It is common to talk about how few trial lawyers Japan has compared to many other countries. What is interesting is the mechanisms that exist to make them unnecessary.

Take the simple act of threatening someone (legally). In America, if you want to do this the best approach is probably to hire a lawyer to send a nasty letter. You could write such a letter yourself, of course, but nothing says “I am so upset I might actually sue you” like a missive on law firm letterhead.

In Japan you can send the same message without hiring a lawyer. Just go to a decent-sized post office and say you want to send a naiyō shōmei (or stay at home and do it over the Japan Post website). Meaning “contents certified,” naiyō shōmei is a particular type of letter sent to its target by special delivery. A copy is retained at the post office for five years, meaning it confirms that on a specific date you sent so-and-so a notice containing objectively verifiable contents. A naiyō shōmei says you care — care enough to start creating evidence.

This is just one way in which the postal system plays a quiet but important role in the Japanese legal system. I was reminded of this by the passage of another Sept. 11, an important date for world history, of course, but also the anniversary of the Japanese Supreme Court ruling (in 2002) that postal workers were not immune from liability for negligence. Did that make you spit out your coffee? We comparative law people are just in it for the adrenaline.

But wait, the description I just gave is rubbish. What the court actually did was find unconstitutional those parts of the Postal Act that made the state immune from most claims of damage resulting from the negligence or intentional acts of postal employees. This was before the saga of post office privatization that resulted in three new companies having their shares listed for trading around this time last year, back in the days when postal workers were still public servants.

This was also only the sixth time in half a century that the court had found a statutory provision unconstitutional. By now we are up to 10 instances, which is still few enough that you can briefly summarize every single instance of the judicial branch putting its foot down without boring everyone rigid (maybe; invite me to a cocktail party and find out).

Post office shielded from redress

Anyway, the case originated in mundane business litigation. A plaintiff got a court order seizing funds in a defendant’s bank account. The order was supposed to have been delivered to the bank by special registered mail, which means a mail carrier showing up at your door, getting confirmation of delivery and so forth.

Instead, an unnamed postal worker simply bunged this particular piece of official mail into the bank’s P.O. Box, possibly because it was conveniently located inside the post office. As a result, it took a while for anyone at the bank who mattered to realize they were supposed to freeze the account, by which time the defendant had emptied it, leaving a very unhappy plaintiff.

This is the type of tort case where the damages suffered due to negligence would normally be easy to ascertain, i.e., the amount of the money in the account that should have been frozen. The plaintiff sued the state.

Article 17 of Japan’s Constitution mandates that “every person may sue for redress as provided by law from the state or a public entity, in case he has suffered damage through (the) illegal act of any public official.” (Note: “tortious” would have been a more accurate rendering than “illegal,” but whatever).

Now I am paraphrasing and oversimplifying slightly, but what the law in question — the Postal Act — actually said at the time was: “In this particular case you don’t get any meaningful redress.” The general rationale for this rather severe limitation on a constitutionally guaranteed right of compensation was (and still is) articulated in Article 1 of the Postal Act, which declares its purpose to be “promoting public welfare by providing a postal service at as low a price as possible, universally and fairly.”

The limitations on tort liability were thus supposedly part of a trade-off — cheap universal postal service in exchange for immunity from most lawsuits. This all sounds very convincing so long as you shut off that part of your brain trying to remind you that Japan has all sorts of things that manage to be reasonably priced and widely available on a commercial basis without giving a free pass to negligent twits. Moreover, if you have ever repeatedly had letters containing checks you are trying to send abroad returned for insufficient postage because your local post office does not know its own postal rates (as I have) you may actually want recourse to more than fine-sounding statements of principle. Not that the court’s decision would have helped me, since they only really found the Postal Act limitation on liability unconstitutional as to registered special delivery, as will be explained shortly.

Supreme Court defers to the Diet

I suspect that in the same way that some American literature professors eagerly awaited Harper Lee’s second novel after “To Kill A Mockingbird,” by the time the postal negligence case rolled around, Japanese constitutional scholars were probably happy for any ruling that gave them something new to write about. And perhaps looking at it from a particular angle made it possible for some to even get excited about it; but then a frosty glass of baboon sweat would probably seem pretty refreshing if you had just staggered through the desert for a couple of days. Perspective is everything.

