This is to introduce some recent constitutional cases of the Supreme Court of Japan. While the Court has been generally perceived to be not particularly active in its exercise of constitutional review power, it has exhibited quite innovative moves in its recent decisions, which have had significant impacts on various areas.
Article 14 (1) of the Constitution stipulates that: ‘[a]ll of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.’ According to case law of the Supreme Court, differential treatment of people is constitutional as far as it has ‘reasonable’ basis. To be a reasonable, the treatment should have a legitimate purpose and also the content of the differential treatment should be proportionally related to the purpose. While, under the influence of American jurisprudence, the dominant academic view argues that classifications based on ‘race, creed, sex, social status or family origin’ are inherently ‘suspect’ and strict scrutiny should be applied to them, case law has not clearly adopted such a view.
In a decision of 4 July 2008, 62 MINSHÛ 1367, the Grand Bench of the Supreme Court struck down a treatment of an illegitimate child born by a foreign mother and acknowledged by a Japanese father after the birth. According to the then Nationality Act, such a child could get a Japanese nationality only when his or her parents got married. Taking into account the fact that the Japanese nationality is a necessary condition for a child to get basic social services like education in Japan as well as the fact that a child is not accountable for whether her parents get married, the Court held that the constitutionality of such a differential treatment should be ‘carefully scrutinised’. While the law has a legitimate purpose to accord the nationality only to a child whose living is closely related to the Japanese society, the Court said, marriage of parents is not a necessary condition for a child to acquire a close relationship to the Japanese society in the light of changing social perceptions about marriage and family and recent trends of foreign laws.
After the enactment of the current Constitution in 1946, clauses of the Civil Code relating to family and inheritance were fundamentally rewritten from the standpoint based on these two constitutional clauses. This newly enacted part of the Code is generally called ‘the New Civil Code’.
However, some scholars have maintained that certain pre-modern ideas persist in the laws pertaining to family matters. For example, according to Article 900 of the Civil Code, an illegitimate (born out of lawful wedlock) child could inherit by intestate succession from his or her parent’s estate only half of the portion of a legitimate child. In its decision of 5 July 1995, 49 MINSHÛ 1789, the Grand Bench upheld this clause on the grounds that this apportionment protects not only the interests of legitimate family members but to some extent those of illegitimate children as well. If desired, the majority reasoned, the parents of illegitimate children can either adopt them (turning them into legitimate children), or specify a larger bequest to them in a will. A minority opinion supported by five justices argued that this unequal treatment of illegitimate children unreasonably punishes and stigmatized them on grounds for which they are not themselves accountable.
In a recent decision of 4 September 2013, the Grand Bench changed completely its former doctrine and held the unequal treatment of illegitimate heirs under Article 900 to be unconstitutional. The Court held that taking into consideration the changing social perceptions about marriage and family, recent trends of foreign laws, as well as the recent transformation of relevant legal statutes, and so on, the notion that every child should be respected as an equal individual has become firmly established in the Japanese society; and this notion entails that inflicting disadvantages to an illegitimate child on the ground that her parents are not formally married to which fact she herself is totally unaccountable is without reasonable basis and unjustifiable despite the broad discretion of the legislature. The Court concluded that the relevant clause has become unconstitutional at the latest in July 2001, when the disputed inheritance commenced.
2 Electoral Systems
(1) The principle of “one person, one vote”
Until the 1994 electoral reform, members of the Lower House were elected by the single non-transferable vote system. Constitutional scholars read the somewhat murky case law in these days as implying that a 1 to 3 deviation is acceptable for the House of Representatives. On the other hand, the dominant academic view has been that a deviation beyond 1 to 2 should be unconstitutional in the light of the “one person, one vote” principle. However, this 1 to 2 standard does not seem much superior to the 1 to 3, because the only tenable principle is that the value of each vote should be equal or almost equal.
Since the 1994 electoral reform, 300 members of the Lower House are elected from single-member constituencies. The Act Establishing the Boundary Commission provides that the Boundary Commission established under the Cabinet Office (Naikakufu) will make recommendations every 10 years about how to redraw boundaries of constituencies. Seven members of the Commission are appointed by the Prime Minister with assents of both Houses of the Parliament for a term of five years. Their recommendations are submitted to the Prime Minister, who must then report them to the Parliament. The Parliament is expected to amend the boundaries in accordance with the recommendations. In drawing up recommendations, the Commission shall see to it that, “in principle”, the maximum difference of the weights of votes between constituencies should be within 1 to 2. While the text of the Act does not require that the Parliament follows recommendations of the Commission, the Parliament has respected them to date.
