Why Does the Japanese Constitution Not Include the Creation of a Special Tribunal

Abstract

Nowadays, it is observed that court systems of other countries are establishing new extraordinary tribunals such as environmental law court or intellectual property (IP) court. These specialized courts are presided by judges who have acquired special training and knowledge that renders them competent to deal with relevant cases. It is purported that a judge in this extraordinary court offers speedier decisions and remedies than a tenured general judge in a general court. However, Japan faces certain obstacles in the creation of such extraordinary tribunals owing to the content of its Constitution. Article 76 of the Japanese Constitution clearly stipulates the following: “The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law. No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be given final judicial power. All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws. No extraordinary tribunal shall be established.” This article raises a few important questions: Why did the Japanese Constitution mention such a prohibition in text? How the family court and IP court in the existing Japanese court system were created by the interpretation of Article 76. Moreover, were these courts prohibited from becoming an extraordinary tribunal of the Constitution? In this paper, I attempt to answer these two questions by analyzing the history of the drafting of the Japanese Constitution post World War II as well as the present-day interpretation of Article 76. Surugadai Law.