CONSTITUTIONAL COURT PROFILE
The birth of judicial review in Japan
Norikazu Kawagishi*
Judicial review was introduced to Japan when the current constitution took effect in
May 1947; this paper examines how it was institutionalized in the postwar period.
Although it was established almost by accident, judicial review has profoundly
transformed the Japanese political process. We can recognize the full meaning and
potential of judicial review only when we try to understand it in the historical context
of Japanese constitutionalism. The old Meiji constitutional regime, which had no
provision and practice for judicial review, was based on the concept of the kokutai, a
system in which the emperors, in one line unbroken for eternity, held and exercised
sovereign power. This orthodoxy prevented the Meiji regime from developing fully its
liberal democratic potential. In contrast, the current constitution declares universalistic
principles of government. Due respect for the fundamental rights of citizens and the
principle of popular sovereignty have transformed politics from a vertical hierarchy to
a horizontal relation among equals through mutual persuasion, in which judicial
review must be situated. Finally, this paper discusses a lèse majesté case that marks
Japan having reached, painfully, a new stage of liberal democratization.
Since the end of the Cold War, the world has witnessed a broad revival of constitutionalism. Additionally, the collapse of the communist countries prompted
a reconsideration of the meaning of liberal democracy. Even though democracy presupposes the equality of each person,1 people have come to realize that
the democratic decision-making process, by itself, is not necessarily the ideal
means for protecting human dignity. Constitutionalism thus attracts general
attention because it seeks to set limitations on political power in order to secure
personal autonomy and liberty. Constitutionalists argue that even the power
of a majority should be limited.
Increasing interest in judicial review has accompanied the revival of constitutional thought. Today, judicial oversight of governmental actions is one
of the key elements of constitutionalism.2 The concept of judicial review is
* Professor of constitutional law, Faculty of Political Science and Economics, and Law School, Waseda
University, Tokyo. This article is partly based on Norikazu Kawagishi, The Constitution of Japan: An
Unfinished Revolution, Nov. 7, 2003 (unpublished J.S.D. dissertation, Yale Law School) (on file with author).
Email: [email protected]
1
See, e.g., ROBERT A. DAHL, ON DEMOCRACY (Yale Univ. Press 1998).
2
We cannot say that judicial review is an inevitable factor of constitutionalism. See, e.g., JEREMY
WALDRON, LAW AND DISAGREEMENT (Oxford Univ. Press 1999).
© The Author 2007. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
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inconsistent with a monolithic view of democracy because it assumes that the
legislature should not monopolize constitutional interpretation, and, thus,
that various understandings of governmental goals can coexist and compete
for legitimacy.
Japan is no exception. Framed in 1946, the current Japanese Constitution,
for the first time in the country’s history, provided that “[t]he Supreme Court
is the court of last resort with power to determine the constitutionality of any
law, order, regulations, or official act.”3 Although its establishment was
almost by accident, as will be explained, judicial review has profoundly transformed the political process in Japan. Although modeled on the American
system, the situation is different from that of the United States, since the
Japanese Supreme Court, for some sixty years, has adopted a practice of judicial passivity.4 We can grasp the full meaning and potential of judicial review
in Japan only when we seek to understand it in the historical context of
Japanese constitutionalism.
This paper will examine how judicial review was institutionalized in postwar Japan. When the fifteen-year period of war ended with surrender to the
Allied powers, Japan was faced with a variety of serious problems in responding to the reality of defeat. In particular, reconstruction of the political order
was a crucial issue. Because the war had been conducted as an all-out war, the
old governmental structure had to be wholly abandoned in response to the
defeat itself. It is quite natural to think that the breakdown of the political system derived from its defects.5 In fact, the liberal democratization of society was
an international obligation for the Japanese government under the Potsdam
declaration, and a structural transformation of politics seemed necessary to
carry out that duty. Establishment of judicial review was one possible way to
realize liberal democracy.
The Japanese governing elite were optimistic enough to see the situation
quite differently. They were confident regarding the prewar regime, which had
once enjoyed a sort of democratic political process. To them, the vandalism of
the ultranationalist movement before the war had usurped the constitutional
order, so the true problem seemed to reside not in the written document but in
its abuse by a fanatical movement.
There were, therefore, two options available for the Japanese people: to
restore the relatively democratic ancien régime or to create a completely new
3
JAPAN CONST. (KENPō), art. 81.
4
See, e.g., Hidenori Tomatsu, Judicial Review in Japan: An Overview of Efforts to Introduce U.S. Theories,
in FIVE DECADES OF CONSTITUTIONALISM IN JAPANESE SOCIETY 251–277 (Yoichi Higuchi ed., Univ.Tokyo
Press 2001).
5
For constitutional writing after the war, see Yasuo Hasebe, Kenpo o kaisei surukoto no im [The
Meaning of Constitutional Amendment], in KENPO NO IMA [THE CURRENT JAPANESE CONSTITUTION], 139–168
( Japan Civil Liberties Union ed., Shinzansha 2005).
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political order. The actual outcome was something in-between.6 The Constitution of Japan, which was promulgated on November 3, 1946, and became
effective six months later, was framed by following the amendment process
that the old constitution of the empire of Japan (the nineteenth-century Meiji
constitution) provided for; however, the framers then went on to introduce
new principles of government completely different from its predecessor.7
The organization of the two constitutions looks nearly identical,8 and the
transition from the old constitution to the new is procedurally dependent on
the earlier text. The chapter dealing with the tenno (emperor) comes first in
both versions. On closer examination, however, the status and powers of the
tenno have changed greatly. Although the tenno still remains as an institution
in the postwar Constitution,9 the tenno is no longer the head of state with a
6
On the process of making the Constitution of Japan, see SATO TATSUO, NIHONKOKU KENPO SEIRITSUSHI
[A HISTORY OF THE ESTABLISHMENT OF THE CONSTITUTION] (Yuhikaku 1994); NIHONKOKU KENPO SEITEI NO KATEI
[THE MAKING OF THE CONSTITUTION] (Takayanagi Kenzo, Ohtomo Ichiro, & Tanaka Hideo, eds.,
Yuhikaku 1972); IRIE TOSHIO, KENPO SEIRITSU NO KEII TO KENPOJYO NO SHOMONDAI [DETAILS OF THE ESTABLISHMENT OF THE CONSTITUTION, AND CONSTITUTIONAL PROBLEMS] (Daiichi Hoki Shuppan 1976); TANAKA HIDEO,
KENPO SEITEI KATEI OBOEGAKI [NOTES ON THE PROCESS OF MAKING THE CONSTITUTION] (Yuhikaku 1979); KOSEKI
SHOICHI, SHIN KENPO NO TANJYO [THE BIRTH OF THE NEW CONSTITUTION] (Chuko Bunko 1995) (1989); TAKAHASHI
HIKOHIRO, NIOHNKOKU KENPO TAISEI NO KEISEI [MAKING THE JAPANESE CONSTITUTIONAL REGIME] (Aoki Shoten
1997). KYOKO INOUE, MACARTHUR’S JAPANESE CONSTITUTION: A LINGUISTIC AND CULTURAL STUDY OF ITS MAKING
(Univ. Chicago Press 1991); SHOICHI KOSEKI, THE BIRTH OF JAPAN’S POSTWAR CONSTITUTION (Ray A. Moore
trans., Westview 1998); THE CONSTITUTION OF JAPAN: A DOCUMENTARY HISTORY OF ITS FRAMING AND ADOPTION,
1945–1947 (Ray A. Moore & Donald L. Robinson eds., Princeton Univ. Press CD-ROM, 1998)
(hereinafter RM); JOHN W. DOWER, EMBRACING DEFEAT: JAPAN IN THE WAKE OF WORLD WAR II (W.W.
Norton 1999); THEODORE MCNELLY, THE ORIGINS OF JAPAN’S DEMOCRATIC CONSTITUTION (Univ. Press of America 2000); DALE M. HELLEGERS, WE, THE JAPANESE PEOPLE: WORLD WAR II AND ORIGINS OF THE JAPANESE CONSTITUTION (Stanford Univ. Press 2001); RAY A. MOORE & DONALD L. ROBINSON, PARTNERS FOR DEMOCRACY:
CRAFTING THE NEW JAPANESE STATE UNDER MACARTHUR (Oxford Univ. Press 2002). See also Norikazu Kawagishi, An Unfinished Constitutional Revolution: Toward a New Understanding of the Constitution of
Japan, 355 WASEDA J. POLI. SCI. & ECON. 66 (2004).
