Reform of the Judicial System

Abstract

Judicial independence is a cornerstone of constitutionalism in many countries. In the early 2000s, the judicial branch of Japan was subject to reform based on a similar premise. This chapter shows how fast the process was, how significant the idea of liberal modernism was, and reveals its unexpected outcomes.

1 The Background for Reform

1.1 What Is Judicial Independence?

The phrase “judicial branch” probably does not evoke a concrete image for many people. Even fewer people, no doubt, intuitively grasp the fact that this branch of government has been a target of political reform. The discussion in this chapter will begin by considering how reforms that were directly related to the judicial branch—in other words, judicial system reform—constitute a part of broader political reform.

Trials (lawsuits) form the core of the judicial branch’s activities. A trial is a legal dispute, i.e., a dispute between parties concerning a relationship of rights and duties, where the subject of the dispute is legal in nature and where a judgment is handed down regarding an issue that can be resolved through the application of law.¹ Technically, there are some legal matters that are not included in the judicial branch’s activities in some countries, like administrative litigation; and there are some matters that are not directly related to litigation but are included in the activities of the judicial branch, such as court rule-making; further, there are some matters that fulfill a judicial-like role but are not considered as part of the judicial branch’s activities, such as decisions of the Fair Trade Commission. Thus, the judgment of legal disputes does not completely equal the judicial branch’s activities. However, let us first confirm that the judicial branch is the “public sector responsible for trials.”

The term “public sector” is used here because trials are also an exercise of state power. In criminal cases, a trial may result in imprisonment, the imposition of fines, or the compulsory loss of liberty or property. In civil cases, it is not uncommon for individuals or companies to be forced to suffer some sort of property loss as a form of damages. It is a serious exercise of power to force individuals to use their time or property—which they would normally be able to use freely—in a way that they do not desire. The modern state (government) is characterized by a monopoly on the exercise of power over individuals, a monopoly which also includes the activities of the judicial branch. As described in textbooks, liberalism or constitutionalism is concerned with the protection of individual liberty through restrictions on the scope of the state’s exercise of power, while democracy demands the consent and involvement of individuals for the management of the state and its monopolistic exercise of power. It is a basic principle of modern constitutionalism that, while it assumes a monopoly by the state on the exercise of power, it does not allow the exercise of power without restraint by liberalism or control by democracy.

Incidentally, trials in developed countries today are conducted by three types of legal professionals—judges, prosecutors, and attorneys—in addition to the plaintiffs and defendants who are party to the case. Of the legal professionals, those other than the judges are representatives of the parties. The Japanese court system is said to be an adversarial one—that is, a system that allows the parties to interact directly, rather than having judges conduct trials on their own authority. However, since the parties often do not have sufficient legal knowledge, actual trials are often conducted by judges with the participation of lawyers who represent the parties. Judges, prosecutors, and attorneys who play important roles in trials are collectively referred to as “legal professionals” or the “three legal professionals.” A major characteristic of the judicial branch is that although it exercises state power, the concrete form of that power—trials—are almost entirely left to legal professionals.

In a state based on modern constitutionalism, all exercise of power is expected to be subject to certain institutional limits and democratic control. In the case of trials, the main activity of the judicial branch, institutional limits are also applied. The principle of nulla poena sine lege (“no punishment without law”) states that punishments must be in accordance with the provisions of the law, and damages that do not have a basis for calculation are not permitted.

However, democratic control of the judicial branch is only exercised indirectly. The Constitution of Japan defines the judicial branch in Chapter VI. Article 76, paragraph 3 states, “All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws.” This is a provision for the independence of judges. Furthermore, Article 78 protects the status of judges, stating, “Judges shall not be removed except by public impeachment unless judicially declared mentally or physically incompetent to perform official duties. No disciplinary action against judges shall be administered by any executive organ or agency.” Article 79, paragraph 6 and Article 80, paragraph 2 guarantee the compensation of the judges of the Supreme Court and lower courts (high courts, district courts, the like): “All such judges shall receive, at regular stated intervals, adequate compensation which shall not be decreased during their terms of office.” These guarantees of status and salary serve as means to secure the independence of judges. Additionally, Article 77, paragraph 1 provides for non-intervention in the administration of the judicial branch by external actors: “The Supreme Court is vested with the rule-making power under which it determines the rules of procedure and of practice, and of matters relating to attorneys, the internal discipline of the courts and the administration of judicial affairs.” These rules can be collectively referred to as judicial independence.

Judicial independence, comprised of the independence of judges and the autonomy of courts, is not unusual in modern constitutional states. Democratic control is lessened, because the exercise of power by the judicial branch can target other branches of the state, namely the executive branch (ministries and agencies), the legislative branch (the Diet), and even local governments. If the judicial branch were subject to strong democratic control—if it strongly reflected the will of actors who win elections and control the administration—it would be difficult to impose any sanctions on that political force through the courts. Additionally, attempts to suppress dissident forces through the courts have often been seen in history, and even today this is not uncommon in authoritarian regimes. The goal of judicial independence is to stabilize the legitimacy of the public sector’s activities as a whole, whether judges are democratically selected or not, and prevent courts from being subject to the will of the administration of the day. In other words, in a liberal democratic system the judicial branch is expected to be an exception that plays a role in strengthening the system.²

1.2 Insulation from Society

In the formation of the modern state, the independence of the judiciary was established through a process of trial and error, and its significance is by no means trivial. Even now, there are countries where courts are used to suppress dissidents and political opponents under the name of “people’s tribunals,” or where judgments are demanded in accordance with popular sentiments and the judicial branch complies. In this light, the value of securing an independent judiciary that can constrain the actions of other government branches and treat every person fairly in court, even when some decisions are viewed with discomfort by voters, is extremely significant. An independent judicial branch has an important role to play in shaping basic trust in how politics and society function in a democratic system.

