Supreme Court of Japan
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The Supreme Court of Japan (最高裁判所 Saikō-Saibansho, called 最高裁 Saikō-Sai for short), located in Hayabusachō, Chiyoda, Tokyo, is the highest court in Japan. It has ultimate judicial authority to interpret the Japanese constitution and decide questions of national law (including local bylaws). It has the power of judicial review; that is, it can declare Acts of the National Diet, local assemblies, and administrative actions, to be unconstitutional.
Supreme Court Building
|Composition method||Appointed by The Emperor on the advice of the Prime Minister.|
|Authorized by||Constitution of Japan|
|Judge term length||Life tenure until the mandatory retirement age of 70.|
|Chief Justice of Japan|
|Since||January 9, 2018|
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The first Western-style supreme court in Japan was the Supreme Court of Judicature (大審院 Dai-shin'in) organized by the Ministry of Justice in 1875. This court was composed of 120 judges in both civil and criminal divisions. Five judges would be empaneled for any given case. The criminal division of the court was the court of first instance for crimes against the Emperor (e.g. lèse majesté) and for high crimes against public order.
The statute creating the Court was abolished in 1947, and the modern Supreme Court was formed that year under the constitution of 1947. The new court was first convened in May 1947 in the former Privy Council quarters of the Tokyo Imperial Palace. It moved to the Tokyo District Court building in September, then assumed the former quarters of the Supreme Court of Judicature in October 1949.
Newly established Constitution and the Rules of the Supreme Court allowed the court to have dominating power to make comment to the law and to select its official precedents by the Case Selection Committee, as well as to autonomously govern judges. Hosokai (法曹界), the lawyers association which had been stipulating the rules of sentencing and judgement within judges, public prosecutors and attorneys, remained too.
After US occupation force left Japan, its rules became one of the closed documents to the public, except being seen in gazette.
In 1974, the Supreme Court moved to its current five-story building at 4-2 Hayabusa-cho, Chiyoda, Tokyo. The building was designed by architect Shinichi Okada and won the Architecture Institute of Japan Prize for Design.
Appointment and organizationEdit
The Article 81 of the constitution designates it as "the court of last resort with power to determine the constitutionality of any law, order, regulation, or official act." The Supreme Court is also responsible for nominating judges to lower courts, determining judicial procedures, overseeing the judicial system, including the activities of public prosecutors, and disciplining judges and other judicial personnel. It renders decisions from either a grand bench of fifteen justices or a petit bench of five. The grand bench is required for cases involving constitutionality. The court includes 34 research clerks, whose function is similar to that of the clerks of the United States Supreme Court.
The associate justices are appointed by the Cabinet in attestation of the Emperor.
After appointment, Supreme Court justices are subject to a "people's review": an automatic retention referendum in which the voters may remove the judge from office. A people's review occurs at the first election to the House of Representatives after a justice assumes office, when the question of whether his tenure should continue is put to voters on the ballot. The Supreme Court justice is then subject to a further people's review at the first lower house election after every ten years. The system used resembles the Missouri Plan followed in some U.S. states. It is established by Article 79 of the constitution which includes the following provisions:
|“||The appointment of the judges of the Supreme Court 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 (10) years, and in the same manner thereafter.
In cases mentioned in the foregoing paragraph, when the majority of the voters favors the dismissal of a judge, he shall be dismissed.
As of October 2009[update], no Supreme Court justice has ever been dismissed by a people's review. It is also unusual for a justice to be subject to a second review, as most are over the age of sixty when appointed and there is mandatory retirement at seventy.
Judicial review of lawsEdit
The Supreme Court is the only Japanese court explicitly empowered to review the constitutionality of laws, although it has held that lower courts also have power to interpret the constitution. Unlike constitutional courts in other civil law countries, it only exercises judicial review in cases where there is a genuine dispute between parties, and does not accept questions of constitutionality from government officials.
The Supreme Court is generally reluctant to exercise the powers of judicial review given to it by the constitution, in large part because of unwillingness to become involved in politically sensitive issues. When decisions have been rendered on such matters as the constitutionality of the Japan Self-Defense Forces, the sponsorship of Shinto ceremonies by public authorities, or the authority of the Ministry of Education, Culture, Sports, Science and Technology to determine the content of school textbooks or teaching curricula, the Court has generally deferred to the government.
One important exception to this trend was a series of rulings on the unconstitutionality of the electoral district apportionment system. Although the Court ruled in 1964 that legislative districting was largely a matter of legislative policy, it ruled in the 1976 case of Kurokawa v. Chiba Election Commission, that a 5:1 discrepancy in the voter-to-representative ratio between two districts was an unconstitutional violation of the right to an equal vote. Nonetheless, the Diet has repeatedly failed to keep malapportionment within the limits set forth in Kurokawa. Aside from electoral matters, provisions declared unconstitutional by the Supreme Court have included rules
- Punishing patricide more harshly than other homicides.
