Constitutional Imperialism in Japan/Chapter 6
VI. The Judiciary
The Japanese Constitution has comparatively little to say on the subject of judicature, and only in very general statements. It is doubtless for the best not to have the judiciary system too strictly limited by hard and fast constitutional provisions. It is wise that merely “glittering generalities” are given and that the details of organization are left to more flexible arrangements. Article LVII reads as follows:
The Judicature shall be exercised by the Courts of Law according to law, in the name of the Emperor. The organization of the Courts of Law shall be determined by law.
Ito explains this in the following terms:
The Sovereign is the fountain of justice, and His judicial authority is nothing more than a form of the manifestation of sovereign power. Therefore judgment shall be pronounced in the name of the Emperor, the judicial authority in this respect representing Him in His sovereign power.[1]
Concerning judges it was merely provided that
The judges shall be appointed from among those who possess proper qualifications according to law. No judge shall be deprived of his position, unless by way of criminal sentence or disciplinary punishment. Rules for disciplinary punishment shall be determined by law.[2]
Ito gives the following explanation:
In order to remain impartial and fair in trials, the judges ought to occupy an independent position, free from the interference of power, and should never be influenced by the interest of the mighty or by the heat of political controversies.[3]
Satoh[4] calls attention to one striking illustration of the independence of the judiciary. It was in connection with the trial of the man who assaulted and wounded the Czarewitch (now Czar) of Russia at Otsu in 1891. An attempt was made to consider it a special case for political purposes. But the court stood firm to judge the case purely from the legal point of view and condemned the assailant, not to capital punishment (as desired by the Government), but to life imprisonment, which was the maximum punishment by law in such a case. Satoh adds:
This was not only a technical point of thrilling importance, but was indeed a landmark of great prominence in the path of Japan’s progress as a constitutional nation. Here the principle of entire independence of the judiciary from the executive was permanently and most conspicuously established.
There is one more important provision, in Article LIX, that
trials and judgments of a Court shall be conducted publicly.
When, however, there exists any fear, that such publicity may be prejudicial to peace and order, or to the maintenance of public morality, the public trial may be suspended by provision of law or by the decision of the Court of Law.
It is important to note that the Japanese judiciary has no power to interpret the Constitution. Such power, as has been pointed out in preceding sections, resides entirely with the Emperor.
Moreover, the ordinary Japanese court of law has no jurisdiction, according to Article LXI, in any
suit at law, which relates to rights alleged to have been infringed by the illegal measures of the administrative authorities, and which shall come within the competency of the Court of Administrative Litigation specially established by law.
This leads Uyehara[5] to make the following comment:
For the Cabinet has “almost sole control” over the Court of Administrative Litigation, whose “scope is extensive”, for it
adjudicates in all cases relating to the assessment of taxes, with the exception of custom duties, [and to] the punishment of defaulting taxpayers; the prohibition of withdrawal of permission to engage in business; water rights and works (matters mostly concerning irrigation); and disputes between the State and individual concerning the ownership of land.[6]
One is tempted to enter upon a discussion of the modern Japanese judiciary system, which has been subjected to a great deal of severe criticism. It will however suffice in this connection to state that, in general, the system is a marked improvement over the so-called administration of law in feudal days, and that justice and equity generally prevail. The famous Korean conspiracy trial was not carried on according to Anglo-Saxon ideas of judicature and seemed to be a miscarriage of justice; so that when Imperial Amnesty was granted, in February 1915, to those who had been declared guilty and had served part of their sentence, it was a cause of great rejoicing. The Japanese system, modeled after the systems of the continent of Europe, including a preliminary examination, with methods amounting practically to torture in some cases; the delay in granting bail, if it be granted at all; the apparent idea that a man is considered guilty until he is proven innocent—these and other minor points are counter to Anglo-Saxon ideas of justice and equity. They have all been the object of severe criticism, not only by foreigners but also by Japanese; and they are likely to be modified in a way to give the police less power and the accused greater protection. And only lately there has been a lively discussion whether the system of trial by jury should be adopted in Japan.