When first general elections after the reform took place in 1995, the maximum difference was 1 to 2.309. The Supreme Court, in a 1999 ruling, applied the same standard as before, holding that the difference was within the Legislature’s discretion .
In elections for the House of Councillors, the Court apparently uses the same standard of constitutionality , but applies it more leniently partly because the Parliament is allowed, the Court says, to take into account the fact that councilors elected from local districts or prefectures function as de facto representatives of their prefectures. In a 1983 ruling, the Court held that a deviation of 1 to 5.26 was within the Legislature’s discretion. But in 1996 the Court ruled that a difference amounting to 1 to 6.59 was unconstitutional because no mitigating rationale was conceivable for such a gross difference.
The Court’s attitude in mal-apportionment cases has become more stringent in recent years. In a decision of 23 March 2011, 65 MINSHÛ 755, the Grand Bench held that the one-seat-special-allocation-system (Hitori-Betsuwaku-Hōshiki) was unconstitutional since this peculiar seat-allocation system, bringing about significant deviation from the one-person, one-vote principle, lacked rational basis. While the purported rationale was that this system was necessary to reflect effectively the opinions of people residing in less populated districts, the Court reasoned that since MPs should be ‘representatives of the whole nation’ this rationale could not constitute sufficient justification to deviate from the equal value principle.
And in its recent ruling on an election for the House of Councillors, the Court clearly held that in order to realise the equal value principle, the basic architecture allocating seats on the basis of prefecture boundaries should be re-examined. The Court now seems to indicate that the essential function of councillors is not representing prefectures where they are elected, but representing the nation as a whole.
(2) Access to the ballot: Japanese nationals living abroad
In 1998, the Parliament amended the Public Offices Election Act to make possible for Japanese nationals living overseas to participate in elections for members of both Houses of the Parliament. The Act stipulated, however, that voters living abroad could vote only for members elected by proportional representation.
In the ruling of 14 September 2005, the Supreme Court held that this limitation of the access to the ballot was unconstitutional. A restriction on the right to vote is not allowed unless there is compelling reason to do so, and it is compelling only when the fair execution of an election becomes extremely difficult without the restriction. The government asserted that it could not inform voters abroad of information necessary for them effectively to participate in elections of single-member constituencies for the Lower House and prefectural constituencies for the Upper House. But the Court held that such an assertion was implausible in this global information society. The Court also held that the Parliament negligently failed to make it possible for Japanese living abroad to participate in national elections until 1998, and that this denial of access to the ballot was ‘gross error’ entitling plaintiffs to compensation from the State.
3 The Right to Life v. Autonomy
Article 13 of the Constitution, in its second sentence, states that the ‘right to life … shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.’ As the qualification concerning the public welfare indicates, this right is not considered absolute. Article 31 provides that a person may be deprived of ‘life’ as a criminal penalty. The Supreme Court has held that capital punishment is not a ‘cruel punishment’ prohibited by Article 36 if it is executed by hanging.
One judicial precedent indicates that the right to autonomy deriving from Article 13 of the Constitution may override the obligation to respect life. The plaintiff, a Jehovah’s Witness suffering from liver cancer, asked her doctor not to make any blood transfusions during her operation. Although the doctor accepted the patient’s request, he actually made a blood transfusion when he thought it absolutely necessary to save the patient’s life. The Tokyo High Court held that the doctor infringed the patient’s religious autonomy and awarded her consolatory compensation. The Supreme Court rejected the defendant’s appeal, confirming that the plaintiff’s right to autonomy must be respected under tort law. This line of reasoning seems to imply that even if the doctor had not made a blood transfusion and the patient had died, the doctor would not have been legally responsible for her death. Moreover, it also seems to imply that what must be respected is not life itself or the state of being alive, but the value of autonomous life, which may be violated when others rewrite an agent’s life-plan.
4 Religion and the State
Article 20 of the Constitution provides that: ‘no religious organization shall receive any privileges from the state’ and ‘the state and its organ shall refrain from religious education or any other religious activity’. Besides, Article 89 stipulates that ‘no public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association’. Under the Meiji Constitution, Shinto was regarded as de facto established religion, and other denominations were often suppressed or persecuted. Articles 20 and 89 were enacted in light of these hard experiences. As the test of constitutionality of state action with regard to these disestablishment clauses, the Supreme Court has adopted the so-called purpose-effect standard (Mokuteki-Kōka-Kijun), which is roughly modelled on the Lemon test in the United States.
