Questions of constitutionality and constitutionalism in Japan
The Postwar Constitution grants courts the power to conduct judicial review on the constitutionality of the laws and government actions in Article 81 (“The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.”) Constitutional reviews may be divided into two types: “Concrete review requires review in a particular case where the law has already been applied or is about to be applied.
Abstract review determines the constitutionality of a statute or government practice without any reference to a specific case,” and the Japanese Supreme Court, like its US counterpart, may only hear concrete cases.[78]Furthermore, in general, the Japanese courts followed the US Ashwander rules for judicial self-restraint and avoiding constitutional questions, and when they did take a position on the constitutionality of laws, it was often in order to protect the individual rights of the citizens that are guaranteed in the Constitution rather than to assert the supremacy of the Constitution over the laws that contradict it.[79] In reality, Japan has had a highly conservative and passive judiciary that is extremely reluctant to get engaged in judicial review that will have it involved in taking positions against the executive or the legislative branches of the state on what it considers to be “political questions.” As we note in some detail below, the role of the a priori arbiter of the questions of the constitutionality of the laws and government actions has been filled by the Cabinet Legislation Bureau (CLB) in postwar Japan.
The Japanese debate over the constitutionality of laws and government actions dates back to the promulgation of the Constitution of the Empire of Japan (Meiji Constitution) in 1889, in time for the opening of the Imperial Diet the following year.
The Meiji Constitution, East Asia's first modern constitution, was a product of compromise and ambiguity. On the one hand, the emperor was supposed to govern “according to the provisions of the present Constitution” - thereby committing the Empire of Japan to be a constitutional monarchy. On the other hand, the Constitution was granted to the imperial subjects by the emperor who was declared to be “sacred and inviolable” (Article 3) in the same Constitution. Moreover, the Constitution provided, “The Empire of Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal” (Article 1).As a result, the promulgation of the Meiji Constitution did not unequivocally and irreversibly place constitutional constraints on imperial rule. There were two particular points of contention. First, the ministers of state, including the prime minister, were appointed by and were responsible to the emperor, not the Imperial Diet (Article 55). Second, the emperor was the supreme commander of the Army and the Navy (Article 12).
This ambiguity, combined with the absence of any system of constitutional adjudication, had the effect of pitting the proponents of democratically elected party government, who rallied under the banner of “constitutionalism” and “constitutional government,” against the conservative oligarchs and military leaders, who sought to preserve their power to govern in the name of the emperor, particularly from the Taisho period (1912-26) onwards.
The advocates of representative democracy and constitutional government scored some important victories in what is known as Taisho Democracy, but the militarists who abused Article 12 usurped power by imposing their vision of Kokutai (National Body) - the principle of imperial rule as the super-constitutional constitution - by attacking the progressive constitutional theorists and scholars for lese-majeste in the mid-1930s. The Meiji Constitution became more or less meaningless as the militarists and their collaborators brought the Japanese Empire down the path of a devastating war in Asia and Pacific.
Postwar Japan represents a curious case in which its postwar tradition of pacifism that is enshrined in Article 9 of the Constitution has been incrementally modified informally but has remained formally unamendable for over 70 years for reasons that have nothing to do with court protection. Needless to say, not all informal constitutional amendments through government reinterpretation are considered to be unconstitutional, though some have been contested by critics. It was not until the Abe government’s lifting of the ban on the exercise of collective self-defense that de facto constitutional amendment through the executive’s reinterpretation of the constitution has been condemned so widely as unconstitutional, and has even revived a widespread opposition movement under the banner of constitutionalism against unrestrained, arbitrary rule.
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