The Judicial System

The Judicial System

In contrast to the prewar system, in which executive bodies had much control over the courts, the postwar constitution guarantees that "all judges shall be independent in the exercise of their conscience and shall be bound only by this constitution and the Laws" (Article 76). They cannot be removed from the bench "unless judicially declared mentally or physically incompetent to perform official duties," and they cannot be disciplined by executive agencies (Article 78). A Supreme Court justice, however, may be removed by a majority of voters in a referendum that occurs at the first general election following the justice's appointment and every ten years thereafter. As of the early 1990s, however, the electorate had not used this unusual system to dismiss a justice.

The Supreme Court, the highest court, is the final court of appeal in civil and criminal cases. The constitution's Article 81 designates it "the court of last resort with power to determine the constitutionality of any law, order, regulation, or official act." The Supreme Court is also responsible for nominating judges to lower courts, determining judicial procedures, overseeing the judicial system, including the activities of public prosecutors, and disciplining judges and other judicial personnel. It renders decisions from either a grand bench of fifteen justices or a petit bench of five. The grand bench is required for cases involving constitutionality. The court includes twenty research clerks, whose function is similar to that of the clerks of the United States Supreme Court.

The judicial system is unitary: there is no independent system of prefectural level courts equivalent to the state courts of the United States. Below the Supreme Court, the Japanese system included eight high courts, fifty district courts, and fifty family courts in the late 1980s. Four of each of the last two types of courts were located in Hokkaido, and one of each in the remaining forty-six rural prefectures, urban prefectures, and the Tokyo Metropolitan District. Summary courts, located in 575 cities and towns in the late 1980s, performed the functions of small courts and justices of the peace in the United States, having jurisdiction over minor offenses and civil cases.

Judicial Review

The Supreme Court is generally reluctant to exercise the powers of judicial review given to it by the constitution, in large part because of unwillingness to become involved in politically sensitive issues. When decisions have been rendered on such matters as the constitutionality of the Self-Defense Forces, the sponsorship of Shinto ceremonies by public authorities, or the authority of the Ministry of Education, Science, and Culture to determine the content of school textbooks or teaching curricula, the court generally took a conservative, progovernment stance.

In the words of political scientist T.J. Pempel, the Supreme Court "has been an important, if frequently unrecognized, vehicle for preserving the status quo in Japan and for reducing the capacity of the courts to reverse executive actions." Important exceptions to this conservative trend, however, were the rulings on the unconstitutionality of the electoral district apportionment system, discussed earlier.

The Role of Law in Japanese Society

As in other industrialized countries, law plays a central role in Japanese political, social, and economic life. Fundamental differences between Japanese and Western legal concepts, however, have often led Westerners to believe that Japanese society is based more on quasi-feudalistic principles of paternalism (the oyabun-kobun relationship) and social harmony, or wa. Japan has a relatively small number of lawyers, about 13,000 practicing in the mid-1980s, compared with 667,000 in the United States, a country with only twice Japan's population. This fact has been offered as evidence that the Japanese are strongly averse to upsetting human relationships by taking grievances to court. In cases of liability, such as the crash of a Japan Airlines jetliner in August 1985, which claimed 520 lives, Japanese victims or their survivors were more willing than their Western counterparts would be to accept the ritualistic condolences of company presidents (including officials' resignations over the incident) and nonjudicially determined compensation, which in many cases was less than they might have received through the courts.

Factors other than a cultural preference for social harmony, however, explain the court-shy behavior of the Japanese. The Ministry of Justice closely screens university law faculty graduates and others who wish to practice law or serve as judges. Only about 2 percent of the approximately 25,000 persons who applied annually to the Ministry's Legal Training and Research Institute two-year required course were admitted in the late 1980s. The institute graduates only a few hundred new lawyers each year. Plagued by shortages of attorneys, judges, clerks, and other personnel, the court system is severely overburdened. Presiding judges often strongly advise plaintiffs to seek out-of-court settlements. The progress of cases through even the lower courts is agonizingly slow, and appeals carried to the Supreme Court can take decades. Faced with such obstacles, most individuals choose not to seek legal remedies. If legal personnel are dramatically increased, which seems unlikely, use of the courts might approach rates found in the United States and other Western countries.

