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 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 Diet and Local Assembly, and administrative actions, to be unconstitutional.

History[edit]

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 1946. 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.

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 organization[edit]

Façade of the Supreme Court building
The Grand Bench

The constitution's Article 81 designates it "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 Chief Justice is chosen by the Cabinet (Prime Minister) and appointed by the Emperor.

The Associate Justices are appointed by the Cabinet and attestation by 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 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, 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.[1]

Judicial review of laws[edit]

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.[2] 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.[3]

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 Self-Defense Forces, the sponsorship of Shinto ceremonies by public authorities, or the authority of the Ministry of Education to determine the content of school textbooks or teaching curricula, the Court has generally deferred to the government.[4]

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 Prefecture Election Control 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.[5] Nonetheless the Diet has repeatedly failed to keep malapportionment within the limits set forth in Kurokawa.[6] Aside from electoral matters, provisions declared unconstitutional by the Supreme Court have included rules[6]

  • 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.[6]

Current Justices[edit]

The current justices are listed here.[7]

Title Name Petty Bench University Background Previous occupation
Chief Justice Itsurō Terada Second Tokyo Judge President, Hiroshima High Court
Justice Yuki Furuta Second Tokyo Prosecutor Deputy Prosecutor-General, Supreme Public Prosecutors Office
Justice Mutsuo Tahara Third Kyoto Attorney Guest Professor, Kyoto University
Justice Koji Miyakawa First Nagoya Attorney
Justice Ryuko Sakurai First Kyushu Bureaucrat Director-General of the Women's Bureau, Ministry of Labour
Justice Yukio Takeuchi Second Kyoto Diplomat Special Adviser of Ministry of Foreign Affairs
Justice Seishi Kanetsuki First Tokyo Judge President, Osaka High Court
Justice Masahiko Sudo Second Chuo Attorney
Justice Katsumi Chiba Second Tokyo Judge President, Sendai High Court
Justice Tomoyuki Yokota First Chuo Prosecutor Deputy Prosecutor-General, Supreme Public Prosecutors Office
Justice Yū Shiraki First Tokyo Judge President, Tokyo High Court
Justice Kiyoko Okabe Third Keio Judge, Academic Professor, Keio University School of Law
Justice Takehiko Otani Third Tokyo Judge President, Osaka High Court
Justice Itsuro Terada Third Tokyo Judge President, Hiroshima High Court
Justice Masaharu Ōhashi Third Tokyo Attorney Official in the Japanese Federation of Bar Associations (JFBA)

Former justices[edit]

Title Name Petty Bench University Background Previous occupation
Justice Tokuji Izumi[8] First Kyoto Judge President, Tokyo High Court
Chief Justice Niro Shimada[9] Second Tokyo Judge President, Osaka High Court
Justice Kazuko Yokoo[10] First ICU Diplomat Ambassador of Japan to Ireland
Justice Chiharu Saiguchi[10] First Chūō Attorney Member, Advisory Committee on Civil Rules of the Supreme Court
Justice Osamu Tsuno[10] Second Kyoto Bureaucrat, attorney Director-General, Cabinet Legislation Bureau
Justice Shigeo Takii[10] Second
Justice Kohei Nasu Third Tokyo Attorney Chairperson of the Sub-Committee on Research of Japan Law Foundation

See also[edit]

Footnotes[edit]

 This article incorporates public domain material from websites or documents of the Library of Congress Country Studies. - Japan

  1. ^ "Editorial: Review of Top Justices". Asahi Shimbun. 2009-08-27. Retrieved 2009-10-15. [dead link]
  2. ^ Food Staple Management Law Constitutionality Case, 4 Minshu 73 (1950).
  3. ^ National Police Reserve Constitutionality Case, 6 Minshu 783 (1952).
  4. ^ Bolz, Herbert F. (1980). "Judicial Review in Japan: The Strategy of Restraint". Hastings International and Comparative Law Review 4 (87). 
  5. ^ Bailey, William Somers (1997). "Reducing Malapportionment in Japan's Electoral Districts: The Supreme Court Must Act". Pacific Rim Law and Policy Journal 6 (169). 
  6. ^ a b c Law, David S. (2009). "The Anatomy of a Conservative Court: Judicial Review in Japan". Texas Law Review 87: 1545. 
  7. ^ "Justices of the Supreme Court". Supreme Court of Japan. 2006. Retrieved 2010-05-03. 
  8. ^ "IZUMI, Tokuji." Supreme Court of Japan. Accessed February 12, 2009.
  9. ^ "SHIMADA, Niro." Supreme Court of Japan. Accessed November 2, 2008.
  10. ^ a b c d "Justices of the Supreme Court." Supreme Court of Japan. June 17, 2006.

External links[edit]

Coordinates: 35°40′48″N 139°44′38″E / 35.680°N 139.744°E / 35.680; 139.744