The Supreme Court of Japan: Its adjudication on electoral systems and economic freedoms

International Journal of Constitutional Law

Volumn 5, Issue 2, 2007, Pages 296-307

  Hasebe, Yasuo ^a  

^a UNIVERSITY OF TOKYO   (Japan)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34247272961     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mom004     Document Type: Article

References (63)

1. JAPAN CONST. KENPŌ, art. 81.
2. KENPŌ, art. 6(2).
3. KENPŌ, art. 79(1).
4. MASAO OHNO, BENGOSHI KARA SAIBANKAN HE [AN ATTORNEY BECOMING A JUSTICE] 66-67 (Iwanami Shoten 2000). Ohno was formerly a practicing attorney and served as a justice of the Court from 1993 to 1997.
5. Article 50 of the Judicial Courts Act (Saibansho Ho) requires that justices retire at 70.
6. MASAMI ITO, SAIBANKAN TO GAKUSHA NO AIDA [BETWEEN THE LIVES OF A JUSTICE AND AN ACADEMIC] 118-119 (Yuhikaku 1993). Ito was formerly a professor of the University of Tokyo and served as a justice of the Court from 1980 to 1989.
7. See, e.g., Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 670 (2000), (referring to "the relative passivity of the Japanese Supreme Court").
8. Kurokawa v. Chiba Prefecture Election Comm'n, 30 MINSHŪ 223 (Sup. Ct., G.B., Apr. 4, 1976) (malapportionment of seats of the lower house irrationally unequal)
9. Kanao v. Hiroshima Election Mgmt. Comm'n, 39 MINSHŪ 1100 (Sup. Ct., G.B., July 17, 1985) (holding again malapportionment of seats of the lower house to be unconstitutional)
10. 59 MINSHŪ 2087 (Sup. Ct., G.B., Sept. 14, 2005) (Japanese nationals living abroad have equal rights to participate in elections of members of the Diet).
11. See text accompanying notes 21-28 and 32, infra, on these precedents.
12. Main decisions of the Court translated in English are available at http://courtdomino2.courts.go.jp/promjudg.nsf.
13. Nakamura v. Japan, 16 KEISHŪ 1593 (Sup. Ct., G.B., Nov. 28, 1962) (smuggled goods could not be confiscated without their owners being given due notification and a hearing)
14. Umehara v. Japan, 29 MINSHŪ 572 (Sup. Ct., G.B., Apr. 30, 1975) (restriction of entry to pharmacy market declared to be irrationally stringent in light of its purpose of protecting public health)
15. Hiraguchi v. Hiraguchi, 41 MINSHŪ 408 (Sup. Ct., G.B., Apr. 22, 1987) (restriction of the right to divide a coowned forest held too stringent in light of its purpose of preserving and promoting forest industry).
16. 51 MINSHŪ 1673 (Sup. Ct., G.B., Apr. 2, 1997) (a prefect's monetary contribution to the Yasukuni Shrine was held to be unconstitutional).
17. See Yasuo Hasebe, Japan, in 1997 ASIA-PACIFIC CONSTITUTIONAL YEARBOOK 125-131 (Cheryl Saunders & Graham Hassall eds., Univ. of Melbourne Centre for Comparative Constitutional Studies 1999).
18. Aizawa v. Japan, 27 KEISHŪ 265 (Sup. Ct., G.B., Apr. 4, 1973) (statute punishing parricides with death penalty or life sentence held to be too harsh).
19. 56 MINSHŪ 1439 (Sup. Ct., G.B., Sept. 11, 2002) (statute immunizing the government from responsibility even when postal officials committed grave error was held to be unconstitutional).
20. See FRANK UPHAM, LAW AND SOCIAL CHANGE IN POSTWAR JAPAN 131-133 (Harvard Univ. Press 1987).
21. Ackerman observes that the wide discretion to nominate justices, on the part of the governing majority, and the early retirement age of justices (70) bring about the passivity of the Supreme Court. See Ackerman, supra note 7, at 670.
22. Elsewhere, I put forward the hypothesis that the courts in Japan regard most legal problems, including those concerning basic rights, as problems of coordination. From this perspective, it is more important that matters are settled than that they are settled right. See Yasuo Hasebe, Rights of Corporations, Rights of Individuals: Judicial Precedents, in FIVE DECADES OF CONSTITUTIONALISM IN JAPANESE SOCIETY, 82-85 (Yoichi Higuchi ed., Univ. Tokyo Press 2001).
23. In the rare cases where the Supreme Court held statutes unconstitutional, the statutes were generally those proposed by members of the Diet or originally enacted under the Meiji constitution. The Pharmacy Store decision, Umehara v. Japan, supra note 9,
24. and various malapportionments of MPs cases belong to the former category, while the Forest Act decision, Hiraguchi v. Hiraguchi, supra note 9,
25. and the Postal Service Act decision on Sept. 11, 2002, supra note 12, belong to the latter category.
26. On the other hand, on Sept. 14, 2005, the Supreme Court struck down a clause of the Public Officials Election Act, which deprived Japanese nationals living overseas of the right to vote for single seat constituencies at general elections, though this clause was proposed by the Cabinet in 1998, supra note 8. The Court also held that the Diet's failure until 1998 to permit Japanese nationals living overseas to participate in national elections at all constituted a "gross error." The Court pointed out that while the Cabinet in 1984 submitted a bill to enable Japanese nationals living abroad to participate in national elections, the Diet did not even discuss it.
