Japanese Law and Government/Government

Historical background

Written Japanese history began in the 700s AD, but the history of modern government in Japan has two distinct watersheds: the Meiji Restoration of 1868 and the occupation following World War II, from 1945 to 1952. To understand Japanese government it is necessary to summarize the history of the country during this long period, focusing upon the two great watershed events.

Pre-Meiji Japan

For all of its recorded history, Japan has been headed, in one form or another, by an emperor or tenno (天皇), in an Imperial line that has allegedly remained unbroken from prehistory (660 BC, by Japanese mythology) to the present day. While the emperor ruled absolutely in early Japanese history, the power of the Imperial household declined around the 8th century AD, with the rise of powerful warrior houses and the dismantling of the Emperor's army.

From that era until 1868, Japan followed a feudal model of government, in which powerful warlords called daimyo (大名) ruled fiefs called kuni (国). Although the daimyo had practical power over the country, the Emperor was considered a living god in Japanese religion, and therefore had de jure status as the ruler of the nation from his palace in Kyoto, despite having little practical power.

Starting around the 1100s, the soldiers called samurai (侍) began to dominate society, emerging as a noble class at the top of the social hierarchy. In 1185, the Minamoto samurai family fought their way to dominate other clans and established the first military government or bakufu (幕府) of Japan in present-day Kamakura. The leader of the bakufu was called the shogun (将軍), and bakufu is often referred to in English as "shogunate."

After a civil war in the late 1500s, a second bakufu led by the Tokugawa family was established in present-day Tokyo. Under the Tokugawa shogunate, Japan retained its feudal structure but adopted a more centralized form of government than it had previously known. One of the key actions of the Tokugawa government was to banish all foreigners from Japan and close the country to all foreign trade in the early 1600s, save for a tiny Dutch trading post in Nagasaki. This period of isolation ended in 1854, when U.S. Commodore Matthew Perry successfully forced Japan to reopen its doors to trade. Once the technological disparity between the West and Japan became apparent to Japanese leaders, many sought to end the shogunate and modernize the country.

Meiji and Taisho-era government

In the Meiji Restoration, a group of samurai forced the shogun to resign, took the boy Emperor Meiji from his palace in Kyoto to the shogun's castle in Tokyo, installed the Emperor as the new head of the Japanese government, and defeated the armies still loyal to the shogun, effecting a total revolution in Japan.

While Meiji himself was nominally the ruler of Japan, his advisors had practical control over the country. They promised to give Japan representative government, social equality, and industrial and technological advances from the West. The Emperor nationalized the fiefs of Japan between 1868 and 1871, consolidating them into prefectures; the daimyo were given noble rank and a share of their fief's output in exchange for relinquishing control.

Through several interim governments, one of the Emperor's advisers, Hirobumi Ito, was tasked with examining various governments in the West and adopting a new government model for Japan. He drafted a constitution modeled after the German government, which was adopted in 1889. Although Japan now officially had a bicameral parliament and a court system, de facto control over the government was still firmly in the hands of the Emperor's advisors. This centralization of control continued during Japan's period of rapid industrial and military growth, lasting until the end of World War II.

World War II and the Occupation

One of the principal figures in postwar Japanese legal history is U.S. General Douglas MacArthur. After Japan's total defeat in 1945, MacArthur moved to Tokyo, took charge of the Allied occupation of Japan and began imposing a wide range of legal and political reforms. Overall, these reforms were aimed at pacifying and democratizing Japan.

The current constitution was drafted by MacArthur's staff, adopted by the Japanese leadership, and took effect in 1947. This constitution established Japan's current form of government and enshrined a number of political rights that had not previously been recognized, such as freedom of speech. MacArthur also ordered the nobility disbanded, broke up financial conglomerates called zaibatsu (財閥) that had previously dominated the economy, and pushed for a number of legal reforms, such as new corporate laws.

Since the end of the occupation in 1952, the overall model of the Japanese government has remained relatively unchanged, although many specific components of the system have been altered over the years to meet economic, political and social demands.

