(Updated with correction, thanks to Curzon)
Everyone knows that Japan’s lower house of parliament is up for re-election on Sunday, August 30.
But what you may not have heard is that some Supreme Court justices are also up for a “people’s review” (国民審査) at the same time.
Thanks to a banner on the sidebar of Yahoo Japan’s politics site, I now know how this works:
On paper, Supreme Court justices are “appointed by the emperor” based on the cabinet’s nomination and thus the Chief Justice serves as a minister of the emperor on the same level as the prime minister. However, the Japanese emperor has no real power, so in fact this means the justices are appointed by cabinet decision.
As a means of providing a democratic check over the judicial process, each justice is subject under the constitution to a people’s review at the general election immediately following their appointment, and then again every decade thereafter. In the upcoming election nine of the fifteen justices are up for review, including Chief Justice Hironobu Takesaki who was appointed by the Aso cabinet in November 2008.
At the polls, voters will be presented with a ballot listing the name of each justice with a box next to each name. The voter must place an X in the box to affirmatively vote to dismiss each judge. Blank votes are counted as votes in favor.
As far as I can tell, this system is all but window-dressing. So far, no judge has ever been dismissed in this manner, and among current justices who have undergone review, the justice with the highest ratio of votes against him is Yuki Furuta at 8.2%.
This appears to be the only way for the electorate (or their representatives) to dismiss Supreme Court justices, though there is The other ways that justices can be dismissed are the age requirement (they must retire by their 70th birthday) and a law that judges can be tried for dereliction of duties or other misconduct in the Court of Impeachment, consisting of 14 lower and upper house MPs (no Supreme Court justice has ever been impeached).
The Supreme Court‘s English-language page has a very brief mention of this system toward the bottom:
The appointment of Justices of the Supreme Court is reviewed by the people at the first general election of members of the House of Representatives following their appointment. The review continues to be held every ten years at general elections.
A Justice will be dismissed if the majority of the voters favors his/her dismissal. So far, however, no Justice has ever been dismissed by the review.
Justices of the Supreme Court must retire at the age of 70.
The Japan Times had a good Q&A about the Supreme Court back in September 2008.
There was a similar system in Florida, at least when my family lived there. My dad always voted to remove the judges even though he knew nothing about them — the rationale being “they shouldn’t be allowed to hang around there for too long.”
This part of the election always befuddles my Japanese wife. “There’s never a single news article published with these guys’ names attached to anything they actually did, so how could we possibly make an informed decision on them?” Joe’s dad’s approach actually sounds like just about the only useful one in this case.
Grandma always said: “Gotta keep the topsoil moving.”
Sorry, I have no idea what that means…
Isn’t topsoil erosion actually a huge problem? I’m guessing your grandma wasn’t a farmer.
Their decisions are always too conservative and too pro-establishment. I think I’ll vote to dismiss them all so that the incoming DPJ can appoint new people in their place.
If there’s no credible way for this system to actually remove judges, it makes no sense to keep it on. I wonder if Furuta saw his high rate of negative votes and decided to stop sleeping in the middle of deliberations (if he had been… I have no way of knowing if that’s true).
Unfortunately it’s written directly into the Constitution, and any talk of revision is a 10,000 volt political third rail.
I have a lot of problems with the wording of this post.
First the title: Judges are not up for “reelection.” You get in right in the paragraph, they are up for a review, being reviewed in the first general election after they are appointed, and the election following ten years after they are appointed. This may seem semantic but it’s important.
Second: “On paper, Supreme Court justices are “appointed by the emperor” based on the cabinet’s nomination and thus the Chief Justice serves as a minister of the emperor on the same level as the prime minister. ”
This is nonsense. There is nothing in Japan’s constitution that makes any person a minister of the Emperor. Yes, the PM and the SC Chief Justice are appointed by the Emperor, but this is a mere act of state or “kokuji koui” that is carried out on the direction and approval of the Cabinet. The Emperor explicitly has no state authority “kokusei kengen” whatsoever.
Third: “However, the Japanese emperor has no real power”
Indeed — but the word “real” is superfluous. He has no power whatsover, not even theoretically. He is merely a symbol of the people.
