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Supreme Court, Abe battle over judicial independence

Moves to check each other are becoming fierce between Prime Minister Shinzo Abe’s administration and the Supreme Court. While the top court is eager to defend its position as the nation’s highest organ in matters related to the Constitution, the administration is trying to prevent the judiciary from opposing its controversial change in the interpretation of Article 9 so that Japan can exercise the right to collective self-defense. The Liberal Democratic Party is also a party to the battle.

The Supreme Court came to hand down harsh rulings on the disparity in the value of votes in national elections after the idea of creating a constitutional court that would directly rule on the constitutionality of bills or laws even without the filing of related lawsuits surfaced in the 2000s in the course of discussions in the Diet on the Constitution.

The latest example is the Supreme Court’s ruling last Nov. 25 that the single-seat constituency portion of the 2014 Lower House election was in a “state of unconstitutionality” since there was up to a 2.13-fold disparity between constituencies in the number of voters per elected official.

Speaking to reporters on Jan. 9, Toshihiro Nikai, the LDP executive council chairman and Abe’s right-hand man, complained that the judiciary is “causing political confusion by saying this and that, despite the constitutional provision that the Diet is the highest organ of state power.”

He remarks came when he was asked about reform to redress the inequitable apportionment of Diet seats. He also expressed displeasure at news reports that he said gave the impression the legislative branch was on its hands and knees before the judiciary concerning electoral reform.

While the Supreme Court can rule on the constitutionality of any law, it can do so only when litigation is filed. A constitutional court as mentioned in the course of the Diet discussions would have the power to pass its judgment on a bill even while it is being deliberated on in the Diet.

It is commonly accepted in legal circles that the Supreme Court is trying to apply pressure on the Diet over the apportionment issue to prevent it from working toward the creation of a constitutional court, since such a court could pose a threat to its own position.

During the 2015 Diet session, the possible unconstitutionality of the government-sponsored bills related to national security became a key issue. Those who opposed the bills renewed their attention to the idea of creating a constitutional court as they were frustrated by the Supreme Court’s inability to immediately pass judgment on the constitutionality of the bills.

Moreover, former Supreme Court justices criticized the Abe government’s new constitutional interpretation that allowed Japan to take part in collective self-defense. This led the administration to become more hostile to the top court. The development worked against the Supreme Court’s intention to strengthen its position.

The Supreme Court, which faced a head wind, could have expected support from legislators of both the ruling and opposition camps who used to be lawyers. But this did not work as Masahiko Komura, a former practicing lawyer and current vice president of the ruling LDP, led the move to change the interpretation of Article 9 concerning the right to collective self-defense.

The Supreme Court’s attempt to resist the administration was reflected in a supplementary opinion by Justice Katsumi Chiba attached to its Nov. 25 ruling on the apportionment issue.

Chiba, formerly a lower court judge, expressed hope that the legislature and the judiciary would fruitfully interact with each other so that the latter would not have to void election results. This opinion sounded like a threat from the Supreme Court that it can void election results anytime if lawmakers do not take appropriate steps to rectify the vote-value disparity.

The schism between the Supreme Court and the administration is also reflected in the top court’s ruling in December that upheld the civil law provision banning a married couple from using two different surnames but demanded that the Diet amend the provision to keep pace with social changes.

There used to be a tacit agreement that with regard to matters related to the family, including a call for allowing wife and husband to use different surnames, the legislature should cope with changes in society by revising relevant laws. In the lawsuits in which the plaintiffs demanded that married couples be allowed to use different surnames, the Supreme Court felt that it was forced to address the results of the Diet’s negligence over the matter.

In a 2013 ruling, the Supreme Court called for a revision of the Civil Code that discriminated against the inheritance right of a child born out of wedlock. But the Abe administration refused to amend the law, saying it would destroy Japan’s traditional family values.

The talk about a constitutional court was not the only factor behind the Supreme Court’s harsh stance in its ruling on the apportionment issue. Also playing a role is the top court’s distrust of the administration, which has accumulated over years because of its refusal to follow the judgment of the judiciary and to carry out necessary legal changes.

