First of three parts
Staff writer Discontent with the judicial system among lawyers, politicians and businesspeople has prompted a Cabinet advisory panel to launch discussions aimed at giving the system its first overhaul of the postwar era.
Hiroshi Saito of the Japan Federation of Bar Associations judicial reform promotion office said a typical judge lives a life far different from the average salaried worker.
Judges usually live in a government apartment house designated for them, and commute to and from work without stopping for a drink or engaging in any other activity typical of Japanese salaried men, he said.
“They fear committing unethical acts or misdeeds, or simply don’t have enough time because they handle 200 to 400 cases a year on average,” Saito said.
Judges in Japan occasionally hand down rulings that defy common sense because they lack contact with the general public, Saito said. He stressed the need to promote the appointment of judges who have backgrounds as lawyers as part of a broader judicial reform movement.
Saito’s opinions are shared by many lawyers, politicians and business leaders, which has prompted the government to take steps.
In July, an advisory panel to the Cabinet launched discussions aimed at giving the judicial system its first postwar overhaul. The 13-member panel, consisting of academics, legal professionals, businesspeople and labor unionists, is to meet over the next two years to debate several issues, including encouraging practicing lawyers to become judges and establishing the participation of laypeople in the judicial system, such as via a jury system, which was used for a short time before being suspended during the war.
Under the current system, law students who pass the bar exam go through 18 months of training to become a judge, prosecutor or lawyer. After the training, they must decide which path to pursue.
Of the 729 trainees who completed the training this year, 549 chose to be lawyers, 97 opted to become judges and 72 to become prosecutors.
Those choosing careers as judges serve their first 10 years as assistant judges, then they go through the promotion process and also face transfer to courts throughout the country.
It is difficult for lawyers or prosecutors to change their field of expertise and become judges. Even under the current system, however, there is one avenue available for such change. In 1992, the national bar federation introduced a system in which they make recommendations to the Supreme Court regarding lawyers seeking judgeships.
Although 37 lawyers have made the change to the bench since the system was introduced, enthusiasm for the opportunity has been minimal. The change usually involves accepting a lower salary, giving up established clients and often a transfer to courts in remote areas.
Kazuyuki Tagawa, one of the few who made the change, said he believes judges who served as lawyers are more in touch with the public because they have had more experience dealing with people.
“I just believe more experience in a different field allows a broader perspective,” said Tagawa, 65, who served as a judge in Nara Prefecture for six years after a 31-year career as a lawyer. He has now retired from the bench and is working as a lawyer again.
But Takao Suami, a law professor at Waseda University, said the real problem with the system lies elsewhere.
“Lessen the authority of the Supreme Court, abolish assistant judges and ensure more freedom for judges as citizens. (That) is what this movement is all about,” said Suami, who once worked as a lawyer.
“The problem is that the Supreme Court monopolizes power over personnel administration,” Suami said. “If anyone attempts to contradict its view, then he or she could be denied pay raises or promotion, or simply be transferred to courts in a remote area.”
The top court also retains the power to approve the renewal of a judge’s status, which has to be made every 10 years.
To combat this situation, Suami proposed that authority over personnel matters be decentralized.
Wakayama District and Family Court Judge Toshihiko Morino said judges should have more freedom to voice opinions in public.
Although the Court Organization Law prohibits judges from actively participating in political movements to maintain their neutrality, they are not banned from joining nonpolitical groups.
But Morino — who recently made an unprecedented move to publish with his colleagues a book titled “Judges Speak Out!” — said there is tacit pressure from the Supreme Court.
“It takes a lot of courage for a judge to speak up in front of the public,” Morino said in a speech during a symposium in October to promote judicial reform. “Judges in general fear that the Supreme Court might discriminate against them over working conditions.”
But Tagawa is reluctant to place the blame solely on the Supreme Court.
“Judges have a deep-rooted desire to stay in line with others rather than to stick out,” Tagawa said. “This way of thinking is an obstacle to being independent and developing their individuality.”
Lawyers say judges were more outspoken before the early 1970s, when the Supreme Court’s general secretariat began to feel threatened by “radical” rulings handed down in lower courts that contradicted the central government’s position.
One historic ruling came in March 1959, when the Tokyo District Court said stationing of the U.S. military in Japan was unconstitutional. The ruling, however, was reversed by the Supreme Court.
Many lawyers say the Supreme Court apparently grew concerned that these rulings could breed public discontent with the government, and began to place the blame on a group formed by left-leaning judges opposing the 1952 Antisubversive Activities Law.
In January 1971, the Supreme Court’s judicial administration committee agreed in a majority vote that membership to this organization was not preferable for judges.
In March 1971, the Supreme Court refused to renew the assistant judge status of Yasuaki Miyamoto, who was a member of the the organization. This decision caused the bar federation to launch a protest claiming he was discharged due to his political beliefs.
In a recent move, the Sendai District Court issued a reprimand to Assistant Judge Kazushi Teranishi for addressing a public rally in April 1998 to protest legislation targeting organized crime, including the wiretapping bill.
Lawyer Saito also said assistant judges should be abolished, saying he doubts whether such inexperienced young judges can make sound judgments in a trial.
“My clients are surprised to see their trials examined by such young judges,” Saito said.
An official at the Supreme Court said lawyers are basing their criticism on their prejudice toward the court.
“I believe the whole judicial reform movement by lawyers is politically motivated,” said Hiroshi Koike, commissioner at the Supreme Court’s secretariat, noting lawyers are calling for a new system to allow more lawyers to become judges “merely to upgrade their social status.”
“It does not matter whether someone with lawyer experience is appointed as a judge as long as they hand down fair and just rulings,” he said. “It is far more important to consider how to speed up court proceedings and increase the number of judges who specialize in laws on bankruptcy and patents.”
Japan is notorious for trials that drag on for years before even a district court decision is handed down. Many lay the blame on the shortage of legal professionals. There are 2,919 judges and 16,853 lawyers in Japan, compared with 20,999 judges and 91,517 lawyers in Germany and 3,215 judges and 77,527 lawyers in Britain.
Professor Suami said he agrees with Koike on this point, but noted that court authorities alone cannot accomplish judicial reform because it has to involve a review of the Supreme Court’s power.
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