Article 11 of the Constitution says, “The people shall not be prevented from enjoying any of the fundamental human rights. These fundamental human rights guaranteed by this Constitution shall be conferred upon the people of this and future generations as eternal and inviolable rights.” The principle of guaranteeing basic human rights is known to all Japanese who have received elementary school education.

But would it be too much to say that these fundamental rights are not protected when it comes to enforcement of the Antimonopoly Law? Although the situation may not be an outright violation of the Constitution, rules and practices indeed exist that are hardly acceptable constitutionally.

First of all, the Fair Trade Commission is not required to obtain a court-issued search warrant when it raids company offices in antimonopoly investigations. Article 35 of the Constitution says investigative authorities must obtain a warrant issued by a judicial officer in order to search houses or offices and seize documents or other materials. The rule governing raids by the FTC runs counter to this principle.

The explanation given for this irregularity is that an FTC investigation is an “administrative procedure.”

However, the FTC, unlike other administrative bodies, is empowered to file a criminal complaint with relevant authorities. Documents seized in an “administrative” investigation by the FTC can be used automatically in criminal trials. Therefore, the rule of not requiring the FTC to obtain search warrants is hardly constitutional.

The second problem is that the right to remain silent, as guaranteed under Article 38 of the Constitution, is often not applied to people under investigation by the FTC. Here again, testimony obtained in the name of an “administrative” investigation can be automatically used in court.

The third problem is the way suspected antimonopoly cases are deliberated by the FTC. Currently, an FTC official will serve as the examiner — the equivalent of a prosecutor in a criminal trial — while the judge is played by another FTC official. This means the FTC plays the role of both judge and prosecutor.

People who disagree with an FTC judgment must file a lawsuit with a high court to pursue the matter. But the high court is supposed to adopt the evidence recognized in the FTC’s deliberations. In other words, the FTC deliberations effectively serve as a district court trial. Given such a state of affairs, I must say that the FTC’s deliberations are likely unconstitutional.

The Antimonopoly Law was introduced in Japan after World War II. It is all the more important today in a deregulatory environment and must be applied in ways that win people’s trust. To achieve that goal, the FTC should quickly amend the rules and practices mentioned above.

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