However, the lessened democratic control also results in the judiciary being the most distant and inscrutable branch in the eyes of voters. In the case of postwar Japan, the gap between everyday life and the judiciary was designed to be distant. Relatively few citizens in any country participate directly in trials, and this is particularly true in postwar Japan, which did not adopt a jury system or other arrangements to allow people who are not interested parties or legal professionals to participate in court proceedings. Constitutional law scholar, Doi Masakazu, has expressed criticism of this point: “Under conditions in which the judiciary is highly insulated from the public, or in which the public shows little interest in the judiciary, can the judiciary defend its independence and completely fulfill its duties when confronting the Diet and the cabinet?”³

Even in the area of Supreme Court decisions regarding the Constitution, wherein the judicial branch can have a major influence on other branches of the government and society writ large, conspicuous postwar developments have been scarce. One reason for this is that Japan, like the United States, has adopted a system in which constitutional decisions are rendered only for the resolution of specific cases and disputes (the “incidental system” of constitutional review). For example, lawsuits regarding the constitutionality of the Self-Defense Forces (SDF), a high-profile judicial issue, have been concluded without decisions on the constitutionality of the SDF, because the courts ruled that the interested parties did not suffer a legal disadvantage due to the existence of the SDF. It is also said that the Supreme Court considers civil and criminal litigation to be a more essential role than constitutional litigation, and that it trusts the judgment of the Cabinet Legislation Bureau on constitutional issues.⁴

Another reason for the judicial branch being distant is the small number of legal professionals. Beginning in 1923, under the Meiji constitutional system, the qualifying exam for legal professionals was the bar examination section of the Higher Civil Service Examinations (Kōtō Bunkan Shiken, or Kōbun). The number of successful candidates was around 300 in most years (the exam was not held after 1943, due to difficulties stemming from Japan’s faltering war effort). Of these, 100 became judges and prosecutors through the judicial officer probationary examination, and the remaining 200 became lawyers through the attorney probationary examination.⁵ After WWII, a new bar examination system replaced the Higher Civil Service Examination; in 1949, the first year of the bar exam, the number of successful examinees was 265, almost the same number as in the days of the higher examination. Thereafter, the number of successful candidates gradually increased, but it peaked at just over 500 in 1964, and fluctuated between 450 and 500 until the start of the 1990s. As a result, the pass rate for the bar exam dropped to less than 2% of applicants, and the number of legal professionals as a percentage of the population was significantly lower than in other developed countries.⁶

With such a small number of legal professionals, it became necessary to resolve many legal issues arising daily in society without the involvement of attorneys or other legal professionals. There may have been cultural and historical factors at work. Dating back to the establishment of the Meiji state, Japan has a history of accepting modern law and judicial institutions from Germany and other European countries—such as the constitution, civil code, and criminal code—and fusing them to societal practices and norms that have continued from the premodern period. This is a very different background from that of European countries, where laws and courts evolved and modern judicial systems developed in response to social changes and developments, or in the case of the United States and Canada, where social and legal institutions were transplanted from Europe as a set. Therefore, the observation that legal problems that arise in societies with premodern vestiges tend to be resolved without modern laws and judicial institutions has been around for a long time.⁷

However, it is doubtful that culture and history are the only reasons. It would be absurd to say that attitudes towards the law and the judiciary have remained static since the prewar and early postwar periods, given the immense socioeconomic changes from postwar reconstruction and high-speed economic growth, as well as the massive changes in lifestyles and interpersonal relations that Japan underwent after the 1980s. It is difficult to characterize Japanese society after the end of rapid economic growth as premodern. Moreover, with corporate activities expanding internationally, there are many situations in which Japanese employees rely on legal professionals in other countries. Rather, it is thought that in Japan, the lack of familiarity with the legal profession made it difficult to use, and that because few people used it, information was scarce, leading to excessive uncertainty about time and costs.⁸

I noted earlier that one reason for the judiciary’s separation from society was its failure to render decisions on high-profile, contentious issues, such as the constitutionality of laws, due to the incidental system of constitutional review. However, it is possible that the courts’ cautious handling of contentious issues with high social visibility and serious political antagonisms was influenced by its relationship with other branches of the government. In the case of postwar Japan, the legislative branch (the Diet) and the executive branch (the cabinet and bureaucracy) were fused under a parliamentary system, and the Liberal Democratic Party (LDP) had established single-party dominance since 1955. Under these circumstances, the judicial branch needed to be more careful in establishing its relationship with the executive and legislative branches.

Even though judicial independence is guaranteed by the Constitution, the cabinet is involved in the appointment of Supreme Court justices, and as long as there are constraints on its budget, the Supreme Court alone cannot decide upon the economic treatment of judges, including the specific level of “adequate compensation.” The Supreme Court had no choice but to be aware that frequent intervention in the decisions and actions of the Diet, cabinet, and various administrative bodies would invite reverse intervention in the courts and weaken its independence. If there were frequent changes of government, a more assertive stance towards judicial review, including that of the constitutionality of legislation made by the previous ruling party, would not be a problem. However, when government turnover happens in only exceptional cases, it becomes more rational to defend judicial independence by avoiding political conflicts. The Supreme Court has even requested that lower court judges take such a stance. In fact, there are studies that show that lower court judges who intend to challenge status quo interpretations of contentious political issues such as the Self-Defense Forces and the separation of church and state are more likely to fall off the fast track for promotion.⁹

2 Clear Directionality

2.1 Expanding Points of Contact with Society

In a democratic system, it is more difficult to maintain the legitimacy of the judicial branch than that of the legislative or executive branches. In postwar Japan, where the population of legal professionals has been small and the judicial branch has been isolated from society, this tendency is even stronger. Considering the significance of judicial independence, it may be natural to not make the legal profession a publicly elected office. However, if people in society cannot easily consult with lawyers about everyday legal issues and do not use the courts as a means of dispute resolution, the judiciary will lack democratic legitimacy not only in an institutional sense, but also in the substantive sense in that points of contact with society will be scarce. It is not easy for such a judicial branch to build a relationship of equal checks and balances against a ruling party and bureaucracy when there has been long-term single-party dominance under a parliamentary system. Even if court rulings are based on valid interpretations of the law, the judiciary may need to take a contradictory position to branches that have won elections and have high democratic legitimacy, without being able to count on the support of society. In this sense, the lack of contact with society and the reluctance to conduct judicial review of the actions of other government branches are two sides of the same coin.

