Supreme Court of Japan
| Supreme Court | |
|---|---|
| Tối cao trọng tài sở | |
 Supreme Court building | |
 | |
| 35°40′49″N139°44′37″E/ 35.68028°N 139.74361°E | |
| Established | May 3, 1947 |
| Location | Chiyoda-ku,Tokyo |
| Coordinates | 35°40′49″N139°44′37″E/ 35.68028°N 139.74361°E |
| Composition method | Selected by theCabinet of Japan |
| Authorized by | Constitution of Japan |
| Judge term length | Mandatory retirement at age 70 |
| Website | Supreme Court |
| Chief Justice | |
| Currently | Saburo Tokura |
| Since | June 23, 2022 |
TheSupreme Court of Japan(Tối cao trọng tài sở,Saikō-Saibansho,calledTối cao tàiSaikō-Saifor short),located inHayabusachō,Chiyoda,Tokyo,is thehighest courtinJapan.It has ultimate judicial authority to interpret theJapanese constitutionand decide questions of national law. It has the power ofjudicial review,which allows it to determine the constitutionality of any law or official act.
History[edit]
The modern Supreme Court was established in Article 81 of theConstitution of Japanin 1947.[1]There was some debate among the members of theSCAPlegal officers who drafted the constitution and in theImperial Dietmeeting of 1946 over the extent of the power of the judiciary, but it was overshadowed by other major questions about popular sovereignty, the role of the emperor, and the renunciation of war.[2]Although the ratified wording in Article 81 states that the court possesses the power ofjudicial review,a part of the court's early history involved clarifying the extent of this power.[1]In 1948, the court declared that the constitution meant to establish the type of judicial review that waspracticed in the United States.In 1952,[3]the power, as the Court held,[4]was clarified to apply only in cases with a concrete case.[1][5]
In the 1960s and 1970s, the Supreme Court experienced a "judicial crisis" between older judges and generally younger, liberal judges.[6][7][8]For example, there was controversy when some judges in lower courts were seen as frustrating the implementation of ordinances that would limit anti-government demonstrations.[6]In 1971, the Supreme Court deliberately did not reappoint assistant judge Yasauaki Miyamoto, who participated in a legal organization associated with left-wing ideological leanings.[7][9]This "Miyamoto Affair" resulted in significant media coverage and protest by other judges.[9]Since then, no judge has failed to be reappointed.[9]Ultimately, the court was reshaped during the 1960s and 1970s to become more conservative, with more representation among the justices from lifetime government employees, which resulted in decisions that tended to limit free expression and public demonstration.[6]
Powers and responsibilities[edit]
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Article 81 of the Constitution of Japan defines the Supreme Court as acourt of last resortand allows it to conduct judicial review through "the power to determine the constitutionality of any law, order, regulation or official act".[5]In its first role as a court of last resort, the Supreme Court hears civil, administrative, and criminal cases appealed from lower courts.[5]This responsibility and the inability to apply discretion in the appeals it hears results in civil and criminal appeals being a significant majority of its caseload.[5][10]In its second role, the Supreme Court can exercise its power of judicial review when a concrete legal dispute involving a violation or misinterpretation of the constitution is appealed.[5][11]
The Supreme Court also manages the operation, budget, and personnel of all of Japan's courts.[12][13]Decisions are made by a regular Conference of the Justices in the Supreme Court and implemented by the Administration Bureau of the Supreme Court.[12]The Chief Justice of the Supreme Court, through the office of the General Secretariat, also has extensive control over judicial personnel, including judges.[8][14]This includes the ability to determine posts of judges, which has a significant impact on their careers and advancement opportunities.[14]The Supreme Court also oversees theLegal Research and Training Institute,which prospective legal professionals who have passed the National Bar Examination are required to attend to receive practical training.[13]