27. See Shigenori Matsui, The Voting Rights of Japanese Citizens Living Abroad, 5 INT'L J. CONST. L. (I CON) 332 (2007) (in this issue).
28. I myself made several presentations during this process.
29. There have been some cases where judges were appointed as officials at other ministries. But the number is far smaller.
30. See, e.g., Kaneko v. Japan, 23 KEISHŪ 1490 (Sup. Ct., G.B., Nov. 26, 1969) (press was accorded qualified privileges against seizure of its unpublished materials by investigative authorities)
31. Ona v. Igarashi, 40 MINSHŪ 872 (Sup. Ct., G.B., Jun. 11, 1986) (judicial injunction against publishing a journal conveying information regarding electoral candidates is permitted only in most exceptional circumstances).
32. Kurokawa v. Chiba Prefecture Election Comm'n, 30 MINSHŪ 223 (Sup. Ct., G.B., Apr. 4, 1976).
33. See NORMAN DORSEN ET AL., COMPARATIVE CONSTITUTIONALISM 1341-1342 (West 2003).
34. Kurokawa, supra note 20, at 247-249.
35. Hidenori Tomatsu, Equal Protection of the Law, in JAPANESE CONSTITUTIONAL LAW 196 (Percey R. Luney & Kazuyuki Takahashi, eds., Univ. Tokyo Press 1993)
36. Masami Koshiji, Constitutional Issues Concerning the Franchise, in FIVE DECADES OF CONSTITUTIONALISM IN JAPANESE SOCIETY 142 (Yoichi Higuchi, ed., Univ. Tokyo Press 2001).
37. I do not deny that the 1:2 standard is better than the 1:3 standard. But neither follows logically from the principle of "one person, one vote."
38. The Act Establishing the Boundary Commission, Art. 3 (1). While the text of the act does not require that the Diet follows recommendations of the commission, the Diet has respected them.
39. 53 MINSHŪ 1441 (Sup. Ct., G.B., Nov. 10, 1999).
40. That is, a difference is unconstitutional only when no mitigating rationale is conceivable and also a reasonable grace period for redrawing districts elapsed since such a gross difference had realized.
41. Shimizu v. Osaka Election Comm'n, 37 MINSHŪ 345 (Sup. Ct., G.B., Apr. 27, 1983). Prefectures are administrative units similar to French départements. About half of councillors are elected from the same geographical areas as prefectures.
42. 50 MINSHŪ 2283 (Sup. Ct., G.B., Sept. 11, 1996). However, the Court held that a reasonable grace period for redrawing districts had not elapsed.
43. Sato v. Japan, 39 MINSHŪ 1512 (Sup. Ct., 1st P.B., Nov. 21, 1985).
44. Art. 49 (2). The decisions explained in the text are in response to the government's failure to resurrect and implement the postal voting system at elections from 1951 to 1974.
45. Supplementary Provision, art. 8. That is, nationals overseas could not vote for single-member elections for the House of Representatives nor for councilors elected from prefectures.
46. 59 MINSHŪ 2087 (Sup. Ct., G.B., Sept. 14, 2005).
47. See Hasebe, Rights of Corporations, supra note 15.
48. Arts. 21-21.3 of the Political Funds Control Act. While this act was first enacted in 1995, the legal situation regarding contributions by corporations has not changed much since 1960s.
49. Arita v. Kojima, 24 MINSHŪ 625 (Sup. Ct., G.B., June 24, 1970).
50. This rather dubious image of democratic process is reasonably incongruent with the conception of pluralist democracy that I suspect the Court embraces. See note 38 and accompanying text, infra.
51. MINSHŪ 615 (Sup. Ct., 3d P.B., Mar. 19, 1996).
52. Yasuo Hasebe, Constitutional Borrowing and Political Theory, 1 INT'L J. CONST. L. (I CON) 236-240 (2003).
53. JOHN HART ELY, DEMOCRACY AND DISTRUST (Harvard Univ. Press 1980)
54. Cf. PAUL P. CRAIG, PUBLIC LAW AND DEMOCRACY IN THE UNITED KINGDOM AND THE UNITED STATES OF AMERICA (Clarendon Press 1990), chs. 3 & 4.
55. Umehara v. Japan, supra note 9 (regulation prohibiting a new pharmacy near existing stores of the same trade struck down as insufficiently related to its purpose of protecting public health).
56. 26 KEISHŪ 586 (Sup. Ct., G.B., Nov. 22, 1972) (regulation prohibiting against newly setting up a marketplace for small retailers upheld as rationally related to its purpose of protecting retailers from excessive competition).
57. Cf. Mutsuo Nakamura, Freedom of Economic Activities and the Right to Property, in JAPANESE CONSTITUTIONAL LAW 225 (Percy R. Luney & Kazuyuki Takahashi eds., Univ. Tokyo Press 1993).
58. Yasuhiro Okudaira points out that the regulation limiting entry of new pharmacy stores, struck down in Umehara v. Japan, supra note 9, was actually introduced in response to the demand to protect the interest of existing pharmacy stores.
59. See YASUHIRO OKUDAIRA, KENPO SAIBAN NO KANOSEI [POSSIBILITIES OF CONSTITUTIONAL ADJUDICATION] 103-104 (Iwanami Shoten 1994).
60. Sato v. Japan, supra note 29
61. 51 MINSHŪ 3850 (Sup. Ct., 3d P.B., Sept. 9, 1997).
62. Cf. Hasebe, supra note 38, at 239-240. Hans Kelsen argues that we cannot recognize definite answers to moral questions.
63. See HANS KELSEN, What is Justice, in WHAT IS JUSTICE 24 (Univ. California Press 1957). It may not be coherent for academics to demand of the Court that it realize deliberative democracy while they themselves adhere to a relativistic idea of democracy.