Paper under review
Paper presented at IPSA Conference of Fukuoka, Japan, July 2006
Judicial Review in Japan - a Limited Mechanism
or an Agent of Democratization
submitted paper by Sigal Ben-Rafael Galanti
Dr. Sigal Ben-Rafael Galanti, PhD. – Head of Social Studies' department and democracy Studies' Program
at Beit-Berl Academic College of Israel and teaches at the Department of East-Asian Studies at the Hebrew
University of Jerusalem.
Stimulated by Western liberal thinking, the democratic-liberal regime came into being.
This approach underscores the concept of free and equal individuals and at the sphere of political
behavior it is known as "civic culture," while its main concern is the individuals' willingness to
struggle for civil rights. Accordingly, a democratic-liberal regime includes above all mechanisms
to restrain the governing branches, and it is customarily argued that its strength and steadiness is
predetermined by the existence of a developed civic culture (Holden, 1988; Gellner, 1994).
Regarding democratization in Western Europe and the Anglophone world, there is broad
consensus maintaining that it developed gradually from the liberal infrastructure that preceded it.
This fact may even be a basis for talking of a "Western democratization model." In contrast, as
for the establishment of liberal democracy outside the classical West, many contend that, in the
absence of a well-rooted previous liberal tradition, it is doubtful whether a regime grounded on
such values could have developed. In other words, it is claimed that in those areas democracy is
no more than a décor and not at all characterized by liberal components (Peerenboom, 1999, pp.
295-320; Ben-Eliezer, 1993, pp. 397-412; Gastil, 1985, pp. 161-179). Nevertheless, others
maintain that non-Western societies are likely to adopt significantly civic behavior (Lipset, Soeng
and Torres, 1993, pp. 155-175; O'Donnell and Schmitter, 1986; Fukuyama, 1992); that is, one
may suggest that outside of the liberal world there exists a "non-Western democratization model"
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according to which adopting democracy precedes and expedites the development of a civic
culture.
In this paper, we focus on democratic Japan (from 1945 onwards) and the adaptation to
the mechanism of judicial review by its public - firstly adopted when the post-war country
accepted democracy. Through this case we hope to shed light on the existence of the non-Western
democratization model. Furthermore, there is an attempt to argue that the development of a civic
culture following the uptake of democratic structures is possible - and can even happen when
these structures are limited. The justification for focusing specifically on this issue while aiming
to understand far more general phenomena is due to few main reasons. Above all, Japan is a
significant example of a non-Western society that displayed no little hesitation regarding the
liberal values, but at a certain time found itself challenged by the democratization. Japan's feudal
(Shogunate) tradition is based on social hierarchy, obedience to authority, and striving for
consensus. At the time of the Tokugawa Shogunate (17th to mid-19th centuries) the country even
closed itself off to the West. When the state turned towards modernity (in the second half of the
19th century) it was only through public pressure that it adopted several partial democratic
reforms. Moreover, the architects of modern Japan - the Meiji revolutionaries – founded the
country as a constitutional monarchy, while in the 1930s it even assumed aspects of a military
regime (Beaseley, 1993). Only after Japan's defeat in the Second World War and under American
occupation (1945-1952) was it willing to face the challenge of an overall democratization.
In addition, regarding the specific structure of the Japanese democracy, the government
and especially the Prime Minister were strengthened, while a wide range of other institutions
were constructed as relatively weak ones. Among the weakest, one finds firstly the judicial
branch and in particular the judicial review mechanism – that is, the procedure through which
citizens encourage the courts to promote cancellation of laws and policies which presumably are
unconstitutional or contravene civil rights. Furthermore, vis-à-vis Japan in particular, there is a
lively debate between those who doubt its conduct as a democracy (Stockwin, 1998; Kitaoka,
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1997, pp. 13-18; Otake, 1990, pp. 128-161; Inoguchi, 1997, pp. 65-77) and those who consider it
a liberal society (Kohno, 1997; Christensen, 1994, pp. 589-605; Reed, 1996, pp. 61-70). That
argument is even more exacerbated when it addresses the attitudes towards the judicial branch
(Ginsburg, 1999; Beer, 1992; 1996; Maki, 1964) – there is a strong tendency here to rely on
quantitative data and show that the Japanese people keep away from courts, while the conclusion
is that they avoid internalizing their democratic task of promoting their rights (Ramseyer and
McCall Rosenbluth, 1997, p. 150; Fuke, 1995). We have accordingly assumed that despite the
non-liberal background of Japan and notwithstanding the weakness of its judicial review
mechanism, if one is able to show through "qualitative data" a tendency to make use of the liberal
judicial review mechanism in order to promote main issues for post-War Japan as such and as a
democracy, there is room to justify the non-Western democratization model in the Japanese
context and in general.