Use of judicial review[edit]
Although the Supreme Court has established the power to strike down legislation that is unconstitutional, it has used this power extremely infrequently.[15][16]By a simple numerical count, the Supreme Court struck down only eight laws on constitutional grounds over a period of six decades, during which the GermanFederal Constitutional Courtstruck down over 600, theUnited States Supreme Courtover 900, and theIndian Supreme Courtover 2600.[16]Furthermore, in at least one case where a constitutional violation was found, regarding election district apportionment, the court has been unable to achieve compliance with its ruling.[16]
Observers have proposed several possible reasons for this. One critical view is that the membership of the Supreme Court is influenced by the political dominance of theLDP,and therefore is less likely to challenge legislation produced by aligned politicians in theNational Diet.[16][17]There could also be the desire to maintain good relationships with judges in theMinistry of Justiceor other departments.[15]Another critical view is that the court functions like a bureaucracy, with a conservative leadership promoting like-minded judges that less likely to make significant decisions.[16][17]A historical perspective argues that the early judges were influenced by aMeiji Constitutionand German jurisprudence tradition that did not allow striking down unconstitutional legislation, and that over time this expectation resulted in a reluctance to act in politically sensitive cases to maintain judicial independence.[10]
One more favorable explanation is the role of theCabinet Legislation Bureauin the legal ecosystem. The bureau is composed of senior bureaucrats and a minority of judges, some of whom go on to join the Supreme Court.[16]It has the responsibility of thoroughly investigating government legislation to avoid constitutional flaws.[15][16]Proponents of this view argue that this process prevents the need for the Supreme Court to frequently strike down legislation, as violations of the constitution are removed during the legislative phase.[8][16][18]
Composition[edit]
The composition of the Supreme Court is defined by the 1947 Judiciary Act.[10]The Supreme Court is composed of a Chief Justice and 14 other Justices. These Justices are divided into three PettyBenchesof five, which adjudicate most appeals. Questions of constitutional interpretation are adjudicated by the Grand Bench of all 15 Justices, of which nine are needed for aquorum.[11]
Associate Justices of the Supreme Court are both selected and appointed by theCabinet of Japan,but the Chief Justice differs in being appointed by theEmperor of Japan.[10]Justices are required to be over the age of 40 and possess an extensive knowledge of the law.[19]Unlike in other countries, Supreme Court judges in Japan are subject toretention elections,held concurrently with the first general election after their appointment. A judge is removed from office if a majority votes against them, but this has never happened.[5][20]A public review is stipulated to occur every ten years after appointment, but since Justices are generally appointed at age 60 or older andmust retire at age 70,there are effectively no second reviews.[8][20]
Particular to the Supreme Court of Japan is the uncodified custom of having seats of the court be allocated to different legal professions: career judges, private attorneys, prosecutors, academics and bureaucrats.[6]The numbers for each group have been subject to some variation, but overall have been remarkably stable since the court's inception.[6]
Building[edit]
The modern Supreme Court was first convened in May 1947 in the formerPrivy Councilquarters of theTokyo Imperial Palace.It moved to the Tokyo District Court building in September of that year.[21]It was intended to occupy the building of theSupreme Court of Judicature,the previous highest court during theImperial Japanera, but the building was largely destroyed in the war and had to be rebuilt. In October 1949, this reconstruction was completed and the Supreme Court of Japan would use the building for twenty-five years.[21][22]