A governor of Ehime prefecture donated public money to Yasukuni and Gokoku shrines on the occasions of customary Shinto fetes. Both are Shinto shrines dedicated mainly to soldiers of the imperial Army killed in action, mostly during the Second World War. Donated money from 1981 till 1986 amounted to 166,000 yen in all. The plaintiff, residents of Ehime prefecture, brought an ‘inhabitants’ suit’ under Article 242-2 of the Local Government Act (Chihō-Jichi-Hō), challenging the constitutionality of the donations.
The Supreme Court found the donations unconstitutional in light of the purpose-effect standard. According to the Court, ‘the principle of the separation of religion and the state, enshrined in Articles 20 and 89 does not ban every governmental involvement with religion, but prohibits merely such involvement as exceeds the appropriate limit in light of the social and cultural circumstances in Japan’. And the ‘religious activities’ the state should refrain from under Article 20 are ‘such activities as their purposes have religious significance and their effects advance or inhibit religion’. In this case, ‘it is unthinkable that ordinary people regard the donations as mere gestures of social courtesy. Then the donors themselves cannot but recognize more or less that the donations have religious significance… It is undeniable that these activities have provoked impression that the prefecture advances these particular religious bodies…and that they have raised the concerns about these particular religions’. Therefore, the Court concluded, as the purpose of the donations ‘had inevitably religious significance, and their effects advances particular religions’, they are unconstitutional under Articles 20 and 89 of the Constitution.
Sunakawa City in Hokkaido Prefecture let its land for no charge to one of its neighborhood associations for decades, on which residents built a Shinto shrine and held religious fetes periodically. Citizens of the city brought an inhabitants’ suit asserting that letting the property of the city be used for the shrine was against Articles 20 and 89 of the Constitution. In its decision of 20 January 2010, the Supreme Court agreed. The Court pointed out that there was no secular legitimate purpose for the city to lend the land and this gratuitous lending provoked impression that the city advanced this particular shrine. However, the Court added that retrieving the land and having destroyed the shrine is not the only way to correct the illegal administration of the public property. The city can reconcile the constitutional principle of anti-establishment with the residents’ free exercise of religion by, for example, lending the land for appropriate charge or transferring it to the neighborhood association outright, the Court argued.
It is noteworthy that the Court did not use the purpose-effect standard in this case. Instead, it used a more obscure and lenient standard of ‘whether the government’s involvement with religion exceeds the appropriate limit in light of the basic end of Articles 20 and 89: that is, securing freedom of religion’. I suspect that the Court thought that the accommodating options like transferring the land to the neighborhood association would be unconstitutional under the purpose-effect standard, which means there is no way out but destroying the shrine. In order to deliver an appropriate solution to this case upholding both the anti-establishment principle and freedom of religion, therefore, the Court seemed to conclude that the purpose-effect standard should not be used here.
Eventually Sunakawa City decided to rent out to a representative of the residents a portion of the land to maintain the shrine. The Court concluded that the City’s action did not contravene the anti-establishment principle, since to rent the land for an appropriate rental price did not provoke impression that the City advanced a particular religion.
By Yasuo Hasebe.
1) The Grand Bench decision of 27 May 1964, 18 MINSHÛ 676 (laying off temporarily a local civil servant in light of his old age and mediocre performance was held not against the equality clause).
2) Hearings and adjudications of the Supreme Court are carried out either by the Grand Bench (Dai-Hōtei) composed of all 15 Justices or by one of the Petty Benches (Shō-Hōtei), each composed of five Justices. A constitutional question, which reaches the Court for the first time, is to be decided by the Grand Bench, and a statute, regulation, order, or other official act can be held to be unconstitutional only by the Grand Bench.
3)See Norikazu Kawagishi, ‘Japanese Supreme Court: An Introduction’, National Taiwan University Law Review, Volume 8, Number 1, pp. 240-43 (2013).
4) Since the Court affirmed that in the time of 1995 the relevant clause was constitutional, strictly speaking this decision did not overrule its precedent. Still, this ruling means a colossal policy change on the part of the Court. In order to avoid overturning established legal situations which retroactive effects of this ruling might bring about, the Court added that already settled legal decisions and arrangements after July 2001 would remain still valid and effective. We might say that the Court made recourse to the device of ‘prospective overruling’ in order to avoid destabilising earlier inheritances.