The article opens with background data enabling amplification of the significance of the
issue examined as a "critical test" for Japan's democratization, and democratization in the nonWestern world. We then turn to the broad array of topics over which citizens turned to Japan's
courts with attempts to promote judicial review, while emphasizing that these topics are the most
acute ones for post-war Japan as such and as a liberal country.
Pre-democratic Japan, the adoption of democracy and its judicial review mechanism
As noted, in our terms Japan is an example of a non-liberal society that hesitated greatly
regarding the adoption of democratic patterns and did so fully only after the Second World War,
under American occupation. During the Shogunate of the House of Tokugawa, Japan was subject
to a unique regime which combined patterns of a strong political centre headed by the Shogun
(the head of the leading samurai elite) and a feudal periphery, subject to inflexible supervision by
the center. Contrary to European feudalism where the political center was weak and balanced by
various institutions (the nobility, the clergy, the Estates-General etc.), no such mechanisms
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existed in Japan. In the spirit of Confucianism, the Shogunate encouraged social and political
hierarchy, and stringent obedience to the authorities; the essence of decision-making processes
was seeking consensus; and any kind of opposition was forbidden - leaders of rebellions were
executed, though now and then some of their demands were met, to calm their furious supporters.
As for the judicial establishment, needless to say - each feudal estate and each social class was
subject to a different system of laws and penalties, while the judges were the agents of the central
or the local governments and dependent on them. Thus, the subjects could not sue the government
and anyway, the Shogun – at the head of the executive - was totally non-judicable.
In the modern imperial era (1868-1945) Japan, which adopted a modern constitution (the
first in Asia) preferred to imitate the Prussian-German constitutional monarchy model – that is,
the Emperor was equated with the sovereignty and at the head if the executive. Nevertheless, the
actual ruling elite changed several times - each time it was a different force that had accumulated
decisive strength. At different periods, some of those forces respected varying degrees of
pluralism and adopted limited democratic patterns, such as a partially elected parliament, political
parties and cabinet governments. Initially, Japan was ruled by an ex-samurai oligarchy; later on it
was the conservative parties; from the early 1930s till 1945 the army became the main power - as
such it revoked all signs of democratization. It is worth noting that at that time modern law and
judiciary were also starting to take shape. Legislation became universal and related to the modern
context. All judges graduated from modern law schools and three types of courts developed local courts, district courts, and a Supreme Court for appeals (Court of Cassation). Like in the
West, deliberations began in the lower instances, and the Supreme Court served as the final
adjudicator in appeals on verdicts given by lower instances in civil and criminal cases. However,
the courts enjoyed of very little independence and autonomy. According to the constitution the
courts operated as the Emperor's agents, appointed by the government whose ministers were
defined as the Emperor's advisers and were subject to the supervision of the Ministry of Justice.
Moreover, as in the past, the courts were not authorized in any way to discuss suits against the
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government, nor did they have any authority to advise on constitutional matters - that was the
realm of the political Privy Council (Maki, 1964).
