Shying Away from Judicial Review
by Peter Mosleh
The role of the judicial system in Japanese politics has evolved since WWII, yet this evolution has taken place without any significant changes to the actual structure of the judicial system. One of the main goals of the U.S. forces in Japan after WWII was to set up a government that spreads power among the 3 branches of government (legislative, executive, and judicial), yet over the course of the last 50 years, the Japanese judiciary seems to have been getting weaker compared to the other two branches. In order to try and solve the mystery of why Japan’s judicial branch has been getting weaker, it is necessary to analyze in greater detail what MacArthur was trying to accomplish when he and his companions where mapping out the section of the Japanese constitution dealing with the judicial branch.
The concept of “power” in government can be difficult to define, mainly because power means different things to different sectors of government. For a political party such as the LDP, power might be defined as the ability to successfully pass bills in congress, and of course the more bills the LDP passes the more “powerful” they become. The ability to pass bills through congress gives the LDP, to a certain extent, a means of controlling various aspects of the country, such as businesses. The control over certain businesses and industries could potentially lead to an increase in the voter base for the political party, if the bills are favorable to the targeted industries and businesses. To a judiciary, power often has very little to do with voting base, but instead power to a judiciary often comes in the form of judicial review. By ruling on government policies, among other things, courts set standards for the nation in terms of the constitutionality of laws, thus giving the courts the “power” of replacing unconstitutional government policies with their own rulings. Indeed judicial review grants a significant amount of power to a nation’s judiciary, but in Japan’s case the power is rarely used to it’s full potential. As scholar of Japanese law John Haley points out in his article titled, Law in Japan 2002: A Turning Point? Japan’s courts are “accustomed to a legal culture of authority without power”(Haley 9), which might explain why Japanese courts are so reluctant to use judicial review as a way of gaining power.
In order for power to be distributed relatively equally among a nation’s branches of government, there cannot be a sector of government that has substantial control, or influence, over the actions of a different branch. In other words, a strong judiciary can effectively limit the power of the legislative and executive branches if judges in the judicial system are removed from the political process. As seen in the U.S. judicial system, judges are removed from the world of politics by, for the most part, being appointed to their positions instead of elected, and American judges also rarely make rulings based strictly on political party platforms; instead American judges usually make rulings that either uphold laws, or confirm rulings made by judges in the past. By seeking to remove the Japanese judiciary from politics, MacArthur appeared to be molding the Japanese judicial system to resemble the U.S. system. However, there is a major difference between the U.S. and Japanese judiciaries that was caused by MacArthur’s involvement in the Japanese constitution, and that is as article 79 of the Japanese constitution puts it, “appointment of the judges of the Supreme Court shall be reviewed by the people at the first general election of members of the House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the House of Representatives after a lapse of ten (10) years, and in the same manner thereafter”(Japanese Constitution). MacArthur and his aids originally required judicial appointments to be voted on by the public in order to increase the role of democracy in post-war Japan, and in the process give the general population more power, yet it seems like requiring judges to be approved by the public causes judges to be thrust in to politics in a similar way as legislators. Although article 79 allows the general public to remove of appointed judges, since WWII the Japanese public has a perfect record of approving nominated judges (Rinard). Perhaps the perfect record of public approval proves that the Japanese people have adopted article 79 as simply an “in name only” provision, making the constitutional right of the public to remove judges an insignificant factor until it is used more often.