Bear in mind that at this point in the court’s history its oeuvre of finding statutes unconstitutional consisted of: two cases about malapportionment of votes, where it found the scheme of allocating Diet seats unconstitutional but didn’t actually do anything about it; striking down a prohibition on separating jointly owned forest rights; nixing restrictive pharmacy licensing regulations; and its very first “heroic” decision as a constitutional court — invalidating a penal code provision punishing the murder of “lineal ascendants” (parents and grandparents) more severely than other types of homicide. Maybe postal negligence liability was just fated to be the next random thing on the court’s resume.

Why are there so few cases like this? The simple answer is that the Supreme Court is very deferential to the legislative branch. Perhaps that is as it should be given that, according to the Constitution, the Diet is the “highest organ of state power” and the “sole law-making organ of the state.”

American observers in particular seem to find it abnormal how rarely Japan’s top court overturns statutes. Yet the American system of allowing thousands of hours of legislative research, drafting and debate by democratically elected representatives to be rendered moot by a bare majority of politically-appointed Supreme Court justices with life tenure might also seem kind of crazy.

That said, Japan’s Supreme Court may be a bit too eager to rubber-stamp laws that seem to conflict with fairly clear constitutional mandates. Over the years it has developed a number of techniques for doing so. One is to apply what in the U.S. system would be called “rational basis” scrutiny to just about everything the Diet does. In other words, if there are public-interest-based and therefore rational grounds for a law that seemingly limits rights or freedoms ostensibly protected by the Constitution — allowing someone to be locked up for weeks before they are even charged with a crime, for example — it’s probably still OK, and the person challenging it has the burden of proving it’s not.

A related technique is to read constitutional provisions that seem to protect rights as grants of legislative discretion rather than restrictions on that same discretion. The Supreme Court said as much in the postal negligence case, declaring that “the Constitution … left to the legislature the policy decision as to the types of acts and conditions resulting in the state or local governments being liable.” Really? Go back and read Article 17 again (or look at it in Japanese if you can) and see whether you can make “every person harmed is entitled to compensation” into a grant of legislative discretion. (A couple of Supreme Court judges wrote separate opinions complaining about this interpretation, so it’s not just me.)

Constitutional until it hurts us

Anyway, with the court having been so accommodating to the Diet over the decades, a reasonable person might wonder why it roused itself from jurisprudential torpidity to make a stand on postal tort liability, of all things. The reason is related to the opening theme of this column: the role of the mails in the legal system.

A basic requirement of any civil justice system is that a person against whom a lawsuit is initiated be given notice and the opportunity to participate in the proceedings. In the United States the plaintiff is generally responsible for giving that notice to the other side. While the mails can be used to “serve process,” if the defendant shows up late and says they never got the letter, it can cause delay and consternation. For that reason, “personal service” — personally handing the summons and complaint to the defendant (ideally with pictures or video) is the preferred method for starting a lawsuit in America. The business of process keeps thousands of people employed and, among other things, is the premise behind “Serving Sara,” an unwatchable (trust me) movie starring Matthew Perry and Elizabeth Hurley.

By contrast, in Japan the courts are responsible for serving process and do so primarily through the postal system. The registered special delivery that was botched up and resulted in the Supreme Court case was thus part of a system embedded in Japanese court procedural rules.

In other words, as far as the Supreme Court was concerned, it was all very well for the Diet to exercise its legislative discretion to limit the rights of the people supposedly guaranteed by the Constitution, right up to the point where doing so impacted the ability of the courts to do their job. Mail sent by courts was unique and needed to be sent properly. Excusing the post office for the negligent handling of this particular type of mail exceeded the Diet’s legislative discretion and was thus unconstitutional. This is literally part of the court’s reasoning.

In short, the court probably cared about this particular statute because its own interests were at stake. To me it illustrates a basic fact of life in Japan, and possibly elsewhere: that whatever the law actually says, it invariably ends up serving the needs of those who apply it. There’s some adrenaline for you.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Law of the Land usually appears on the second Monday Community Page of the month. Comments: community@japantimes.co.jp

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