Indeed, despite their modern background, most judges of that period functioned like
government clerks, although there were also cases in which judges tried to express democratic
judicial independence from the political system. In the well-known Otsu Incident, the Supreme
Court, presided by Justice Kojima Korekata, decided in 1891 to impose a life sentence on a
policeman who tried to assassinate Russia's Crown-Prince Nikolai (later on the Tsar Nikolai II) at
Otsu village, while he was visiting Japan in 1890. The court then presented a counter-opinion to
that of the government which insisted on a death penalty for the accused, as was customary for
murders of members of the Japanese Imperial family (Huffman, 1997: 167-170). In another
famous case from the 1930s, the Teijin bribery affair, party leaders and business men were tried
for accepting bribes from the Teijin company. In this affair too, the militaristic government that
had little respect for political parties, urged Tokyo court to convict the accused, but it refused to
respond to the pressures, in the absence of sufficient evidence (Mitchell, 1996: 167-170). In other
words, although it was expected that judges would behave like government clerks, some related
more to their modern education and were influenced by their limited independence – that is, they
behaved as if the judicial branch was a democratic independent one. We can sum up by saying
that until 1945 Japan ranged between different varieties of authoritarian regimes, in tandem with
adopting limited democratic patterns. At the same time, there were hints that adopting such
patterns, though very limited, were likely to encourage a new kind of behavior – a liberal
democratic one.
In the period that began with the end of the Second World War, Japan started - in
compliance with the US demands - adopting democratic liberal procedures. This was reflected in
all aspects of life and most particularly in the adoption of the democratic - pacifist constitution
(1947). That constitution was presented to the Japanese as the raison d'etre of their reborn postwar state. In fact, although from time to time there are pressures to change the Constitution, most
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of them relate to the question of pacifism, but never engage with the principle of democracy. And
yet, perhaps due to concerns for Japan's stability, as it started along the democratic path, the
American occupation made efforts to construct the government and most of all the Prime Minister
institution as exceptionally powerful, at the expense of all other democratic institutions. The
Prime Minister alone, after wining the confidence of parliament (the National Diet), forms the
government; he possesses the authority to dismiss ministers and disperse the Diet; and he is the
supreme commander of the police and the armed forces (set up in 1950 following United States
pressure under the title "National Police Reserve" or NPR and named "Self-Defense Forces" or
the SDF since 1954) (McCargo, 2004). Favoring the government and Prime Minister is
significantly visible in the relationship between the executive and judicial branches. On the one
hand, the judicial authority enjoys considerable autonomy - it consists of four instances Summary Courts, District Courts, as well as the Family Court with a similar status, High Courts
and the Supreme Court. Trials begin in the Summary courts, District courts or Family courts,
depending on the case's nature and gravity, while the High Courts and the Supreme Court serve as
courts of appeals. The Supreme Court is the final instance in all types of appeals, and above all in
constitutional matters. At the same time, the judicial system is nevertheless strongly dependant on
the government. In contrary to many western democracies, the judges are chosen by the
government (with the authorization of the public – done by voting) for a ten-year term only. Once
the term is over, the judges have to be reelected by the government which is not bound in any
way to prolong their term. The lower judges are appointed, reappointed and promoted by the
Supreme Court, but every such decision requires the government's consent. Clearly, all judges
depend to a considerable extent on the executive and especially the Prime Minister, while their
independence and ability to supervise laws and policies is harmed. It is even more serious if we
bear in mind that Japan is controlled much of the time by the same party, the Liberal Democratic
Party (the LDP), a fact that encourages substantial dependence between the judiciary and a
political cadre, against any logic of democracy (Ramseyer and Rasmussen, 2003). The judges'
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dependence on the government is no doubt a critical aspect of the limitations applied to the
judicial review, nonetheless, there are further aspects to this - Japan has no fast or efficient
procedure for judicial review and not every citizen is allowed to apply for judicial review. To be
more precise, though in most democracies one can promote review of laws and policies by
petitioning directly to the Supreme Court (as is in Israel) or to a Constitutional Court (as in South
Korea), in Japan judicial review is sought in an almost routine legal proceeding that begins in
lower instances and may reach the Supreme Court, sitting with a full panel of judges, within
years. The plaintiff is also obliged to prove in court that s/he is personally injured by the law or
policy which s/he claims to be unconstitutional. If the plaintiff is unable to prove personal injury,
even though her/his arguments are logic, the claim will not be admitted. Moreover, until 1993,
before the enactment of the Administrative Procedure law, that determines the government's
responsibilities, judicial review of the government's actions was almost impossible. It has now of
course become easier for plaintiffs to prove the unconstitutionality of policies.