5) A voter could cast just one vote in a multi-member constituency under this system. See David Farrell, Electoral Systems: A Comparative Introduction (Palgrave, 2001), p. 46.
6) Hidenori Tomatsu, ‘Equal Protection of the Law’, in Japanese Constitutional Law, edited by Percy R. Luney, Jr., and Kazuyuki Takahashi (University of Tokyo Press, 1993), p. 196; Masami Koshiji, ‘Constitutional Issues concerning the Franchise’, in Five Decades of Constitutionalism in Japanese Society, ed. Yōichi Higuchi (University of Tokyo Press, 2001), p. 142.
7) I do not deny that 1 to 2 standard is better than 1 to 3 standard in the light of the principle of equal value for each vote. But neither standard follows logically from that principle.
8) The number of MPs was 500 when the new electoral system was introduced in 1994. In 2000 the number was reduced to 480, among whom 180 members are elected by proportional representation system and the remaining 300 members are elected by the first-past-the-post system.
9) The Act Establishing the Boundary Commission, Articl 3 (1). However, this article included a peculiar seat allocation system called Hitori-Betsuwaku-Hōshiki, under which, among the 300 seats of the Lower House which are elected by the first-past-the-post system, one seat is first allocated to each of 47 prefectures, and after that, the remaining 253 seats are to be allocated in proportion to the number of populace of each prefecture. On the constitutionality of this system, see the text accompanying to note 14 below.
10) The Grand Bench decision of 10 November 1999, 53 MINSHÛ 1441.
11) That is, a difference is unconstitutional only when no mitigating rationale is conceivable and also a reasonable grace period for redrawing districts elapsed since such a gross difference had realised.
12) The Grand Bench decision of 27 April 1983, 37 MINSHÛ 345. Prefectures are administrative units similar to French ‘departements’. About half of councillors are elected from the same geographical areas as prefectures.
13) The Grand Bench decision of 11 September 1996, 50 MINSHÛ 2283. However, the Court held that a reasonable grace period for redrawing districts had not elapsed.
14) See note 9 above.
15) See article 43 (1) of the Constitution.
16) The Grand Bench decision of 17 October 2012, 66 MINSHÛ 3357.
17) Supplementary Provision, Article 8. That is, nationals overseas could not vote for single-member elections for the House of Representatives nor for Councillors elected from prefectures.
18) The Grand Bench decision of 14 September 2005, 59 MINSHÛ 2087.
19)Following this doctrine, the Tokyo district court in its decision of 14 March 2013 held that Article 11 (1) of the Public Offices Election Act, which denied people under the guardianship the right to vote, was unconstitutional because there was no compelling reason to restrict the right to them. In May 2013, Parliament abolished the clause and recovered the right to vote of every person under the guardianship.
20) The Grand Bench decision of 12 March 1948, 2 KEISHÛ 191. Article 51 of the Juvenile Delinquency Act (Shōnen Hō ) stipulates that no person should be executed for crimes which he committed before he reached 18 years of age.
21) The Tokyo High Court decision of 9 October 1998, 1629 HANREI JIHÔ 34.
22) The Third Petty Bench decision of 29 February 2000, 54 MINSHÛ 582 [Blood Transfusion Case].
23) Lemon v. Kurtzman, 403 U.S. 602 (1971). The Lemon test is composed of 3 elements: first, the government action must have a secular, legitimate purpose; second, the primary effect of the government action must neither advance nor inhibit religion; third, the government action must not cause an excessive governmental entanglement with religion.
24) Gokoku shrines of local prefectures are regarded as branches of Yasukuni shrine, which is situated in Tokyo. Both Gokoku and Yasukuni mean securing peace of the country.
25) This suit is comparable to the taxpayers’ suit in the United States. In an inhabitant’ suit the plaintiff need not show that he or she is a taxpayer of the relevant local government. The plaintiff should solely show that he or she resides there.
26) The Grand Bench decision of 2 April 1997, 51 MINSHÛ 1673 [Ehime Tamagushiryō Case]. See my ‘Japan’, in Cheryl Saunders and Graham Hassall eds., Asia-Pacific Constitutional Yearbook 1997 (Centre for Comparative Constitutional Studies, University of Melbourne, 1999), pp. 125-31.
27) The Grand Bench decision of 20 January 2010, 64 MINSHÛ 1 [Sorachibuto Shrine Case].
28) The First Petty Bench decision of 16 February 2012, 66 MINSHÛ 673.