With increasing international scrutiny of the Japanese judiciary system due to recent mega scandals, such as the Carlos Ghosn case, attention has shifted to the tenets of legal order in Japan. What’s the role of the Supreme Court and how does it stand in Japan’s hierarchy of political power?
Join Timothy Langley and Michael Cucek as they discuss the essentials of Japanese Politics. If you’d like to make suggestions on future topics, you can do so by commenting below or on the Youtube comments.
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(Transcript below)
Tim: Hi, everyone. Welcome back to Japanese Politics 101. In this series, we talk about what makes up Japanese politics from the top all the way to the bottom. And Michael, we have been remised in mentioning or if in failing to mention the Japanese judiciary, including the Supreme Court.
Michael: Yeah, why was it that we didn’t talk about the judiciary?
Tim: The foundation of Japanese politics isn’t there one of those blocks, a big block…
Michael: Like a branch of government?
Tim: Yes! Like the judiciary, the entire judiciary: the Supreme Court. Why has that escaped our attention?
Michael: Well it’s because it’s more of a twig than a branch. As there is a stansible separation of powers, with the diet as the legislative branch, the cabinet as a whole is the executive branch, the Prime Minister isn’t the chief executive (he’s just in charge of the cabinet) and then there supposed to be a third branch of government, the judiciary. Now. it’s there. There are people who work in it and they have courts and they have trials and they have procedures, but it is decidedly a vestigial and a very underdeveloped part of the Japanese political edifice.
Tim: Right, they don’t even have original jurisdiction on matters of constitutional questions.
Michael: Well, they do and they don’t. The constitution of Japan was written very quickly. We can be entirely honest, it was written by Americans in about a week. They had a few days and they were pulling off books off the shelves in German and French from what was left of the library of Tokyo University and pouring through and trying to figure out what they wanted to do. And then they got ideas from the US. So, the editing job wasn’t terribly good and that has left a lot of holes into which in this case, the judicial branch is falling. One of the primary statements in the Constitution is that the diet is the supreme organ of power and a little bit later on, in article 81, it then says the Supreme Court has the ability to judge the constitutionality of any ordinance, regulation, piece of legislation. Those two things cannot both be true: the diet cannot be the ultimate unassailable power and there can be judicial review. And rather than fight for themselves, the judges have chosen. On occasion, when they were given a question that’s hard, they will just simply say that’s a a political question. It’s not our business. Is it constitutional to have the self-defense forces? That’s the Suzuki case. Well, that’s a political question, not our problem. Is the presence of the United States forces here in Japan a violation of “there shall be no war material in Japan”, Article 9 of the Constitution. This is not a question we can answer, that’s up to our elected representatives. At the top, the Supreme Court, 15 justices appointed by the Prime Minister, except the Chief Justice who is ostensibly appointed by the Emperor. There are only two positions that are officially appointed by the Emperor: Prime Minister and head of the Supreme Court. Those 15 justices, if you look at the the Supreme Court website and you try to figure out what they did last year, you would be appalled. In 2016, if you look at the records, interestingly the decisions are all translated into English so you can just look them up if you don’t even speak Japanese and you’re an English speaker, there was in 2016 at least on the website there is one grand bench, 15 justices, decision and then they split up into what they call petit benches of five justices each to deal with something that is not an absolute constitutional question. And so there were about 35 decisions but only one of them was of the entire bench and each year the number of times that all of the justices deliver a definitive statement of the Supreme Court is less than a handful. You say: why do you have it if they decide so few questions. What’s the point of this? And indeed that’s part and parcel to the entire judicial branch and we should talk about where they come from and how they start.
Tim: Well, you said the word ‘definitive’ and that’s not a word that I would ascribe to anything that comes out of the Supreme Court or any of the justices. I mean, when was the last time any of them went on record and said something in a public venue?
Michael: Or was it said in any way comprehensible? One of the things you really learn when you look at the judicial branch is the onus. The onus is when you’re a career judge to not rock the boat. The english-language name of the ministry is the Ministry of Justice; the Japanese language name trade directly translated is the Ministry of Law. You have to make how clear in your head the difference between those two things you don’t go into the Japanese court system finding justice, you will not find it there: you will have people who will be shiho. Shiho is not, you know , an administer of justice: it’s administer law. They’re part of the entire prosecutorial if it’s criminal and regulatory if it’s civil apparatus.
Tim: Leasing through the book.
Michael: Yes, that’s right. They’re supposed to be independent. If you become a judge… Okay, first of all, they’re not appointed, they’re career judges: most of them, almost all of them, come from the Law Department of Tokyo University, the Faculty of Law. They’re recruited: half of the top of the graduating class gets put into the prosecutors channel; the other half go into the judges channel; and then, there are people who go into private practice, that’s true too. But you know and then of course a lot of them go into the ministries in various ways. But the top of the top go into either of those two, judging or prosecution. And indeed the prosecution is probably a bit a bit more prestigious than judging. The judges is a personality type. These are people who are dead set on getting their pensions and not rocking the boat for the amount of time that they’re sitting there and they have a very hard 60 years of age retirement age. There are no senior judges except on the Supreme Court. They’re there to mark time and get through the process. Now to keep them impartial there is this really interesting migratory aspect to the judges. If you were a judge, a career judge, you start out in one place and then you stay there only for a few years and then you’re farmed out to the other side of the country, or move to the north or and they’re moved every few blocks: they don’t stay in one place, they don’t develop personal friendships; they don’t develop personal ties to the local area: they are kept impartial. That’s perfect but at the same time they have no impetus to, in any way, endanger they getting their pension. They have no interest in writing a truly revolutionary piece, a judgment that will overturn years of precedent. So again, when you go into the Japanese legal system, it’s not a justice system, it’s a legal system.
