The Supreme Court under the incoming new chief justice, Itsuro Terada, is urged to stand firm as the “court of last resort” empowered to determine the constitutionality of laws, as concerns grow that the top court’s decisions are belittled by lawmakers and criticism lingers that it tends to defer to political influences.
Terada, 66, will replace Hironobu Takesaki on April 1 in the first shakeup in the top court leadership in five years. The first postwar generation to take the helm of the Supreme Court, Terada has mainly handled civil cases as judge in local courts and as top court justice since 2010. He spent a large part of his career at the Justice Ministry, where he was involved in judicial system reforms including the 2009 introduction of the lay judge system.
The chief justice of the Supreme Court is appointed by the Emperor after being nominated by the Cabinet. In practice, however, the Cabinet has essentially followed the recommendation of the outgoing chief justice in the selection of the new chief.
There was speculation that Prime Minister Shinzo Abe might break the established practice by nominating a justice who shares his conservative views as the top court chief — just as he tapped a career diplomat as director general of the Cabinet Legislation Bureau last year in a suspected bid to pave the way for changing the government’s interpretation of the Constitution with the aim of allowing the nation to exercise its right to collective self-defense.
In fact, Terada is believed to have been handpicked by Takesaki, who cited health reasons for quitting four months before his scheduled mandatory retirement at age 70 — a move that some media reports speculated was aimed at forestalling political intervention in the selection of chief justice.
Under the constitutional separation of three powers — the administrative branch, the legislature and the judiciary — the Cabinet nominates the Supreme Court chief justice candidate and appoints 14 other justices of the top court. On the other hand, Article 81 of the Constitution states that the Supreme Court is “the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.” And Article 76 states that all judges “shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws.”
There often has been criticism that the Supreme Court is bound by political consideration and tends to give wide discretion to the opinions of government leaders and the Diet on issues of constitutionality of laws or government action.
The top court came under criticism from some quarters when it ruled that the gap in the value of votes between urban and rural constituencies in the December 2012 general election of the Lower House was “in a state of unconstitutionality” but stopped short of invalidating the poll result — in contrast to earlier high court decisions, most of which determined that the wide disparity in vote value was “unconstitutional,” including two rulings that invalidated the election outcomes. In the meantime, lawmakers have dragged their feet in implementing electoral system reforms that would fundamentally resolve the gap in the value of votes that the top court has repeatedly ruled as running counter to the principle of equality under the Constitution.
When the Supreme Court last September declared unconstitutional a Civil Code clause that denied full inheritance rights to heirs born out of wedlock, some conservative Liberal Democratic Party lawmakers openly challenged the top court ruling, calling it a wrong decision that would ruin Japan’s traditional family values, and resisted enactment of a Civil Code revision to give full rights to “illegitimate” children — as if they thought nothing of the top court’s final say in the judgment over the constitutionality of laws.
The Supreme Court must remain independent of any such political pressures or considerations and perform its duties to uphold people’s rights as stipulated by the Constitution.