7
Dai Nihon Teikoku Kenpo (The Constitution of the Empire of Japan) (1889) (MEIJI KENPō), art. 73.
The Constitution of the Empire of Japan, (MEIHI KENPō), which was promulgated on February 11,
1889, and in force from November 29, 1890 to May 2, 1947, was the first modern Japanese constitution. With seven chapters and seventy-six articles in total, its organization was as follows: Chapter I,
The Emperor; Chapter II, Rights and Duties of Subjects; Chapter III, The Imperial Diet; Chapter IV, The
Ministers of State and the Privy Council; Chapter V, The Judicature; Chapter VI, Finance; Chapter VII,
Supplementary Rules. Meanwhile, the Constitution of Japan (Kenpō) is the second and current Constitution, with eleven chapters and 103 articles in total. Its structure is as follows: Chapter I, The Emperor;
Chapter II, Renunciation of War; Chapter III, Rights and Duties of the People; Chapter IV, The Diet; Chapter V, The Cabinet; Chapter VI, Judiciary; Chapter VII, Finance; Chapter VIII, Local Self-Government;
Chapter IX, Amendments; Chapter X, Supreme Law; Chapter XI, Supplementary Provisions.
8
9
Even under the Constitution of Japan, the word “tenno” is usually translated as “emperor.” However, “tenno” is used herein, rather than “emperor,” to refer to the postwar regime except where
the word “ emperor” is used in an official English translation, because, from the end of the war,
Japan was no longer an empire.
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divine right to govern. The tenno has become merely “the symbol of the State
and of the unity of the people, deriving his position from the will of the people,
with whom resides sovereign power.”10 Thus, there has been a fundamental
change in the holder of sovereign power.
Moreover, various new principles have emerged. Most constitutional scholars
understood that a change of the kokutai—the national polity or national character—had led to a revolutionary transformation of the state.11 While the central
idea of the Meiji constitutional system lay in the concept of the kokutai, where the
tenno in a line unbroken for “ages eternal” should govern Japan forever by
following the will of the imperial founder and his ancestors, so the postwar
Constitution is based on a universalistic principle of government as popular trust:
“Government is a sacred trust of the people, the authority for which is derived
from the people, the powers of which are exercised by the representatives of the
people, and the benefits of which are enjoyed by the people.”12 The postwar
Constitution espouses the principle of popular sovereignty and, in addition, a
pervasive pacifism. The goal is to secure due respect for the human dignity of
individuals. The values of the two constitutions thus differ fundamentally.
Section 1 considers the experience of the old regime, which neither made
provision for judicial review nor exercised such power. The liberals of the day
then concentrated their energy on the democratization of the political process,
which still left the emperor with many prerogatives. Despite some success, the
Meiji regime’s general orthodoxy prevented it from developing fully its liberal
democratic potential.
Section 2 explores how judicial review was introduced into the current
Constitution. Because the postwar Japanese government leaders were still
attached to the orthodoxy of the old regime, the kokutai ideology, they failed to
present a grand design appropriate to the new era.
Section 3 situates judicial review in the postwar constitutional scheme.
Due respect for the fundamental rights of citizens and the principle of
popular sovereignty have transformed the Japanese political process from a
vertical hierarchical relation to a horizontal relation among equals through
mutual persuasion. Judicial review is supposed to play a significant role in
the liberal democratization of society, which was Japan’s promise to the
world after the war.
10
KENPō, art. 1.
11
For conservative arguments, see Hozumi Yatsuka, Kenpo no seishin [The Spirit of the Imperial
Constitution], in HOZUMI YATSUKA SHU [COLLECTED ESSAYS OF HOZUMI YATSUKA] 23 (Nagao Ryuichi ed.,
Shinzansha 2001). For a representative of liberal thought, see MINOBE TATSUKICHI, NIHON KENPO
NO KIHON SHUGI [BASIC PRINCIPLES OF CONSTITUTIONAL LAW] 7–8 (Nihon Hyoronsha 1934); MINOBE
TATSUKICHI, SHIN KENPO NO KIHON GENRI [FUNDAMENTAL PRINCIPLES OF THE NEW CONSTITUION] 69–73
(Kunitachi Shoin 1947).
12
KENPō, pmbl., para. 1.
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The final section examines a case that was crucially important immediately
after the new Constitution was framed. This case was directly related to the
new meaning of the tenno system as well as to the concept of free speech under
the principle of popular sovereignty. The Supreme Court itself did not take a
revolutionary or transformative stance in this connection, but, in a manner
quite unprecedented, the individual justices expressed various opinions, including one who preferred free expression to the tenno institution. A diversity of
judicial opinions is an important condition for the healthy functioning of judicial review; thus, the case marks Japan having reached, however painfully, a
new stage of liberal democratization.
1. The old regime without judicial review
Although the Meiji constitution had a kind of bill of rights, the rights declared
were not viewed as inherent in human beings. Rather, they were considered as
gifts to the subjects from a benevolent emperor. The framers of the Meiji constitution believed that a modern constitution needed a declaration of rights of
some sort, but that they should not be so powerful as to trump national policy.
As a result, the declaration of rights generally came with the horitsu no ryuho,
a reservation of law. For example, freedom of speech, one of the most important rights in a liberal democracy, was guaranteed “within the limits of law.”13
Of course, free speech has never been understood anywhere as an absolute
right; however, if it is truly a right, it must have aspects that are beyond the
reach of any statute.14
It is true that the provision “reservation of law” has a positive side. The
executive branch cannot infringe upon rights without an explicit statutory
foundation. Executive arbitrariness is always a palpable threat to citizens, and
the Meiji constitution might be understood as providing some safeguard against
the violation of rights in this sense. On the other hand, reservation of law also
has a negative meaning. Once a law is established, following the proper procedures, the rights of citizens can be restricted legitimately in the name of democratic authority. We know that there is a good argument to the effect that such
rights can be well protected in a majoritarian scheme.15 However, that was not
the case with the Meiji constitution. The Imperial Diet enjoyed no real legislative power. It was a mere organ for giving consent to the emperor’s wishes,
MEIJI KENPō, art. 29. Freedom of religion was an exception. The subjects enjoyed freedom of religious belief “within limits not prejudicial to peace and order, and not antagonistic to their duties as
subjects.” Id., art. 28. Because the state and Shinto was unified in the Meiji constitutional scheme,
freedom of religion was difficult for other religions to enjoy.
13
14
15
See, e.g., RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (Harvard Univ. Press 1977).
See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (Yale Univ. Press 1998);
Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346 (2006).
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who possessed the prerogative of legislation. In addition, the Diet was not so
democratized as to represent the nation adequately. Not until 1925 was the
House of Representatives elected by universal suffrage of men twenty-five years
of age or over. The House of Peers, also without democratic foundation, had no
less powers than the Diet’s lower house. Japanese women voted for the first
time in 1946.
If the Diet could not be counted on, could the judiciary protect citizens rights
under the Meiji constitution? The principle of trials conducted according to
law, the framers of the Constitution contended, had to be solidly established.
The judiciary—with its judges appointed by the emperor—decided both civil
and criminal cases in the name of the emperor;16 from the framers’ perspective,
“the Sovereign is the fountain of justice, and His judicial authority is nothing
more than a form of the manifestation of the sovereign power.”17 Nevertheless,
the courts were able to discharge their functions in an unprejudiced way
because the emperor did not “take it upon Himself to conduct trials, but cause[d]
independent courts to do so, in accordance to law and regardless of the influence of officials.”18
The right to a trial was guaranteed in the Meiji constitution.19 In fact, the
court was prohibited from refusing to hear civil cases.20 As in most European
countries, however, the judiciary did not hear administrative cases; a court
for just that purpose functioned as an organ of the executive.21 In the framers’
view, there were two reasons for establishing a court for administrative litigation that differed from the judicial courts. First, the administrative department was required to be as independent as the judiciary; moreover, it was to
have discretionary judgment in providing “benefits to society and happiness
to the people” and freedom of action in securing them.22 Review of administrative measures by the judiciary would have placed authorities “in a state of
subordination to judicial functionaries.” Second, specialized administrative
judgments were needed because judges lacked professional training in these
matters. From the framers’ perspective, “the questions of administrative expediency are just what judicial authorities are ordinarily not conversant with.”
