The Constitution states that all judges must exercise their conscience in an independent manner and be bound only by the charter and the laws of the land.
There are always suspicions, however, that judges are not immune from bureaucratic controls. The judicial bureaucracy is topped by the Supreme Court and its General Secretariat, which authorizes the promotion and transfer of all lower court judges.
The guardian of the Constitution, the top court is also labeled by some as a guardian of the establishment.
Improving the personnel system in order to ensure judges remain independent is thus one of the biggest challenges of the ongoing judicial reform drive.
The 15-member Supreme Court has remained a conservative bastion since Kazuto Ishida became chief justice in 1969, legal experts from across the political spectrum said.
Ishida was known for his hardline stance against liberal-leaning judges during a time when the court often fell into turmoil over cases pertaining to the activities of leftists.
He remained controversial even in retirement, uttering nationalistic remarks and leading a nationalist group.
In December, former Chief Justice Toru Miyoshi also became chief of a nationalist organization, the Japan Conference, which seeks to establish a new constitution based on the “historical and traditional ideal of the nation.”
Miyoshi’s reputation within legal circles, however, is that of an excellent bureaucrat. He rose to the Supreme Court via a series of esteemed positions, including a post at the court’s General Secretariat.
Many elite judges have followed a similar path in recent years. Current Chief Justice Shigeru Yamaguchi, who became a Supreme Court judge in 1998, is no exception.
Adaptability to the bureaucracy is a crucial feature of successful career judges, said lawyer Kenzo Akiyama, who served 25 years as a judge.
“A few young promising judges are picked and they get the logic of bureaucrats drummed into their heads at administrative posts in the General Secretariat,” he said.
The tendency of judges to maintain the political status quo is illustrated by a Supreme Court ruling on the election system for the House of Representatives.
In November 1999, the Grand Bench ruled as constitutional a situation in which the value of a vote in the nation’s least populated constituency is more than twice that of a vote in the most populated area.
The 14 Supreme Court justices who deliberated the case were clearly divided according to their career backgrounds.
All six career justices promoted from the lower courts decided that the disparity was constitutional, along with two former prosecutors and one who had been a scholar.
Four former lawyers and one former diplomat, on the other hand, disagreed.
The voting disparity is widely considered an advantage for the long-ruling Liberal Democratic Party, which tends to overwhelm opposition parties in rural regions but lose in urban constituencies.
Certain judges who are considered elite do not necessarily welcome the system of promotions. “Anyone who chooses this profession does so out of a desire to handle actual cases,” said a judge in the General Secretariat.
Some lawyers believe, however, that they have been treated unfairly in terms of postings because they challenged the establishment.
Haruhiko Abe, for example, spent most of his 36-year career as a judge at district and family courts, ending his time in the judiciary at the Hachioji Branch of the Tokyo Family Court in 1998.
He was never appointed as a presiding judge. Even when serving at family courts, he was never able to handle the juvenile crime cases he had hoped to.
Now a Tokyo-based lawyer, Abe used to be a leading member of the Japan Young Lawyers’ Association, a nationwide network of liberal-minded legal professionals also known as Seihokyo.
Judges who were members of the group were attacked by conservative politicians in the late 1960s and early 1970s, with some being offered promotion in exchange for leaving the group.
Abe believes that, as well as his loyalty to the liberal group, his rulings contradicting Supreme Court precedents led to his frustrating judicial career.
As the judge of a local temporary court in Wakayama Prefecture in 1968, he acquitted a local assembly candidate who had been accused of violating the Public Election Law. Abe ruled that the law banning visits to voters’ homes was unconstitutional, defying Supreme Court precedents.
Abe said he often clashed with investigative authorities by rejecting their requests for approval to detain suspects.
To this end, the Code of Criminal Procedure states that investigators must provide sufficient evidence to suggest a suspect may otherwise try to abscond or destroy evidence. In practice, however, courts rejected only 0.2 percent of suspect-detention requests in 2000, according Justice Ministry data.
When Abe rejected a detention request for a suspect who turned himself in to police after causing a traffic accident, he was reportedly yelled at by a prosecutor over the phone.
“What the hell are you thinking? Stay there, I’m coming over,” the prosecutor was quoted as saying, although he did not follow up on his threat.
Former Judge Akiyama said, “Judges (in the mainstream) seem to think of themselves as part of the nation’s security system.”
Many of Abe’s colleagues have struggled to achieve a more liberal-thinking court system, only to banished for the duration of their careers at small district and family courts.
For its part, the Supreme Court believes its personnel policy is justified.
“We have to distribute judges eligible to handle cases evenly to courts nationwide so we can provide people with the same service, whether in Tokyo or in other prefectures,” said Judge Yasuo Kanai at the personnel bureau of the Supreme Court General Secretariat.
He claimed that to ensure judges’ independence, the salary disparity among them is smaller than in other professions. This theory assumes that large salary incentives could provoke judges to compromise their neutrality.
Various factors, including the family circumstances of each judge, are considered in transfers, he added.
Responding to mounting criticism, however, the Supreme Court established a task force late last year charged with making personnel evaluation systems more objective and transparent.
These experts are now discussing the creation of evaluation standards, along with measures to address complaints from judges regarding postings. The task force is expected to compile a report to this end next month.
Critics maintain, however, that there will be little improvement unless the judicial bureaucracy is drastically reformed.
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