Prior to WWII, judges in Japan were selected, and highly influenced, by the executive branch, thus judges had no real power since their rulings would influence whether or not they would have a job at the end of the day. In a way, Japan’s current judicial system works in a similar manner, although not as obviously as the pre-war system. Since WWII, the cabinet appoints Supreme Court justices, and seeing as the LDP has been consistently the dominant post-war party in Japan, appointed justices are almost always in good standing, and often have close ties, with the LDP. Supreme Court justices in Japan must also attempt to somewhat please the general public, since they can be removed from their position at any time if the general public votes accordingly, although this has yet to be done post WWII. The appointment, and subsequent periodic approvals, of the Japanese judges seems to have decreased the overall power of the judiciary, and this has been caused mostly by the one-party government that Japan has been under for the majority of the post-war period. One way in which the Japanese courts have shown their consistent loyalty to the LDP, and in the process have not made use of one of MacArthur’s major sources of power for the judiciary, is by passing on nearly every opportunity to exercise judicial review. Article 81 of the Japanese constitution clearly states that, “The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act,”(Japanese Constitution) yet Japanese Supreme Court justices have almost always sided with the government on cases dealing with unconstitutionality. This has prompted political scientist T.J. Pempel to identify the Japanese Supreme Court as a “vehicle for preserving the status quo in Japan and for reducing the capacity of the courts to reverse executive actions” (Pempel qtd. in U.S. Library of Congress). In this way, the judicial system is more of a rubber stamp for the legislative and executive branches of Japan, than an equally powerful third branch of government, as U.S. officials intended it to be when they drafted the 1947 constitution. Oddly enough, Japanese judges have shown to be extremely sensitive to upholding human rights in Japan, yet when it comes to government policies the judiciary in Japan seems to always favor upholding the policy in question (van Wolferen). Perhaps this shows that the judiciary is willing to grant people their constitutional liberties, but when it comes to judging on the constitutionality of government polices, judges in Japan are not so willing to show their power.
Although the Japanese judiciary has proven to be much less powerful than MacArthur hoped, changes have been occurring over the last 15 years that suggest that the Japanese courts are strengthening. These changes however have been very slow to come by, mainly because of legal training that had been taking place for years prior to WWII. Judges and lawyers who were trained under the pre-war system were taught legal theories based on the relatively weak court systems of early Japan, so when the new post-war constitution gave considerable power to the courts, judges and lawyers were very reluctant to use their power. The Japanese judges and lawyers had been practicing law in a given theory for their entire lives, thus the changes that the new constitution was seeking to bring to the Japanese judiciary would effectively have to wait until a new series of judges and lawyers, trained under the post-war constitution, began to gain more positions in the legal system. As Mark Haley asserts, “for Japanese law to be at a real turning point, I believe, there has to be a change in this pattern of employment”(Haley 10). Haley is implying that for the Japanese legal system to become a more significant branch of government, the younger series of judges and lawyers must completely replace the older generation, and this must be done without the older generation having any influence in the training of the younger generation. This was, and still is today, difficult to accomplish because unlike many political and business communities, judges that were in power before the war were allowed to keep their positions after the American-made constitution was put in to effect.
For the first 10-15 years of post-war Japan, the judicial system continued to function in a similar manner to the way it did prior to WWII; nearly always siding with the government, the very powerful LDP, in nearly all cases which involved government policies. In the United States, courts rarely make rulings solely based on whether or not a government policy is involved, and in fact courts in the U.S. successfully create their own laws by using judicial review. As mentioned earlier, the power of judicial review was given to the Japanese courts, unlike the American courts that adapted judicial review on their own in the case of Marbury v. Madison. Not only did Japanese courts shy away from using judicial review, for years after WWII they sided with the governing party anytime the legality of policies were in doubt. Slowly the elder judges that were trained under the pre-war system began to retire, and new judges that were taught legal theories that promoted a strong judiciary, were gaining more positions in the system. The first signs that the judicial system was starting to make strides towards gaining it’s own power in government were seen in late 1960’s, when the constitutionality of Self Defense Forces (SDF) was a major issue among Japanese courts.
By the 1960’s many judges that received their educated under the post-war system were beginning to make occasional rulings against the still powerful LDP. Under the pre-war Meiji constitution, courts were simply a part of the ministry of justice (van Wolferen), thus judicial review was not an option for judges, but by the late 1960’s judges from different political backgrounds (non LDP) began to use their power of judicial review. In 1969, a lower court judge named Fukushima Shiegeo ruled that the holding of Japanese military weapons clearly violated article 9 of the constituion that stated, “land, sea, and air forces, as well as other war potential, will never be maintained” (Hamano). This sparked a huge controversy among the LDP because at the time most LDP politicians were in favor of keeping military arms, and the LDP politicians were also attempting to stay in line with an earlier treaty with the United States that required Japan to have military forces readily available. Even though the higher courts later overruled Judge Fukushima’s ruling, a spark had been ignited among younger judges that were beginning to branch away from the system’s pro-LDP tendencies. However, due to the unitary structure of Japan’s judicial system, the occasional ruling against LDP policies may not have any real effect in the overall power of the judicial system. Upper courts, and especially the Superme Court can easily strike down any rulings that don’t favor government policies, which is precisely what happened with the SDF issues.
