Japan Institute for National Fundamentals

　　　　　On November 4, the Grand Bench of the Supreme Court concluded the trial on a suit questioning the constitutionality of a Civil Code provision denying separate family names for married couples, after speeches from both parties of the suit. It is reportedly expected to give a ruling within this year. I do not touch on whether the Civil Code provision is right or wrong. The point I would like to pay attention to is that the plaintiff side has emphasized the Supreme Court should provide a relief as the Diet cannot be expected to revise the Civil Code. The complainant has taken advantage of several recommendations by the United Nations Committee on the Elimination of Discrimination against Women and the United Nations Human Rights Committee urging Japan to repeal the Civil Code provision.

Lawmakers seem to avoid responsibility
　　　　　At a time when movements are growing for bypassing the Diet provided by the Constitution as “the sole law-making organ of the State” to exploit the United Nations and the judicial branch for revising or repealing law, Diet lawmakers’ silence is mysterious. Under ordinary circumstances, lawmakers, whether in the ruling or opposition camp, should check ultra vires activities of international organizations and the judicial branch by asserting that the Diet has the law-making power. Nevertheless, most of Diet lawmakers have indicated their anemic attitude of leaving the judicial branch to make a decision on any sensitive issue, worse than looking on the case. Can we expect such anemic lawmakers to undertake a constitutional amendment that would require more knowledge and energy than any revision to a non-constitutional law?

Obscure and easy selection of Supreme Court Justices
　　　　　The Constitution of Japan provides the Supreme Court with a strong power to “determine the constitutionality of any law, order, regulation or official act.” A majority of the 15 Supreme Court Justices appointed without election can invalidate a law passed democratically by the Houses of Representatives and Councilors. Under the current Constitution, the Cabinet is assigned to appointing Supreme Court Justices without consent from the Diet. The system is far less transparent than the U.S. system in which the Senate opens public hearings and decides on whether to approve the administrative branch’s nomination of a Supreme Court Justice. Instead, a Japanese prime minister has grave responsibility for appointing Supreme Court Justices.
　　　　　During Diet deliberations on the national security bills enacted on September 19, Vice President Masahiko Komura and other executives of the ruling Liberal Democratic Party emphasized that Supreme Court rulings represent the last resort and that the guardian of the Constitution is not any constitutional scholar but the Supreme Court. Then, I would like to question how prudently Supreme Court Justices are selected.
　　　　　Prime Minister Shinzo Abe’s Cabinet appointed Tsuneyuki Yamamoto (hailing from the former Ministry of International Trade and Industry) as Supreme Court Justice in August 2013 after dismissing him as director-general of the Cabinet Legislation Bureau due to his resistance to the Cabinet’s change to the interpretation of the Constitution regarding Japan’s right to collective defense. At a press conference for his appointment, Yamamoto reiterated that Japan must amend the Constitution to exercise its right to collective self-defense. Then, Chief Cabinet Secretary Yoshihide Suga criticized the Yamamoto remark as uncomfortable.
　　　　　Yamamoto was given one of the two Supreme Court Justice seats allotted for bureaucrats (at present one from the Ministry of Health, Labor and Welfare and the other from the Ministry of Economy, Trade and Industry). He succeeded former Vice Foreign Minister Yukio Takeuchi. When he was vice foreign minister between February 2002 and January 2005, he took an appeasement policy on North Korea, reiterating that sanctions would only anger North Korea. I doubt if he had deep insight or sufficient knowledge about law as required for a Supreme Court Justice. The Supreme Court Justice is not any honorary post for a bureaucrat who was fired or retired. We should keep a closer watch on the Supreme Court Justice appointment.

Yoichi Shimada is Planning Committee Member, Japan Institute for National Fundamentals, and Professor at Fukui Prefectural University.