With this understanding as a starting point, there are two principal directions for judicial reform. The first is to expand contact with society, and the second is to strengthen the judiciary’s autonomy vis-à-vis other branches of the government, especially the ruling party. Let us examine each of these.

As previously mentioned, expanding contact with society means changing the factors that have led to a lack of democratic legitimacy. Specifically, it was necessary to expand the scope of the judicial branch’s decisions (more directly, court rulings and the process leading to them) to reflect the thoughts and preferences of the general electorate, not just that of legal professionals and concerned parties. Put differently, it was necessary to make the judiciary feel closer to voters and businesses by expanding the legal profession and speeding up trials. This would include proactively addressing legal issues with high social visibility, but since many of these issues are politically contentious, they are difficult to address unless autonomy from the ruling party and bureaucracy is guaranteed. If the aim was to increase the responsiveness of postwar Japan’s judicial branch in areas that were its greatest weakness, namely areas of increasing international importance that were also highly specialized and rapidly changing, such as intellectual property and finance, there was ample space for reform in the judiciary alone to achieve this goal.¹⁰

However, there were also fears that this kind of change could be a double-edged sword. Although postwar Japan’s judicial branch has a small number of legal professionals and has been reluctant to address issues that are politically contentious or unfamiliar, it has boasted a high level of practical ability—known as “precise justice” (seimitsu shihō)—in the field of criminal law. Members of the “three legal professions,” who have overcome the extraordinary difficult bar exam and possess highly specialized abilities, make full use of concepts and terms that only experts in the same field understand and resolve legal issues meticulously, even if it takes time. As a result, the Japanese judiciary was an insulated, professionalized space.

If those without legal backgrounds were allowed to participate in the judicial process and express their own ideas and judgments despite only being involved in certain trials for a limited period, the professionals’ insulated space would be lost. Expanding the ranks of the legal profession meant, in effect, raising the cap on successful bar exam candidates, but if the ability and knowledge of applicants as a whole did not change, the only way to increase the number of successful applicants would be to lower standards. Even if this were compensated for by pre-exam education and post-exam legal training and practical experience, the expertise of the legal profession would gradually decline. The lack of professional skills could become more serious if subpar lawyers become involved in areas with which they are unfamiliar. This would be especially true if time constraints increased. Relaxing control of the judicial process, which was in the hands of a small number of legal professionals, could shake confidence in the professional competence that underlay public support for the judicial branch in the absence of democratic legitimacy.

2.2 Greater Autonomy from the Executive and Legislative Branches

For the judicial branch, there has been considerable uncertainty about the extent to which it can gain autonomy from the executive and legislative branches. One reason for the reluctance of the postwar Japanese judiciary to take assertive stances on political issues such as constitutional litigation is the fact that, as mentioned earlier, there had been no change of government for a long time. Within the judiciary, members had multifarious relationships with the long-ruling LDP, the bureaucracy that sought to advance its policies by integrating with the LDP, local governments that were easily influenced by both, and the business community whose interests were aligned with those of the LDP and the bureaucracy. These actors were united on the point of blocking outside actors, including the courts, from wielding influence. Under these circumstances, it was not an easy task to maintain the court’s autonomy on internal matters while also actively adjudicating on contentious issues in which the LDP had a strong interest.

Political historian Mikuriya Takashi notes that as prime minister, Satō Eisaku actively intervened in Supreme Court appointments.¹¹ During the Satō administration, which lasted from 1964 to 1972, there was little possibility of the LDP losing power and, in conjunction, the LDP’s internal personnel practices were stabilized. The longer the LDP remained in power, the more difficult it became to ensure the autonomy of the judicial branch. Looked at another way, in order to increase the autonomy of the judicial branch, it is desirable for changes of government to occur regularly. However, because the judicial branch cannot control how frequently governments change, it is a major weakness of the judicial branch that its autonomy depends on such transitions.

In the mid-1990s, when judicial reform was first conceived, electoral reform had already been completed and administrative reform and local decentralization reforms were already underway. The new form of government that was envisioned assumed that there would be regular change of government between ruling and opposition parties instead of long-term single-party dominance, the bureaucracy would no longer be integrated solely with one particular party, and vested interest groups would be less entrenched. The space for local governments to choose policies based on their own judgments would expand. If the actors wielding political power were replaced, and, by association, checks and balances within the government could function effectively, the judicial branch’s autonomy would be guaranteed and its role in restraining other branches of the government would increase. However, it was unknown whether this new form of government would be realized.

A parallel difficulty was how to reconcile a desire for reform that would lead to a reduction in expertise, on the one hand, and the pursuit of autonomy that was based on expert abilities in handling relations with the ruling party and the bureaucracy, on the other. Legitimacy based on the highly specialized knowledge of a small number of professionals would make the judiciary a peripheral institution for the average voter or business, thereby weakening its position relative to other branches of the government. However, no matter how much contact with society is expanded, it is impossible for the judicial branch to rest solely on democratic legitimacy, since its members are not publicly elected. Of course, these two issues are not entirely contradictory: the idea was to aim for a more open judicial process than in the past without reducing expertise too much. However, it was unclear whether there was a way to ensure this proper balance.

