BY COLIN P.A. JONES
With holiday hangovers receding and a fresh
year ahead, it’s the ideal time for a retrospective on the subject of “What did
Japan’s Supreme Court do for us in 2015?” If anything, that is.
Before
diving straight in, some basic knowledge about the nation’s top court might
help. Depending on the context, people talking about the “Supreme Court” may
mean one of several things. When lawyers or professors refer to it, they often
mean not the actual court, but its bureaucracy, which administers the national
judicial system. In fact, it sometimes helps to think of this Supreme Court as
more of a “Ministry of Dispute Resolution,” but that is a subject for another
day. That said, even when acting as a court, it can seem pretty bureaucratic in
the way it arrives at decisions.
The court is
also a court, of course. Actually, it is four courts that
collectively make final decisions not only about constitutional matters, but
also the entire corpus of Japanese law. First there are three Petty Benches
comprised of five judges each, though one of these is the chief judge, who is
often busy with nonjudicial duties. All fifteen judges may also sit as the
Grand Bench.
Grand Bench
proceedings are comparatively rare, usually happening just a few times a year —
if at all — when the court deals with a new constitutional issue or at least
considers overturning a prior constitutional precedent. Just an announcement
that a Grand Bench will hear a case signals a possible change of direction in
the court’s jurisprudence.
Petty
Benches, by contrast, handle thousands of appeals a year, rejecting most with
the judicial equivalent of a short-form letter. Despite the volume of appeals
the Supreme Court handles, it only regards a small minority of its judgments
significant enough to publish on its website. As of the first week of January,
the Supreme Court had published 77 of the judgments it rendered in 2015, most
very short, at five pages or less. (A number of years ago I made an information
disclosure request to the Supreme Court regarding the formal guidelines used to
decide which judgments to publish; the response was essentially “There are
none.”)
So what were
these cases about? Leaving aside the various corporate, tax and patent cases
that I don’t want to read, let alone try to make interesting, here are what I
consider the highlights:
First there
were five Grand Bench opinions. Two were challenges to the validity of the 2014
House of Representatives based on disparities between the value of votes in
different electoral districts. Keeping with past tradition, the court declared
elections of that year to be sort of unconstitutional but not really unconstitutional.
The court also upheld the requirement that spouses share the same surname, and
found that a six-month prohibition on remarriage after divorce that applied
only to married women was constitutional only for the first 100 days. It also
changed a prior precedent on the method of calculating damages in employment-related
tort cases in which payments are also received for the same injury through the
worker’s compensation system.
With that
out of the way, let’s look at some of the things the Supreme Court had a chance
to do but didn’t in 2015.
• Take sides
in the fight over the Isahaya Bay dike
Yet another
environmentally destructive infrastructure project, the dike in Nagasaki
Prefecture closed off a portion of the Ariake Sea for land reclamation.
Conflicting litigation involving the fishing and farming communities in the
affected areas resulted in the national government being subject to conflicting
orders from two different lower courts: one to reopen the dike, the other to
keep it closed, with both courts imposing fines for noncompliance. The Second
Petty Bench left the government to its “damned if you do, damned if you don’t”
fate.
• Find the
death penalty unconstitutional
At least in
the case of Tomohiro Kato, who in 2008 drove a truck into a crowd of
pedestrians in Tokyo’s Akihabara district and then began stabbing random
people, causing multiple deaths and injuries.
• Find a
constitutional problem in that other election case
Namely, the
one challenging inequitable allocation of seats in the Tokyo prefectural
assembly — a case you almost certainly have never heard about.
• Object to
jail employees refusing to let a lawyer give food to a detained client
Seriously,
someone thought this was worth putting up on the website.
• Accept
that the constitutional guarantee of freedom of expression and public trials
meant there is a right to see the records of confirmed criminal cases
That’s
right, in Japan there is no right to actually see the written judgment in any
criminal case other than those that are published (and most aren’t). By law,
the prosecutors keep those records and you have to ask their permission to see
them, and they can refuse for all sorts of reasons (see next case).