The administrative departments served to promote public interests, and thus “it
[would] become necessary under certain circumstances to sacrifice individuals
16
MEIJI KENPō, art. 57.
17
COMMENTARIES ON THE CONSTITUTION OF THE EMPIRE OF JAPAN 111–112 (Ito Hirobumi ed., Chuo Daigaku
2d ed. 1906).
18
Id. at 114.
19
MEIJI KENPŌ, art. 24: “No Japanese subject shall be deprived of his right of being tried by the
judges determined by law.”
20
See MIYASAWA TOSHIYOSHI, KENPō [CONSTITUTIONAL LAW] 37 (Yuhikaku 5th ed. 1973).
21
MEIJI KENPō, art. 61.
22
COMMENTARIES, supra note 17, at 120.
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for the sake of the public benefit.”23 To maintain the public interest, in fact,
administrative acts were regarded as legally binding unless the competent
court of administrative litigation invalidated them. The framers gave definite
priority to the public good over private interests when they annotated article
61 of the Meiji constitution to mean that “no suit can be brought against those
measures that have been carried out in conformity with law or with the functionary power of the office in question,” and that “mere damage to one’s interest, though it can become the ground of a petition, begets no right of bringing
an administrative litigation.”24 The Gyosei Saiban Ho (Administrative Justice
Act) declared that the administrative court would hear only the kinds of cases
specifically enumerated in statutes or executive (imperial) orders.25 Thus, the
act provided a limited standing to sue the administrative agencies.26
Judicial review was not expressed clearly in the Meiji constitution, which is
not the case in the current document.27 Although there was a consensus that
the court might review the propriety of statutes’ procedural aspects,28 the question remained whether it could review the substance of statutes. On the one
hand, conservative scholars such as Hozumi Yatsuka and Uesugi Shinkichi
advocated interpretative procedures centered on imperial prerogative in order
to enhance the sovereignty of the emperor; they favored judicial review because
it worked as a useful check on the Imperial Diet, which generally was more
democratic than the bureaucratic government. On the other side, liberals such
as Minobe Tatsukichi opposed this power of the court because it could betray
the democratization of the political process. Liberals, at that time, championed
the parliamentary cabinet system in which the formation and continuance of
a cabinet is based on the confidence of the lower house. For them, the most
urgent problem under the Meiji constitutional regime was to overcome the
many undemocratic obstacles that remained and to create a more majoritarian scheme. The court itself disclaimed the power of judicial review of statutes
several times, although it ruled that it could review executive orders.29
23
Id., at 121.
24
Id., at 122–123.
25
See GYOSEI SAIBAN HO [Administrative Justice Act], art. 15.
26
See TOSHIYOSHI, supra note 20, at 37. See also TANAKA HIDEO, THE JAPANESE LEGAL SYSTEM 53–54 (Univ.
Tokyo Press 1976).
27
KENPō, art. 81.
28
See, e.g., MINOBE TATSUKICHI, KENPO SATSUYO [FUNDAMENTAL ELEMENTS OF THE CONSTITUTION] 567 (Yuhikaku
5th ed. 1932).
29
The Great Court of Judicature at first denied the power to review orders as well as statutes. See
the Great Court of Judicature decisions, July 11, 1913, 19 Keiroku [Great Court of Judicature Precedents: Criminal Cases] 790; Oct. 23, 1914, 20 Keiroku 1924. Later, it exercised the power to review
orders. See the Great Court of Judicature decision, Mar. 3, 1937, 16 KEISHŪ, 193. See also TOSHIYOSHI,
supra note 20, at 336.
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In theory, the disavowal of judicial review reflected the idea that the ultimate interpreter of the constitution should be the legislative branch. This was
based on an assumption that under the Meiji constitution the people would
agree, even if they could vote only to a limited extent, to have their rights
diminished by the emperor with the support of the Imperial Diet. In reality,
however, there were several players—including the emperor, the genro,30 or
House of Peers, and the Privy Council—in the political process under the Meiji
constitution, and they were all totally independent of democratic control.
In the end, the Meiji constitutional regime collapsed, failing to provide the
people with enough protection to repulse the government’s attack on free speech
and on other individual rights. Basically, the collapse came about because the
constitution was an unworkable compromise between traditional Japanese
autocracy and Western constitutionalism. The central logic of the former was
the kokutai ideology, which stipulated that a line of emperors should have sovereign power and thus govern Japan. At the establishment of the constitution, the
Emperor Meiji had sworn to the imperial founder and other imperial ancestors
that he would “maintain and secure from decline the ancient form of government,”31 since he inherited his right to sovereignty from his ancestors in “a lineal succession unbroken for ages eternal.”32 The logic of the Meiji constitution
was that the emperor himself limited his power according to the intent and
practices of the founder and ancestors.33 This was an attempt to forge a compromise between traditional Japanese authoritarianism and Western constitutionalism, but it was not constitutional government in any Western sense.
This failure of liberal democratization also clarifies the underlying structure
of the Meiji constitutional regime. For here was a state—more precisely, the
kokutai—that, essentially, had declared a monopoly on such values as truth,
morality, and beauty.34 The constitution and Kyoiku Chokugo (the Imperial
Order on Education)35 were understood as the official documents articulating
this scheme. The logic was as follows: because the constitution was founded
upon the unification of a state religion and political power, in prewar Japan the
state alone determined governmental policy. Thus, the state never confronted
serious challenges to its legitimacy. Given this situation, the standard for
30
See Ito Yukio, Genro no keisei to hensen ni kansuru jakkan no kousatsu [Some Reflections on the Formation and Transformation of the Group of Senior Statesmen], in MEIJI KENPO TAISEI [THE MEIJI CONSTITUTIONAL REGIME] 247–267 (Hiroshi Yasuda & Masaki Minagawa eds., Tokyodo Shuppan 2002).
31
Tsugebumi (Imperial Oath Sworn at the Sanctuary of the Imperial Palace), in COMMENTARIES, supra
note 17, at 167.
32
Joyu [Preamble].
33
Tsugebumi, supra note 31.
34
See Maruyama Masao, Theory and Psychology of Ultra-Nationalism, in THOUGHT AND BEHAVIOUR IN
MODERN JAPANESE POLITICS 1–24 (Ivan Morris ed., Oxford Univ. Press 1963).
35
For the text of the Imperial Rescript on Education, see RM, supra note 6, at 6.
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values—their measure, as it were—came down to something’s or someone’s
relative distance from the emperor, who was the more complete embodiment of
value in both the state and society. Fundamental values thus found their ultimate foundation and expression in the imperial institution. Further: even the
emperor himself could not be considered completely free or autonomous because
his status and power were inherited from his ancestors in a lineal succession.
Therefore, if liberal democracy was to function, Japan had to be liberated
from the kokutai ideology. The emperor must derive legitimacy, instead, from
the constitution alone. To achieve this it was necessary for the Japanese government to create a new constitutional framework that would protect a diversity of values and political goals among its citizens.
2. The system of judicial review in the current
Constitution
After the war, the occupying Allied powers did not govern the Japanese people
directly; rather, they ordered the Japanese government to carry out the democratization of Japanese society. General Douglas MacArthur, Supreme Commander
for the Allied Powers, established General Headquarters, Supreme Commander
for the Allied Powers (GHQ/SCAP), to enforce his policies. GHQ/SCAP administered the Japanese government through its directives and commands, which left
ample room for Japanese initiatives and discretion in postwar reform.36
Japan was obliged to “remove all obstacles to the revival and strengthening
of democratic tendencies among the Japanese people.”37 The establishment of
“respect for fundamental human rights” was one of the most urgent tasks. This
international obligation required the Japanese people to take great pains in
transforming themselves, given that the old regime had worked on a principle
fundamentally different from the concept of human dignity and its concomitant notion of rights.
Unfortunately, the leaders during the period immediately after the war were
so obsessed with the obsolete kokutai ideology they came to believe that only
minor modifications of the Meiji constitution would be enough to repair its
defects.38 They interpreted article 10 of the Potsdam declaration to provide for
“the revival and strengthening of democratic tendencies among the Japanese
people,” although they ignored the provision in the same article that required
a “respect for fundamental human rights,” which was extremely difficult to
achieve under the kokutai ideology.