In order to better understand what effect the unitary system has on Japan’s judiciary, let us, in greater detail, analyze how power is distributed among the nation’s courts. The major difference that exists between the American and Japanese legal systems, and perhaps one of the primary reasons Japan has a weak overall judiciary, is that the American system is a dual/federal system, while the Japanese system is unitary. Individual states in the Untied States have the ability to create their own laws, but in Japan all laws come directly from the Diet (cities in Japan may pass their own minor ordinances). The arrangement of the courts system in Japan is also much more vertical than the U.S., with the Japanese Supreme Court having significant direct control over the inferior courts. As stated previously, Supreme Court justices are nominated by the cabinet, and then voted on by the general public, but lower court judges in Japan are usually appointed/nominated by the Supreme Court justices (Anderson/UCLA). This has a significant impact on the overall power of the judicial system, mainly because the Supreme Court justices are almost always in good standing with the LDP, thus they will select lower court judges that will be willing and able to uphold LDP policies in rulings. The more important consequence of the unitary courts system in Japan deals with the vertical structure of the courts system. In the United States, state courts can make a ruling on a policy in question that would effectively create a new law in that state, but in Japan the unitary system doesn’t allow for lower courts to have any real impact on government policies. Figure 1.1 illustrates how “top-down” the Japanese courts system is.
Once again, the SDF issue perfectly illustrates how the lower court judge can attempt to scrap an LDP policy, yet eventually one of the higher courts will override the lower judges decision, and the government policy will remain intact. Due to the unitary system, changes in the Japanese judiciary are hard to come by, which means the independent and powerful judiciary that MacArthur was trying to create in Japan may not have been a realistic short-term goal for post-war U.S. officials in Japan. A judicial branch independent from other branches of government is certainly a recognizable feature of American style democracy, and MacArthur and his aids were without a doubt trying to create a system in Japan that allowed the courts to be separated from the other branches. Yet the courts in Japan have done everything NOT to separate themselves from the executive and legislative branches.
When a policy is alleged in the Japanese courts to be unconstitutional, the judges have several ways to keep the government-issued policy intact, all of which display the judicial branch’s lack of power and independence among other branches of Japanese government. One way the Japanese courts have restrained from making rulings against government policies is by applying the political question doctrine, which allows the given court to decline the right to make judgement in a case because the constitution:
has committed decisionmaking on this subject to another branch of the federal government; 2) there are inadequate standards for the court to apply; or 3) the court feels it is prudent not to interfere (Wikipedia).
In the early post-war peoriod, the “political question” doctrine was a popular way for the judiciary to deflect controversial LDP statutes that were questioned as being unconstitutional, and also the “public welfare” clause in article 13 of the constitution was often used for the same purpose. To this day, heads of executive branches in the U.S. and Japan use the public welfare clause to justify questionable decisions, and they are able to do this because the public welfare clause gives basic rights to the public “to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs” (Japanese Constitution). Although the executive branch still uses the public welfare clause to justify actions that could be unconstitutional, the Japanese judiciary has moved from using the public welfare clause and the political question doctrine, to the more straightforward doctrine of “legislative discretion.” The doctrine of legislative discretion allows the courts to avoid interfering with the judgement of the legislature, but still has the power to make judgments on constitutional issues. These powers to still make judgments on constitutionality are only formal powers though, and usually once the doctrine of legislative discretion is applied, the court has no further role in the given case.
Not only do judges in Japan often take caution when dealing with LDP policies, judges are also careful and often fearful of bureaucratic opinion. This is unlike the U.S. judiciary, where the structural features of the American courts system allow judges to be relatively unbiased, and a closer comparison between the Japanese and U.S. judicial systems will show why the Japanese judges are significantly weaker than American judges. Similarly to Japan, federal judges in the U.S. are appointed through nomination by the President, and the subsequent approval process in the Senate. After the President, often with the assistance of other politicians, nominates a potential federal judge, the Senate must then, through the Senate Judiciary Committee, confirm the President’s nomination (U.S. Senate). The Senate Judiciary Committee (SJC), currently consisting of 17 Senators from varying states, ultimately decides whether or not a judge is approved for a federal position, and the strong two-party system in the SJC often causes the approval of only the most unbiased judges. The dominance of the LDP perhaps doesn’t allow for judges to be completely unbiased and dedicated to upholding the law, yet in the American SJC there are often party-line votes causing standoffs over the approval of judges (Wikipedia). Perhaps if Japan had a more prevalent second party in politics, the approval of federal judges would not be as consistent as they have been since WWII (Rinard). Instead of a stronger minority party, Japan has a strong bureaucracy that plays a significant role in the actions of Japanese judges.
