With increasing international scrutiny of the Japanese judiciary system due to recent mega scandals, such as the Carlos Ghosn case, attention has shifted to the tenets of legal order in Japan.
What's the role of the Supreme Court and how does it stand in Japan's hierarchy of political power?
Join Timothy Langley and Michael Cucek as they discuss the essentials of Japanese Politics.
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Transcript:
Tim: Hi, everyone. Welcome back to Japanese Politics 101. In this series, we talk about what makes up Japanese politics from the top all the way to the bottom. And Michael, we have been remised in mentioning or if in failing to mention the Japanese judiciary, including the Supreme Court.
Michael: Yeah, why was it that we didn't talk about the judiciary?
Tim: The foundation of Japanese politics isn't there one of those blocks, a big block...
Michael: Like a branch of government?
Tim: Yes! Like the judiciary, the entire judiciary: the Supreme Court. Why has that escaped our attention?
Michael: Well it's because it's more of a twig than a branch. As there is a stansible separation of powers, with the diet as the legislative branch, the cabinet as a whole is the executive branch, the Prime Minister isn't the chief executive (he's just in charge of the cabinet) and then there supposed to be a third branch of government, the judiciary. Now. it's there. There are people who work in it and they have courts and they have trials and they have procedures, but it is decidedly a vestigial and a very underdeveloped part of the Japanese political edifice.
Tim: Right, they don't even have original jurisdiction on matters of constitutional questions.
Michael: Well, they do and they don't. The constitution of Japan was written very quickly. We can be entirely honest, it was written by Americans in about a week. They had a few days and they were pulling off books off the shelves in German and French from what was left of the library of Tokyo University and pouring through and trying to figure out what they wanted to do. And then they got ideas from the US. So, the editing job wasn't terribly good and that has left a lot of holes into which in this case, the judicial branch is falling. One of the primary statements in the Constitution is that the diet is the supreme organ of power and a little bit later on, in article 81, it then says the Supreme Court has the ability to judge the constitutionality of any ordinance, regulation, piece of legislation. Those two things cannot both be true: the diet cannot be the ultimate unassailable power and there can be judicial review. And rather than fight for themselves, the judges have chosen. On occasion, when they were given a question that's hard, they will just simply say that's a a political question. It's not our business. Is it constitutional to have the self-defense forces? That's the Suzuki case. Well, that's a political question, not our problem. Is the presence of the United States forces here in Japan a violation of "there shall be no material in Japan", Article 9 of the Constitution. This is not a question we can answer, that's up to our elected representatives. At the top, the Supreme Court, 15 justices appointed by the Prime Minister, except the Chief Justice who is ostensibly appointed by the Emperor. There are only two positions that are officially appointed by the Emperor: Prime Minister and head of the Supreme Court. Those 15 justices, if you look at the the Supreme Court website and you try to figure out what they did last year, you would be appalled. In 2016, if you look at the records, interestingly the decisions are all translated into English so you can just look them up if you don't even speak Japanese and you're an English speaker, there was in 2016 at least on the website there is one grand bench, 15 justices, decision and then they split up into what they call petit benches of five justices each to deal with something that is not an absolute constitutional question. And so there were about 35 decisions but only one of them was of the entire bench and each year the number of times that all of the justices deliver a definitive statement of the Supreme Court is less than a handful. You say: why do you have it if they decide so few questions. What's the point of this? And indeed that's part...
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The Supreme Court: Japanese Politics 101
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timothy langleytimothy langley japanArticle 81supreme court japanjapanese supreme courtjapan constitution article 9sunagawa casesunagawa strugglechief justice japanghosnghosn carlosghosn carlos japancarlos ghosn japanjudicial branch japanmarbury v madison judicial reviewmarbury vs madisoncabinet legislation bureaujapanese conservatismforeign ministry japanministry of foreign affairs japanmichael cuceklangley最高裁判所langley esquire