36
See generally TAKEMAE EIIJI, INSIDE GHQ: THE ALLIED OCCUPATION
(Continuum 2002).
OF
JAPAN
AND
ITS LEGACY
37
See Proclamation Defining Terms For Japanese Surrender (The Potsdam Declaration), July 26,
1945, Art. 8, 13 Dep’t St. Bull. art. 10.
38
For the failure of the Japanese government, see Norikazu Kawagishi, The Failure of the Japanese
Government to Revolutionize the Constitution, 359 WASEDA J. POL. SCI. & ECON. 105–134 (2005).
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The government elite, therefore, was unable to propose an adequate scheme
for protecting the fundamental rights of citizens. To overcome the kokutai ideology, the guarantees of freedom of speech, of religion, and, in particular, of thought
were decisively important, chiefly because the Meiji constitutional regime presupposed an orthodox way of thinking that theoretically left little room for protecting such freedoms. As discussed above, the rights enumerated in the Meiji
constitution were guaranteed only within the limits set by statutes. The very idea
of fundamental rights without the statutory “reservation of law” was foreign to
the Japanese government. There were no official discussions regarding the guarantee of rights, beyond the control of statutes, or the creation of a mechanism for
their effective protection. The Kenpo Mondai Chosa Iinkai (the Committee for the
Investigation of Constitutional Questions) simply failed to come up with a liberal
democratic institution that satisfied the required level of postwar reform. The
committee proposed only minor constitutional amendments, which maintained
the concept of rights with reservation of law, and it devised no scheme for the
constitutional review of statues that restricted the rights of citizens.
Apart from private drafts of constitutional revisions,39 the origins of judicial
review in the current constitution are found in GHQ/SCAP’s proposals.
Although the U.S. government had no specific plans for the judicial system in
postwar Japan, it was not enthusiastic about obstructing the majoritarian legislative process. A document regarding early occupation policy, “Reform of the
Japanese Government System,” issued on January 11, 1946, allowed “only a
temporary veto power over legislative measures.”40 The Government Section
(GS) of GHQ/SCAP consisted mainly of people sympathetic to President Franklin
D. Roosevelt’s New Deal.41 Having lived through the head-on collision between
39
A draft prepared by the Kenpo Kenkyukai (Constitutional Research Group), a private group of
intellectuals who were willing to create a new constitutional system, included the idea of fundamental human rights without reservation of law; it had no provision for judicial review. In contrast, the Kenpo Kondankai (Constitutional Discussion Group) proposed a system in which the court
has the power to review constitutionality of statutes. Inada Masatsugu, who was a central figure
of this private group, advocated introducing the U.S. style of judicial review. See SATO, supra note 6,
at 784–846 and 853–860.
40
The interdepartmental State-War-Navy Coordinating Committee’s policy plan, was regarded as
one of the most important documents for constitutional revision in postwar Japan. See SWNCC
228: Reform of the Japanese Government System (Jan. 7, 1946), available at http://www.ndl.go.
jp/constitution/shiryo/03/059/059tx.html. Also known as “the Macarthur Draft,” it provided
that “any other bodies shall possess only a temporary veto power over legislative measures, including constitutional amendments approved by the representative legislative body, and that such
body shall have sole authority over financial measures.” RM, supra note 6, at 56.
41
See BEATE SIROTA GORDON, 1945 NEN NO KURISUMASU [THE CHRISTMAS OF 1945] 128–143 (Kashiwa
Shobo 1995). This is also a reason why Article 31 of the postwar constitution provides that “No
person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except
according to procedure established by law.” See Yasuhiro Okudaira, Forty Years of the Constitution
and Its Various Influences: Japanese, American, and European, in JAPANESE CONSTITUTIONAL LAW 13–16
(Percy R. Luney, Jr. & Kazuyuki Takahashi eds., Univ. Tokyo Press 1993).
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the president and a conservative Supreme Court,42 they opposed enshrining
judicial activism in the text. A limited version of judicial review was provided for
in a draft the GS prepared before February 13, 1946, when SCAP handed down
its own proposal for constitutional revision to the Japanese government.
According to the GS draft, the Japanese Supreme Court, as the court of last
resort, should have the power to review the constitutionality of any law, order,
ordinance, or other governmental actions, although its decisions would not be
final except in matters concerning the rights of citizens.43 Decisions in other
areas of constitutional law should be subject to review by the legislative branch,
and two-thirds of all the members of the legislature could reverse them.
Although they believed that the rights of citizens should be protected, over and
beyond statutory limitations, the members of GS were reluctant to create a
powerful court in a liberal democracy.
Once the Japanese government decided to accept the SCAP draft revision,
they began to translate it into Japanese—not literally but substantively.
Japanization of the draft prepared by GS became an important issue, although
not widely known to the Japanese people.44 The Japanized version of the SCAP
proposal returned to the concept of rights with reservation of law. Although
the SCAP draft admitted no textual exception to guaranteeing all forms of
expression45—a pivotal right in a liberal democracy—in the Japanese version
freedom of speech, writing for publication, assembly, and association would be
guaranteed “only to the extent that they do not conflict with the public peace
and order.”46 Free speech also means freedom from government censorship,
which the SCAP draft guaranteed, with no exceptions.47 In contrast, the
42
See, e.g., WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN: THE CONSTITUTIONAL REVOLUTION IN THE
AGE OF ROOSEVELT (Oxford Univ. Press 1995); G. EDWARD WHITE, THE CONSTITUTION AND THE NEW DEAL
(Harvard Univ. Press 2000).
43
“Article LX. The Supreme Court is the court of final resort. Where the determination of the constitutionality of any law, ordinance, regulation or official act is in question, the judgment of the
Supreme Court in all cases arising under or involving Chapter [III] of this Constitution is final; in
all other cases where determination of the constitutionality of any law, ordinance, regulation or
official act is in question, the judgment of the Court is subject to review by the Diet. A judgment of
the Supreme Court which is subject to review may be set aside only by the concurring vote of twothirds of the whole number of representatives of the Diet. The Diet shall establish rules of procedure
for reviewing decisions of the Supreme Court. In all cases affecting ambassadors, consuls, and ministers of state, the Supreme Court has exclusive original jurisdiction.” RM, supra note 6, at 171.
44
See Koseki Shoichi, Japanizing the Constitution, 35 JAPAN Q. 234–240 (1988); KOSEKI, supra note 6,
at, 111–140.
45
The MacArthur Draft, supra note 40, art. 20, par. 1. For a comparison between the MacArthur
and Japanese Government Drafts, see DALE M. HELLEGERS, WE, THE JAPANESE PEOPLE: WORLD WAR II AND
ORIGINS OF THE JAPANESE CONSTITUTION 673–709 (Stanford Univ. Press 2001).
46
47
The First Japanese Draft, Mar. 4, 1946, RM, supra note 6, at 208.
“No censorship shall be maintained, nor shall the secrecy of any means of communication be
violated.” The MacArthur Draft, supra note 40, art. 20, para. 2.
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Japanese draft allowed censorship “as specifically provided for by law”; Sato
Tatsuo, Japan’s representative in the negotiation, maintained that some sort of
censorship was necessary in the case of obscene pictures, for example.48 GS did
not agree with Sato because they were concerned by possibly abusive interpretations of the proposed exception and, unfortunately, modern Japanese history sides
not with Sato but with GS, which was correct in its premonition. Based on the
report system, in which publishers submitted copies of publications to the Ministry
of the Interior, the minister of the interior might prohibit the sale and distribution
of newspapers, magazines, and books, in case of an anticipated disturbance of
peace and order or the possible corruption of public morals.49 Once again, the
Japanese government was ignorant of what postwar reform required of it.
This idea of limited judicial review soon disappeared in the negotiations
between the Japanese government and the staff of GS. The Japanese government
and GS agreed to omit the provision on legislative review of unconstitutionality
judgments rendered by the Supreme Court. Nevertheless, although the Japanese
government had originally had no plan to control the constitutionality of governmental actions50 and while the members of GS were also hesitant to impose
on the negotiator a strong version of judicial review,51 in the end judicial review
without limitation somehow found its way into the constitutional text.52
In the debates during the ninetieth Imperial Diet in 1946—regarded as a
quasi-constitutional convention—judicial review did not become a crucial
issue; the focus was, rather, on such issues as popular sovereignty, the symbolic tenno institution, and the renunciation of war. Some members of the Diet
raised the question as to whether judicial review would render the Supreme
Court more powerful than the new Diet, which was declared in the proposed
48
See SATO, supra note 6, at 121.
