Article 9 and the History of Japan's Judiciary: Examining Its Likeness to American and German Courts

Abstract

After the Abe Administration's interpretation of Article 9 of the Japanese Constitution in 2014, questions have been raised regarding whether the likeness of the Japanese Supreme Court is closer to U.S. or German constitutional courts. The Japanese administration has long held the view that Article 9 of the Japanese Constitution permitted only individual defense, not collective defense power. The Abe cabinet changed the head of the Cabinet Legislation Bureau in 2013 and made an official announcement concerning its interpretation of Article 9 of the Japanese Constitution in 2014. The Self-Defense Force (Jieitai, SDF) is now able to exercise collective defense power. This change did not involve an amendment to the Japanese Constitution. The National Police Reserve (Keisatsu Yobitai), the predecessor of the Self-Defense Force, was established just before Japan gained its independence in 1952 by signing the San Francisco Peace Treaty. Mosaburo Suzuki, head of the Japanese Socialist Party, brought suit directly to the Supreme Court. In 1952, the Supreme Court dismissed his suit on the grounds that he lacked standing because he was only the head of a political party and no injury was in fact caused by the establishment of the National Police Reserve; the court announced its position as a U.S.-type judiciary. Unlike the U.S. Constitution, judicial review was stipulated in Article 81 of the Japanese Constitution, but the terms of the case and controversy were not included. The dispute on the law was written only in the Japanese Court Act. Almost 70 years after the Japanese Constitution was promulgated in 1947, some Japanese constitutional scholars have been considering why the Japanese Supreme Court has not exercised its judicial power in the same manner as the U.S. Supreme Court. The Japanese Supreme Court has only ruled about 10 cases as unconstitutional on their face, while 12 cases were declared unconstitutional on application. Japanese scholars in the past as well as today have discussed the prospect of establishing a constitutional law court in Japan. In this paper, I will first describe the history of the draft of the Japanese Constitution, and the reasons why the Japanese Constitution did not include the terms of the case and controversy as in Article III of the U.S. Constitution. Second, the possibility of the birth of a German-type Constitutional Court in Japan is reviewed. By simply amending the Court Act, the Japanese judiciary could become a German-type constitutional court. Alternatively, if we believe the core responsibility of the judiciary according to the Japanese Constitution is to adjudicate adversarial arguments, to adopt a German-type constitutional court would entail amending the Japanese Constitution. Third, I will introduce the current defense and security statutes against which some Japanese constitutional law scholars are. Lastly, I review several perspectives of Japanese constitutional law scholars regarding the peace and defense statutes passed in 2015.