Japanese constitutional law quiz

Diet BuildingSince I’m running through various Japanese legal topics in preparation to sit some state exams, I thought I would share the pain with all you readers though a fun little quiz:

  1. Who appoints the justices of the Supreme Court?
  2. What “duties” do citizens have under the Constitution?
  3. What are the qualifications to be a member of the Cabinet (i.e. a minister of state)?
  4. What procedures does the Constitution require before someone is arrested?
  5. Name a state action which the Supreme Court found to violate the freedom of religion clause.
  6. What is the procedure for signing an international treaty?
  7. Can a person be convicted based solely on their confession to the crime?
  8. Who determines the imperial order of succession?
  9. When can a person exercise their right to an attorney?
  10. How many Diet members must be in attendance to form a quorum?

Answers after the jump.

  1. The Emperor appoints the chief justice, but only following a nomination by the Cabinet. The Cabinet nominates and appoints all the other justices.
  2. Citizens have three explicit constitutional “duties”: to be educated as provided by law (Article 26), to work (Article 27) and to pay taxes (Article 30). The “duty to work” has never been fleshed out and I don’t think anyone really knows what it’s supposed to mean.
  3. The only explicit qualification is to be a “civilian” (Article 66). This provision is really odd because the Constitution prohibits Japan from maintaining a military; thus many scholars believe this clause must actually mean “no history as a professional soldier” as opposed to “not currently in the military.”
  4. A judge has to issue a warrant, which must list the facts of the accusation, prior to the arrest (Article 33). The Supreme Court has since ruled that a person can be arrested without a warrant, but only (1) in an emergency, (2) where the suspect is highly culpable, and (3) if a judge reviews the facts promptly afterwards and issues an arrest warrant.
  5. The only act (so far) which has led the court to declare a government action unconstitutional: when the Ehime prefectural government paid tamagushi-ryo (玉串料), a type of Shinto offering, to the local shrine for the war dead. The court ruled that this action, from a general societal standpoint, had a religious purpose and an effect on religion and was therefore unconstitutional. There have been a number of lawsuits brought under Japan’s freedom of religion clause: for instance, Aum Shinrikyo tried to invoke the clause to save their organization from being shut down by the government following the subway sarin attacks. (That didn’t work, obviously.) Other cases involving city-sponsored Shinto festivals, SDF involvement in religious ceremonies, etc. have led the courts to say, in essence, “Why not?”
  6. The Cabinet has the power to sign a treaty, but the Diet has to approve the treaty either before or after it is signed. Both houses of the Diet generally have to approve the treaty, but if they disagree and cannot reach a compromise, or if the upper house does not vote on the treaty within 30 working days of the lower house’s approval, the lower house’s decision is binding.
  7. The Constitution says no (Article 38), but the Supreme Court has ruled that a confession in open court may be the sole basis of a conviction, as the open courtroom setting intrinsically shows that the confession is voluntary.
  8. The Diet (Article 2). The Diet can structure the order of succession however they want (e.g. allowing empresses), the sole constitutional restriction being that it has to be hereditary (皇位は世襲のものである).
  9. A person has the right to contact their attorney promptly after they are physically detained (Article 34). Note that this is not the same as getting an attorney for free: the government will not give you a defense lawyer until you actually go to trial.
  10. One-half in a committee meeting (Article 49), one-third in a meeting of a single house (Article 56) and two-thirds in a joint session (Article 91).

7 thoughts on “Japanese constitutional law quiz”

  1. Adamu: I don’t find much that’s depressing, although there’s a lot that’s simply puzzling. I mean, come on, how can you give citizens in a free state a duty to work? What were those GHQ guys thinking when they drafted this stuff?

    Brendon: Maybe in the future (although the window is tightening since the bar will only be offered to law school grads in a couple years). My immediate goals are a bit less ambitious given that I’m working 9-to-5.

  2. You should have waited to post the answers… but scrolling carefully and without looking, here goes:

    1. The Cabinet; the Chief Justice is appointed by the Emperor.

    2. Paying taxes and educating children.

    3. Hmm… be a citizen, alive, and a competent adult? Otherwise, half of the cabinet’s ministers must be currently serving Diet members.

    4. Warrant? Unless if a crime is being committed (現行犯)?

    5. Directly giving cash by an elected official to a Shinto shrine.

    6. Cabinet executes, Diet grants consent, although not necessarily in that order.

    7. No.

    8. Imperial Household Law.

    9. ???

    10. 1/3rd.

    How’d I do Joe?

  3. I think the work bit is pretty common in modern constitutions, the very first article in the Italian constitution is “Italy is a democratic republic based on labor.” Further down in article 4 we have:

    1: The republic recognizes the right of all citizens to work and promotes conditions to fulfill this right.
    2: According to capability and choice, every citizen has the duty to undertake an activity or a function that will contribute to the material and moral progress of society.

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