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Tuesday, April 29, 2008

THE ZEIT GIST

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CHRIS MacKENZIE ILLUSTRATION

Judiciary's 'snake legs' exposed

Everyone looks like a winner in wake of ASDF ruling — but it means nothing


Special to The Japan Times

On April 17 the Nagoya High Court ruled that the dispatch of Air Self-Defense Force personnel to Iraq was unconstitutional. While the ruling made news, it will probably not make much difference to Japan's foreign policy. Its significance may be nothing more than academic — after all, despite the headlines the government won.

In 1803 the U.S. Supreme Court ruled on Marbury v. Madison. The decision was of great significance because it established that the court had the power to find acts of Congress unconstitutional. What does this have to do with Japan? Bear with me.

One of the lesser celebrated aspects of Marbury is that Chief Justice John Marshall was dealing with an exceptionally difficult political problem, one for which he was in part responsible. The case involved a petition by one William Marbury demanding that Secretary of State James Madison deliver to him the letter of appointment as a Justice of the Peace, an appointment that had been made by the prior administration of John Adams. Unfortunately, justice Marshall had been the secretary of state in that presidency, so he was in essence responsible for the failure to deliver the commissions before it ended. Furthermore, there was tremendous hostility between the new government led by Thomas Jefferson and the ousted Federalist Party of the Adams presidency.

For Marshall to issue a decision rejecting Marbury's petition would have been a clear political defeat. On the other hand, were he to issue an order to Madison to deliver the commissions, it would almost certainly have been ignored, potentially fatally damaging the prestige of the Supreme Court as an institution. Thus, the court finding unconstitutional the statute giving it jurisdiction to hear Marbury's claim was an act of genius, as it was the only way the court could resolve the case without appearing to be either subservient or irrelevant as a branch of government.

Two hundred years on, Japanese courts are grappling with that same dilemma — how to avoid appearing irrelevant or subservient — on a regular basis, particularly in cases involving other branches of the national government, such as the ASDF case. In actual fact, Japanese courts have extremely limited powers to directly bring about change in the real world. Nobody in Japan seems to get thrown in jail for violating a court order, and when Japan's Supreme Court has repeatedly hinted that something may be unconstitutional — the geographical imbalance in Diet representation, for example — nothing much happens.

Federal courts in the United States, on the other hand, have evolved into highly independent institutions whose decisions are enforced as law. Compliance with such rulings has even been backed by military force: For example, three years after the Supreme Court ordered that racial segregation of schools was unconstitutional, the 101st Airborne was ordered into Little Rock, Ark., to ensure that African-American students could attend a white high school.

As a result of its comparative weakness, the Japanese judiciary has developed a number of techniques for appearing relevant despite its lack of power to effect real change. One is to prevent controversial decisions from being made in the first place. This is accomplished through the personnel power exercised by the Supreme Court's administrative bureaucracy. Judges who issue controversial decisions (such as finding a governmental act unconstitutional or issuing an injunction against the government) may find their careers sidetracked to postings in the countryside. Harvard Law School professors Mark Ramseyer and Eric Rasmussen have gone so far as to assert a statistical correlation between the career path of Japanese judges and the degree to which they issue decisions unfavorable to the government.

Individual judges have also developed techniques for issuing decisions which sound good but have no legal effect because the plaintiff is denied any substantive relief, usually on narrow procedural grounds. The ASDF ruling was of this type. While the unconstitutionality ruling got all the headlines, substantively the case was a victory for the government. The citizens group which brought the suit actually lost on the grounds that they had not suffered any actual damages. The finding of unconstitutionality was obiter dictum, an editorial aside by the judge that has no legal force.

In Marbury too, Marshall used obiter dicta to state that Marbury was entitled to his commission and to criticize the Jefferson administration roundly for not delivering it. The end result, however, was that the commission was not delivered. Similarly, it is hard to imagine the Nagoya High Court decision resulting in the ASDF coming home sooner than planned.

Unconstitutionality rulings such as the ASDF case have something for everyone, but first and foremost for the judges issuing them. The group bringing the case had only sought nominal damages in the first place and they are doubtless ecstatic to have gotten a ruling of constitutionality out of a high court. Having technically won the case the government cannot appeal the unconstitutionality dictum, but can continue sending ASDF personnel to Iraq since that part of the decision has no legal force. The judge responsible for the decision conveniently retired just before it was announced, so he has no worries about his future in the judiciary and can presumably start his new career as a law professor on a high note.

The recent ASDF ruling is not an isolated one, but simply reflects a well-established pattern of judicial behavior. For example, a 2005 Osaka High Court ruling that Prime Minister Junichiro Koizumi's visits to Tokyo's Yasukuni Shrine represented an unconstitutional violation of the separation of state and religion were of the same character: The plaintiffs actually lost (again, because they suffered no actual damages), and Koizumi visited the shrine again two weeks after the ruling. Judge Kaoru Inoue wrote about cases such as these in his book "Shiho no Shaberisugi" ("Blabbermouth Judiciary"), criticizing Japanese courts' practice of issuing rulings that he says have "dasoku" ("snake legs," or something that's useless). He was subsequently driven out of the judiciary — ostensibly for the reason that his judicial rulings were too short, causing complaints from litigants!

It seems to have become accepted practice for people to sue the national government expecting to lose (as you almost always do in Japan) but hoping the court will write something encouraging — but non-binding — in its judgment. The fact that Japanese people have come to have such low expectations of their courts could be taken either as a failure of the judicial system to provide true relief, or the result of highly successful expectation-management by judges who know they cannot do much more.

The U.S. Supreme Court used its dilemma in Marbury v. Madison to create the power of judicial constitutional review, a power not actually provided for in the U.S. Constitution. Since Article 81 of the Japanese Constitution clearly gives the judiciary this power, it is ironic that Japanese judges go out of their way to avoid ever actually exercising it in a manner that is anything other than symbolic. While the preservation of institutional authority is at the heart of both Marbury and the Nagoya High Court's ASDF decision, what the two rulings mean for people outside the judiciary are quite different.

Colin P. A. Jones is a professor at Doshisha University Law School in Kyoto. Send comments and story ideas to community@japantimes.co.jp


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