The Emperor

Imperial Palace, Chiyoda, Tokyo

The Emperor is Japan's head of state, but under the 1947 constitution, has very little practical role in the Japanese government. He is responsible for convening the National Diet, for appointing the Prime Minister and Chief Justice, and for other ceremonial tasks. To reinforce the Emperor's subservience to the people, he is governed by the Imperial Household Law of 1947 [1], a law passed and adopted by the Diet.

The Imperial Household Law is chiefly important in that it establishes rules for succession. Under Articles 1 and 2 of the Law, all Emperors must be male and a female is ineligible to inherit the throne. Historically, there have been several female Emperors, and currently, there are no male heirs capable of inheriting the throne more than two or three decades into the future. This has led to ongoing debate in Japan over whether to revise the law to permit females to inherit the throne.

Rights of the Emperor

Because of the Emperor's special constitutional status, his civil rights are limited in comparison to ordinary citizens. He does not have the right to bring suit in court (Supreme Court, Nov 20 1989), nor does he have the right to vote or travel freely.

The National Diet

National Diet Building, Nagata-cho, Tokyo

The National Diet or Kokkai (国会) is the legislature of Japan. It functions similarly to a parliament in the Westminster model, as it is bicameral, and the lower house majority forms the government. However, it also resembles the American congressional model in that the upper house is elected, and both houses must generally consent to pass legislation.

The lower house is the House of Representatives or Shugiin (衆議院).

The upper house is the House of Councillors or Sangiin (参議院).

The Cabinet

The Cabinet (内閣 naikaku) is the executive arm of the national government. It is comprised of Ministers of State (国務大臣 kokumu daijin) headed by a Prime Minister (formally 内閣総理大臣 naikaku sori daijin; informally 首相 shusho). The Prime Minister is nominated by resolution of the Diet and appointed by command of the Emperor; the Prime Minister then elects the Ministers of State to form the Cabinet. The Prime Minister may remove and appoint Cabinet members at any time. (Constitution, Articles 6, 66, 67 and 68)

The Prime Minister must be a member of the Diet, and at least a majority of the Ministers of State must also be members of the Diet (Articles 67-68). All members of the cabinet must also be civilians (文民 bunmin) (Article 66[2]), which is generally interpreted to exclude former members of the Imperial military and both former and current members of the Self-Defense Forces.

Legislative process

The Japanese lawmaking process is generally as follows:

• Proposals for new laws are sent to the Cabinet by ministries, agencies, Diet members, organizations, etc.
• For complicated matters, the Cabinet will often appoint a special committee.
• Either the Cabinet or its special committee refers the matter to affected ministries for input.
• The committee and ministry reports are reviewed by the Cabinet Legislation Bureau, which drafts a bill.
• The bill goes to the government's (i.e. the ruling party/coalition's) political committee, which finalizes it.
• The Prime Minister places the bill on the Diet floor for debate (Cabinet Law, Article 5).
• Both houses of the Diet vote to approve the bill.
• The Prime Minister and relevant Minister(s) of State countersign the bill (Constitution, Article 74).
• The Emperor seals the bill, and it becomes law.

Elections

Article 15

The most fundamental provisions governing all Japanese elections are found in Article 15 of the Constitution.

Article 15: The people have the inalienable right to choose their public officials and to dismiss them.
2) All public officials are servants of the whole community and not of any group thereof.
3) Universal adult suffrage is guaranteed with regard to the election of public officials.
4) In all elections, secrecy of the ballot shall not be violated. A voter shall not be answerable, publicly or privately, for the choice he has made.

Article 15 has been clarified by judicial precedent as follows:

• Labor unions may not penalize members for disregarding political endorsements. (Grand Bench, Dec 4 1968)
• The government has a responsibility to enable all citizens to vote, even if they are physically located outside of Japan. (Grand Bench, Sep 14 2005)
• Proportional representation and first-past-the-post voting are equally permissible to satisfy the right to choose public officials. (Grand Bench, Nov 10 1999)

The Diet

The houses of the Diet generally hold elections at separate times.

Members of the House of Councillors (upper house) serve for six years; there is an election every three years in which one-half of the members are subject to re-election.