49
SINBUNSHI HO (Newspaper Law), art. 23; SHUPPANN HO (Publication Law), art. 19. Ironically
enough, SCAP censored the Japanese media on the occupation in general and constitutional revision in particular. They utilized the Japanese old manner for their own purpose. See YAMAMOTO
TAKETOSHI, SENRYOKI MEDIA BUNSEKI [AN ANALYSIS OF THE MEDIA DURING THE OCCUPATION] (Hosei Daigaku
Shuppankyoku 1996).
50
Sato describes the Japanese attitude of seeing how things go. The provision for limited judicial
review seemed important; thus, they could not ignore it. However, they failed to come up with a
specific response, preferring to make their decision after hearing SCAP’s opinion. SATO, supra
note 6, at 141–142. We find no record of strategic decision making on this issue by the Japanese
government.
51
Okudaira Yasuhiro suggests that this was the result of a lack of conviction on both sides
about judicial review. OKUDAIRA YASUHIRO, KENPO SAIBAN NO KANOSEI [POSSIBILITIES OF CONSTITUTIONAL
ADJUDICATION] 111 (Iwanami Shoten 1995). See supra, text accompanying notes 39–43.
52
Article 77 of the Japanese Draft on March 5, 1946 stated: “The Supreme Court is the court of last
resort with power to determine the constitutionality of any law, order, regulation or official act.”
MR, supra note 6, at 225. This eventually became Article 81 of the Constitution of Japan.
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constitution to be “the highest organ of state power.”53 Kanamori Tokujiro,
minister of state without portfolio, who oversaw problems of constitutional
revision, replied that the newly introduced principle of judicial review followed
the American model rather than, for example, that of the Austrian Constitutional
Court. Specifically, Kanamori explained that the Court would use the power of
judicial review only in concrete cases;54 when it found a statute unconstitutional, the court would merely refuse to apply the statute in that case. In
Kanamori’s understanding, this refusal to apply a law was completely different
from the nullification of a law.55 The result was an interpretation of article 81
of the current Constitution that established judicial review as incidental to the
normal role of the judiciary.56
3. Rights beyond legality and judicial review in the new
constitutional system
The checkered evolutionary processes57 leading to the Constitution of Japan
reached their climax with the document’s promulgation on November 3, 1946;
it entered into force six months later. This basic law is founded on the principle
of popular sovereignty and due respect for the fundamental rights of citizens.
The new regime rejected the narrow kokutai concepts and relied on more
universal values, such as democracy and human rights. Thus, the Japanese
governmental system is now situated closer to the essence of constitutionalism
than ever before. In such a system, judicial review seems promising.
Relying in part on natural law—for example, article 11 emphasizes that
the fundamental rights in this Constitution are regarded as eternal and
53
KENPō, art. 41.
54
It is a common understanding that the Supreme Court does not monopolize review of the constitutionality of governmental actions but, by following the requirement of a case or controversy, the
court at any instance may exercise its power.
55
See SATO, supra note 6, at 643. Interestingly, Kanamori denied the lower courts the power to review
governmental actions, but seemed to regard the Supreme Court’s authority as equivalent to that of
the Diet, the highest organ of state power. Given that the courts had no power to review statutes
under the Meiji regime, Kanamori understood judicial review as a power specially created by the
new Constitution. Id. at 643–644.
56
This later became an issue in the Supreme Court. In the Police Reserve Force Case of 1952, the
Supreme Court denied abstract review of constitutionality of a statute as a constitutional court and
confirmed that the court could exert the review power only in a concrete legal dispute. 6 MINSHŪ
783 (Sup.Ct., Oct. 8, 1952). By 1948, the Supreme Court had proclaimed the institution of judicial
review as understood in the American system. 2 KEISHŪ 801 (Sup.Ct., July 8, 1948).
57
See SATO, supra note 6; NIHONKOKU KENPO SEITEI NO KATEI, supra note 6; IRIE, supra note 6; KOSEKI, supra note
6; TAKAHASHI, supra note 6; INOUE, supra note 6; RM, supra note 6; DOWER, supra note 6; MCNELLY, supra
note 6; HELLEGERS, supra note 6; MOORE & ROBINSON supra note 6. See also Kawagishi, supra note 6.
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inviolate—the postwar constitutional system has rejected the concept of reservation of law. Article 11 provides: “The fundamental human rights guaranteed by this Constitution to the people of Japan are fruits of the age-old human
struggle to be free; they have survived many exacting tests of their durability
and are conferred upon this and future generations to hold in trust for all time
inviolate.”58 Thus, basic rights are regarded as setting limits on all kinds of
state powers, particularly legislative power. The core idea of rights guaranteed
in the Constitution is due respect for the human dignity of individuals,59 a concept that is radically innovative in Japanese political and legal practices. As we
have seen, the Meiji constitutional system was founded on a familial view of
the state, and the heads of this family and state were recognized as powerful
enough to control the subordinate members of the group. Indeed, respect for
individuals was once condemned as immoral.60
Respect for individual dignity leads to the protection of spiritual freedoms.61
Freedom of thought and conscience and academic freedom have been constitutionally guaranteed for the first time in Japanese history.62 Full protection of
freedom of religion is especially important against the background of the Meiji
constitutional system.63 The tenno was believed to be a living god, as a descendant of Amaterasu Omikami (a legendary sun goddess), and the highest priest
of Shintoism. Thus, Shinto was the established belief in the Meiji regime but
was understood as closely associated with government and not solely as a
religion.64 As a result, the constitutional guarantee of religious freedom tended
58
KENPō, art. 97. See also art. 11.
59
See KENPō, art. 13.
60
See Tsuneto Kyo, Kihonteki jinken ni suite [On Fundamental Human Rights], in SHINKENPO TO MINSHUSHUGI
[The New Constitution and Democracy] 193–205, (Kawamura Matasuke ed., Iwanami Shoten
1947). See also Noda Yoshiyuki, Shiko, kyoiku, gakumon [Faith, Education, and Scholarship], in SHINKENPO NO KENKYU [STUDIES FOR THE NEW CONSTITUTION] 91–107 (Kokka Gakkai ed., Yuhikaku 1947).
61
Outlining the provisions of the new constitution, Kanamori Tokujiro emphasizes thorough protection of inner spiritual freedoms. See Kanamori Tokujiro, Shinkenpo no seishin [The Spirits of the
New Constitution] in NIHONKOKU KENPO: KAISETSU TO SHIRYO [THE CONSTITUTION OF JAPAN: COMMENTARIES AND
DOCUMENTS] 16–30, 29–30 (Jiji Tsushinsha ed., Jiji Tsushinsha 1946) (hereinafter KAISETSU TO
SHIRYO).
62
See KENPō, arts. 19 and 23.
63
KENPō, article 20 reads: “Freedom of religion is guaranteed to all. No religious organization shall
receive any privileges from the State nor exercise any political authority. (2) No person shall be
compelled to take part in any religious acts, celebration, rite or practice. (3) The State and its organs shall refrain from religious education or any other religious activity.” In contrast, MEIJI KENPO,
article 28 reads: “Japanese subjects shall, within limits not prejudicial to peace and order, and not
antagonistic to their duties as subjects, enjoy freedom of religious belief.”
64
See MINOBE TATSUKICHI, SHINKENPO NO KIHONGENRI [THE FUNDAMENTAL PRINCIPLES OF THE NEW CONSTITUTION]
113–116 (Kunitachi Shoin 1947).
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to become insignificant for minority religions that did not share the orthodox
way of thinking. 65
The postwar Constitution adopts the principle of separation between the state
and religion.66 The text could be interpreted in a strict manner; however, the
Supreme Court has allowed the government to be involved with religious, particularly Shintoist, activities.67 Thus, the separation is understood loosely.68 Nonetheless, the principle is important in the postwar political process. The secularization
of politics was the starting point of liberalism in human history,69 and the postwar
constitution, for the first time, has enabled the Japanese people to reach this point.
