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At the polls, a sweep for Abe and a rubber stamp for Japan’s Supreme Court judges

by

Contributing Writer

Rather than churn out yet another hand-wringing column about Prime Minister Shinzo Abe’s impressive ability to annoy progressive intellectuals by repeatedly winning elections, I thought I would write about the significance of something else that happened at last month’s polls: retention elections for seven of Japan’s 15 Supreme Court judges.

It’s a little-known fact that as well as deciding who will represent them in the Diet (and which single-seat losers will join them courtesy of proportional representation), voters are also empowered to choose whether certain judges at Japan’s top court keep their jobs.

Ready? Here is what was significant about those contests: nothing. They take place because of constitutional requirements but became empty formalities long ago.

Voter ratification of judicial appointments is an American innovation, introduced in some states as a middle ground between the monarchical tradition of appointing them and the possibly worse practice of choosing them through direct elections. California was the first state to try them in 1934, but their origins are more commonly associated with the system adopted by Missouri in 1940. By the time the Japanese Constitution was drafted in 1946 during the Allied Occupation, judicial retention elections were still a new, trendy American thing that got included as a requirement, though one applicable only to the Supreme Court.

Fourteen of the fifteen judges on Japan’s highest court are appointed by the Cabinet, while the chief judge is appointed directly by the Emperor. Article 79 of the Constitution requires the appointment of each judge be “reviewed” by the people at the time of the first House of Representatives election following their appointment.

The last House of Representatives election was in 2014. That seven judges were up for retention in last month’s poll means almost half of the court’s current members were appointed quite recently. This is not unusual; at the 2012 election 10 judges were up for retention. These numbers reflect the high rate of churn at the court, which helps keep its members largely anonymous to the public and the retention elections inconsequential.

Filling the quota

By law, Supreme Court judges must retire at the age of 70. They must also be at least 40, but the minimum age has never been an issue: The youngest age of any appointee ever was 51, and since 1964 all of have been in their 60s, usually their mid-60s. This means they spend four to seven years on the bench and then they are gone. Another constitutional requirement — that top judges go through a second retention election 10 years after the first — is thus even more meaningless; the last time such an election was held was in 1963.

Beyond specifying the age range, the Court Act mandates that appointees to the Supreme Court be “learned persons with extensive knowledge of law.” Passing the bar exam is not an absolute requirement for the top court, but the act does requires at least 10 of the 15 to be suitably experienced former judges from lower courts, prosecutors, attorneys or law professors.

There has long been an informal allocation of seats among the legal system stakeholders resulting in six seats going to ex-judges, four to attorneys, two to former prosecutors, one to a legal scholar and two to former bureaucrats, one of which is usually a former Foreign Ministry official, so there is always someone with a background in international law on the court.

While having six appointments from the judiciary makes sense, those who make it through this route often have less trial experience than many of their peers. The Supreme Court is essentially another ministry, one responsible for administering the nationwide court system. Before the current Constitution imposed formal separation of powers and judicial autonomy, this role was performed by the Ministry of Justice.

Today, even for judges, being an administrator — either at the Supreme Court or as the chief judge of the Tokyo High Court or other important court — is more likely to lead to a seat on the Supreme Court than decades of experience in deciding trials. Naoto Otani and Hiroshi Koike, two of the judges on the ballot last month who rose from within the judiciary, spent at least 20 years in Supreme Court administrative, research or training roles.

The chief judge of the court has always been an ex-judge, but even here the distinction is not as clear-cut as you might think. The current occupant of that seat, Itsuro Tatsuda, spent almost 25 years of his “judicial” career as a prosecutor on loan to the Justice Ministry and other executive branch agencies, before returning to the courts in 2007 for a couple of suitably prestigious “finishing” postings leading up to his appointment to the Supreme Court in 2010.

