Japan and a Constitutional Court: The Path for the Future?

Chadwick I. Smith (International University of Japan)

There is much debate going on in Japan today about revising or amending the constitution specifically in with regards to Article 9. In order to do this, Japan must first widen the debate of increased constitutional adjudication and the possibility of establishing a constitutional court. On 3-4 August 2004 an International Symposium was held at the German Culture Center on whether Japan should establish a constitutional court. Many distinguished judges, academics, politicians and journalists were invited to engage in a rigorous debate of this topic. In addition, representatives from France, Germany, Italy, USA, and the Republic of Korea presented their own country's constitutional court system as a possible model for Japan.

Both the constitutional court and Supreme Court were referred to as the "tools to realize self given goals" of a society. These goals are the protection of a citizen's rights. Japan currently has no constitutional court. The establishment of one for Japan is a difficult theme because it sees varied vested interests. Only recently has there been serious discussions about amending the constitution; this stands in stark contrast to Germany, which has seen 50 constitutional amendments. Many in Japan worry that amendments will change the substance of the constitution. However, it was pointed out during the discussion that while the 50 amendments have changed the structure, the substance of Germany's constitution has remained intact.

The debate centered on what type of Constitutional Court Japan should establish, if any at all? Models differ by country and most post-WWII courts have been set up in a post-authoritarian context. However, such a model is not applicable to Japan. The French model was suggested as a possibility as it was one of the few courts set up without a post-authoritarian regime. However, a French scholar present was not overly optimistic that the French model would be the best for Japan. Former Supreme Court Justice Itsuo Sonobe stressed the importance of culture and the need to recognize Japanese legal culture. He further suggested that an Asian model would be more applicable in the case of Japan and went on to highlight the success of the Republic of Korea.

Representatives of three major political parties in Japan were also present to give their opinions on the type of system that would suit Japan best. Lower House member Okiharu Yasuoka spoke on behalf of the LDP and stressed that his party believed Japan should handle constitutional adjudication in a division of the Supreme Court and that the rulings of this must not be the policy of the government, but be looked at and then accepted based on the opinions of the people. Representative Yoshihito Sengoku of the DPJ urged for further debate on this issue; Japan cannot remain static on this and must review her Constitution. He argued that this inward looking system has prohibited people from engaging in any type of constitutional debate. His party was in favor of a constitutional court independent of the Supreme Court. According to Sengoku, a "constitutional court is the institutional guarantee for the rule of law." Finally, Representative Tomio Yamaguchi of the JCP did not favor either system and believed that the Constitution should remain as it is; he stressed that the Supreme Court should be the court of last resort.

In the concluding remarks all panelists agreed that something needs to be done in Japan. A Constitution is a "living body" and it gets its life through amendments, changes and adjudications. Without these, it begins to lose its meaning because it becomes out of touch with the people. When this happens, the gulf between the government and the people widens, and apathy sets in. This is not the course Japan wishes to plot for her future. Jutta Limbaugh, former president of Germany's constitutional court, reminded the audience that the steps towards change should not be too cautious; instead, they should be bolder for this is the only way to stimulate change and continuing debate is the best organ for this. There are presently 78 constitutional courts in the world, with only four of these in Asia. Of these, the Korean court is the most developed, followed by Thailand, Mongolia and Indonesia. Panelists agreed that Japan should look closely into all courts, taking into consideration both her legal and national culture. Only then Japan can decide which system would be best suited for the future of her constitutional adjudication .