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Fate of justices in voters’ hands

But little referendum fallout seen amid public ignorance

by Hiroshi Matsubara

In the shadow of intense campaigning for Sunday’s Lower House election, nine people are quietly waiting for voters to decide whether they deserve to stay in the nation’s top judicial posts.

Held simultaneously with the general election, the 19th national referendum on Supreme Court justices will ask voters to review the appointment of nine of the 15 on the bench, who were installed after the last Lower House poll, in 2000, to judge if they have fulfilled their roles as “guardians of the Constitution.”

The referendum is in keeping with Article 79 of the Constitution, which grants public control over the tenure of Supreme Court justices, who have the ultimate power to determine the constitutionality of any legislation or government act.

The article stipulates that the people should review the roster of justices at the time of the first general election of the Lower House following their appointment, and again at the time of another Lower House poll after a lapse of 10 years.

Voters can write an “X” in a blank box below the name of each justice if they favor dismissal, with justices who have been rejected by a majority of voters being axed. If voters leave the box blank or write in any other marks, it will be considered an indication of approval.

Supreme Court justices are nominated by the Cabinet, usually following a general election, and not by voters. The voters use the opportunity of the subsequent election to approve or disapprove of the justices via the referendum, upholding an essential pillar of direct civic participation in the government along with suffrage and voter eligibility.

But since the public in large part is perceived as having little knowledge of individual justices or of the justice system itself, the referendum has long drawn criticism for failing to serve its intended function.

Legal experts say the referendum should be changed to allow people to cast not just negative votes for dismissal but also positive votes to demonstrate their confidence in justices. This, they say, would make voters feel more pressed to assess the achievement of each justice.

Since the first referendum in 1949, 127 justices have been subjected to the public review, but not one has been dismissed.

In 1972, Justice Takezo Shimoda, a former ambassador to the United States at the time of the controversial extension of the Japan-U.S. Security Treaty in 1970, received a record rate of negative votes — 15.2 percent of the total — but nowhere near a majority.

For the past decade, the average disapproval rate for justices in the referendum has been around 10 percent.

In its final report in 2001, the Judicial Reform Council concluded that improving the system is essential to restore public confidence in the Supreme Court. It also urged a more transparent and objective initial justice appointment process by the Cabinet.

In March, the Judicial Reform Promotion Headquarters’ council on the justice system, which took over discussions on the issue, called for the Supreme Court and public election offices to provide voters with more information on the career history and previous judgments of the justices facing the referendum.

In response, the Supreme Court in May updated the profiles of each judge on its Web site with information on their hobbies, favorite books and proverbs.

Now the records of their past judgments can also be accessed on the Web.

The home affairs ministry also plans to put more information on justices up for referendum, along with their photographs, in documents distributed to local governments to publicize the process.

During the council’s deliberations in March, however, ministry officials reportedly said further efforts to publicize information on the justices are unnecessary, because such efforts should not be like election campaigns.

The ministry officials were also against giving people a chance to cast positive votes for justices, quoting a 1952 Supreme Court decision that ruled that the referendum is just a procedure for possible dismissal and that the current system is fully in line with the Constitution.

Lawyer Hideki Myoga, an expert on the issue, said the referendum should be redesigned to allow voters to express their views on whether they positively support justices, in order to make it better reflect the ideals stipulated in the Constitution.

“But even with such reforms, this referendum will not fully work unless the entire court process becomes more transparent and the judicial system becomes closer to the public,” he said.