2.3 Research and the Exploration of Options by the Supreme Court

What were the perceptions within the judicial branch regarding this situation and its challenges, and what efforts were being made to confront them? We have already seen that the Constitution grants the Supreme Court authority to decide the internal rules of courts and judicial administration, the details of which are set by the Court Act. The Court Act defines the composition of the lower courts other than the Supreme Court, and also regulates how judges are to be appointed. It also assigns personnel affairs and other matters relating to judicial administration to “judicial assemblies” (saibankan kaigi). Thus, the Supreme Court’s judicial assembly is the apex organization for judicial administration. In practice, however, it is difficult for Supreme Court justices, who are too busy and too few in number, to devote their time and labor to judicial administration, and the Supreme Court General Secretariat, an auxiliary body of the judicial assembly, is responsible for judicial administration.¹²

The Supreme Court General Secretariat plays a significant role in the career paths of judges who hold key positions. Judges in the general secretariat, judges serving in managerial positions such as President of the High Court and President of the District Court, and Supreme Court investigating officers are collectively referred to as the “judicial bureaucracy.” The judicial bureaucracy, in addition to administering the appointment of judges, has exercised influence over the judicial system overall, including the shape of trials and the three legal professionals, as well as the interpretation of laws and judicial practices. Shindō Muneyuki, a scholar of public administration, says that control of judges by the judicial bureaucracy has created the judicial inertia of postwar Japan.¹³ Of course, the view that the judicial bureaucracy controls judges and dominates the judicial branch is one-sided. As legal sociologist Daniel Foote points out, while the Constitution provides for the independence of individual judges, if the judicial bureaucracy is not given opportunities to engage in mutual review meetings among judges, this would be even more inappropriate from the perspective of properly resolving legal issues.¹⁴

Whether one sees this situation as a system of controls or as a contribution towards more appropriate judgments and policy formation, it is clear that the activities of the Supreme Court General Secretariat played a significant role in postwar Japan’s judicial branch. From the 1980s onward, the general secretariat’s awareness of the need to expand contacts between the judicial branch and society intensified. Yaguchi Kōichi, who became Chief Justice of the Supreme Court in 1985, had such a long tenure at the General Secretariat that he was sometimes called “Mister Judicial Administration.” Under Yaguchi’s initiative, Takesaki Hironobu, who would later serve as Chief Justice of the Supreme Court, and other judges in their forties who served in the General Secretariat were dispatched to the United States and the United Kingdom for long periods of time to conduct research on the participation of the public in the judicial process, including the jury system.¹⁵ In an interview immediately following his retirement, Yaguchi explicitly stated that going forward, the judiciary “needs to close the gap with the people. Furthermore, I also feel strongly that trials should not be treated like a monopoly of the legal professions.”¹⁶

Yaguchi was also skeptical of the idea that because the legal professions have a high degree of expertise, legitimacy can be secured by professionalism. In his thinking, “a trial is something that cannot go above the level of the parties involved.” He disapproved of the closed system whereby a majority of judges or prosecutors ended their careers where they were first appointed. The ideal was the unification of the legal profession, meaning that people who were qualified to practice law would serve in different positions over the course of their careers, as judges, prosecutors, administrators, and lawyers.¹⁷ In later years Yaguchi became more assertive about citizen participation in the judicial process, criticizing the “precise justice” theory in his oral history and dismissing the view that the number of lay judges drawn from the general public, whose involvement had been proposed as a feature of judicial reform, should be less than the number of professional judges. However, shortly after retiring as Chief Justice of the Supreme Court, he became a little more cautious, proposing that the jury system, which “costs money and time,” be introduced only in a few criminal cases.¹⁸

However, it would not be fair to say that the judicial branch was united in accordance with Yaguchi’s way of thinking. Rather, it could even be said that Yaguchi was the most radical reformer. The reason for internal disagreement was, of course, fear over the decline in expertise. At a roundtable discussion held at a time when judicial system reform was gaining momentum, Monguchi Masahito, then the acting chief of the Civil Division of the Tokyo District Court, expressed fears about the loss of “the correctness of rulings” and “predictability,” saying “the proposal to expedite trials needs to be fleshed out a little more.” He also expressed doubts about the unification of the legal professions (“some conditions and the environment are not yet ready”) and the introduction of the jury system (“would the public accept something that will bind them for a long time?”).¹⁹ Although the record of the roundtable discussion was probably compiled by a newspaper, Monguchi is clearly marked as a skeptic of judicial reform, and his comments may not have been the average view of the legal profession at the time. However, it is clear that there were a variety of views on reform within the legal profession, even if they did not surface.

3 Reform by Consensus

3.1 The Road to the Establishment of the Advisory Council

It was only after the Judicial System Reform Council was established in July 1999 that reform of the judicial system, which had been under consideration since the 1980s, began to take concrete form. However, the council was not established out of thin air; its antecedents can be found in initial considerations by the Supreme Court General Secretariat and several subsequent developments in the 1990s. According to Satō Kōji, a constitutional law scholar who was deeply involved in judicial system reform, one of the representative developments at the time was the “Declaration on Judicial Reform” issued by the Japan Federation of Bar Associations (JFBA) on May 25, 1990. Another was “Pathology and Prescription for Contemporary Japanese Society: Toward the Realization of a Society that Makes the Most of Individuals,” published by the Keizai Dōyūkai in June 1994, in which judicial reform was proposed.²⁰

One would expect that the orientation of the arguments made by the JFBA, which is concerned with guaranteeing the rights of citizens and monitoring public authority, and the Keizai Dōyūkai, which is reform-oriented but premised on the interests of the business community, would be diametrically opposed. However, in reality, their proposals were surprisingly similar.

First, the JFBA’s declaration says the following:²¹

A well-developed judiciary is indispensable to fully guarantee the rights of the people and to develop a prosperous democratic society.

More than forty years have passed since our country’s judicial system was completely remade with the enactment of the Constitution of Japan.

During this period, the circumstances surrounding the justice system have changed significantly, especially the development of economic activity and the expansion of the administration, which, on the one hand, have improved the lives of the people, but, on the other hand, have caused various frictions, such as human rights violations against the people. In addition, the number of legal disputes in general has increased, and it is striking that they are becoming more diverse and more complicated. The public strongly expects the judiciary to fulfill its function of securing human rights in every area and resolving various legal disputes in an appropriate and prompt manner.