One of Abe’s major worries is a rush of lawsuits demanding that the security laws be judged unconstitutional. That is why he has, since returning to power in 2012, been pushing to get those who share his ideology onto the Supreme Court. He is likely to pursue this attempt further to forestall any chance of those laws being ruled unconstitutional.

Of the 15 Supreme Court justices, seven have been appointed since Abe came back to power. Itsuro Terada, formerly a lower court judge who was promoted to the position of chief justice in 2014, is reputed to be a “flexible administrator.” The Abe administration hopes that he will handle the change in the interpretation of Article 9 by departing from hard-and-fast rules. Since 2014, four justices have been appointed. Although they were from the same legal professions as their predecessors (three are former lower court judges and one is a former public prosecutor), it is said that they were not the favorites of the judiciary.

Three justices who have demonstrated a harsh attitude toward the Abe administration will retire in the next six months to two years. Abe has the power to name eight more justices between now and September 2018, which is the end of his present tenure as president of the LDP.

By their very nature, the three branches of government — legislative, administrative and judicial — are not on an equal footing. The judicial branch has long tended to gauge the feelings of the administration. But as Abe has stepped up his attempt to control the judiciary, the relationship of power between the administration and the Supreme Court has become distorted all the more, thus deepening the animosity.

Unless the separation of powers works in a healthy manner, the very foundation of democracy will be undermined. To avoid this danger, some have suggested that Supreme Court justices be appointed for life to strengthen the top court’s independence, instead of the present system of justices retiring at a certain age. But such a change would require amending Article 79 of the Constitution, which says that Supreme Court justices shall be retired when they reach the age fixed by law. Although Abe is determined to revise the Constitution, it is utterly unthinkable that he would agree to change that article.

This is an abridged translation of an article from the February issue of Sentaku, a monthly magazine covering political, social and economic scenes.

  • zer0_0zor0

    A highly problematic situation…

  • solodoctor

    Here in the USA it can be frustrating when the Supreme Court rules on the constitutionality of a law in a manner that goes against one’s particular values on a given issue. But generally it is good for democracy when the highest court in the land is independent of the executive and legislative branches. This is because the Supreme Court can provide a much needed brake to one or both of the other branches heading off in a direction that might bode ill for the country.

    This is especially true in the situation which Japan is in right now. Ie, when the chief executive and majority of the legislature are both in the same political party the risk of problematic, questionable policies becomes greater. The Court in such situations provides a much needed counter balance to prevent things from getting out of hand.

  • solodoctor

    Here in the USA it can be frustrating when the Supreme Court rules on the constitutionality of a law in a manner that goes against one’s particular values on a given issue. But generally it is good for democracy when the highest court in the land is independent of the executive and legislative branches. This is because the Supreme Court can provide a much needed brake to one or both of the other branches heading off in a direction that might bode ill for the country.

    This is especially true in the situation which Japan is in right now. Ie, when the chief executive and majority of the legislature are both in the same political party the risk of problematic, questionable policies becomes greater. The Court in such situations provides a much needed counter balance to prevent things from getting out of hand.

  • Firas Kraïem

    One can criticise the LDP all one wants, but the fact is that they win almost all elections, so like it or not, they are legitimate. Don’t want the LDP, don’t vote for them. Yes, I know the DPJ mostly didn’t deliver on its promises when it was in power, especially on the economy, but it is now apparent that the same holds for the LDP.

    • R0ninX3ph

      The LDP won power after winning less than 50% of the popular vote due to voter disparity between seats.

      In addition to that, voting in Japan being entirely optional tends to leave only those who actually follow politics (read: generally older Japanese) actually voting, and many young Japanese people are completely disenfranchised with politics and politicians that they don’t vote.

      Sure, not voting at all is just as bad, but, parties claiming mandates from the public when they do not even scrape through with even a majority in the votes actually put in at an election? Is ridiculous.