With holiday hangovers receding and a fresh year ahead, it’s the ideal time for a retrospective on the subject of “What did Japan’s Supreme Court do for us in 2015?” If anything, that is.
Before diving straight in, some basic knowledge about the nation’s top court might help. Depending on the context, people talking about the “Supreme Court” may mean one of several things. When lawyers or professors refer to it, they often mean not the actual court, but its bureaucracy, which administers the national judicial system. In fact, it sometimes helps to think of this Supreme Court as more of a “Ministry of Dispute Resolution,” but that is a subject for another day. That said, even when acting as a court, it can seem pretty bureaucratic in the way it arrives at decisions.
The court is also a court, of course. Actually, it is four courts that collectively make final decisions not only about constitutional matters, but also the entire corpus of Japanese law. First there are three Petty Benches comprised of five judges each, though one of these is the chief judge, who is often busy with nonjudicial duties. All fifteen judges may also sit as the Grand Bench.
Grand Bench proceedings are comparatively rare, usually happening just a few times a year — if at all — when the court deals with a new constitutional issue or at least considers overturning a prior constitutional precedent. Just an announcement that a Grand Bench will hear a case signals a possible change of direction in the court’s jurisprudence.
Petty Benches, by contrast, handle thousands of appeals a year, rejecting most with the judicial equivalent of a short-form letter. Despite the volume of appeals the Supreme Court handles, it only regards a small minority of its judgments significant enough to publish on its website. As of the first week of January, the Supreme Court had published 77 of the judgments it rendered in 2015, most very short, at five pages or less. (A number of years ago I made an information disclosure request to the Supreme Court regarding the formal guidelines used to decide which judgments to publish; the response was essentially “There are none.”)
So what were these cases about? Leaving aside the various corporate, tax and patent cases that I don’t want to read, let alone try to make interesting, here are what I consider the highlights:
First there were five Grand Bench opinions. Two were challenges to the validity of the 2014 House of Representatives based on disparities between the value of votes in different electoral districts. Keeping with past tradition, the court declared elections of that year to be sort of unconstitutional but not really unconstitutional. The court also upheld the requirement that spouses share the same surname, and found that a six-month prohibition on remarriage after divorce that applied only to married women was constitutional only for the first 100 days. It also changed a prior precedent on the method of calculating damages in employment-related tort cases in which payments are also received for the same injury through the worker’s compensation system.
With that out of the way, let’s look at some of the things the Supreme Court had a chance to do but didn’t in 2015.
• Take sides in the fight over the Isahaya Bay dike
Yet another environmentally destructive infrastructure project, the dike in Nagasaki Prefecture closed off a portion of the Ariake Sea for land reclamation. Conflicting litigation involving the fishing and farming communities in the affected areas resulted in the national government being subject to conflicting orders from two different lower courts: one to reopen the dike, the other to keep it closed, with both courts imposing fines for noncompliance. The Second Petty Bench left the government to its “damned if you do, damned if you don’t” fate.
• Find the death penalty unconstitutional
At least in the case of Tomohiro Kato, who in 2008 drove a truck into a crowd of pedestrians in Tokyo’s Akihabara district and then began stabbing random people, causing multiple deaths and injuries.
• Find a constitutional problem in that other election case
Namely, the one challenging inequitable allocation of seats in the Tokyo prefectural assembly — a case you almost certainly have never heard about.
• Object to jail employees refusing to let a lawyer give food to a detained client
Seriously, someone thought this was worth putting up on the website.
• Accept that the constitutional guarantee of freedom of expression and public trials meant there is a right to see the records of confirmed criminal cases
That’s right, in Japan there is no right to actually see the written judgment in any criminal case other than those that are published (and most aren’t). By law, the prosecutors keep those records and you have to ask their permission to see them, and they can refuse for all sorts of reasons (see next case).