Members of the House of Representatives have a maximum term of four years, which may be ended at any time by a dissolution of the House. The Cabinet is generally accepted to have the legal authority to dissolve the House at any time, although there are several competing schools of constitutional thought regarding this question.

• Article 69 theory holds that dissolution of the House may only take place when the House has voted for no confidence in the Cabinet under Article 69 of the Constitution. This is the only express constitutional grant of Cabinet authority to dissolve the House and is the narrowest reading possible of the document.
• Article 65 theory holds that dissolution of the House is part of the general grant of executive power found in Article 65 of the Constitution. as it does not fall under legislative or judicial power.
• Systemic theory holds that dissolution of the House is an inherent feature of the parliamentary system as it is generally employed throughout the world.
• Article 7 theory stems from the enumerated ability of the Emperor to dissolve the House (Article 7[3]). The Emperor must generally act with the advice and consent of the Cabinet in affairs of state (Article 3), and therefore the Cabinet is viewed to have the ability to force the Emperor's hand in dissolving the House.

The bureaucracy

Entities

From a legal personhood perspective, there are three types of government entity (gyosei shutai) in Japan:

• The nation (kuni)
• Local autonomous entities (chiho kokyo dantai) - prefectures, cities, towns, villages and other territorial entities
• Independent administrative corporations (dokuritsu gyosei hojin)

The nation and the various local entities are further subdivided into administrative organs (gyosei cho). At the national level, these take the form of ministries, agencies and committees. The upper-level organs of the national bureaucracy are:

• National Personnel Authority or Jinji in(人事院)
• Cabinet Office or Naikaku fu(内閣府)
  • Imperial Household Agency or Kunai cho(宮内庁)
  • Fair Trade Commission or Kosei torihiki iinkai(公正取引委員会)
  • National Public Safety Commission or Kokka kouan iinkai(国家公安委員会)
    • National Police Agency or Keisatsu cho(警察庁)
  • Financial Services Agency or Kinyu cho(金融庁)
• Ministry of Internal Affairs and Communications or Soumu sho(総務省)
  • Environmental Dispute Coordination Commission or Kogaito chosei iinkai(公害等調整委員会)
  • Fire and Disaster Management Agency or Syobo cho(消防庁)
• Ministry of Justice or Houmu sho(法務省)
  • Public Prosecutors Offices or Kensatsu cho(検察庁)
  • Public Security Intelligence Agency or Kouan chosa cho(公安調査庁)
• Ministry of Foreign Affairs or Gaimu sho(外務省)
• Ministry of Finance or Zaimu sho(財務省)
  • National Tax Agency or Kokuzei cho(国税庁)
• Ministry of Education, Sports, Science and Technology or Mombu kagaku sho(文部科学省)
  • Agency for Cultural Affairs or Bunka cho(文化庁)
• Ministry of Health, Labour and Welfare or Kosei rodo sho(厚生労働省)
  • Central Labour Relations Commission or chuo rodo iinkai(中央労働委員会)
  • Social Insurance Agency or Shakai hoken cho(社会保険庁)
• Ministry of Agriculture, Forestry and Fisheries or Norin suisan sho(農林水産省)
  • Forestry Agency or Suisan cho(水産庁)
  • Fisheries Agency or Rinya cho(林野庁)
• Ministry of Economy, Trade and Industry or Keizai sangyo sho(経済産業省)
  • Agency for National Resources and Energy or Shigen enerugi cho(資源エネルギー庁)
  • Patent Office or Tokkyo cho(特許庁)
  • Small and Medium Enterprise Agency or Chushokigyo cho(中小企業庁)
• Ministry of Land, Infrastructure and Transport or Kokudo-kōtsū-shō(国土交通省)
  • Labour Relations Commission for Seafarers or Senin rodo iinkai(船員労働委員会)
  • Meteorological Agency or Kisho cho(気象庁)
  • Coast Guard or Kaijo hoan cho(海上保安庁)
  • Marine Accident Inquiry Agency or Kainan sinpan cho(海難審判庁)
• Ministry of the Environment or Kankyou sho(環境省)
• Ministry of Defense or Bouei sho(防衛省)
  • Joint Staff Office or Togo bakuryo kanbu(統合幕僚監部)
  • Defense Facilities Administration Agency or Bouei shisetsu cho(防衛施設庁)

National defense

Japan's national defense activities are legally restricted by Article 9 of the Constitution, which reads:

Article 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.