In a nation like Japan where the bureaucracy has such a large and influential role in government activities, judges must be cooperative with bureaucrats for many reasons, all of which work together to decrease the overall independence and power of the judiciary. As Karel Van Wolferen asserts in his controversial books on Japanese politics, judges “fear of bureaucratic opinion, in connection with tenure and promotions, looms almost as large now as it did before the war” (van Wolferen 216). For reasons mentioned by Van Wolferen, judges may be swayed towards making favorable rulings for the bureaucracy, and of course the government and bureaucracy in Japan often work together very closely, thus rulings favoring the bureaucracy often favor the government as well. Along with van Wolferen’s studies, Mark Ramseyer in his book, titled Measuring Judicial Independence: The Political Economy of Judging in Japan, shows that judges in Japan that rule mostly with the LDP enjoy more desirable careers after their decisions, while judges ruling against the LDP are often assigned to less attractive positions (Ramseyer). The bureaucracy and government in Japan also have the a hand in molding the judiciary to their liking by having a large influence over the legal training that takes place within the country. Unlike the U.S., which includes law school and a bar association that is relatively self-governing, legal training institutes in Japan are mostly controlled by the government. The government-operated LTRI (Legal Training and Research Institute) must be tackled by anyone seeking to be lawyers or judges in Japan, and Van Wolferen argues that the LTRI screens judges for their “political predilections, and trainees who show sympathy with the liberal causes of the day are carefully weeded out” (Van Wolferen 215). The Ministry of Justice also plays a role in the development of future judges by acting as a link between the LDP and the LTRI. The MOF (Ministry of Justice) has extensive relations with both the LDP and the LTRI, and often influences factors such as curriculum and faculty and the LTRI, which in turn sets the stage for “LDP-friendly” judges and lawyers. In recent years however, the MOF has been playing less of a role in the development of the LTRI, which perhaps could be stepping stone for the entire judiciary itself to become more independent. However, the MOF also determines the number of courts that exist in Japan, which proves to be a significant power for the MOF.
Essentially the number of courts in a nation directly effects how many trials, and the length of those trials, will take place during a given time span. Obviously the less courts that are available, the less likely citizens and businesses are to take controversial policies to court, and there are also underlying psychological results that arise from the decreasing of a nation’s courts. The decrease in the number of courts, specifically from 575 to 426 in the late 1980s (Van Wolferen 225), decreased the availability and likelihood of citizens being able to get their case tried in court, which naturally creates a bit of fear and intimidation in the minds of citizens planning to go to court. Citizens of Japan already think of the government as a “heavenly” institution, and the general public also often looks at courts in this way, especially since the decrease of courts in the late 80s made people less familiar with courts in general. Coming back to MacArthur’s goals for the judiciary after WWII, constitutionally speaking perhaps all the right ingredients exist for Japan to have a strong judicial system, yet cultural norms, bureaucratic and political influence, and legal education all work together to form an overall weak judicial branch in Japan.
The Japanese political landscape is one that includes a vast amount of bargaining and coordination between the branches of government, and the judicial branch seems like it is no exception. Although MacArthur and American officials put together a constitution that gave significant formal powers to the judiciary, cultural norms such as consensual decision making discourage judges to act independently and confidently when faced with ruling against government policies. Although changes have occurred over the last 30 years in the number of courts and training of judges, these changes seem to have counteracted each other to result in the Japanese judiciary having no more effective power today than when the constitution was drafted. Possibly the next time one nation decided to draft and construct another nation’s government, closer attention will be paid to underlying factors such as political nature cultural norms, which have kept Japanese judiciary from reaching the level of independence that MacArthur would have hoped.
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