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Japan on just 10 judges a day costs a pretty penny

by Colin P.A. Jones

An interesting thing about Japan: For a country that supposedly hates litigation, it has a lot of courts. There’s the Supreme Court, eight high courts with six branches, 50 district courts (one for each prefecture, except Hokkaido, which gets four), a further 203 district court branches, 50 family courts — 203 branches for them, with an additional 77 branch offices and 438 summary courts. All told it amounts to a nationwide network of over 1,000 courts.

Another interesting thing: For a country with a lot of courts, Japan doesn’t have very many judges — 3,841 according to the most recent census published by the judiciary. This includes the chief judge of the Supreme Court, the court’s 14 other judges, the chief judges of the eight high courts, 2,035 judges, 877 assistant judges (those with less than 10 years’ experience) and 806 summary court judges. Of these, not all have even passed the highly competitive national bar exam; “summary court judge” is a separate category of bench-sitters whose ranks are open to judicial and Justice Ministry administrators with suitable experience. Such judges can only handle matters brought before summary courts.

Simply put, it looks like the nation has enough judges to hold an average of 10 trials a day with three to four judges posted to each court. But the reality is more complex. Serious trials require panels of three judges — sometimes more — and courts only operate on business days.

Some courts are more heavily populated than others: The Tokyo District Court alone has almost 500 judges. Branch courts in smaller cities may have only a single judge on staff (which limits the range of cases it can handle) or be served by a judge who visits occasionally from a larger court.

A certain number of judges are in managerial roles or otherwise doing things besides hearing trials. Some work in the administrative arm of the Supreme Court or lower courts, or as research judges or instructors for judicial personnel.

At any given time around 140 judges are actually on secondment to other branches of government. Most go to the Justice Ministry, where they may act as defense counsel for the government when it gets sued. Some go to other ministries. A few even end up in the Diet, helping prepare legislation or administering the judicial impeachment process. Isn’t separation of powers great?

The number of judges actually sitting in courtrooms and conducting trials and other judicial proceedings is thus rather smaller than their total population. Yet for a country with not a lot of judges, Japan still has a lot of legal proceedings. According to Supreme Court judicial statistics, in the 2016 operating year, Japanese courts cleared just under 1.5 million civil and administrative cases, about 1 million criminal cases, a similar number of family matters and 83,000 juvenile crime cases, adding up to a rough total of 3.5 million cases a year.

Not all of these “cases” involve full-blown trials. In fact, most don’t; the vast majority of criminal cases get resolved through summary proceedings, most family cases either involve court-sponsored conciliation or are effectively administrative proceedings, as are many civil proceedings such as bankruptcy cases. Nonetheless, if you take 3.5 million cases and divide it by, say, 3,500 judges, you get roughly 1,000 matters per year per judge — a pretty hefty docket.

A little help from their friends

How do they manage it? They get a lot of help; there are approximately 10,000 judicial clerks (shokikan) who play a key role in case management and documentation. Those with plenty of experience might well be called “magistrates” in that they effectively run some proceedings, such as bankruptcy and enforcement matters, where the need for formal judicial determinations of fact or law is limited. Some even end up as summary court judges.

In some family and civil proceedings, lawyers are also used as part-time “judges” (though they are not referred to by that term). Family and civil courts also rely on thousands of part-time conciliators from the neighboring community (including members of the local bar association) to help disputing parties arrive at mediated settlements. District courts also host labor tribunals that resolve labor cases using a mixed panel of a real judge and representatives of both sides of the employment relationship.

Still, most these proceedings are not “trials,” the right to which is supposedly guaranteed by Article 32 of the Constitution. In English, this bit of the charter appears to guarantee “the right of access to the courts,” but in Japanese it actually refers to “the right to a trial in a court.” That many cases are not actually trials is convenient because it means they can be resolved in closed proceedings (since constitutionally only “trials” must be conducted in open court) with fewer due-process protections.

Even when a case is or becomes a full-blown trial, it is not uncommon to hear lawyers complaining about judges cutting corners in civil cases to get them off their docket. This can often involve pressuring parties to settle. Some may be tempted to attribute this to cultural factors, but settlement is also just easier for judges — they don’t have to write a judgment or worry about being overturned on appeal.

Despite the Japanese government having pursued a deliberate and arguably disastrous policy of rapidly increasing the nation’s population of bengoshi trial lawyers — from 20,000 when the current qualification regime commenced in 2004 to 40,000 today — the number of judges has increased much less dramatically, having been about 3,350 at the start of the same period.

One might think that with twice as many lawyers and at least a modest increase in judges, there would at least be more litigation. In fact, there is less. In 2004 Japanese courts handled almost 3.2 civil and administrative cases and 1.6 million criminal cases. The only significant increase has been in family cases, of which there were only 700,000 in 2004.

The 1,000 cases per judge estimate given above for 2016 is still a large number. The same year, the chairman of the Japan Federation of Bar Associations issued a statement acknowledging the impact of the modest increase in judges but noted that still more were needed, particularly in the smaller courts and branches in rural areas, and that many judges were still tremendously overburdened.

So why don’t the courts hire more judges? This could be accomplished by appointing most or all judges from the ranks of lawyers in practice (as happens in the U.S.), a longstanding JFBA demand that the Supreme Court has resisted. But money may also be an issue.

A nice little earner

In fiscal 2017, the courts accounted for only 0.3 percent of the national budget. Yet 83 percent of this was personnel costs. Here’s where it gets interesting.

The chief judge of the Supreme Court is paid the same as the prime minister, reflecting the notional equality of the two branches of government. The top court’s 14 other judges are paid the same as Cabinet ministers. The chief judge of the Tokyo High Court is special, coming directly below on the payroll food chain, earning the same as the director general of the Cabinet Legislation Bureau, the most important nonelected executive branch post. The chief judges of the seven other high courts are one pay grade below that.

For most ministries, the official who is notionally most senior and gets the highest pay is the permanent secretary or jimujikan. In some ministries it is a bit complicated; the Ministry of Justice is in reality run by prosecutors, who have a higher retirement age than other public servants, so the ministry’s jimujikan is understood to be No. 4 in seniority and thus the salary tables. Similarly, in the Foreign Ministry, ambassadors have a higher retirement age and some may be senior to the jimujikan, which is often the post one gets before being appointed to the apparently more important role of U.S. ambassador.

With some exceptions, however, each ministry theoretically has one top dog — the jimujikan — who gets paid the most. How does this compare to judges? According to the home page of Osaka lawyer Satoshi Yamanaka (a fabulous source of information about the judiciary), about 160 judges receive salaries at the same level as permanent secretaries. This is in addition to the even more highly paid judges discussed above.

Cynical observers have suggested that virtually everyone in a senior judicial position may thus have a vested interest in not increasing the number of judges, lest it leads to unpleasant discussions about whether so many of them should be getting paid so much. The subject has been raised a number of times in the Diet.

There is also a fun conspiracy theory advanced by former Osaka High Court judge Teruo Ikata that for years the Supreme Court has been over-budgeting salaries for senior judicial salaries without actually paying the full amount to all of them and using the difference to create a massive slush fund. When this story broke a few years ago the Supreme Court denied it, of course, but also reportedly stonewalled when asked to provide detailed information on how many people are getting paid how much. The court website contains information about how much judges get paid at each salary band, but doesn’t mention how many are in each. Ikata challenged this rejection in an unsuccessful lawsuit.

It is an interesting theory, but just that — a theory — and as with any theory advanced by a lawyer, caveat emptor!

In any case, despite its sparse numbers, Japan’s judiciary seems to deliver good value. And acquire it, too.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.