2. To accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

As a result, the military forces of Japan are officially known as "Self-Defense Forces," and equipment is generally named in a manner which connotes a purely defensive rather than offensive purpose.

Regulation

Bureaucratic regulation (gyosei rippo) comes in several types:

• Binding regulations
  • Executive orders (shikko meirei)
  • Mandate orders (inin meirei)
• Non-binding regulations
  • Directives (kunrei)
  • Circulars (tsutatsu)
  • Standards of review (shinsa kijun)
  • Administrative guidance (gyosei shido)

Administrative guidance

Administrative guidance is one of the most pervasive forms of government regulation. It generally consists of requests for voluntary cooperation from private actors where no law exists to compel such cooperation. It may take an assistive form (such as guidance concerning more productive farming techniques), or may take a restrictive form (such as guidance concerning pricing or environmental standards).

Article 32 of the Administrative Procedure Act sets forth three general principles governing the practice:

1. Administrative guidance must not exceed the administrative scope of the agency or office issuing such guidance.
2. Administrative guidance must be premised upon requiring the voluntary cooperation of the counterparty.
3. Failure to follow administrative guidance must not be the basis for any detrimental treatment. In particular, if administrative guidance concerns the amendment or withdrawal of a government petition, and the counterparty refuses to follow such guidance, the government is required to halt guidance (Article 33).

The contents and responsible parties for any administrative guidance must also be made clear, and must be provided in writing upon demand.

Administrative guidance is not a binding administrative act and therefore is not invalidated by virtue of being illegal. However, damages incurred because of illegal administrative guidance may be the basis for a claim against the state under the State Compensation Act.

Enforcement mechanisms

Administrative subrogation

Administrative subrogation (行政代執行 gyōsei daishikkō) is the ability of an administrative agency (or third-party delegate) to perform an administrative duty on behalf of a non-performing obligor. It is the standard procedure for enforcing administrative duties, and is generally governed by the Administrative Subrogation Act.

Administrative subrogation has several prerequisites, listed in Article 2 of the Act.

• The duty in question must be directly ordered by law, or by an administrative agency acting under the law.
• The duty must be one which could be discharged by a party other than the obligor.
• The obligor must fail to perform the duty on their own.
• There must be difficulty in securing performance through other means.
• Waiver of performance must violate the public good.

The procedure of administrative subrogation is as follows:

1. The administrative agency must provide a written warning to the obligor in advance, noting an appropriate deadline for performance and that subrogation will be ordered if that deadline is not met (Article 3.1).
2. If the deadline is not met, the agency issues a subrogation warrant (代執行令書) which lists the deadline for subrogation, the name of the responsible party for the procedure and the estimated costs for the procedure. The warrant is then sent to the obligor (Article 3.2). This step may be bypassed if there is an urgent need to complete the procedure (Article 3.3).
3. The responsible party may then go on-site. They must carry identification of their status and show it upon demand (Article 4).
4. Costs of performance are borne by the obligor (Article 2) but must be clearly specified, along with a deadline for payment, in a written notice for the obligor (Article 5). If the obligor fails to pay, the agency may collect through two other means:
   • Collection through the national tax collection system (Article 6.1)
   • Lien against the obligor's property, which will rank junior to any national or regional tax liens (Article 6.2).

Other methods

Timely enforcement (即時強制 sokuji kyōsei) is used in situations where administrative law has been breached and immediate action is needed to correct the situation. An example would be a police officer taking a dangerously intoxicated person to the police station for sobering-up, or a fire brigade destroying buildings in order to contain a rapidly-spreading blaze.

Administrative penalties (行政罰 gyōsei batsu) may take the form of criminal penalties or small fines.

Review mechanisms

Information disclosure

The Act Regarding Disclosure of Information Held By Administrative Organs (行政機関の保有する情報の公開に関する法律), commonly known as the Information Disclosure Act (情報公開法 Jōhō kōkai hō), provides a system for demanding the disclosure of public documents.