• Force
disclosure of the location of illegally dumped Fukushima waste
In 2014, the
president of a “consulting company” was convicted of illegally dumping 310
cubic meters of radiation- contaminated wood waste from Fukushima Prefecture
along a riverbank in Shiga Prefecture. The representative of a citizen’s group
applied to look at the trial records from prosecutors, with mixed results. The
Third Petty Bench made the Solomonic decision that even though the
representative was not entitled to request review in the first place, access
should be given to certain records, so long as they didn’t identify where the
contaminated wood had been dumped or how it got there. Because sort of
disclosure might inconvenience a lot of people (really!).
• Overturn
Nationality Act provisions that deny citizenship to persons born to Japanese
parents abroad who failed to file a reservation of nationality for them within
three months of birth
Because the
government apparently has a rational basis for discriminating against people
whose parents should have known better.
So what did
the Supreme Court do that was significant? My first pick would be:
• Overturn
an appellate court’s granting of a detention warrant that was based partially
on the grounds that the statute of limitations on the crime being investigated
was about to run out
Nothing
illustrates the confession-obsessed Japanese criminal justice system better
than a trial court ruling in favor of police and prosecutors who had
effectively realized “Uh-oh, the statute of limitations is about to run on that
crime we haven’t been investigating very rigorously, so we better lock the
suspect up and make him spill his guts so we can prosecute him before it’s too
late.” To its credit, the Supreme Court found that a statute of limitations
being about to expire was inadequate grounds for approving pre-trial detention.
But it also rejected the appellant’s constitutional arguments because, well,
why set a precedent when you don’t have to?
Beyond that,
the following accomplishments might also be noteworthy:
• Upholding
a high court’s vacating of a death penalty imposed by a panel of lay judges
The lay
judge system is supposedly about involving citizens in criminal trials, but
sometimes the amateurs get it “wrong”. Decades of court practice have
established unofficial rules about sentencing, one of which is that you are
only supposed to give the death sentence to someone convicted of multiple
homicides. The defendant in this particularly case only killed (and robbed) one
person. After being released from prison. For a double murder.
OK, so
that’s a little confusing, but giving defendants (those who
confess, at least) the benefit of the doubt is what courts are supposed to do.
Some observers have suggested that since the lay judge system operates in a way
that allows death sentences to be imposed even though a majority of lay judges
are opposed to it, the Supreme Court result is actually not unreasonable.
The most
noteworthy thing about this particular decision may be the long concurring
opinion by one of the judges, which seems to say: “Just because their decisions
get overturned on appeal, doesn’t mean that the lay judge system is a
meaningless waste of everyone’s time — really!”
• Holding
that survivors of the Hiroshima atomic bombing are entitled to compensation for
medical expenses incurred outside of Japan
The law
establishing the certification and compensation system for hibakusha (atom
bombing survivors) is silent on where medical expenses eligible for
compensation can be incurred. (As many Japanese laws do, the statute in
question assumes that the Rest of the World simply does not exist.) That being
the case, it was wrong for the Osaka prefectural government to deny the
requests of survivors now living and receiving medical care in South Korea.
• Fixing
traffic tickets
The Second
Petty Bench managed to find time in its busy schedule to reach down and absolve
defendants of traffic violations in two separate cases, one involving a
procedural violation in a ¥7,000 fine for not stopping at a stop sign (like
people actually do that!). I kid you not.
Now, for
comparative purposes, it is worth noting that a man named Iwao Hakamada was
released from detention in 2014, almost five decades after being arrested,
coerced into confessing, convicted and sentenced for a murder he didn’t commit
— all despite numerous evidentiary problems and grave doubts about his guilt,
including on the part of the judge who felt compelled (by peer pressure or
something) to sign his death sentence.
Decades of
repeated appeals to the Supreme Court and other courts were fruitless, earning
Hakamada a place in the Guinness Book of World Records for the longest time
spent on death row. This seems par for the course in a growing number of
well-documented cases of false convictions that the Supreme Court has been seen
to play little, if any, role in mitigating. But if there is a procedural error
in your moving violation, the court is there for you.
So, if I had
to choose any cases that are most symbolic of the court’s actual impact on the
nation this year, it would be these two traffic cases. More than anything else,
I think they symbolize the court and the limited impact it has on what goes on
in the country. Collectively, the above decisions suggest a well-intentioned
group of people fiddling around diligently at the margins, trying to bring
justice when it can, but without inconveniencing anyone along the way.
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