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Three cases, three paths to legitimacy for Supreme Court

by Colin P.A. Jones

When I began studying Japanese, one of my goals was to be able to read the Nihon Keizai Shimbun, Japan’s version of The Wall Street Journal. Achieving that goal, however, meant realizing that it is possibly The Most Boring Newspaper on Earth.

My experience with Supreme Court of Japan opinions is similar: Having gotten to the point where I can sort of understand them, I often find myself disappointed by how sparse they seem in terms of reasoning and results.

The problem is mine; I am a U.S.-trained lawyer accustomed to heroic decisions like Brown vs. Board of Education, which signaled the end of racial segregation in America. Yet despite the current system having been designed during the U.S. Occupation, the Japanese judiciary has been more heavily influenced by continental European theories of jurisprudence, including on constitutional interpretation. As explained in a recent article by Shigenori Matsui, a leading constitutional scholar, “Many justices (on Japan’s Supreme Court) tend to view the Constitution not as law, but more as a political document stipulating political principles.”

This may not be an unreasonable perspective given that many of the rights enumerated in the charter are so vague (including rights to “life, liberty and the pursuit of happiness” and “minimum standards of wholesome and cultured living”) as to defy enforcement through litigation. Some provisions of the Constitution are thus regarded as legislative mandates rather than judicially enforceable rights. Since the Constitution also clearly designates the Diet as the “highest organ of state power,” the court is highly deferential to the legislative branch. Some might even call it timid in the exercise of its powers of constitutional review, given its tendency only to assert itself after the Diet has failed to address a problem for years.

On Nov. 20, the Supreme Court essentially declared the December 2012 elections that brought Prime Minister Shinzo Abe’s Liberal Democratic Party back into power to be unconstitutional, but not so unconstitutional as to be unconstitutional (OK, I’m paraphrasing a bit). Electoral malapportionment, or vote disparity — the problem of some Diet seats representing far more voters than others due to inequitably drawn electoral districts — has been a persistent thorn in the side of Japanese politics and jurisprudence — one that raises questions about the legitimacy of the government itself. Although a seemingly clear violation of the equal protection mandate in the Constitution, overweighting of rural votes — with some urban seats representing several times as many voters as rural ones — has long been one of the things that kept the LDP in power, giving them little incentive to pass laws apportioning seats more evenly.

The Supreme Court’s response to the problem has been several decades-worth of judgments nagging the Diet to fix it. These include rulings declaring apportionment schemes to be constitutionally problematic and even a couple declaring an election to be outright unconstitutional, though stopping short of actually declaring the election invalid. The Diet has sometimes responded to this badgering with remedial measures, though the remedies have not always been adequate and, in any case, population shifts and demographic changes mean the problem remains.

The November 2013 rulings on appeals from cases initially brought in high courts around the country (one of which resulted in a historic judgment that the elections in the relevant districts were void due to unconstitutional inequality) are thus just another round of this judicial hectoring. The opinions are over 40 pages long each, so I will spare you the details, not only because they are boring but also because, as any Japanese law student should know, you can’t truly understand a Supreme Court opinion just by reading it — you have to wait for the explanatory article that is usually published by whichever of the court’s elite research judges it was who helped the justices reach their decision!

Fortunately, the court has a practice of underlining what it considers to be the most important parts of its decisions, presumably so that annotators, scholars and students know which bits of text to quote or memorize. Despite their length, the only language that rated underlining in the November decisions reads as follows (my translation; the language from both cases is identical): “Although at the time of the election, the electoral districts established by the electoral regulations in question were in the condition of violating the constitutional requirement of equality in voting just as in the preceding election held in 2009, it cannot be said that the situation has not been remedied within the constitutionally required reasonable period, meaning such districting regulations cannot be said to violate Article 14(1) or other provisions of the Constitution.” See why I paraphrased earlier?

So the Diet has more time — the pleasantly vague “constitutionally required reasonable period” — to remedy voter inequality before the unconstitutionality really hits the fan. It may seem a tepid response to an obvious constitutional violation of the basis of democracy itself, but what else could the court have done? A ruling of outright unconstitutionality would affect the legitimacy of a government that may yet realize the LDP’s dream of amending the Constitution. Similarly, declaring the elections to be void on constitutional grounds would render both the Diet and the Cabinet illegitimate, leaving the nation without a lawfully constituted government.

The rulings were probably about as much as one could expect from the court given the circumstances. And we can probably look forward to more of the same when the Supreme Court rules on the challenges to the 2013 House of Councilors elections that are currently working their way through the lower courts.