- Restricting pharmacies from doing business close to one another.
- Limiting the liability of the postal service for the loss of registered mail.
- Restricting subdivision of property by joint owners of forest land.
- Restricting the right of citizenship of certain illegitimate children.
One critic of the court writes that:
The Supreme Court of Japan has been described as the most conservative constitutional court in the world, and for good reason... Since its creation in 1947 [the court] has struck down only eight statutes on constitutional grounds. By way of comparison, Germany's constitutional court, which was established several years later, has struck down over 600 laws. The majority of the Japanese Supreme Court's rulings of unconstitutionality have, moreover, been less than momentous... The high point of... judicial review in Japan is probably a 1976 decision rejecting a legislative apportionment scheme... yet the Court refrained in that case from ordering any remedy.
Cases declaring statutes unconstitutionalEdit
The current justices are:
|Title||Name||Birth date||University||Background||Previous occupation|
|Chief Justice||Naoto Ōtani||June 23, 1952||Tokyo||Judge||President, Osaka High Court|
|Justice||Atsushi Yamaguchi||November 6, 1953||Tokyo||Attorney||Member, Dai-ichi Tokyo Bar Association|
|Justice||Katsumi Chiba||August 25, 1946||Tokyo||Judge||President, Sendai High Court|
|Justice||Kiyoko Okabe||March 20, 1949||Keio||Judge, Academic||Professor, Keio University School of Law|
|Justice||Takehiko Otani||March 10, 1947||Tokyo||Judge||President, Osaka High Court|
|Justice||Masaharu Ōhashi||March 31, 1947||Tokyo||Attorney||Official in the Japanese Federation of Bar Associations (JFBA)|
|Justice||Yoshinobu Onuki||August 26, 1948||Chuo||Prosecutor||Professor, Asia University|
|Justice||Kaoru Onimaru||February 7, 1949||Tokyo||Attorney||Chairperson of the Special Committee on the Rights of the Aged and Disabled|
|Justice||Michiyoshi Kiuchi||January 2, 1948||Tokyo||Attorney||Chairperson of the Project Team on the Hague Convention|
|Justice||Tsuneyuki Yamamoto||September 26, 1949||Kyoto||Civil Servant||Director-General, the Cabinet Legislation Bureau|
|Justice||Toshimitsu Yamasaki||August 31, 1949||Tokyo||Assistant Judge||President, Tokyo High Court|
|Justice||Masayuki Ikegami||August 29, 1951||Tohoku||Prosecutor||Osaka High Public Prosecutors Office|
|Justice||Naoto Otani||June 23, 1952||Tokyo||Assistant Judge||President, Osaka High Court|
|Justice||Hiroshi Koike||July 3, 1951||Tokyo||Assistant Judge||President, Tokyo High Court|
- "Editorial: Review of Top Justices". Asahi Shimbun. 2009-08-27. Archived from the original on October 1, 2009. Retrieved 2009-10-15.
- Food Staple Management Law Constitutionality Case, 4 Minshu 73 (1950).
- National Police Reserve Constitutionality Case, 6 Minshu 783 (1952).
- Law, David S. (2011). "Why Has Judicial Review Failed in Japan?". Washington University Law Review. Decision Making on the Japanese Supreme Court. 88 (6): 1425–1466. Retrieved 13 February 2019.
- Bolz, Herbert F. (1980). "Judicial Review in Japan: The Strategy of Restraint". Hastings International and Comparative Law Review. 4 (87).
- Bailey, William Somers (1997). "Reducing Malapportionment in Japan's Electoral Districts: The Supreme Court Must Act". Pacific Rim Law and Policy Journal. 6 (169).
- Law, David S. (2009). "The Anatomy of a Conservative Court: Judicial Review in Japan". Texas Law Review. 87: 1545. SSRN 1406169.
- Satoh, Jun-ichi (January 1, 2008). "Judicial Review in Japan: An Overview of the Case Law and an Examination of Trends in the Japanese Supreme Court's Constitutional Oversight". Loyola of Los Angeles Law Review. 41 (2): 603–628. Retrieved 13 February 2019.
- Matsui, Shigenori (2011). "Why Is the Japanese Supreme Court So Conservative?". Washington University Law Review. Decision Making on the Japanese Supreme Court. 88 (6): 1375–1423. Retrieved 13 February 2019.
- "Justices of the Supreme Court". Supreme Court of Japan. 2006. Retrieved 2010-05-03.
- Hiroshi Itoh. The Supreme Court and Benign Elite Democracy in Japan. London: Routledge, 2010.