In 1964, a plan for a new Supreme Court building was created. It was decided that the building should be created in a modern style, and that the design be selected through a public contest.[21]Of 217 submissions, one submitted through a joint effort of 17 people atKajimaled by architectShinichi Okadawas chosen.[21][23]Construction began in 1971 and concluded in 1974.[21][23]The new and now current Supreme Court building is located at 4-2 Hayabusa-cho, Chiyoda, Tokyo.[22]It is of steel-reinforced concrete construction, and makes ample use of Japanese white granite, just as the previous Supreme Court building did.[23][22]There are five floors above ground and two floors below ground.[23]
Justices[edit]
The current justices are:[24]
| Title | Name | Birth date | University | Background | Previous occupation |
|---|---|---|---|---|---|
| Chief Justice | Saburo Tokura | August 11, 1954 | Hitotsubashi | Judge | Associate Justice, Supreme Court |
| Justice | Mitsuko Miyagawa | February 13, 1960 | Tokyo | Attorney | Member, Dai-ichi Tokyo Bar Association |
| Justice | Akira Ojima | September 1, 1958 | Tokyo | Judge | President, Osaka High Court |
| Justice | Katsuya Uga | July 21, 1955 | Tokyo | Judge, Academic | Professor, University of Tokyo |
| Justice | Saburo Tokura | August 11, 1954 | Hitotubashi | Judge | Serving as Chief Justice |
| Justice | Yasumasa Nagamine | August 16, 1954 | Tokyo | Diplomat | Japanese ambassador to the United Kingdom |
| Justice | Mamoru Miura | October 23, 1956 | Tokyo | Prosecutor | Osaka High Public Prosecutors Office |
| Justice | Koichi Kusano | March 22, 1955 | Tokyo | Attorney | Managing Partner ofNishimura & Asahi |
| Justice | Ryōsuke Yasunami | April 19, 1957 | Tokyo | Judge | President, Osaka High Court |
| Justice | Kazumi Okamura | December 23, 1957 | Waseda | Civil Servant, Attorney, Prosecutor | Commissioner, the Consumer Affairs Agency |
| Justice | Michiharu Hayashi | August 31, 1957 | Tokyo | Judge | President, Tokyo High Court |
| Justice | Masaki Oka | February 2, 1956 | Tokyo | Attorney | Outside Director, Sumitomo Mitsui Banking Corporation |
| Justice | Takuya Miyama | September 2, 1954 | Tokyo | Judge | President, Tokyo High Court |
| Justice | Toru Sakai | July 17, 1958 | Tokyo | Prosecutor | Superintending Prosecutor, Tokyo High Public Prosecutors Office |
| Justice | Eriko Watanabe | December 27, 1958 | Tohoku | Attorney, Academic | Bar Examiner of the National Bar Examination Commission |
See also[edit]
- Chief Justice of Japan
- Japanese law
- Judicial system of Japan
- List of justices of the Supreme Court of Japan
- Politics of Japan
References[edit]
- ^abcOkudaira, Yasuhiro (1990)."Forty Years of the Constitution and Its Various Influences: Japanese, American, and European".Law and Contemporary Problems.53(1): 17–49.doi:10.2307/1191824.ISSN0023-9186.JSTOR1191824.
- ^Kawagishi, Norikazu (2007-04-01)."The birth of judicial review in Japan".International Journal of Constitutional Law.5(2): 308–331.doi:10.1093/icon/mom011.ISSN1474-2640.Retrieved2020-07-11.
- ^"Judgment concerning the question of whether, in the absence of a concrete case, the Supreme Court has authority to determine the constitutionality of any law or the like in the abstract (1952),".
- ^Holding of the 1952 case: "In the absence of a concrete case, the Supreme Court does not have authority to determine whether laws, orders, and the like are constitutional in the abstract."
- ^abcdefTadano, Masahito (2018). "The Role of the Judicial Branch in the Protection of Fundamental Rights in Japan". In Yumiko Nakanishi (ed.).Contemporary Issues in Human Rights Law: Europe and Asia.Singapore: Springer. pp. 73–90.doi:10.1007/978-981-10-6129-5_4.ISBN978-981-10-6129-5.
- ^abcdeRepeta, Lawrence[in Japanese](2011)."Reserved Seats on Japan's Supreme Court".Washington University Law Review.88(6): 33.
- ^abDanelski, David J (1974)."Political Impact of the Japanese Supreme Court".Notre Dame Law Review.49(5): 27.
