Symposium: Reevaluating the 1973 Judgment of the Supreme Court of Japan as a Landmark Judgment

Akiko Ejima

Meiji University, Tokyo

It must be a daunting task for a court to use judicial power for the first time when there are no precedents on which to rely. This was the task facing the Supreme Court of Japan (SCJ) in 1973. The power of judicial review is clearly stated in article 81 of the Constitution of Japan (1946) in contrast to it being a matter of implication in the US Constitution, which is often seen as the role model for Japan.  However, since its establishment in 1947, when the Constitution of Japan came into effect, the SCJ has invalidated only ten legislative statutes. The reason for this extreme scarcity has been discussed in many ways. Taking into account the discreet attitude of the SCJ, it is difficult to think of a landmark judgment in an ordinary sense. However, the recent development of the SCJ case law sheds light on the first judgment in which the SCJ declared the unconstitutionality of article 200 of the Penal Code. It must have been a sensational judgment not only for the government and the Diet (Japanese legislature) but also for the general public, as the clause in question was based on a traditional moralistic family value. It punished very severely (death or life sentence) a person who kills her/his direct ascendants. However, constitutional law textbooks do not acknowledge the 1973 judgment as being a landmark. On the contrary, they criticize the judgment’s reasoning as unrefined.

This blog post aims to re-evaluate the 1973 judgment from the perspective of judges who are using their power of judicial review for the first time and explore what helped them approach this task. It is a defense of the 1973 judgment as a landmark case in the Japanese context. It also highlights the importance of international and comparative resources for protecting human rights when judges look for persuasive authority to establish a case.

Background

Before World War II, Daishin-in (the predecessor of the SCJ) as the apex court of Japan did not have any power of judicial review. The concept of the court being a constitutional guardian and/or a human rights protector was completely novel. The post-War SCJ repeatedly had to face difficult constitutional questions from its inception: the constitutionality of Self-Defense Forces, the Security Treaty Between the US and Japan, and the US army being based in Japan because Article 9 of the Constitution stipulates that “land, sea, and air forces, as well as other war potential, will never be maintained.”  It was hugely disappointing that the SCJ avoided all the above questions (in the 1952 Keisatsu-Yobitai case and in the 1959 Sunagawa case). Those cases defined the position of the SCJ as a court that does not have abstract judicial review power and that is deferential to the political branch, particularly the Diet. 

The SCJ not only adopted the political question doctrine (in the 1959 Sunagawa case and in the 1960 Tomamechi case), but also gave wide discretion to the Diet. The foundation for this position is article 41 of the Constitution (“the Diet…shall be the sole law-making organ of the State”). However, if the SCJ allows limitless discretion to the Diet, there is no point in judicial review of legislation.

The next challenge the SCJ had to consider was the unconstitutional clauses of the Penal Code and the Civil Code. Even if those codes were amended to be compatible with a newly adopted bill of rights in the Constitution, some unequal treatments remained intact. Article 200 of the Penal Code falls into this category. If the Diet had no intention to reconsider it, it should be for the SCJ to re-examine it.  

The 1973 judgment

The defendant murdered her father who had repeatedly raped her for a decade since she was 14 years old, treated her as if she was his wife (she forcibly had five children with her father), confined her at home and sexually violated her when she asked the permission to marry. Because of the severity of punishment of article 200 of the Penal Code, she could not avoid going to prison despite several reductions of the sentence. Her lawyer argued that article 200 went against the equality clause of the Constitution (article 14) as it discriminates between a person who murders her/his ascendants (death penalty or life sentence) and a person who commits ordinary murder (death penalty, life sentence or three years or more in prison).

For the first time, the SCJ admitted the violation of the Constitution by 14 to 1 votes. Three reasons make this decision a landmark judgment.

First, the way the SCJ legitimized overturning its precedent. In other words, how to start a new business! The SCJ had held that article 200 was not unconstitutional in 1950. Therefore, it had to explain why it was necessary to re-examine the constitutionality of the same article of the Penal Code. In 1973, the majority opinion referred to its origin: Chinese classic law, the Japanese classic legal system (Ritsuryo-seido), the legal system of the Tokugawa Shogunate and even Roman law. Then, it suggested that an aggravation to patri- or matri-cide had been recently been disappearing in foreign countries or that such an aggravation clause had never existed in some countries. Since this judgment of 1973, the SCJ has looked at foreign law (and later international law) in order to measure the necessity to overturn a precedent.