A more interesting recent case was the court’s September decision finding unconstitutional a rule of inheritance in the Civil Code giving children born out of wedlock a lesser share of their parents’ estate than their legitimate half-siblings. In contrast to the recent election case, it is a historic ruling. It is only the ninth time that the court has found a statute to be unconstitutional. Moreover, for the first time the court has done so with the Civil Code, one of the oldest and most basic bodies of Japanese law, the family law provisions of which still contain provisions that discriminate based on birth, gender and marital status.

Yet the true significance of this case may not be in the court reaching the seemingly obvious conclusion that discriminating against people based on a status they are born into is wrong. Actually, this part of the decision was annoying to the American lawyer in me because of the way it dealt with what was likely a big hurdle to arriving at that conclusion: the fact that the court had previously found the same statutory provisions to be constitutional, in 1995. This was just six years before the death that started the long inheritance dispute leading to the September ruling.

Courts rarely admit mistakes, so it could not just say its 1995 ruling was an error; after all, it had been reaffirmed in subsequent challenges to the same inheritance provision, the most recent of which was decided by the court in 2009. Instead, the judges declared that Japan and the world had changed so much that what had been constitutional in 1995 no longer was. Doing so entailed a jumbled explanation that cited treaties prohibiting legitimacy-based discrimination to which Japan is a party, made largely unsubstantiated assertions about social change and increasingly diverse Japanese attitudes to family, and referred to various unsuccessful past efforts to amend the offending Civil Code. (Since parts of the Constitution are considered mandates to the Diet, “failure to legislate” is sometimes used as a basis for asserting constitutional violations; so citing “failed legislative history” actually makes sense.)

For those of us who want judicial opinions to contain a coherent “connected series of statements intended to establish a proposition” (to quote a Monty Python sketch), this part of the decision disappoints. Among other things, many of the treaties, changes and other factors cited by the court were arguably already applicable before 1995. But if one assumes the court started with its conclusion and came up with the rationale afterwards, it is again perhaps as much as one could expect.

Not being a common-law court, Japan’s Supreme Court is not bound by its own precedents in the same way as its American counterpart, leaving it with more freedom to pick and choose precedents that support a desired conclusion. In the inheritance case, the court not only ignored the rationale of prior decisions upholding the Civil Code provision, but actually cited the views of concurring and dissenting justices in those cases in support of its decision. The precedent the court relied upon most heavily dealt with another statute entirely, a provision in the Nationality Act that the court found unconstitutional in 2008 because of the way it treated illegitimate children differently in determining their eligibility for Japanese citizenship.

Despite issuing a historic ruling in the inheritance case, just three weeks later the court upheld the constitutionality of a statutory requirement that birth reports filed with government authorities indicate whether the child was legitimate or not. Even though the later case revolved around the same basic type of discrimination, none of the social changes, treaties or other factors that feature so prominently in the rationale of the inheritance case seemed to matter. The court justified its conclusion on the grounds that it was a mere notification requirement that was tied to a family law system still based on marriage and which treated the parent-child relationship differently depending upon the parents’ marital status. Invalidating a proviso in an inheritance statute is one thing; a frontal assault on the foundations of family law is probably more than could be expected of the court.

Does this latter case mean that the seemingly progressive inheritance case was just an anomaly for an otherwise consistently conservative court? I think not. In the inheritance case opinion, two sections are underlined. The first is the declaration that the statutory provision is void. The second is what may prove to be the more significant aspect of the judgment: language stipulating that the holding does not affect other estates already settled in court.

Why is this significant? It is the first instance of the Supreme Court issuing an unconstitutionality ruling fine-tuned to give it limited effect. In prior cases, some justices opined that the discriminating inheritance provision was probably unconstitutional but invalidating it would potentially cause countless estate settlements to be reopened. This is essentially the same concern that has kept the court from invalidating elections in malapportionment cases: It would cause a giant mess.

The inheritance case shows the court honing its powers of judicial review into a more precise tool — one that can be used more surgically, and perhaps more assertively, in the future. While it was not used in the election case two months later, in future it should make it easier for the court to find laws unconstitutional without causing a mess. If it does so in a way that strengthens the protection of constitutional rights in Japan, the decision could result in the court’s own legitimacy being enhanced.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Law of the Land appears on the third Thursday of the month. Comments: community@japantimes.co.jp

  • akelo

    Dear Professor Jones,
    Thank you for this interesting article. Greetings from “a small employee in a big court in Europe”