Tim: I think one of the important things to point out here is that anybody who aspires to become a lawyer they, first of all, have to pass the test
Michael: It’s not quite passing the bar but you must pass the test. It’s a lot easier than it used to be: they losened the standards. It used to be fewer than 3% passed, over 90% failure rates on the legal test. So these are really smart cookies, no question about it. But it’s their spirit: it’s their willingness to be brave and to do something truly, you know, that goes against the grain. That’s entirely lacking.
Tim: Right, but the point I’m trying to make is that they all go, once they passed this test, it’s not quite passing the bar, once they pass this test and get accepted into the legal institute, two-year study. Everybody comes out of that soup, public prosecutors, judges, lawyers, judicial scriveners. It all comes out of one school and that’s so huge.
Michael: When you talk about impartiality they have this, you know, moving around but at the end of the day, the person who is going to be sitting behind, up on the chai, and the prosecutor is standing in front of them, they know each other. They are close. They may not be personal friends but they each know the past.
Tim: Until the end of the war they both sat on the same platform and the defendant was you know out with the masses.
Michael: Yeah, that physical change has happened but nevertheless, the tie is there. And so, what happens then is that when there is a case, and we can you can just slide a little bit Carlos Ghosn going in here, you know. When a defendant says I’m not guilty, the judge is not going to say “well that’s a different opinion and it’s just as valid as the one that’s brought by the prosecutors. I want to hear both sides equally”.
Tim: No, you’re sitting in front of me for a reason dude !
Michael: I know he is a good guy, cause I’ve known him for…
Tim: I’m innocent!
Michael: Yeah it’s not going to work. And that the judicial system therefore when the conviction rate becomes quite clear. The prosecutors not only, I mean, yes… A point that’s made in all the articles is that they cherry pick their cases and so that they’ll win. That’s true but equally so they are a known known for the judges and the known known aspect is going is always going to overwhelm whatever facts you may present.
Tim: They’re part of the club, they’re part of the prosecutorial area and the defense lawyers are not. I mean, those are private lawyers you have to hire them they belong to a law firm.
Michael: They belong to something else. The question of coming out of the same pot, in terms of going back to the Supreme Court, you know, why doesn’t it do what it’s supposed to do? Why doesn’t it because the Americans, even though it’s a rush job, they had in their minds what we cannot have is a wait for Marbury vs. Madison Japan-style. We have to write into the Constitution that the Supreme Court has the right to review all legislation and regulation and ordinances. That’s not in the US Constitution, that came through case law right through Marbury vs. Madison and so the Americans put that in. Why don’t the Japanese judges and justices not only just in the Supreme Court, but throughout the system use that and fight, you know, inequality and unfairness, like exists in between rural districts and urban districts in the electoral system, why don’t they do that? It’s not just only their natural conservatism, it’s because there’s somebody else who does it. And you can read about them, it’s not like they’re secret, but everybody forgets about them: the CLB, the Cabinet Legislation Bureau. They’re bureaucrats who are plucked, hand-picked, by the people who are working already at the cream of the crop. They’re the ones that take the cream that gets taken off the top ,whether you’re Foreign Ministry, whether you’re Ministry of Finance, yes there’s something above that and that’s the CLB. And the CLB is empowered through some mystical magical way it doesn’t appear anywhere in the Constitution, and yet nevertheless it checks every piece of legislation. Every bill that’s going to be presented to the Diet by the government, passes through under the eyes of the CLB and they look at it, they criticize it, they take pieces out, they correct your grammar, they do anything they want to it and then they put a stamp: this is going to be constitutional. And then it’s passed back to the politicians, to then pass in the Diet. The CLB is the pre-digests, checks for constitutionality in everything the government does, so that the Supreme Court doesn’t have to do anything. The statistic people say and I’m not sure how it works, but there has only been one case where the justices of the Supreme Court have invalidated a CLB-approved bill. although that became law. Otherwise it’s done already, and it’s done extra-constitutionally so the Supreme Court, the court system, is atrophied. And the power that lies within the ministries.
Tim: Well it seems like this shift has continued for twenty, thirty years, this slow accumulation of power that’s going into the Prime Minister’s Office and into the government portion kind of disregarding the judicial branch altogether.
Michael: And even the CLB has been cut down its size under the Abe administration. PM Abe, when he came in said “I’m gonna change who’s the head of the CLB” and everybody went “oh don’t you know the CLB has always recruited internally; the deputy head always becomes the head. That’s always the way it’s been” and Mr. Abe said “I don’t care, I’m gonna take this head of the CLB, I’m gonna put him on the Supreme Court where he can’t do any damage, and I’m gonna put my own guy in” and bingo: what had previously been unconstitutional collective security suddenly became when Mr.Abe’s man was there suddenly constitutional after 60 years of naysaying.
Tim: That was a hot time in the city wasn’t it?
Michael: That was a hot time: street protests, the country erupted, everyone said that was dirty pool and he got away with it.
Tim: The Supreme Court of Japan plays a very minor role in this whole hierarchy that comprises Japanese politics as we have been discussing it. I hope you enjoy this and I hope that this teaches you something about how this whole system works or doesn’t work. Please stay tuned! Hi everyone, thanks for watching this last episode. Please don’t forget to hit like, subscribe, and help us proliferate this channel !