Second, there is an interesting division among judges who admitted the unconstitutionality of article 200: tradition v. equality and democracy. The majority opinion declared the unconstitutionality because the punishment was too severe. At the same time, it also admitted that respect and gratitude to ascendants are basic morals in a social life and deserved to be protected by criminal law. In contrast, six justices disagreed with this reasoning and argued that article 200 had a strong connection with the feudal family system under the previous constitution, which was denied by the present Constitution, which respects the equality of the people and democracy.

Third, the effects of the 1973 judgment. Article 81 of the Constitution affirms that the SCJ is “the court of last resort with power to determine the constitutionality of any law, order, regulation or official act”. It is not clear though whether its judgment can eliminate article 200 from the Penal Code or the judgment can quash the effect of the unconstitutional article only for the case in question. Given the novelty of the 1973 judgment, there was no rule or practice. In the end, article 200 was only abolished in 1995 (22 years after the judgment) when the entire style of the Penal Code was modernized. The Liberal Democratic Party, the conservative ruling party, avoided discussing such a delicate question at the time. At the same time, prosecutors started to apply article 199 (ordinary murder) to cases of murder of ascendants. A strange equilibrium was then established.

Narrowing the gap between SCJ case law and scholarly commentary

Reevaluating the 1973 judgment can provide a different picture from the one usually painted by scholars. Constitutional academics have criticized the SCJ for not using the judicial review standard modelled on the US case law (particularly strict scrutiny for legislation restricting freedom of expression). However, there is no judgment using article 21 (freedom of expression) to strike down legislation in Japan. The gap between the SCJ case law and the academic doctrine has been widened. For this reason, a reevaluation of the 1973 judgment could contribute narrowing the gap.

Justice Chiba of the SCJ said in the 2012 Horikoshi case that even if the SCJ “appears to have taken into account certain strict standards (e.g. the principle of clear and present danger, the principle of void for vagueness, the principle of minimum necessary restriction, the principle of less restrictive alternative (LRA), the principle of necessary and reasonable purpose and means)”, “the court does not generally declare that all or some of these standards are applicable a priori as the standard of constitutional review of restrictions on freedom of expression, and it is also rare that the court explicitly uses academic terms such as the principle of LRA”. This shows that the Justices of the SCJ are actually informed about foreign law but use it in a different way. It is time for academics to explore the structure of the SCJ judgments as such instead of molding them on the US or German case law.

Recent developments: comparative law and international human rights law

Since the 1973 judgment, reference to foreign laws has been occasionally used when the SCJ wants to re-examine a precedent. It has become an entry point in the structure of a whole judgment to re-start the review. After a long silence (15 years), the SCJ started to produce judgments of unconstitutionality again. In this time the SCJ expanded its references by adding international human rights treaties to strike down some unequal clauses in the Civil Code which were overlooked by the Diet.

The harbinger was the 2008 judgment which refers to the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). It was followed by the 2013 decision which quashed discrimination between legitimate children and children born out of wedlock in matters of inheritance. When the SCJ emphasized the necessity to re-examine the question despite the 1995 precedent, it referred not only to foreign laws (German and French) but also to the views of the Human Rights Committee of the ICCPR and the Committee of the CRC.  However, these references were overlooked by constitutional academics who only pay attention to standards of review and their consistent use.

Recently, the SCJ dealt with the rights of transgender people. Japanese law requires transgender people to go through physical surgery if they want to change their gender in the family register (koseki). Although the SCJ did not admit the unconstitutionality of this rule, a concurring opinion emphasized that it was time to reconsider its reasonableness by referring to comparative and international law, including the 2017 judgment of the European Court of Human Rights. In comparison to more outstanding judgments of other Asian courts, particularly constitutional courts in Taiwan and South Korea, the SCJ is often seen as a quiet and probably uninteresting apex court. However, behind the rather impassive and indifferent façade, the incubation process continues.

Akiko Ejima is Professor of Constitutional Law at the School of Law of Meiji University, Tokyo

Suggested citation: Akiko Ejima, ‘Reevaluating the 1973 Judgment of the Supreme Court of Japan as a Landmark Judgment’ IACL-AIDC Blog (22 December 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-asia/2020/12/22/reevaluating-the-1973-judgment-of-the-supreme-court-of-japan-as-a-landmark-judgment