In the English-speaking countries, law has been viewed traditionally as a framework of enforceable rights and duties designed to protect the legitimate interests of private citizens. The judiciary is viewed as occupying a neutral stance in disputes between individual citizens and the state. Legal recourse is regarded as a fundamental civil right. The reformers of the Meiji era (1868-1912), however, were strongly influenced by legal theories that had evolved in Germany and other continental European states. The Meiji reformers viewed the law primarily as an instrument through which the state controls a restive population and directs energies to achieving the goals of fukoku kyohei (wealth and arms).

The primary embodiment of the spirit of the law in modern Japan has not been the attorney representing private interests but the bureaucrat who exercises control through what sociologist Max Weber has called "legal-rational" methods of administration. Competence in law, acquired through university training, consists of implementing, interpreting, and, at the highest levels, formulating law within a bureaucratic framework. Many functions performed by lawyers in the United States and other Western countries are the responsibility of civil servants in Japan. The majority of the country's ruling elite, both political and economic, has been recruited from among the graduates of the Law Faculty of the University of Tokyo and other prestigious institutions, people who have rarely served as private attorneys.

Legal and bureaucratic controls on many aspects of Japanese society were extremely tight. The Ministry of Education, Science, and Culture, for example, closely supervised both public and private universities. Changes in undergraduate or graduate curricula, the appointment of senior faculty, and similar actions required ministry approval in conformity with very detailed regulations. Although this "control-oriented" use of law did not inhibit the freedom of teaching or research (protected by Article 23 of the constitution), it severely limited the universities' scope for reform and innovation. Controls were even tighter on primary and secondary schools.

Human Rights

Compared with most of its Asian neighbors and countries in most other parts of the world, Japan's record on human rights is commendable, if not exemplary. With some important exceptions, most observers consider informal social pressures a greater factor in limiting individual freedom than the coercive actions of the authorities. The ancient Japanese adage that "the nail that sticks up gets hammered down" captures the sense that Japanese people are pressured more to conform than are people in the more "individualistic" societies of the West. Some Japanese lower- and upper-secondary schools, for example, have adopted extremely strict dress codes, determining not only apparel but also the length of hair to the exact centimeter. Although defended by conservative educators as a way of cultivating discipline and self-control, these codes have been widely criticized as violations of students' rights. In another example, shopkeepers and local community groups throughout Japan canceled sales promotions and festivals in the wake of Emperor Hirohito's illness in late 1988, for fear of being labeled unpatriotic. This self-restraint cost them billions of yen.

Although freedom of expression was, for the most part, respected, certain matters--particularly those relating to the emperor--were widely considered taboo subjects for public figures. Nagasaki's mayor, Motoshima Hitoshi, a member of the LDP, said in December 1988 that Hirohito bore some responsibility for World War II. Motoshima was later ostracized by influential, mainstream politicians, his life was threatened on several occasions, and in January 1990 he was seriously wounded outside his office by a right-wing extremist. Despite the comments about his father, Emperor Akihito visited Motoshima after the attempt on his life.

Although Article 14 guarantees sexual equality, women faced systematic discrimination in the workplace. They were generally expected to quit work after getting married or having children. However, the number of lifelong career women grew steadily during the 1980s and early 1990s. The Diet's passage of the Law for Equal Opportunity in Employment for Men and Women in 1985 was of some help in securing women's rights, even though the law was a "guideline" and entailed no legal penalties for employers who discriminated. The law has, however, been used by women in several court cases seeking equal treatment in such areas as retirement age.

Human rights have also become an issue because of the police practice of obtaining confessions from criminal suspects. Although torture is rarely reported, suspects are placed under tremendous psychological and physical pressures to confess. In several cases, the courts have acknowledged that confessions were forced and ordered prisoners released.

The greatest controversy concerning human rights, however, focuses on the social and legal treatment of minorities. Although the Japanese consider themselves to be a homogeneous people, minorities do exist, and they often have suffer severe discrimination. The largest group are the 2 million to 4 million hisabetsu buraku ("discriminated communities") descendants of the outcast communities of feudal Japan. Other minorities, including the Ainu, indigenous inhabitants of northern Japan; the people of Okinawa; and ethnic Koreans, have suffered discrimination as well.

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