• Force disclosure of the location of illegally dumped Fukushima waste
In 2014, the president of a “consulting company” was convicted of illegally dumping 310 cubic meters of radiation- contaminated wood waste from Fukushima Prefecture along a riverbank in Shiga Prefecture. The representative of a citizen’s group applied to look at the trial records from prosecutors, with mixed results. The Third Petty Bench made the Solomonic decision that even though the representative was not entitled to request review in the first place, access should be given to certain records, so long as they didn’t identify where the contaminated wood had been dumped or how it got there. Because sort of disclosure might inconvenience a lot of people (really!).
• Overturn Nationality Act provisions that deny citizenship to persons born to Japanese parents abroad who failed to file a reservation of nationality for them within three months of birth
Because the government apparently has a rational basis for discriminating against people whose parents should have known better.
So what did the Supreme Court do that was significant? My first pick would be:
• Overturn an appellate court’s granting of a detention warrant that was based partially on the grounds that the statute of limitations on the crime being investigated was about to run out
Nothing illustrates the confession-obsessed Japanese criminal justice system better than a trial court ruling in favor of police and prosecutors who had effectively realized “Uh-oh, the statute of limitations is about to run on that crime we haven’t been investigating very rigorously, so we better lock the suspect up and make him spill his guts so we can prosecute him before it’s too late.” To its credit, the Supreme Court found that a statute of limitations being about to expire was inadequate grounds for approving pre-trial detention. But it also rejected the appellant’s constitutional arguments because, well, why set a precedent when you don’t have to?
Beyond that, the following accomplishments might also be noteworthy:
• Upholding a high court’s vacating of a death penalty imposed by a panel of lay judges
The lay judge system is supposedly about involving citizens in criminal trials, but sometimes the amateurs get it “wrong”. Decades of court practice have established unofficial rules about sentencing, one of which is that you are only supposed to give the death sentence to someone convicted of multiple homicides. The defendant in this particularly case only killed (and robbed) one person. After being released from prison. For a double murder.
OK, so that’s a little confusing, but giving defendants (those who confess, at least) the benefit of the doubt is what courts are supposed to do. Some observers have suggested that since the lay judge system operates in a way that allows death sentences to be imposed even though a majority of lay judges are opposed to it, the Supreme Court result is actually not unreasonable.
The most noteworthy thing about this particular decision may be the long concurring opinion by one of the judges, which seems to say: “Just because their decisions get overturned on appeal, doesn’t mean that the lay judge system is a meaningless waste of everyone’s time — really!”
• Holding that survivors of the Hiroshima atomic bombing are entitled to compensation for medical expenses incurred outside of Japan
The law establishing the certification and compensation system for hibakusha (atom bombing survivors) is silent on where medical expenses eligible for compensation can be incurred. (As many Japanese laws do, the statute in question assumes that the Rest of the World simply does not exist.) That being the case, it was wrong for the Osaka prefectural government to deny the requests of survivors now living and receiving medical care in South Korea.
• Fixing traffic tickets
The Second Petty Bench managed to find time in its busy schedule to reach down and absolve defendants of traffic violations in two separate cases, one involving a procedural violation in a ¥7,000 fine for not stopping at a stop sign (like people actually do that!). I kid you not.
Now, for comparative purposes, it is worth noting that a man named Iwao Hakamada was released from detention in 2014, almost five decades after being arrested, coerced into confessing, convicted and sentenced for a murder he didn’t commit — all despite numerous evidentiary problems and grave doubts about his guilt, including on the part of the judge who felt compelled (by peer pressure or something) to sign his death sentence.
Decades of repeated appeals to the Supreme Court and other courts were fruitless, earning Hakamada a place in the Guinness Book of World Records for the longest time spent on death row. This seems par for the course in a growing number of well-documented cases of false convictions that the Supreme Court has been seen to play little, if any, role in mitigating. But if there is a procedural error in your moving violation, the court is there for you.
So, if I had to choose any cases that are most symbolic of the court’s actual impact on the nation this year, it would be these two traffic cases. More than anything else, I think they symbolize the court and the limited impact it has on what goes on in the country. Collectively, the above decisions suggest a well-intentioned group of people fiddling around diligently at the margins, trying to bring justice when it can, but without inconveniencing anyone along the way.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Your comments and story ideas: firstname.lastname@example.org