Finally, although Japan has gradually adopted a comprehensive legal reform since 1999,
in the meantime it focuses on training more lawyers, transition to jury system in criminal cases
and shortening the duration of trials, but all these have no serious impact on judicial review.
There is in fact a significant gap between the declaration of the legal reformer, former Prime
Minister Obuchi Keizo, that "The judicial system we make must fully advocate fundamental
human rights" ("The Points at Issue in the Judicial Reform", Judicial Reform Council, 21
December 1999) or the statement by Prime Minister Koizumi Junichiro, who declared that a
judicial reform is a national strategy ("Council proposes fundamental reform of judicial system",
22 June 2001), and the reality in which Japan's judicial branch faces huge difficulties to supervise
the arbitrariness of the government. Some even stress that though Japan is a developed country
like the long-established Western nations, its judicial review mechanism has far more similarities
to those found in developing countries like Indonesia and Malaysia, where the judicial branch is
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extremely weak (IIAS Symposium "Comparative Studies on Judicial Review in East and SouthEast Asia, 31 August - 1 September, 1995).
In summary, Japan became aware of democratic and liberal values in the late 19th
century and with greater impetus following the Second World War. Encouraged by the United
States, it eventually espoused a democratic model in which the judicial system, and the judicial
review mechanism in particular, are weak. As noted before, these components allow us to address
Japan as an example of a non-Western democracy and to maintain that if one can identify a civic
attitude to its limited judicial review, then it is possible to conclude that democratic structures however limited - are likely to encourage a dynamic of democratization and a liberal experience.
The Japanese public and its attitudes towards judicial review
There is no doubt that the Japanese public manifest tendencies to promote judicial review
against laws and policies regarding the most acute issues for post-war Japan, and with the aim of
instilling liberal values. The most notable of these issues are those related to the country's security
and sovereignty. Security is important for every country, but in the Japanese context it is an
inherent part of the state's raison d'etre - Japan's democratic constitution maintains explicitly that
"…the Japanese people forever renounce war as a sovereign right of the nation…." As a result,
any security-related action provides grounds for claims of unconstitutionality and even as
overstepping the boundaries of democracy. The presence of the US army in Japan since 1945
raises special questions too - despite the fact that it provided Japan with security it can also be
described as negating Japan's sovereignty and pacifist constitutional spirit. The first important
appeal concerning security is from 1952 - a short while after Japan gained back its independence.
It was filed with the court by Suzuki Mosaburo, the chairman of the left-wing Socialist party.
Suzuki appealed to the Supreme Court directly and requested that all actions pertaining to training
and fostering the NPR contravenes the constitution. He explained that he chose to appeal directly
to the Supreme Court because it was the "Japanese constitutional court." As it continued to do
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later, the Supreme Court managed to evade a discussion on the constitutionality of the forces –
this time it took refuge behind the incorrect procedure that Suzuki applied (Maki, 1964: 362-365).