Respect for human dignity also requires the protection of equality among
people. The Meiji constitution guaranteed only a limited form of equality:
“Japanese subjects may, according to qualifications determined in laws or ordinances, be appointed to civil or military or any other public offices equally.”70
In fact, Meiji society was rife with discrimination. First of all, the tenno and his
family were treated very differently from common citizens. The Koshitsu Tenpan
(Imperial House Law) was an autonomous legal regime for the tenno family,
which was interpreted as a virtual equivalent to the Meiji constitution. In addition, there was the nobility, from which most members of the House of Peers
were selected.71 Above all, discrimination against women was rampant. Not
only were they denied—as women—the right to participate in politics but,
because of their subjection to the head of the family or household in private life,
as wives they were almost completely denied the right to inherit and to engage
in legal transactions. Women are now full members of the political and social
community. Universal suffrage was introduced before the new Constitution
was adopted; women’s participation in the first general election in the postwar
period and in deliberations on the government’s constitutional draft greatly
65
See Miyasawa Toshiyoshi, Shinkenpo no seikaku [The Features of the New Constitution], in KAISETSU
TO SHIRYO, supra note 61, at 31–45, 36.
66
See KENPŌ, arts. 20 and 89. The latter reads: “No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public
authority.”
67
See MINOBE, supra note 64, at 116.
68
The Shinto Groundbreaking Ceremony Case, Kakunaga v. Sekiguchi, Saikosai Hanketsu,
31 MINSHŪ 533 (Sup.Ct., July 13, 1977), in LAWRENCE W. BEER & HIROSHI ITO, THE CONSTITUTIONAL
CASE LAW OF JAPAN, 1970 THROUGH 1990, Case 34, 478–491 (Univ. of Washington Press 1996). See
Lemon v. Kurtzman, 403 U.S. 602 (1971). By using the same standard of review, the Supreme
Court recently held unconstitutional a governor’s public funding to Yasukuni Shrine. 51 MINSHŪ
1673 (Sup.Ct. Apr. 2, 1997).
69
See KAWAMURA MATASUKE, SHINKENPO TO MINSHUSHUGI [THE NEW CONSTITUTION AND DEMOCRACY] 14–19
(Kunitachi Shoin 1948).
70
MEIJI KENPŌ, art. 19.
71
MEIJI KENPŌ, art. 34.
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enhanced the legitimacy of the text. In addition, family life is regarded as an
important locus in the realization of equality between men and women since
the now-obsolete concept of ie, as a miniature of the state by analogy with the
family, was the basis of absolutist rule. The Constitution contains a detailed
provision on family,72 the potential impact of which is enormous, because
it establishes a horizontal rather than vertical human relationship as the
standard.73 This provision, if fully implemented, could transform the social
and political structure.74
The postwar Constitution provided for general equality: “All of the people
are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.”75 Although the tenno and his family are still constitutionally protected,
the nobility was ended.76 In this respect, the postwar Constitution is stronger
than the government’s original draft because the latter would have permitted
those who held a peerage on the effective day of the Constitution to keep their
status for their generation,77 while the former made no such reservation and
simply abolished the peerage.78
72
KENPō, article 24 reads: “Marriage shall be based only on the mutual consent of both sexes and it
shall be maintained through mutual cooperation with the equal rights of husband and wife as a
basis. (2) With regard of choice of spouse, property rights, inheritance, choice of domicile, divorce
and other matters pertaining to marriage and the family, laws shall be enacted from the standpoint
of individual dignity and the essential equality of the sexes.”
73
Kanamori emphasizes the significance of recognizing the essential equality of gender. Kanamori, Shinkenpo no seishin, in KAISETSU TO SHIRYO, supra note 61, at 30. For explanations of a new
image of family life under the postwar constitution, see Shinkenpo no seikaku, id., at 37–38;
Kawashima Takeyoshi, Kazoku seido [The Institution of Family], in SHINKEPO NO KENKYU 108–133
(Kokka Gakkai, ed.); MINOBE, supra note 64, at 100–102; Wagatsuma Sakae, Kazoku seido to fujin
[The Institution of Family and Women], in KENPO FUKYUKAI, SHINKENPO KOWA [LECTURES ON THE NEW
CONSTITUTION], 175 (Seikai Tsushinsha 1947); WAGATSUMA SAKAE, SHINKENPO TO KIHONTEKIJINKEN
174, 178 (Kunitachi Shoin 1948); NAKAGAWA ZENNOSUKE, SHINKENPO TO KAZOKU SEIDO (Kunitachi
Shoin 1948).
74
For the revision of the Civil Code, see, for example, ALFRED C. OPPLER, LEGAL REFORM IN OCCUPIED JAPAN
111–120 (Princeton Univ. Press 1976) (hereinafter OPPLER, LEGAL REFORM); Kurt Steiner, The Occupation and the Reform of the Japanese Civil Code, in DEMOCRATIZING JAPAN: THE ALLIED OCCUPATION 188–
220 (Robert E. Ward & Sakamoto Yoshikazu eds., Univ. of Hawaii Press 1987).
75
KENPō, art. 14, para. 1.
76
See KENPō, art. 14, paras. 2 & 3.
77
Article 97 of the government draft of constitutional revision of April 17, 1946 reads: “As regards
those who hold peerage on the effective date of this Constitution, their title shall remain valid for
their lives, but no right of peerage shall from this time forth embody within itself any power of
government.”
78
Kanamori stresses this point as a reflection of thorough democratization in the new Constitution. Kanamori, Shinkenpo no seishin, in KAISETSU TO SHIRYO, supra note 61, at 30.
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In a liberal democracy with popular sovereignty, freedom of expression is
crucial both to individual self-realization and democratic decision making.79
Without the free flow of information and opinions, the power of the people
would be a mere “pie in the sky” aspiration.80 The new Constitution protects
this precious right quite broadly.81
The strengthening of the judiciary enhanced the protection of freedoms and
rights, including free expression. Unlike the weak and dependent judiciary in
the old regime, the postwar Constitution has greatly fortified and expanded the
judiciary.82 The entire judicial power is vested in the Supreme Court and lower
courts;83 and the judiciary enjoys essential independence.84 The Supreme Court
is vested with autonomous rule-making power regarding “rules of procedure
and of practice, and of matters relating to attorneys, the international discipline of the courts and the administration of judicial affairs” (article 77). This
represents a major inroad on the Diet’s monopoly on legislative power.85 Judges
may hold office indefinitely, barring impeachment86 or mental or physical
incompetence. Further, no disciplinary action may be taken against judges by
79
For the values that freedom of expression advances, see Thomas I. Emerson, Toward a General
Theory of the First Amendment, 72 Yale L.J. 877, 878–886 (1963); FREDERICK SCHAUER, FREE SPEECH: A
PHILOSOPHICAL ENQUIRY (Cambridge Univ. Press 1982); C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF
SPEECH (Oxford Univ. Press 1989); MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS
(Michie Co. 1984); OWEN M. FISS, LIBERALISM DIVIDED: FREEDOM OF SPEECH AND THE MANY USES OF STATE
POWER (Westview 1996).
80
See MINOBE, supra note 64, at 118. However, explanations of the new Constitution do not pay
much attention to the significance of free expression. This might be because many scholars assume
a close connection between free expression and democracy; because the Meiji constitution guaranteed free speech anyway; and because scholars were interested in newly introduced positive rights
around the establishment of the new Constitution.
KENPō, article 21 reads that “Freedom of assembly and association as well as speech, press and all
others of expression are guaranteed. (2) No censorship shall be maintained, nor shall the secrecy
of any means of communication be violated.”
81
82
For the judiciary in the postwar constitution, see Kanamori, Shinkenpo no seishin, in JIJI TSUAHINKAISETSU TO SHIRYO, supra note 61, at 27–28; Miyasawa, Shinkenpo no seikaku, supra note 61, at
41–43; Tanaka Jiro, Shiho, chihojichi [The Judiciary and Local Government], KENPO FUKYUKAI, SHINKENPO
KOWA [THE CHARACTERISTICS OF THE NEW CONSTITUTION], 257–285, 258–270; Kaneko Hajime, Shihoseido
(The Judicial Institution), in HOGAKU KYOKAI, SHINKENPO NO KENKYU 229–243; Suenobu Sanji, Iken ripo
shinsaseido [Judicial Review], in id., at 244–271. See also Yasuo Hasebe, The Supreme Court of Japan:
Its Adjudication on Electoral Systems and Economic Freedoms, 5 INT’L J. CONST. L. (I·CON) 296 (2007)
(in this issue).