However, if one looks at the current state of our country’s judiciary, it not only does not meet the expectations of the people, it is becoming increasingly distant from them. Now is the time to fundamentally reform our country’s judiciary, aiming for an ideal, open justice system that reflects popular sovereignty and is accessible to the people. To this end, it is of the greatest importance that the budget for the judiciary be substantially increased to expand the judiciary both in terms of personnel and resources, and that the various problems that have arisen in the organization and administration of the judiciary be rectified from the perspective of the people. Furthermore, from the perspective of the participation of the people in the judiciary, the introduction of jury and lay judge systems should be considered, with the aim of realizing a unitary legal system.

Keizai Dōyūkai first criticizes the current state of the judiciary as follows:²²

The judiciary, as one of the three branches in the separation of powers, has the serious mission and great authority to monitor the legislative and executive branches, but it is not fulfilling its proper function and even its presence is fading, as seen for example by its toleration of the disparity in the value of votes or the great amount of time and money needed when the people appeal to the courts.

It then proposes the following reforms:

Hereafter, the justice system needs to become closer to and more present for individuals. In particular, the core of the justice system—the courts—should be improved in terms of time, cost, and accessibility so that it is easier for individuals to use …The current situation in Japan, where the courts are difficult to use, as well as the situation whereby the justice system’s function of improving the health of civil society cannot be fully realized, is a problem …

Therefore, an organization such as a “Judicial Reform Promotion Council” (tentative name) should be established as soon as possible, and a broad national debate—focusing not on discussions among legal professionals alone, but on the voices of citizens and other “users” of the justice system—should commence regarding basic problems of the judiciary, for example the participation of citizens in the judiciary; the consistency of the judicial system with that of other countries; and the position of the judicial branch within Japanese society as a whole, not only with legal professionals but also with citizens.

What both the JFBA and Keizai Dōyūkai pointed out was that the judiciary was distant from the public and difficult to use, due to the small number of legal professionals and the lack of citizen participation in the judicial process. They also highlighted that the judiciary’s ability to conduct oversight of other branches of government was inadequate, and that its rights vis-a-vis the other branches were too weakly guaranteed. As touched on earlier in this chapter, an awareness of postwar Japanese judiciary’s problems—isolation from society and insufficient autonomy from other government branches—was widely shared across the political spectrum. There was broad agreement on the need to promote reforms that incorporated the “viewpoint of the people” (JFBA) or the “voices of citizens and others” (Keizai Dōyūkai).

When viewed in a larger context, this kind of movement towards judicial reform has similar undertones to the broader project of liberal modernism, described in Chap. 1. In other words, as is clear from the fact that the JFBA’s declaration advocated the realization of a “prosperous democratic society” and preached enforcement of the Constitution of Japan, and that the Keizai Dōyūkai mentioned the “separation of powers” and “consistency of the judicial system with other countries,” judicial system reform was aimed at further modernizing Japanese society and achieving international standards. Autonomous individuals, living freely with creativity and ingenuity, create by their own wills the political power necessary to achieve and monitor social tranquility, and sometimes replace the bearers of that power. A judicial branch that was close and responsive to society’s needs was essential for the kind of society thought to be prevalent in the developed world.

However, as has been the case with reforms in the various institutional domains discussed in the previous chapters, realizing judicial reform required the localization of modernism. In the following section, we will consider the localization process by examining the development of judicial reform from the Judicial System Reform Council onwards.

3.2 Judicial System Reform Council

Hashimoto Ryūtarō, who worked on administrative reform and revision of the Bank of Japan Act, resigned as prime minister following the LDP’s crushing defeat in the July 1998 House of Councillors election and his successor, Obuchi Keizō, was in power when the Judicial System Reform Council was established in 1999. However, the need for judicial reform had been raised during the Hashimoto cabinet, in the final report of the Administrative Reform Council issued in December 1997, and there is a high degree of commonality in the positioning of administrative and judicial reform as policy issues. It is not surprising that the same philosophy—liberal modernism—that underlay administrative reform can also be found in judicial reform.

The Judicial System Reform Council was established for a period of 2 years under the Act for Establishment of the Judicial System Reform Council, with the prime minister as the responsible minister. Its jurisdiction, as stipulated in Article 2 of the Act, included both research and policy prescription: “to clarify the role that the judiciary should play in Japanese society in the twenty-first century, realize a judicial system that is more accessible to the public, involve the public in the judicial system, enhance and strengthen the legal profession and its functions, and study and deliberate on other basic measures necessary for the reform and infrastructure of the judicial system,” and, “based on the results of its study and deliberation, offer opinions to the cabinet.”²³

The first meeting was held at the Kantei (Prime Minister’s Office) on July 27, 1999, and constitutional law scholar Satō Kōji was elected chairman. Satō also played a major role in the preparation of the final report of the Administrative Reform Council, with the cooperation of Matsui Kōji, who served in the secretariat, and this is reflected in the commonality between these reforms. The other members of the committee were Inoue Masahito, who specialized in criminal procedure law; Takeshita Morio, who specialized in civil procedure law; Nakabō Kōhei, then president of the JFBA, which had issued the judicial reform declaration mentioned earlier; and Torii Yasuhiko, who chaired the Central Bank Study Group that played a key role in the revision of the Bank of Japan Act. Assisting the prime minister and effectively supervising operations was the administrative deputy chief cabinet secretary, Furukawa Teijirō, who had held that position since the Hashimoto administration. At the first meeting, several reform proposals issued in the 1990s, including the JFBA’s judicial reform declaration and the recommendations of the Keizai Dōyūkai, were distributed. Subsequently, meetings were held at a rapid pace: twice a month during fiscal 1999 and more than three times a month in fiscal 2000.

