Japan’s 1949 Attorneys Law – Private Lawyers Gain Autonomy, Foreign Lawyers Find a New Path to the Bar

Abstract

Japan’s 1947 Constitution declares protection for a long list of individual rights. Article 81 grants to the Supreme Court power to “determine the constitutionality of any law, order, regulation, or official act.” The clear intention of the drafters was that constitutional disputes would be resolved by the courts. The Constitution says very little about lawyers, but it places a very heavy burden on their shoulders, for only lawyers have the authority to defend clients prosecuted by the government and to represent clients who bring cases before the courts, including those that challenge the constitutionality of government action. Prior to 1949, Japan’s lawyers were regulated directly by the government. This included admission to the bar and application of disciplinary measures. In the pre-war era, lawyers who represented political dissidents, labor activists, or otherwise engaged in suspicious activity might be threatened with suspension or even disbarment by action of the local prosecutor or Ministry of Justice. The 1949 Attorneys Law for the first time granted autonomy to Japan’s bar associations, including power over admission, discipline, and disbarment. This would enable lawyers to fully represent individuals in conflict with their government without fear of punishment. This paper describes the struggle to enact the 1949 statute over government opposition and a specific provision of that statute that admitted foreign lawyers to practice during the post-war Occupation era.