Another milestone is the Sunakawa case, which relates to the presence of the US army in
Japan. Demonstrators who had demonstrated against widening a road leading to the American
base in Sunakawa (near Tokyo) were arrested under an administrative regulation deriving from
the American-Japanese security treaty and accused of trespassing. When appealing against their
sentence, the accused argued in Tokyo District Court that the defense agreement was
unconstitutional and so was their arrest. Although the low court admitted these arguments, the
Tokyo Public Prosecutor's Office appealed against the acquittal and succeeded. This time the
Supreme Court refrained from discussing the constitutional nature of the security treaty, arguing
that it was a political issue. On that ground, the court avoided admitting the arguments of the
accused (Stockwin, 1998). In 1973, the focus of another case was the SDF base in Naganuma
Nike. In that affair, citizens sued in Hokkaido District Court the Ministry of Agriculture and
Forestry which confiscated land for the good of the base – they argued that the confiscation
cannot be constitutional since the forces are illegitimate. The District Court admitted this
argument, but the verdict was later amended in the High Court of Hokkaido (1979) and in the
Supreme Court (1982) (Stockwin, 1998). Later examples are a suit filed in 1989 against land
confiscation by the Defense Agency (the Japanese equivalent to the Ministry of Defense) for a
SDF base in Hyakuri, and a 1990 claim by citizens of Okinawa against the confiscation of land
for the benefit of an American base. In both cases the courts did not accept the plaintiffs' stance
(Stockwin, 1998). Since the Japanese legislation which allows participation in the United Nations'
"Peacekeeping Operations" (PKO), thousands of citizens have appealed to courts, arguing that the
law is unconstitutional. With the inclusion of the SDF in the humanitarian forces in Iraq since the
Second Gulf War, there is a new wave of suits against the government. Some of them are
criminal charges against Prime Minister Koizumi who, it is argued, is conducting a private war in
a foreign nation. These suits are sometimes "mass suits" - one, which is heard in Nagoya District
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Court was filed in the name of 1,262 citizens and is one of the largest mass suit ever filed in
Japan (Weekly MDS Newspaper, 27 February 2004). Finally, we can note that very often suits
filed against the SDF emphasize that the budgets invested in the forces are unconstitutional waste
of taxpayers money, though the Supreme Court has not yet been convinced by this kind of
argument.
As part of a continuing struggle over the identity of post-war Japan, many are trying to
draft the courts in order to force the government to take full responsibility for Japan's actions
against Asian peoples during the Second World War. Among the best-known cases are suits filed
against official visits by the heads of state to the Yasukuni ("Peaceful Country") shrine. The
shrine, which was built in the nineteenth century to honor the souls of Japan's dead soldiers in its
modern wars, also enshrines the souls of those who fought in the Second World War and were
part of the massacres against Asian peoples. In the 1970s, Prime Minister Miki made a distinction
between private and official visits and in 1978 it was decided that the 1,068 convicted Japanese
war criminals, including the fourteen executed Class-A war criminals would be included among
those honored at the shrine. This of course engendered protests against Japan in the neighboring
countries. In view of those developments, right-wing politicians are keen to highlight their
nationalistic views by maintaining a presence at the shrine, particularly on the symbolic days.
Notable visits to Yasukuni are the official visit by Prime Minister Yasuhiro Nakasone in 1985, on
the anniversary of the end of the Second World War; the visit of Prime Minister Hashimoto
Ryutaro in 1996; visits by the Governor of Tokyo prefecture (Tokyo-To), Ishihara Shinataro; and
the five visits by Prime Minister Koizumi who comes to Yasukuni at least once a year (Okazaki,
Daily Yomiuri: 6 February 2005). As a consequence of those visits, left-wing citizens and
residents who believe that Japan has to be committed to a non-nationalistic course have turned to
courts arguing that the visits, though not always claimed to be official, bear an official character
and are unconstitutional – they contravene the separation between religion and state and cause
profound suffering to many people.
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Nakasone's visit in 1985, which was defined in advance as official, was recognized by
High Courts and by the Supreme Court as unconstitutional. Nevertheless, the legal struggle by
thousands against other visits by other prime ministers have been less successful. In 2004-2005
most District Courts and later on High Courts and the Supreme Court dismissed suits against
Koizumi's visits to the shrine. It was only at the District Court of Fukuoka and at the High Court
of Osaka which ruled in April 2004 and September 2005 that the visits indeed had an official
character and were unconstitutional ("Families appeal to top court over Koizumi's Yasukuni
visit", Japan today: 27 April 2005; The Japan Times, 27 April 2005). However, it was in June
2006 that the Supreme Court decided that Koizumi's 2001 visit to Yasukuni was private and
constitutional (The Japan Times, 24 June 2005).