Administrative appeals

The Administrative Appeal Act (行政不服審査法 Gyōsei fufuku shinsa-hō) provides for three types of appeal against administrative decisions:

1. Objection (異議申立て igi mōshitate): filed against cabinet ministries and local government heads who have no direct overseeing entity
2. Demand for review (審査請求 shinsa seikyū): filed against overseeing entities with regard to the acts (or failures to act) of entities under their supervision
3. Demand for second review (再審査請求 sai-shinsa seikyū): appeal of a demand for review

An objection or demand for review must be filed within 60 days of receiving notice of the act in question, and within one year of the act itself (the one-year limit may be extended upon showing of cause). There is no time limit on filing appeal of an inaction. All substantive portions of these procedures are conducted in writing, although parties may be called to give oral testimony as part of the process.

An appeal petition does not ordinarily stop the government from continuing the act in question. In a demand for review, the overseeing entity may voluntarily order the deciding entity to suspend execution of its decision pending resolution of the appeal. This injunction may be issued unilaterally or at the request of the petitioner. An injunction must be granted by an overseeing entity if necessary to avoid grave harm to the petitioner as a result of the decision; however, if the injunction would cause major effects on the public welfare, the injunction may be withheld.

The response to an objection is called a decision (決定 kettei), and the response to a demand for review is called a ruling (裁決, saiketsu). In either case, there may be one of four results:

1. Dismissal for procedural reasons (却下 kyakka) is decided when the appeal has procedural flaws, such as when it is provided in an incorrect format or outside the prescribed time frame.
2. Dismissal on the merits (棄却 kikyaku) is decided when the appeal is procedurally sound, but when there is no factual reason to support the appeal.
3. A circumstantial (事情 jijō) decision or ruling is issued where the appeal has merit, but where overturning the decision would cause major harm to the public. This has the same effect as dismissal on the merits.
4. Otherwise, acceptance (認容 nin'yō) of the appeal is issued. Should the appeal be accepted, the act in question may be overturned in whole or in part and any past enforcement may be declared invalid (and the appellant restored to their pre-enforcement position). The act may also be amended to the extent necessary to make it legal. If an appeal of an inaction is accepted, the non-acting entity must act promptly following the acceptance of the appeal.

Administrative litigation

The Administrative Litigation Act (行政事件訴訟法 Gyōsei jiken soshō hō) governs lawsuits against the government. Such suits are brought in courts (i.e. the judiciary) rather than within the entity whose act is being appealed. The decision to appeal or litigate is generally voluntary, but certain special cases (such as tax-related claims) require that the administrative appeal process be completed before a court may hear the case. There are four types of administrative litigation:

1. Appellate litigation (抗告訴訟　kōkoku soshō): Appeal of an unlawful use of government authority. Appellate litigation regarding an administrative act is time-barred if not brought within six months of becoming aware of the act in question, or one year following the act, whichever comes first. There are six sub-types:
   • Action to revoke a disposition
   • Action to revoke a decision
   • Action to confirm invalidity
   • Action to confirm illegality of an inaction
   • Action to establish a duty
   • Action to enjoin
2. Ex parte litigation (当事者訴訟 tōjisha soshō): Resolution of a public law issue in the context of a private dispute. There are two sub-types:
   • De jure ex parte litigation: Confirmation of a legal relationship between the parties, e.g. a dispute over title to property as the result of an allegedly illegal expropriation.
   • De facto ex parte litigation: Litigation related to a legal relationship under public law, e.g. a dispute over the legality of the firing of a public servant.
3. Popular litigation (民衆訴訟 minshū soshō): Action of affected individuals against the government, e.g. contesting an election result.
4. Entity litigation (機関訴訟 kikan soshō): Litigation between administrative entities or organs, e.g. a dispute between a mayor and a city assembly.

Claims for damages

Japan also has a State Liability Act (国家賠償法) which allows aggrieved parties to claim damages against the government. Such claims are permitted in two instances:

• Where a public official, acting in the course of exercising public authority, intentionally or negligently harms another person in violation of the law (Article 1). In an Article 1 case, the government may demand indemnification from the public official when the act was intentional or grossly negligent (Article 1.2).
• Strict liability where a person is harmed due to defects in a road, waterway or other public structure (Article 2). The state may demand indemnification from another person responsible for the harm (Article 2.2). If the structure is owned and operated by different entities, each entity may be held liable (Article 3).