At the eighth meeting on December 8, 1999, Chairman Satō presented a draft of the key points. This draft listed “modern Japan and the present,” “the transformation of Japanese society and the role of the judiciary,” and “internationalization and the role of the judiciary” as historical background concepts, and proposed the following as directions for reforms under the heading of “strengthening the institutional foundation of the justice system:”

• Realizing a judicial system that is accessible to the people

• A way of civil justice that meets public expectations

• A way of criminal justice that meets public expectations

• Public participation in the judiciary

Under the heading of “strengthening the human foundation of the justice system” it also proposed:

• Bolstering the population of legal professionals and the legal training system

• Unification of the legal profession

• Improvement of the personnel systems of courts and public prosecutors’ offices

The importance of harmonization with “international rules” was also mentioned. At the subsequent ninth meeting, the summary of key points was agreed upon by the council as a whole, but its content had not changed significantly from the earlier draft. The council continued to study energetically—including through local public hearings and overseas study trips—but its activities were now focused on more concrete aspects of institutional design. It is safe to say that the basic thinking of the council was largely settled in the draft of key points.

The council delivered its interim report to Prime Minister Mori Yoshirō on November 28, 2000, and published the full text. Since the council had already proposed reforming the legal education system, the Ministry of Education, which is involved with legal education at universities and graduate schools, convened a “Study Council on the Law School (tentatively named) Concept” from May 2000, and released a summary report in September of the same year. The chairman was Kojima Takeshi, a civil litigation scholar. At this council, it was decided that faculties of law would not be abolished, that law schools would be newly established with faculties of law as their organizational foundation, and that, although presented as an exceptional circumstance, the option of taking the bar examination without completing law school would remain. The LDP was more supportive of allowing those who had not completed law school to take the bar exam, and the council relaxed its proposal that this be permitted only in exceptional circumstances.²⁴ Based on this foundation, the council compiled its final opinion at its 60-s meeting on June 1, 2001, and submitted it to Prime Minister Koizumi Jun-ichirō at its 63rd meeting on June 12, 2001.

The final report begins with the title “The Vision of Our Society in the Twenty-First Century,” stating, “The people will build a free and fair society, cooperating with each other as autonomous and socially responsible individuals, while realizing a government that is streamlined, efficient, transparent and suitable for the effective performance of important state functions, and on this basis we will contribute to the development of the international community.” In addition, the “role expected for the justice system in our society in the twenty-first century” was divided into “the role of the justice system,” “the role of the legal profession,” and “the role of the people.” Under the heading, “the shape of the twenty-first-century justice system,” the three pillars of “the development of the institutional foundation,” “improving the human foundation,” and “judicial participation by the people” were presented. The development of the institutional foundation refers to speeding up trials and establishing courts that specialize in intellectual property cases. Improving the human foundation centered on reforming the legal training system, increasing the legal population, and reforming the closed career system. Public participation in the judiciary centered on the introduction of a lay judge system.

3.3 The Reality of Institutional Reform

The Koizumi administration, after receiving the final report, immediately began work on translating the reform proposal into legislation. The bill was submitted to the extraordinary session of the Diet in the fall of 2001, with the cabinet secretariat as the competent authority, and was passed in November as the Act on Promotion of Judicial System Reform. In December, the “Headquarters for the Promotion of Judicial System Reform” was established in the cabinet. In the ordinary Diet session that began in January 2002, the “Act Partially Amending the Patent Attorney Act” and the “Act Partially Amending the Judicial Scrivener Act and the Land and Building Investigator Act” were passed first, followed by more than 20 pieces of associated legislation.

Looking specifically at the important laws, revisions to the School Education Act to allow the establishment of law schools and the Bar Examination Act to establish a new judicial examination system were passed in the extraordinary Diet session in the fall of 2002. The Act on the Dispatch of Judges and Public Prosecutors to Law Schools and the Act on the Expediting of Trials were passed in the ordinary Diet session in 2003. Acts relating to the introduction of a lay judge system and revisions of the Code of Criminal Procedure to reform the Committee of Inquest for Prosecution system, as well as the law establishing the Japan Legal Support Center, the so-called “Hō-terasu” system—a nickname for the Japan Legal Support Center, derived from the phrase “illuminating (terasu) the law (hō) for society” as well suggesting the idea of a “terrace” or open space—were passed in the ordinary Diet session of 2004.²⁵

The reason why these reform laws proceeded so smoothly can be attributed to the broad consensus on judicial system reform. We have already seen that in the 1990s, the JFBA and the Keizai Dōyūkai shared similar perceptions of the status quo, but other actors also felt the need for reform. The LDP, then the ruling party, announced a series of policy proposals from 1997 onwards in its special study group on the judicial system. The study group’s June 1998 report reiterated its aim of promoting reform under the leadership of an advisory council.²⁶ Moreover, this kind of recognition and orientation were not limited just to the legal world, the justice ministry, or the LDP, but were shared by the business community and the mass media, and were also accepted by the Ministry of Education (known as MEXT from 2001), which had taken an increased interest in higher education reform. As demonstrations of this, for 8 months from October 1999, the Nikkei Shimbun published a long-running series of articles titled “The Justice System: The Business Sector Asks” that urged reform, and the Ministry of Education decided to design a law school system as soon as the Judicial System Reform Council had laid out its arguments for such a system.²⁷

The Democratic Party of Japan (DPJ), which from the late 1990s had established itself as the leading opposition party, also took a proactive stance towards judicial system reform.²⁸ The DPJ had formed a “Next Cabinet”—similar to the “Shadow Cabinet” formed by the leading opposition party in the United Kingdom—and Eda Satsuki, who served as the “Next Justice Minister,” released a document on July 12, 2000, called “Toward a Judiciary in which Citizens Take the Leading Role: Judicial Reform in the Era of Establishing a New Democracy.” The document stated: “The courts have not been able to adapt to the remarkable increase in quantity and the change in quality of lawsuits. As a result, trials take time and the courts are unable to meet the demands of the business community, which is facing fierce international competition. Moreover, the public also faces a high threshold to access the justice system, and judicial services have become something remote from their lives. Thus, there is an enormous pile of issues that should be reformed.” With this recognition as a starting point, the DPJ proposed increasing the quantity and quality of legal professionals, unifying the legal profession, introducing a jury system or a lay judge system, and reforming administrative legal proceedings. On May 17, 2001, immediately before the release of the final report of the Judicial System Reform Council, the party publicized its views in a document titled “An Opinion on Judicial System Reform.”