- ^abcdFujita, Tokiyasu (2011-01-01)."The Supreme Court of Japan: Commentary on the Recent Work of Scholars in the United States".Washington University Law Review.88(6): 1507–1526.ISSN2166-8000.
- ^abcHaley, John (2002-08-22).The Japanese Judiciary: Maintaining Integrity, Autonomy and the Public Trust(PDF).Law in Japan: At the Turning Point, Seattle. Law in Japan: At the Turning Point.S2CID155394286.Archived fromthe original(PDF)on 2020-02-13.
- ^abcdMatsui, Shigenori (2011)."Why Is the Japanese Supreme Court So Conservative?".Washington University Law Review.Decision Making on the Japanese Supreme Court.88(6): 50.
- ^ab"Courts in Japan"(PDF).Supreme Court of Japan.2020.Retrieved2020-07-10.
- ^abChikusa, Hideo (1999)."Japanese Supreme Court - Its Institution and Background".SMU Law Review.52(4): 13.
- ^abKamiya, Setsuko (2008-09-17)."Supreme Court place of last judicial resort".The Japan Times.Retrieved2020-07-11.
- ^abRamseyer, J. Mark; Rasmusen, Eric B. (2006-06-01)."The Case for Managed Judges: Learning from Japan after the Political Upheaval of 1993"(PDF).University of Pennsylvania Law Review.154(6): 1879.doi:10.2307/40041354.ISSN0041-9907.JSTOR40041354.S2CID5791013.
- ^abcHasebe, Yasuo (2007-04-01)."The Supreme Court of Japan: Its adjudication on electoral systems and economic freedoms".International Journal of Constitutional Law.5(2): 296–307.doi:10.1093/icon/mom004.ISSN1474-2640.Retrieved2020-07-10.
- ^abcdefghLaw, David S (2011)."Why Has Judicial Review Failed in Japan?".Washington University Law Review.Decision Making on the Japanese Supreme Court.88(6).
- ^abKeiichi, Muraoka (2020-06-22)."Independence on the Bench: Political and Bureaucratic Constraints on the Japanese Judiciary".nippon.Retrieved2020-07-10.
- ^Satoh, Jun-ichi (January 1, 2008)."Judicial Review in Japan: An Overview of the Case Law and an Examination of Trends in the Japanese Supreme Court's Constitutional Oversight".Loyola of Los Angeles Law Review.41(2): 603–628.Retrieved13 February2019.
- ^"Court Act".1947-04-16. Archived fromthe originalon 2021-06-20.Retrieved2020-07-10.
- ^ab"Editorial: Review of Top Justices".Asahi Shimbun.2009-08-27. Archived fromthe originalon October 1, 2009.Retrieved2009-10-15.
- ^abcdeChân dung で thấy る tối cao trọng tài sở の 50 năm[50 years of the Supreme Court in photos](PDF).Supreme Court of Japan(in Japanese).
- ^abcĐệ 30 hồi ふたつ の tối cao trọng tài sở sảnh xá ｜ lộc đảo の quỹ đạo ｜ lộc đảo xây dựng kabushiki gaisha[The 30th Two Supreme Court Government Buildings | Kashima's Path] (in Japanese). Kashima Construction Co., Ltd. 2010-10-04.Retrieved2020-07-11.
- ^abcdQuan sảnh 営 thiện: Tối cao trọng tài sở sảnh xá - quốc thổ giao thông tỉnh[Government Repairs: Supreme Court Building-Ministry of Land, Infrastructure, Transport and Tourism].Ministry of Land, Infrastructure, Transport and Tourism(in Japanese).Retrieved2020-07-11.
- ^"Justices of the Supreme Court".Supreme Court of Japan.Retrieved2020-07-12.
Further reading[edit]
- Hiroshi Itoh.The Supreme Court and Benign Elite Democracy in Japan.London: Routledge, 2010.
