Protecting Constitutional Rights in Japan and Canada

Abstract

Anyone who comes to study the most important cases and basic principles of Japanese and Canadian constitutional law will be struck, I believe, by how similar the two systems are. In contrast with the jurisprudence of the American Supreme Court, the way the highest Courts in Japan and Canada exercise their powers of judicial review is to make use of broad principles of proportionality (rationality) and/or balance (reasonableness) to test the constitutionality of the various laws and other administrative activities pursued by the Japanese and Canadian Governments. Rather than concentrating their energies on matters of interpretation and the particular words that are employed in the text of their constitutions, the Japanese and Canadian Supreme Courts have tended more toward the European method of constitutional review, which relies more heavily on general principles of proportionality (rationality) and balance (reasonableness) although, (and here again one observes another similarity), neither Court makes extensive reference to European jurisprudence in justifying their basic approach. In all of the leading cases involving claims about constitutional rights in Japan and Canada, evaluation of the interest that is promoted by the law or administrative activity which is under review figures crucially in the Courts reasoning process and in what they ultimately decide. In Japan, the Supreme Court typically grounds its review of the constitutionality of a law in the public welfare standard which appears in a general clause (Article 12) near the beginning of the chapter on Human Rights and in the general guarantee-to life, liberty and the pursuit of happiness (Article 13), as well as in a number of specific guarantees to choose one's occupation and place of residence (Article 22), and to own property (Article 29).1 From these explicit references to the community's well-being, the Supreme Court of Japan has developed a very basic test or standard of balance or reasonableness to measure the constitutionality of any law or act of Government that it has been asked to