Supreme Court of Japan - Judicial Review of Laws

Judicial Review of Laws

The Supreme Court is the only Japanese court explicitly empowered to review the constitutionality of laws, although it has held that lower courts also have power to interpret the constitution. Unlike constitutional courts in other civil law countries, it only exercises judicial review in cases where there is a genuine dispute between parties, and does not accept questions of constitutionality from government officials.

The Supreme Court is generally reluctant to exercise the powers of judicial review given to it by the constitution, in large part because of unwillingness to become involved in politically sensitive issues. When decisions have been rendered on such matters as the constitutionality of the Self-Defense Forces, the sponsorship of Shinto ceremonies by public authorities, or the authority of the Ministry of Education to determine the content of school textbooks or teaching curricula, the Court has generally deferred to the government.

One important exception to this trend was a series of rulings on the unconstitutionality of the electoral district apportionment system. Although the Court ruled in 1964 that legislative districting was largely a matter of legislative policy, it ruled in the 1976 case of Kurokawa v. Chiba Prefecture Election Control Commission, that a 5:1 discrepancy in the voter-to-representative ratio between two districts was an unconstitutional violation of the right to an equal vote. Nonetheless the Diet has repeatedly failed to keep malapportionment within the limits set forth in Kurokawa. Aside from electoral matters, provisions declared unconstitutional by the Supreme Court have included rules

• Punishing patricide more harshly than other homicides.
• Restricting pharmacies from doing business close to one another.
• Limiting the liability of the postal service for the loss of registered mail.
• Restricting subdivision of property by joint owners of forest land.
• Restricting the right of citizenship of certain illegitimate children.

One critic of the court writes that:

The Supreme Court of Japan has been described as the most conservative constitutional court in the world, and for good reason ...Since its creation in 1947 has struck down only eight statutes on constitutional grounds. By way of comparison, Germany’s constitutional court, which was established several years later, has struck down over 600 laws. The majority of the Japanese Supreme Court’s rulings of unconstitutionality have, moreover, been less than momentous ...The high point of ...judicial review in Japan is probably a 1976 decision rejecting a legislative apportionment scheme ...yet the Court refrained in that case from ordering any remedy.