Fourth: “The other ways that justices can be dismissed are the age requirement (they must retire by their 70th birthday) and a law that judges can be tried for dereliction of duties or other misconduct in the Court of Impeachment, consisting of 14 lower house MPs (no Supreme Court justice has ever been impeached).”
The court of impeachment is made up of lower and upper house MPs; a court of just lower house MPs would be unconstitutional (see: article 64). ALso, they can be removed by the judiciary if they loose their marbles. Sidenote: supreme court justices and summary court judges (smaller local courts that handle minor matters) retire on their 70th birthday; family, local and high court judges retire on their 65th birthday.
Now, on to the substance of the topic discussed:
From a constitutional point of view, America installed the citizen review system to try and find a suitable democratic check on a US-style supreme court to exist in a European-style parliament. In the US, chief justices are appointed by the president, who is elected by the people, thus the top judiciary is one step removed from the people. As the judiciary should be independent, but not immune, from the people, this is generally deemed by constitutional scholars to be a suitable distance.
In Japan, the people elect their lower house members, who pick the PM, who picks the Supreme Court justices. Believing the supreme court now to be too removed from the people, after much debate (and strong opposition from the Chief Justice of the Supreme Court at the time, Seiichi Shimoyama), the citizen review system was established.
No, it has yet to remove a justice from the supreme court, but so what? Those calling it for being removed are being extremely myopic about the course of human history and constitutional government and balance of powers. The mechanism is a suitable one considering the judiciary’s distance from the people in Japan (all judges are appointed, none are elected). The supreme court in Japan also has the authority to nominate a roster of candidates for lower house judges, set the rules for prosecutors and attorneys, and no democratic check on this would not be prudent.
Consider also the ability of just one PM to completely change the Supreme Court. This is not the US system where justices are appointed and serve terms for decades. Of the 15 justices currently on the court, 12 will retire in the next four years. The tradition is to appoint people at the end of their careers. But all it would take would be for one whacko PM to appoint a bunch of 40yo communists/right-wingers/SGI cultists, which a PM could easily accomplish over the course of just a few years because of the tradition of appointing old people, to cause a complete revolution in the Japanese judiciary that could not be undone for decades if the citizen review system was abolished.
And excluding the extremist judge appointment scenario, it is very likely that in our lifetime the Supreme Court will play a more active role in social policy, and the ability of the citizenry to vote on this is a good safety valve, both in ensuring a democratic check on the judiciary. And even if justices are not removed, the existence of the system will quiet critics of the justice’s rulings.
Thanks for the comment, Curzon.
1. Eh, it’s at least analogous to re-election. Give me a little room to make things easier to understand. I put the word “re-election” in quotes now.
2. I am not implying that he has any authority but on paper that is the way it is set up.
3. Sure he has no formal power but he has the power of being there like a lump. Anyone who reads Dilbert will know what that means.
4. Point taken, correction made.
Maybe I should have been more clear, but my problem with the system is not that I am against it, it’s that in an extreme situation like the one you mention the hurdle might be too high for the power to actually function. Maybe there just needs to be more PR (Dentsu, I smell a business opportunity!).
Nice exchange guys. I think that Curzon’s call to be careful about wording is important in this case – there are attempts to villify Japan through reference to the “authority” vested in the emperor system as a conduit for militarist revival so being clear about just what authority there is (none) is important. (August 16th marked the 64th anniversary of people worrying about the revivial of Japanese militarism).
There was an ad in my paper yesterday from a group that fights for “1 voter = 1 vote” (as opposed to the current reality where in comparison to rural backwaters some urban voters’ only have 3/5 of a vote, or less). They are pushing for two of the Justices, who have passed judgment that the current imbalance vote “strength” is not unconstitutional and therefore just fine, to be removed by review. The other 7 up for review this time around have apparently not given a clear position on the issue one way or the other. Somehow I doubt this group will be successful, but at least they are trying.
But I also think Joe’s dad has the right idea. 😉
LB, do you know the names of the two justices? I’d be glad to oblige.
@wataru – looks like the mrs. cleaned the table, so I’ll have to dig through her stash of newspapers awaiting recycling. However, here is the link for the group pushing for ousters:
http://www.ippyo.org/
Thanks, LB. From there I learn that the two justices being targeted are:
那須弘平裁 and 涌井紀夫裁.