SHA,
83
See KENPō, art. 76 , par. 1.
KENPō, article 76, paragraph 3 reads: “All judges shall be independent in the exercise of their
conscience and shall be bound only by this Constitution and the laws.”
84
85
See KENPō, art. 77.
86
Impeachment is applicable only to judges. See KENPō, art. 64.
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325
an administrative organ.87 Moreover, because the administrative court system
was abolished,88 courts hear not only civil and criminal but also administrative
cases. This new arrangement advances the protection of citizens’ rights since
the administrative court had never been an independent adjudicative organ.
Above all, what is crucial from a liberal democratic point of view is the introduction of a system of judicial review: “The Supreme Court is the court of last
resort with power to determine the constitutionality of any law, order, regulation or official act.”89 The Constitution is now the supreme law of the land,90
and the Supreme Court is vested with the final power to determine what the
Constitution means as a matter of justice.91 The judicial control of the constitutionality of government actions means not only that citizens’ freedoms and
rights are better protected than was ever the case under the older system but
also that the quality of politics is changed.92 That is, a majority’s law does not
automatically win political legitimacy under a system with judicial review.
Liberal democracy in Japan finally has a genuine opportunity for development
despite the difficulties involved in accommodating the majority will to the protection of minority rights;93 this is especially so, since the judiciary must state
reasons for its decisions.
87
See KENPō, art. 78.
KENPō, article 76, paragraph 2 reads: “No extraordinary tribunal shall be established, nor shall
any organ or agency of the Executive be given final judicial power.” For the reform of the administrative adjudication system, see OPPLER, LEGAL REFORM, supra note 78, at 100, 134–136.
88
89
KENPō, art. 81.
KENPō, article 98, paragraph 1 reads: “This Constitution shall be the supreme law of the land and
no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the
provisions hereof, shall have legal force or validity.”
90
91
For the idea of constitutional justice, see MAURO CAPPELLETTI, JUDICIAL REVIEW IN THE CONTEMPORARY
WORLD (Bobbs-Merrill 1971).
92
Tanaka Jiro has pointed out that, given the lesson of American experience, a supreme court endowed with the right of judicial review would play a critically important role in Japan’s development not only legally but also politically, economically, socially, and culturally. Tanaka, Shiho,
chihojichi, in KENPO FUKYUKAI, SHINENPO KOWA, supra note 73, at 267.
93
The Supreme Court has exercised the power of judicial review sparingly and has often adopted a
comprehensive concept of the public welfare to justify legal limitations on freedoms. For example,
the Public Offices Election Law provides criminal sanctions against door-to-door political canvassing. Considering a claim that this was unconstitutional on the basis of freedom of speech, the Supreme Court held that free speech was not absolute and subject to rational limitations of time,
place, manner, and so forth, for the public welfare, albeit without any substantial analysis of the
public welfare. See 4 KEISHŪ 1799 (Sup.Ct., Sept. 27, 1950). Nonetheless, as a matter of principle,
the introduction of judicial review has had an enormous impact on public discourse on politics and
has undeniably promoted institutional dialogue.
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4. The Placard case: The Supreme Court and the
emergence of new politics
Judicial review was soon on trial. The issue concerned lèse majesté, in this case,
the special protection of the emperor against criticism. The new constitutional
system was based on the principle of popular sovereignty with a symbolic tenno
system. Theoretically, popular sovereignty requires the full protection of
freedom of speech. On May 19, 1946, a popular mass meeting to gain rice
(the so-called Food May Day) was held. In the demonstration, a communist
worker at a machine factory carried a placard that mocked the tenno.94 The
placard read:
Imperial Edict (Hirohito says)
The kokutai has been maintained.
I stuff
myself.
You people,
starve to death.
Imperial sign and seal (in katakana)
The Japan Communist Party Tanaka Precision Machine Cell95
The worker was indicted for lèse majesté, or insulting the emperor.96 The
case raised the issue whether the protections that SCAP had pushed were going
to incur severe limitations.97 In particular, people were curious to know
whether or not only courteous speech would be deemed deserving of protection in the new era.
On November 2, 1946, one day before the promulgation of the Constitution
of Japan, the Tokyo district court found the defendant guilty of defamation of
the tenno, though not of lèse majesté, and sentenced him to imprisonment at
labor for eight months.98 On October 9, after the indictment and but before the
94
See DOWER, supra note 6, at 266. (The placard incident “captured many of the ambiguities of Food
May Day—spontaneity from below, a curious mocking of the emperor while appealing to him, and
the emperor worship of the Americans themselves.”)
95
The back of the placard read “Why are we starving, however hard we work? Answer, Tenno
Hirohito!”
96
Penal Code, art. 74 read: “Acts of an insulting and disrespectful nature committed against the
Emperor, the Emperor’s Grandmother, the Empress Dowager, the Empress, or the Imperial Son or
Grandson who is the heir presumptive to the Throne shall be punished with penal servitude for a
period of not less than three months and not exceeding five years.”
97
DOWER, supra note 6.
98
2 KEISHŪ 602–607.
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327
judgment, General MacArthur commented on the decision of the prosecutor’s
office not to prosecute other cases of lèse majesté:
The decision of the Japanese procurators to drop accusations against
men charged with lèse majesté is a noteworthy application of the fundamental concept, embodied in the new constitution just adopted by the
National Diet, that all men are equal before the law, that no individual
in Japan—not even the Emperor—shall be clothed in legal protection denied the common man. It marks the beginning of a true understanding
of the lofty spirit of the new national charter, which affirms the dignity of
all men, and secures to all the right freely to discuss all issues, political,
social, and economic, of concern to the people of a democratic nation.
For, the free interchange of ideas, the free expression of opinions, the free
criticism of officials and institutions is essential to the continued life and
growth of popular government. Democracy is vital and dynamic but cannot survive unless all citizens are free thus to speak their minds.
In his new role the Emperor will symbolize the repository of state authority—the citizen. The dignity of the state will become the dignity of the
individual citizen, and the protection accorded him as the symbol of the
state ought to be no more and no less than the protection accorded the
citizen. To hold the contrary would constitute a direct negation of one of
the basic principles of democratic government. It would but serve to perpetuate the pattern of feudalism and autocracy and do violence to those
basic freedoms acknowledged by Japan and to which the Emperor himself has given most hearty accord.99
MacArthur emphasized the value of equality in the new political order and
denounced lèse majesté as special protection for the tenno. However, he added
that “all public officials be protected against unwarranted defamation or vilifications in licentious disregard of the respect to which they as free individuals in
a free society and as the public representatives of a free people are fully entitled.”100 I suggest that, in this respect, MacArthur did not pay adequate attention to the value of free speech in liberal democracy.101
The judgment of the Tokyo district court seemed to track MacArthur’s
views. The court recognized the fundamental change in the status of the tenno
after Japan accepted the Potsdam declaration. Special legal protection for the
tenno had been abolished because the tenno was now regarded as an individual
and not a god. However, although the district court rejected lèse majesté in
99
SCAP Statement on the lèse majesté case, Oct. 9, 1946, Political Reorientation of Japan, 759, in
RM, supra note 6, at 487.
100
Id.
101
See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
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postwar Japan,102 the reputation of the tenno as an individual should be legally
protected like everyone else’s.103 As a result, defamation should be considered
the legal issue at stake.104 Defamation was a crime indictable on a complaint,
while lèse majesté was not.105 Prosecutors, as representatives of the public
interest, could indict in defamation cases unless it was against the tenno’s
express will.106 The district court judgment did not attach importance to
freedom of expression, which it said should enhance the public welfare. In
effect, the judgment turned the legal issue into a policy issue when it said that
free expression should be exerted with moderation and courtesy.107 Both the
defendant and prosecutor appealed to the upper court.
The day after the district court’s decision, the new Constitution was promulgated on the principle of popular sovereignty. Along with it, an imperial
order of general pardon or amnesty was issued, which included those who had
been accused of lèse majesté.108 When the amnesty was ordered, the power to
prosecute pending cases ceased, and thus courts were obligated to grant a
menso-adjudication (a kind of dismissal).109
On appeal on June 28, 1947, the Tokyo appellate court rendered a mensoadjudication.110 But the ruling challenged MacArthur and GHQ, rejecting their
view that lèse majesté was intrinsically inconsistent with popular sovereignty.