Controversial appointments

The informal allocation of seats on the court among legal system stakeholders may be problematic for various reasons, but it has helped keep the appointment process relatively nonpartisan. Recently, though, there has been growing concern that Abe’s administration is ignoring well-established precedent and using its powers to make more politicized appointments at a time when the court is already regarded by many lawyers and scholars as too pro-establishment.

For example, traditionally attorney slots on the court are filled from a list of nominees provided by the Japan Federation of Bar Associations, and usually alternate between a former chair of the Osaka or Tokyo bar associations (of which Tokyo has three). However, when a vacancy in one of these posts came up recently, the JFBA nominees were ignored in favor of Yasushi Yamaguchi, who spent most of his career as a criminal law scholar, working closely with the Justice Ministry. Though technically an attorney, he had only registered with the bar a mere six months before his appointment.

Another recent appointee, Katsuyuki Kizawa, has also been controversial. He was appointed from the ranks of attorney nominees to fill a vacancy in an “ex-judge” slot. He is also the first Supreme Court judge ever to have graduated from Tokyo’s Rikkyo University rather than the University of Tokyo or other similarly prestigious national or private universities.

More controversial is the fact that from 2013 until his appointment last year, he was on the board of governors of Kake Educational Institution and a former classmate of Kotaro Kake, its chairman, who happens to be an old friend of Abe’s. Allegations regarding Abe-driven favoritism of Kake in connection with school licensing grew into one of a series of scandals some say the prime minister called the election to obfuscate. Although the Kake connection is included in Kizawa’s bio on the Supreme Court website, it was not in the information provided to voters last month.

If you agree, do nothing

Another reason why these elections may seem pointless is that other than those who were attorneys or professors, most Supreme Court judges have spent the greater part of their lives as anonymous bureaucrats. It is thus difficult to figure out what they have done other than through Supreme Court decisions in which they participate in the years or months between their appointment and the election.

Even then it is hard to evaluate them individually unless they take the trouble to write separate concurring or dissenting opinions. For those elevated from the judiciary having been primarily administrators, it is not even possible to search case law databases for their decisions because they have authored few if any judgments of any significance.

The way votes are counted adds to the pointlessness. Voters are given a ballot with the names of the judges up for retention and asked to put an X next to the name of each one they think should be removed from his or her post. If the number of votes in favor of removal exceeds the votes in favor of retention, the judge is removed.

The problem is that you can’t affirmatively vote in favor of retention or even abstain even if you understand the process, which many people do not. According to one poll conducted last month, almost half of respondents indicated they didn’t know what to do so they simply left the judicial ballots blank.

However, any mark other than an X spoils the ballot, and blank ones are treated as votes in favor of retention. This is roughly analogous to treating blank ballots for the incumbent, which would be scandalous in other types of electoral contests. However, the questionable practice of treating silence as voter approval of the Supreme Court’s membership was upheld by … the Supreme Court way back in 1952.

Nonetheless, a small but significant number of voters still expressed their disapproval by X’ing some or all of the judges. Last month’s poll saw 7-9 percent of voters rejecting each judge on the slate.

In the past there have been campaigns to vote down specific judges, particularly those who have participated in judgments effectively condoning disparity in voter districts in past elections. This election there were predictable calls for Kizawa to be removed, but also chatter on social media against Saburo Tokura. Before his appointment, Tokura had been chief judge of the Tokyo High Court. In that capacity he issued a formal warning to another judge, Kiichi Okaguchi, ostensibly for posting on Twitter undignified pictures of himself appearing to be naked and in a bondage position. The author of a series of highly popular practice manuals, Okaguchi has a large Twitter following and uses social media to deliver witty commentary to his large body of followers on the foibles of the legal system and the government it upholds. (Okaguchi clearly has no aspirations to be on the Supreme Court).

Yet such campaigns barely seem to move the needle. Perhaps most Japanese people are happy with their top court. Or perhaps they stopped expecting much from it ages ago.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Send your comments and Community story ideas to community@japantimes.co.jp.