With such a foundation already in existence, the emergence of Prime Minister Koizumi Jun-ichirō, whose administration’s primary task was structural reform, further accelerated reform of the judiciary. In its “Plan for the Promotion of Judicial System Reform” approved by the Cabinet on March 19, 2002, the administration stated, “In view of the importance of comprehensive and intensive promotion of judicial system reform not only by the government but also by the Supreme Court, the Japan Federation of Bar Associations, and others, we expect the Supreme Court to formulate and implement measures for judicial system reform in a comprehensive manner, and we expect the Japan Federation of Bar Associations to take necessary initiatives for the realization of judicial system reform.” Consistent with this, the Supreme Court issued on March 20 its “Outline for a Plan for the Promotion of Judicial System Reforms,” and on March 19, the JFBA issued its “Japan Federation of Bar Associations Plan for the Promotion of Judicial System Reform,” suggesting that there was little disagreement at this stage about institutionalizing the reform.

Based on the reform legislation, education at law schools began in April 2004; a major revision of the Administrative Case Litigation Act came into effect in April 2005; the new bar examination was administered for the first time in May 2006; the Japan Legal Support Center, which makes it easier for the public to consult with lawyers, began operation in October of the same year; and the lay judge system began in May 2009. In addition, a series of changes were made to strengthen the social presence of the judiciary, including the establishment of the Intellectual Property High Court (IP High Court) in April 2005 and the establishment of the Labor Tribunal Committee based on the Labor Tribunal Act enacted in 2004.²⁹

4 Localization After Institutional Change

4.1 Difficulties in the Implementation Stage

As is clear from what has been discussed thus far, unlike the other reforms discussed in this book, judicial system reform was met with few objections or outspoken opposition, and institutional change proceeded exceedingly smoothly. The concept of reform remained roughly the same as it moved from the conceptual phase in the 1980s and 1990s, to the basic design phase in the advisory council from the 1990s to the early 2000s, to the institutionalization phase in the mid-2000s. These institutional changes closely reflected the modernist idea in its original form.

The consistent perception was that the postwar Japanese judicial branch had become too dependent on a sophisticated but insular professionalism, which made it inaccessible to the general public and businesses, and that it could not adequately fulfill its function of restraining the state’s power, an issue that had been exacerbated by prolonged one-party dominance. In order to change this situation, the reforms aimed to increase the number of legal professionals and the participation of the general public in the judicial process; to narrow the legal system’s separation from society by making it more accessible; to increase the judicial branch’s democratic legitimacy; and to enhance its ability to restrain and monitor the other political branches. A recognition of these issues and the measures needed to address them was shared not just by the three legal professions, but were also by many other relevant actors, including members of the ruling party, other government ministries, opposition parties, the business community, and the media.

However, the post-reform process has been unexpectedly tough. In particular, there have been significant difficulties with the new legal training system and bar examination system, which were designed to increase the number of legal professionals; the lay judge system which aimed at expanding the participation of the general public in the judicial process; and the speeding up of trials that has accompanied these initiatives. In some areas, such as the Administrative Case Litigation Act, the Labor Tribunal Act, and Alternative Dispute Resolution (ADR) procedures, efforts promoted as part of the judicial system reform are said to have achieved results. Overall, however, for most reforms proposed by the Judicial System Reform Council—strengthening the institutional foundation of the justice system, strengthening the human foundation of the justice system, and public participation in the justice system—the expected results have not been achieved, with the partial exception of strengthening the institutional foundation.

Let us look at some specific examples. First, with regard to the legal training system, law schools were established at various universities in fiscal 2004 and 2005, bringing the total number to a maximum of 74. Some of the universities were in regions where law faculties had not been established before, while others had limited experience in training legal professionals. These new law schools were created in accordance with the government’s plan for judicial system reform—“aiming for the number of students who pass the bar examination to be around 3000 per year by around 2010”—and its attendant concept, that “70 to 80 percent of graduates of law schools should pass the bar examination.” In reality, however, the number of successful applicants peaked at around 2100 in 2012, and thereafter began to decline, and the chances of passing the bar exam and becoming a legal professional have declined significantly even for law school graduates. Except for a few universities that had achieved excellent results in the old bar examinations, the success rate of most law schools was remarkably low, with the number of students who passed the exams under the new system ranging from zero to a handful per law school. The number of applicants to many law schools dropped significantly a few years after their establishment, and, starting with Himeji Dokkyō University Law School in 2011, half of the law schools have already stopped accepting students.

In addition to the fact that the number of successful bar exam candidates has not reached initial expectations, the existence of a preliminary examination presents another difficult problem. The preliminary examination was established when law schools were founded in order to eliminate the problem of people who could not become legal professionals for financial reasons: if a person could pass the preliminary examination, he or she could take the main bar exam even without completing law school. However, the preliminary exam, which was originally envisioned as an exceptional route to becoming a legal professional, has in reality been used by those seeking to save the time and money. People can attend a preparatory school during their undergraduate legal studies, or after starting law school, to prepare for and pass the bar exam in less time that it would take them to complete a full law school program. The bar exam pass rate for those who have passed the preliminary examination continues to exceed that of law schools with the highest pass rate. Even among law students enrolled in universities with law faculties that have a track record in the bar examination, the better students tend to opt for the preliminary exams. This is a fundamental threat to the existence of law schools.