Aliens may also claim against the state under the Act, but only if a "reciprocal guarantee" (相互の保証) has been provided to Japanese nationals by the government of the alien plaintiff's home country (Article 6).

The judiciary

The judiciary is constitutionally responsible for conducting all final civil, criminal and administrative trials. Administrative entities may conduct initial reviews, but all decisions in such reviews are subject to review by the judiciary (Article 76).

Court system

• Supreme Court or Saiko saibansho(最高裁判所)
  • High Courts or Koto saibansho(高等裁判所) (8)
    • District Courts or Chiho saibansho(地方裁判所) (50)
      • Summary Courts or Kani saibansho(簡易裁判所) (438)
    • Family Courts or Katei saibansho(家庭裁判所) (50)

The Constitution only provides for the Supreme Court, and delegates the task of establishing lower courts to the Diet.

The Chief Justice of the Supreme Court is appointed by the Emperor at the nomination of the Cabinet (Article 6.2). Other judges of the Supreme Court are appointed by the Cabinet with the certification of the Emperor (Article 79). Lower court judges are appointed by the Cabinet at the nomination of the Supreme Court (Article 80).

All judges are appointed for ten-year terms and are required to retire upon reaching the mandatory retirement age (Article 80).

Legal professions

Bengoshi (弁護士) are "attorneys at law." Like barristers in the British Commonwealth, they tend to specialize in appearing before courts, as this is the only field in which they hold a true monopoly. However, many bengoshi now have practices in corporate and commercial law as well, particularly in the major international law firms in Tokyo. Admission to the bar is very strictly regulated; the bar exam pass rate is generally kept between 2 and 3 percent, and the average bengoshi must take the exam six or seven times in order to pass (with only one sitting available per year). After taking the bar exam (generally following their bachelor's degree), bengoshi spend two years as Shiho shushusei (司法修習生); "law trainees" at the Legal Research and Training Institute (司法研修所) of the Supreme Court of Japan, where they are separated into Saiban kan (裁判官); "judge", Kensatsu kan (検察官); "public prosecutor" and private attorney tracks.

Gaikokuho jimu bengoshi (外国法事務弁護士), "gaiben" for short, are attorneys qualified to practice foreign law in Japan. While they may consult with clients, draft documents and provide legal advice on foreign law, they may not participate in domestic litigation or advise on domestic law. There is no examination to become a gaiben, but a gaiben must be admitted to a foreign bar and practice there for at least three years (one of which may be spent in Japan). Some are Japanese; others are foreign nationals, mostly from the US. As of October 2009, there are 314 gaiben in Japan[2], up from 139 in June 2000[3]. Note that many foreign attorneys working in Japan do not register as gaiben; rather, they work in-house at corporations, as research and document specialists or simply practice without obtaining the qualification (the latter is technically illegal but not strictly enforced).

Shiho shoshi (司法書士) are "judicial document attorneys" who deal with a variety of legal documents for lawsults or land/enterprise registrations. They are generally considered to be slightly below bengoshi in status, but must pass an examination with a passage rate only slightly higher than the bar.

Zeirishi (税理士) are "tax accountants" who give advice on various tax matters.

Benrishi (弁理士) are "patent attorneys." They differ from most foreign concepts of patent attorneys in that they have no monopoly on patent filing (bengoshi may also file patents), and have limited powers to participate alongside bengoshi in patent hearings or litigations.

Gyosei shoshi (行政書士) are "administrative document attorneys," specializing in dealing with documents required by administrative laws (including immigration law) and filing documents for government ministries and agencies. They form one of the largest segments of the legal profession.

Koshonin (公証人) are "notaries," a tiny class of legal professionals with a monopoly on certifying various types of documents, such as articles of incorporation. Retired judges, prosecutors, and high-ranking civil servants often become koshonin.

Additionally, many companies have legal departments predominantly staffed by employees with an educational background in law, but no professional qualifications.