Citizens have also applied to courts against formal requirements to express solidarity with
national symbols connected to Japan's militaristic past. Despite widespread feelings of
discomfort, those symbols - removed from the public sphere under the Occupation - gradually
reinstated. In 1999 even the flag and anthem used in wartime regained their official status. An
important peak was the decision taken in October 2003 by the Tokyo Board of Education,
obligating students to sing the national anthem in front of the raised national flag at school
graduation ceremonies. Many teachers and educators found this unacceptable and in a rare
statement, even the Emperor expressed his objections to the decision. However, in most cases of
teachers' refusal to instruct their students to sing the anthem at ceremonies sanctions are applied,
including dismissal. As a result, since 2004 there have been hundreds of suits by teachers and
citizens from Tokyo and Japan in general, arguing that theses obligations are unconstitutional. So
far, the plaintiffs have had little success but are determined to continue throughout the long legal
process.
As mentioned before, Japanese citizens approached courts due to issues at the heart of the
democratic regime. As an example, after every parliamentary elections thousands of suits are
filed against the government due to under-representation of urban constituencies in comparison
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with the rural ones. This is the outcome of Japan's urbanization processes on the one hand, and
attempts by the LDP government to enable the largest representation possible of agricultural
regions – one of its ultimate group of supporters. Even after electoral system reforms (mainly in
1994) which ostensibly related to distortions in representation, citizens continue to appeal to
courts concerning honest representation. Over the years the plaintiffs have occasionally failed
though from time to time saw some success too. On two occasions, in 1976 and 1985, after
prolonged legal deliberations, the Supreme Court admitted claims regarding distortions in the
1972 and 1983 elections. Nevertheless, repeated elections were not held, since the dates of the
verdicts were already close to the expected next elections. After the 2001 parliamentary elections,
the Supreme Court did not admit any claims by citizens for non-constitutionality, but it did find
fault with the too-large gaps in representation between the various constituencies. Following the
2003 elections to the Diet's lower house, an especially large number of suits were filed by citizens
from nine electoral regions (The Japan Times: 20 July 2005).
Other suits were filed by overseas Japanese citizens who demanded to participate in the
country's elections "as implied by the Constitution." This struggle began in 1996 in Tokyo
District Court and continued for nine years, but achieved impressive success. Inspired by that
struggle, the electoral law was amended in 1998 and since then it enables overseas citizens to
participate in the Diet's upper house elections. However, this did not satisfy the plaintiffs who
continued to seek for the right to participate in the Diet's more important lower house. Although
both the Tokyo District Court and the Tokyo High Court did not admit their arguments, in
September 2005 the Supreme Court admitted the petitioners' position in a rare and innovative
verdict. Usually, the Supreme Court is more conservative than lower courts but this time, while
the lower courts manifested support of the status quo, the Supreme Court clarified that the
Election Law should be revised in a more liberal direction (Asahi Shimbun: 15 July 2005). As for
the petitioners, they felt they had battled for the soul of Japan's democracy - one of them,
Hayahiko Takase, an American resident, commented "The Supreme Court recognized our
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arguments, I am thrilled to play a small role in pushing forward Japanese democracy" (Asahi
Shimbun: 15 September 2005).
Since the occupation era, citizens and residents of Japan have also turned to courts quite
often to clarify questions relating to basic human rights - such as freedom of speech, conscience,
organization, the right to vote, and the issue of the death penalty. In many cases the courts do not
accept the appeals, but the citizens and residents never give up. As regards freedom of expression,
in his book, Maki (1964) already mentions trials held in the first years of post-war Japan. One is
the case of a well-known translator and a publisher who were arrested for translating and
publishing the erotic book "Lady Chatterley's Lover" that after a considerable struggle had
already become legitimate in Europe. Throughout the whole legal process, until the case reached
the Supreme Court, the defendants claimed that the state is committed to freedom of speech although the affair ended against them (Maki, 1964: 34-48). In a second case, that ended already
in 1952, a journalist who was forced to reveal his sources fought with all his might in every legal
instance to prove that his mission of protecting Japan's new democracy was supreme (Maki,
1964: 38-48) . Another democratic right that became the subject of a battle is the right to
participate in elections. An interesting case is the struggle of political activists who were indicted
for unconstitutional activities in the 1952 elections and punished, inter alia, by having their right
to vote revoked. The activists agreed with their conviction, but maintained that revoking their
right to vote was unconstitutional. They fought that sentence in a low instance and in the Supreme
Court, but failed (Maki, 1964: 182-191).
