The birth of judicial review in Japan

Abstract

Judicial review was introduced to Japan when the current constitution took effect in May 1947; this paper examines how it was institutionalized in the postwar period. Although it was established almost by accident, judicial review has profoundly transformed the Japanese political process. We can recognize the full meaning and potential of judicial review only when we try to understand it in the historical context of Japanese constitutionalism. The old Meiji constitutional regime, which had no provision and practice for judicial review, was based on the concept of the kokutai , a system in which the emperors, in one line unbroken for eternity, held and exercised sovereign power. This orthodoxy prevented the Meiji regime from developing fully its liberal democratic potential. In contrast, the current constitution declares universalistic principles of government. Due respect for the fundamental rights of citizens and the principle of popular sovereignty have transformed politics from a vertical hierarchy to a horizontal relation among equals through mutual persuasion, in which judicial review must be situated. Finally, this paper discusses a lese majeste case that marks Japan having reached, painfully, a new stage of liberal democratization.