The lay judge system is also facing a major turning point. From the beginning, there have been questions about the time burden of long court appearances and the psychological burden of judging people, in particular for those who do not want to be lay judges in the first place. Fears have also been raised that defendants’ rights could be violated by the participation of non-specialists. These concerns have not been extinguished even now.³⁰ Although efforts are being made to reduce the burdens, such as by arranging pre-trial reviews of issues, many people cannot take even a few days off of work if they become a lay judge. In 2018, the rate of refusal was 67.1%, while the absentee rate for the selection proceedings (the rate of lay judge candidates who did not refuse beforehand but did not attend) reached 32.5%. Even in a Supreme Court survey, in response to the question, “has your interest in trials and the justice system changed” since the start of the lay judge system, 70% reported “no particular change.” In the same survey, expectations that trials would be more “fair and neutral,” “trustworthy,” and “accessible,” while not low, did not increase after the introduction of the system, and it is unlikely that respondents perceived such virtues as actual effects of the system. As for the speeding up of trials, which was supposed to be a part of the lay judge system, the average number of trial days for the first hearing of criminal cases has, in recent years, been slightly increasing compared to when the lay judge system was first introduced.³¹

4.2 A Return to Expertise

What is behind these problems? The new legal training system, the bar examination system, and the lay judge system: it is possible to see all of these initiatives as overly idealistic. Undeniably, it is somewhat irrational to think that the problem of judicial isolation from the general public can be solved by suddenly involving lay judges in criminal trials for serious crimes such as murder. But it could also be argued that reforms were insufficiently radical, whether because law faculties survived even as law schools were established, because approval for the establishment of law schools was given to far more law schools than expected, or because the preliminary examination was used as a loophole. In South Korea, which reformed its legal education system in 2009, a little later than Japan, measures were taken to abolish law faculties and allow only people who have completed law school to sit the bar exam (a mandatory exam to become a legal practitioner).³²

The problem in Japan can be seen as resulting from the localization after institutional reforms were implemented. In other areas of political reform covered in this book, such as electoral reform, administrative reform, and decentralization reform, actors with differing views were engaged in the process of formulating reform proposals and legislation, and while there was confusion, the final content of reform was developed in a settled fashion. This is what is referred to in this book as localization. However, if viewed from the perspective of pursuing reforms that are thought to be the most ideal, localization is either compromise or retreat. In fact, such criticism has been leveled at all reforms. In the case of judicial reform, however, until the details of the reform were decided, the main actors were so united that any objections would have had little influence on the process. Experts in criminal justice and crime policy had long pointed out that the lay judge system would change the so-called “market price of sentencing”—the appropriate level of punishment based on past practice—and reduce the predictability of sentencing, inviting harsher punishments due to public sentiment.³³

However, the fact that localization did not occur during the process of defining the content of the reform does not mean that localization was unnecessary. The public’s lack of preparedness with respect to participation in the lay judge system, an issue that was a concern of judges who participated in the roundtable cited earlier, was precisely what became manifest after the reform, as seen by the fact that two-thirds of lay judge candidates have declined to serve. In addition, the fact that the number of people who passed the bar examination peaked without reaching the initial target, concerns that declining pass rates were not properly reflected when new law schools were approved, and the fact that not enough people who completed law school and passed the bar went on to corporate work, all suggest that judicial reform did not have much significance for actors outside the legal profession. In other words, even actors who were in favor of the reform but were outside the legal sector were not aware of its content or effects. The highly specialized and insulated nature of the judicial branch weakened the impetus for external actors to understand and carry on the reforms.

The fact that change of government did not bring about the entry of new political powerholders to the extent expected may also have had an impact. The logic behind judicial system reform was that it was necessary to strengthen autonomy from the Diet and the bureaucracy. In other words, judicial reforms, which occurred after electoral and administrative reforms, were expected to increase the courts’ democratic legitimacy by expanding contact with society, and thus ensure greater equality with the legislative and executive branches. In fact, the revision of the Administrative Case Litigation Act has been given a certain amount of credit—it expanded the scope of relief for noise pollution, for example, by broadening the standing of plaintiffs.³⁴ Bureaucrats are not unaware of this development, and it is highly likely that it is causing a change in the relationship between the judicial and executive branches.

However, regarding the relationship with the legislative branch, including the administration, if a change of government does not occur, it is enormously risky for the judicial branch to engage actively in judicial review. Accordingly, there are few reasons for politicians to be aware of and attentive to the presence of the judicial branch. This reality is reflected starkly by the fact that, during the contentious developments during the second Abe administration surrounding the passage of new security laws and the right to limited collective self-defense, the transfer of Yamamoto Tsuneyuki from director general of the Cabinet Legislation Bureau to justice of the Supreme Court was regarded as a “demotion.” Yamamoto had served in the Cabinet Legislation Bureau for more than 10 years and had been director general since the DPJ-led administration of Noda Yoshihiko. However, he stepped down and became a Supreme Court justice after clashing with the Kantei over his attempts to maintain the bureau’s interpretation that the exercise of the right of collective self-defense was constitutionally problematic. This indicates that the administration recognized that the Cabinet Legislation Bureau, rather than the Supreme Court, was the key constraint in changing the interpretation of the Constitution.

As a result, post-reform localization has fortified the rationale of the legal profession—insular professionalism—that had prevailed from before the involvement of external actors, and thus diminished the effects of reform. Only the law schools of universities that already had a good track record in the bar examinations have survived, producing legal professionals who are few in number and not necessarily well-versed in new socioeconomic issues, but highly skilled in terms of the traditional logic and techniques of legal interpretation. Even though the lay judge system continues, the number of trial days has gradually increased, and it is no longer unusual for a decision involving lay judges to be overturned on appeal. On this point, constitutional law scholar Masahiro Sogabe notes that the number of people who have passed the bar exam has increased but the number of assistant judges (the first position as professional judges) has not, and this, together with the introduction of the lay judge system, has made courts and judges busier than they were before the reform.³⁵ It is no mystery, then, that as they become busier, court officers have tended to revert to familiar ways of thinking and logic. Despite the high refusal and absentee rates, the Supreme Court has not wavered in its view that the lay judge system is generally accepted by the public, but this may simply reflect the views of experts who do not care about the effects of reform.

Although awareness of insular professionalism as a problem underlay judicial reform, the external actors who stressed it are losing interest in the judicial branch, and for this reason, further changes are unlikely to be forthcoming in the foreseeable future. However, many of the societal effects of the judicial branch’s structure will become apparent in the long run, and the assessment of localization remains to be determined.