Over the past thirty years there has been an ever-growing number of law suits in
connection with discrimination against minorities. It began with suits by Korean residents
following the normalization of the international relations between Japan and South Korea – at that
time Japan's Korean residents gained the status of permanent residency by treaty. The Koreans'
suits were part of a broad political struggle to achieve equality. Many of them sought the end of
discrimination at workplaces, by means of the courts. A notable case in the 1970s was the
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struggle conducted by a Korean permanent resident with the backing of civil rights' organizations,
against Hitachi Corporation: it led the Supreme Court to acknowledge the concept of
"constitutional human rights" in both private and public sectors. Other citizens filed suits directly
against public workplaces. For example, in 1996 a Korean resident of Japan, a nurse by
profession, who was employed by the Tokyo Metropolitan authorities, sued her employers for
preventing her from taking exams for a managerial position. The Tokyo authorities told her that
future managerial roles were reserved for citizens only. However, the Korean resident managed to
convince the court that her workplace was discriminating against her. In this specific case, the
court accepted the plaintiff's stance and held that there was no connection between the
examination and the eventual promotion. Korean residents are also seeking the courts' recourse in
the context of political representation. As taxpayers, they conduct a huge battle over the right to
participate in local elections. In this matter, the Supreme Court decided in 1995 that amending the
election laws in a manner enabling residents to take part in elections does not contravene the
Constitution (Neary, 2002: 15 - 68).
Other minorities, such as the Burakumin (the traditional Japanese "impure" caste) and the
Ainu (from Hokkaido Island), conduct legal battles against discrimination as well. The Ainu
which were recognized in 1991 as an "indigenous minority" have more than once sought to
underline recognition of their cultural uniqueness via the legal system. After the construction of
the Nibutani Dam on an Ainu religious site, for example, a suit was filed with the court against
the Ministry of Construction for ignoring the Ainu's cultural rights. The court admitted the claim
and granted legal validity to the Ainu as an indigenous people with cultural rights, though in the
name of the public interest it did not accept the demand to demolish the dam (Neary, 2002: 5152).
Finally, one should mention the suits against the government, related to environmental
issues. These began in the 1960s and are part of an unrelenting civil struggle that was initiated in
the 1950s, to prevent environmental damage - the ugly aspect of the economic miracle. Until the
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legislation of the Administrative Procedure Act which determines the government's
responsibilities, it was very difficult to deal in courts with environmental damage presumably
caused by the government, but this has become easier since 1993. The legal struggle has always
existed, though it has gained impetus since the 1990s. One of the high points of the battle is
claims against the government and private companies in connection with the outbreak of the
"Minamata" disease in Kumamoto. From the late 1950s, it started to become clear that there is
connection between the disease and environmental pollution caused by factories built with the
blessing of the central and local governments. At first, citizens' movements were launched and
demanded compensation for the injured. In 1982 the citizens' struggle entered the arena of the
Osaka District Court – and it was finally decided there in 1994 that the Chisso company should
compensate the injured, while exempting the central and local governments from liability. In
1995 the government - of its own initiative - signed compensation agreements with some of the
injured, but the rest continued their legal battle against the state. The affair finally ended in 2004
when the Supreme Court recognized the state's liability in the development of the hazards that
caused Minamata, and its failure to prevent them (The Japan Times: 16 October 2004). In a very
similar affair, Osaka District Court ordered the government and pharmaceutical companies to pay
a combined 256 million yen in damages to people infected with the hepatitis C virus by tainted
blood products. The injured sued the government and pharmaceutical companies for giving
erroneous treatments (The Japan Times: 22 June 2006).