In fact, the appellate court went ahead and held a trial even after the amnesty
was ordered. Surprisingly, the court found that the conduct of the defendant
constituted lèse majesté, which offense, it said, had two functions. One was to
assure respect and protection for the sacred and inviolable tenno as the head of
state—as sovereign. In this sense, the court argued, the people entertained a
deep conviction that to maintain respect for the tenno was equivalent to protection of the state itself.
The second function of lèse majesté was understood as protecting the
tenno as a person. In this sense, lèse majesté was interpreted as a special type of
102
Alfred Oppler, the head of the Courts and Law Division of GS/SCAP, strongly opposed the interpretation of the Tokyo district court that allowed for defamation of the tenno to be indicted by a prosecutor representating the public interest, without a complaint having to be filed. See OPPLER, LEGAL REFORM,
supra note 78, at 165.
103
Penal Code, art. 232, para. 1.
104
2 KEISHŪ605.
105
Penal Code, art. 232, para. 2.
106
2 KEISHŪ 606.
107
2 KEISHŪ 605.
108
Chokurei, No. 511, 2 KEISHŪ 531 (Nov. 3, 1946). See also the Constitution of the Empire of Japan, art. 16.
109
See Onsha rei (Ordinance of Pardon) (Imperial Order, no. 23, 1912), art. 2; Onsha ho (Law of
Pardon) (Statute, no. 20, 1947), art. 3. See 2 KEISHŪ 531–532.
110
2 KEISHŪ 607–612. See note 119, infra.
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defamation concerning the tenno. Although acceptance of the Potsdam declaration and the establishment of the new Constitution had significantly changed
the status of the tenno—and thus abolished the first function of lèse majesté—
the court maintained that its second function had not changed since the new
Constitution had given the tenno a special status, meriting special legal protection as the symbol of the state and the unity of the people. For example, under
the new Constitution, the tenno, as the head of state, occupied a special diplomatic position, granting honors and holding ceremonies.111 The guarantee
extended to the tenno’s social status gave it legal protection of a kind quite different from that afforded to common citizens; this was tolerated by the new
Constitution because of its establishment of the symbolic tenno institution. As a
result, lèse majesté, as a special crime of defamation of the tenno, still existed.
The Potsdam declaration and the SCAP directive did not undermine lèse
majesté as an offense, the court continued, because it had not officially been
abolished or suspended.112
Like the district court, the appellate court also undervalued free expression.
It placed an undue emphasis on a moderate and courteous manner in exercising the right.113 The principle of popular sovereignty was not mentioned with
freedom of expression. Accordingly, the appellate court dismissed the case only
after recognizing lèse majesté.
The defendant appealed to the Supreme Court to seek a decision of not guilty.
On May 26, 1948, the Court dismissed the appeal.114 Nine of fifteen justices
agreed in an opinion that was in no way substantive—namely, if there was an
amnesty this precluded prosecution. Thus, the Court dismissed the case on
purely formal grounds, without determining whether an act constituted a
crime. The majority denied an appeal that was founded on the claim that the
facts did not constitute a crime, and so the Supreme Court did not reverse the
lower court judgment.115
Three justices took the same position as the Tokyo appellate court, namely,
that the defendant was guilty of lèse majesté but, because of the amnesty, he was
given a menso-adjudication. One of them contended that lèse majesté, as a
special crime of defamation of the tenno, was still in effect until it was clearly
repealed.116
Two other justices found that the appeal was legal, but, unlike the
majority, they believed that the illegality of the original judgment was so
111
2 KEISHŪ 609–610.
112
2 KEISHŪ 610.
113
2 KEISHŪ 611.
114
2 KEISHŪ 529–560.
115
2 KEISHŪ 533–536.
116
2 KEISHŪ 547–551.
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serious that the Supreme Court should reverse it and itself render the formal
menso-adjudication.117
The final justice asserted that acceptance of the Potsdam declaration had
fundamentally transformed the status of the tenno, and thus lèse majesté was
void regardless of whether or not it had been formally repealed. In his view,
this understanding was conformable to the democratic principle that all people
are equal before the law, given that the new Constitution had established popular sovereignty and a symbolic tenno system. This justice believed that the
feudal idea that the dignity of the tenno could not be protected without the
threat of criminal punishment was obsolete. Thus he insisted that the Court
should reverse the original judgment and declare the defendant to be
innocent.118
In sum, by resorting to a legal technicality,119 the majority of the Supreme
Court avoided the controversial issue of the relation of the symbolic tenno system to lèse majesté. As a result, the majority did not reverse the interpretation of
lèse majesté—as the special defamation of the tenno—that the Tokyo appellate
court had set forth. Twelve of the fifteen justices accepted that even a symbolic
tenno deserved special legal protection, and, in so doing, they failed to value
appropriately the profound relationship between the principle of popular sovereignty and freedom of expression. The special legal protection accorded by lèse
majesté seriously conflicts with the people’s authority to examine all kinds of
political authority and, as a doctrine and as an offense, lèse majesté should have
become obsolete under the principle of popular sovereignty. The case vividly
demonstrates how powerfully old ways of thinking persist even into a new era.
At the same time, however, the case did indicate, after all, the arrival of
much that was new. Thanks to the system of disclosing the opinions of justices,120 a divided Supreme Court revealed that the justices could not reach an
agreement. The majority might have felt uncomfortable about expressing their
view that lèse majesté could be punished in the new constitutional regime and
thus restrained themselves from doing so. Moreover, there were dissenting
opinions in the case. An ideological monolith became a fading myth. One justice clearly had declared the accused innocent because lèse majesté had lost
already its legal power to protect the tenno. The Japanese people found themselves in a world where judges may disagree over important political matters,
117
2 KEISHŪ 538–543, 543–547.
118
2 KEISHŪ 557–559.
119
Before this case, menso-adjudication was commonly regarded as a substantive judgment that
dismissed a guilty finding, dismissed guilt. This Supreme Court decision amend this understanding, declaring menso-adjudication to be a formal judgment. See Yokota Koichi, Tenno to fukeizai [The
Emperor and the Lèse Majesté] in NIHON NO KENPO HANREI [CASES OF JAPANESE CONSTITUTIONAL LAW] 373
(Kenpo hanrei kenkyukai, ed., Keibundo 1969).
120
Saibansho Ho (Court Organization Law), art. 11.
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just as politics must be based upon public discussion. This is fundamentally
different from the prewar kokutai system. To whatever degree the outdated
ideas lingered, and whatever influence they retained, the Placard case showed
that public discourse on important political issues had been fundamentally
transformed. The very institution of tenno had become an object of public discussion. Postwar Japan had finally adopted a regime of legitimating political
power through popular persuasion by means of speech.
5. Conclusion
Judicial review, as a matter of legal theory, presupposes different approaches to
constitutional interpretation. If one assumes that there is only one right interpretation, the courts need not have the power to review the statutes the legislature enacts; if the legislature believes them to be constitutional, then they
are—by definition.121 On the other hand, if one is convinced that diverse opinions on politically important issues enhance the quality of the political process,
then judicial review makes a great contribution to institutional dialogue.122
This approach takes difference and pluralism seriously.
In sum, the institution of judicial review is necessarily at odds with orthodoxy and the state’s monopoly on value judgments, which were features of the
Meiji constitutional system. The old regime was so intolerant of disagreements
on fundamental issues of political morality that its constitutionalism inevitably
became superficial, although it had many positive achievements such as the
development of party politics and a quasi-parliamentary system of government. The current Constitution, however, has established the principle of popular sovereignty and due respect for the basic rights of individuals, and it leaves
considerable latitude for varied opinions among citizens. The Constitution of
Japan for the first time has opened up the possibility that judicial review will
discharge its proper function in a governmental system.
To be sure, this is merely a theoretical possibility, so far. There remains the
important question of how to implement the institution of judicial review in
practice.123
121
This is a form of democracy different from pure majoritarianism. The countermajoritarian difficulty is a central theme in constitutional scholarship. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (Yale Univ. Press 2d ed. 1986); JOHN HART ELY,
DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (Harvard Univ. Press 1980).
122
123
See, e.g., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (Harvard Univ. Press 1991).
The Japanese academic circle devoted to constitutional law has produced much literature
critical of the judicial passivism of the Japanese Supreme Court. For explanations of its apparent
passivity, see Hasebe, supra note 85.