, or held in a ‘state of unconstitutionality’. The Supreme Court confirmed in its 2013 decision (Equal Vote 2013), that in some districts elections were unconstitutional, but refrained to invalid the contentious result, urging Parliament again to solve the issue of the vote-value gap. At least, there were three Justices dissenting, believing that the 2012 general election was in contravention of Japan’s constitution and as such the election results should be nullified.

41.  The position of self-restraint is also confirmed by the fact, that in its nearly 70 years of history the Supreme Court found only in about 10 cases statutes to be unconstitutional. One case, in which also traditional structures of Japanese society had to be reconsidered, is the Patricide Case. The defendant had been charged with murdering her father, who had abused her for many years and forcing her to have children through incest. Pursuant to Art. 199 of the Japanese Criminal Code (‘JCC’, Keihô, Law No. 44, 1907)), the crime of murder is punishable by not less than five years in prison (in severe cases by lifetime imprisonment or death penalty), but the crime of killing a lineal ascendant had to be punished under Art. 200 JCC either with lifetime imprisonment or the death penalty. This regulation predated the constitution and was based on Confucian ideas (Confucian constitutionalism), which dominated the Japanese family system (ie) since the Tokugawa area (1603–1868). Nevertheless, the Court found that the difference in penalties for ascendant and ‘ordinary’ murder could not be upheld under Art. 14 of the Constitution, which provides that all people are equal under the law. Art. 200 JCC was therefore abolished as unconstitutional.

42.  A recent important case of unconstitutionality of statues is related to family law and also to Art. 14 of the Constitution: In a landmark ruling of September 2012 the Supreme Court declared unconstitutional Art. 900 Sec. 4 of the Civil Code (Minpô, Law No. 89, 1898), that had denied full inheritance rights to heirs born out of wedlock (Wedlock 2013). One year later, the Parliament abolished this provision, which had been valid since 1898 and enacted a reformed regulation guaranteeing equal treatment. The unanimous decision reviewed the Supreme Court’s judgment of 1995 (Wedlock 1995), when the inheritance disparity underwent already major scrutiny and had been found constitutional in a vote of 10 to 5. The major reason for declaring the situation now as ‘unreasonable’ was given to the increasing diversification of families in Japanese society and the changing social perception of the concept of marriage. It was the first time that the Supreme Court declared a clause of the Civil Code unconstitutional.

F.  Conclusion

43.  It is obvious, that compared to the Supreme Court in the US or the Constitutional Court in Germany the Supreme Court in Japan does not use its judicial power vested by the constitution to play a pro-active, formative role and there are no signs that this will change in near future. On one side this has evoked a lot of criticism arguing, that the Supreme Court has fashioned very demanding cases or controversies requirements, and rejected many constitutional litigations for want of that requirement. Or that it has established a highly conservative constitutional jurisprudence and rejected many constitutional attacks in defence to the judgment of the Diet (Matsui (2011) 151).

44.  The Cabinet Decision in 2014 on the new interpretation of Art. 9 and the preparatory measures taken in this regard intensify this impression and reveal the relative status of the Supreme Court and the Cabinet Legislation Bureau in the interpretation of this important Article and especially the meanwhile relative marginality of the Supreme Court insofar.

45.  Others assume, that despite the self-restraint in constitutional questions, the Japanese Supreme Court has quite effectively resolved conflicts, authoritatively allocated socio-economic values between competing private interests in the society. And has rendered authoritative interpretations of many non-constitutional provisions, using even non-litigious forms such as conciliation and arbitration. Through its contribution to bring about stability with pro-government and pro-business judicial decisions, the Supreme Court has indirectly helped achieve economic growth and a relatively egalitarian civil society (Itoh (2010) 280).

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