Other claims accuse the government for the damaging noise of the Shinkansen ("bullet")
trains. In this case too the struggles persisted for a long time, but patience paid off. It began in the
Tokyo District Court in 1996 and ended in 2002 in the same court, which held that the
government was responsible for the health hazards caused by the Shinkansen and should
therefore compensate the injured (Asahi Shimbun: 30 October 2002). Also, following the
demands by citizens in the courts to allow them to sue government agents for projects connected
to the Odakyu train network, the Supreme Court held in a presidential ruling on 7 December 2005
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that any citizen who believes he is liable to suffer (in future) from the noise caused as a result of
the completion of specific projects, could sue the government for the breach of his rights. That is,
contrary to what is implied by the dry phrasing of the law, under which only those directly injured
by governmental policy can sue it, the court is willing to broaden the scope of the public that is
entitled to demand judicial review, preferring to protect the public instead of the governing
institutions (Yomiuri Shimbun: 9 December 2005).
In other words, as noted at the outset, we have cited an array of issues on which Japan's
citizens and residents approach the courts with the aim of encouraging the restriction of the state
organs. They relate to the core of the new Japan's raison d'etre and the heart of its democratic
characters - such as the issues of security and sovereignty, those related to the democratic
infrastructure of Japan, and to human and minority rights. When one takes into account the values
that governed Japan until 1945 and the restrictions on the mechanism of Japan's judicial review,
which a priori reduces those who can encourage its operation, we may also say that the issues for
which judicial review is sought in Japan reveals a serious, democratic and liberal approach to
judicial review. Moreover, though it's not the main concern in this essay, if we consider the
judges for a moment, it seems that despite all the restrictions on them too - first and foremost
their dependence on the political system - many of them have internalized an independent,
cerebral approach regarding the government. All in all, the attitudes towards judicial review that
we have cited here may bring us to the conclusion that adopting democratic organs, even partial
ones, can encourage a dynamic of democratization of the political behavior and most of all may
serve as an engine for the internalization of a civic culture.
Implications
Japan is an example of a state that until 1945 showed much hesitancy regarding liberal
political values and without doubt it rejected the principle of close supervision of the executive
authority and its representatives. Beyond that, in democratic Japan the judicial branch and
16
particularly the judicial review mechanism, operate in a context that imposes considerable
restrictions on them. In view of that, we assumed that despite all those limitations, civic attitudes
towards judicial review in democratic Japan likely attests to the option that adopting democratic
institutions in a non-liberal society might encourage a dynamic of developing a civil culture.
Following this, despite arguments which focus on the quantity of approaches to Japan's courts as
an indicator to liberal attitudes, we showed that examining the kind of issues on which people are
keen to encourage judicial review brings in a different image. From a very early stage of
democratic Japan, there has been a genuine civil approach to judicial review mechanism.
Although we did not focus on additional aspects, we showed that adopting a modern legal system
in the Imperial period, and certainly the adoption of a democratic legal system after the Second
World War, at different levels of intensity, shows an influence on the judges' behavior. Although
their autonomy was limited during the Imperial era, and in many respects it still is, some judges
do not hesitate to demonstrate democratic judicial independence and a liberal approach.
Hence we learned that however restricted they may be, the adoption of democratic
mechanisms in Japan has been a catalyst for developing a civil culture, and still is. A more
general conclusion is that democratization can flourish as the result of structural changes that lead
to cultural change. In this sense, the paper goes against theories that fail to see in Japan a liberal
democracy or to acknowledge that liberal democracy may develop outside the liberal West. In
contrast, it supports those theories considering Japan a liberal democracy and confirms the nonWestern democratization model. It transpires therefore that culture creates political structures,
though this is not a binding law; there are also inverse cases in which adopting democratic
political structures are the first stage in a liberal revolution.
17
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