Judicial Review and Judicial Activism in Japan

Judicial activism and judicial restraint describe the relationship between the judiciary and the political branches of government.In the context of Japan, they refer to the relationship between the Supreme Court and inferior courts, on the one hand, and the Diet, the Cabinet, the bureaucracy, and the analogous policymakers of prefectural and local governments, on the other.Judicial activism and restraint have been defined in more than one way.One such definition is that a court exhibits activism when it exercises the power of judicial review regardless of whether it declares a governmental action constitutional or unconstitutional.In this study, however, judicial activism is defined in terms of conflict between the courts and the political branches on constitutional policies.'A court is activist whenever it declares public policies unconstitutional.Conversely, a court is self-restrained whenever it upholds the constitutionality of public policies.The Meiji Constitution of 1889 did not provide for the power of judicial review.Moreover, it did not recognize the judiciary as independent from the Diet and the Cabinet.As part of the executive branch, the judiciary was not empowered to examine the constitutionality of actions of the Diet or the Cabinet.Furthermore, an administrative court, separate from the ordinary courts of law, maintained exclusive jurisdiction over any administrative disputes.Since this administrative court, the privy council, was for all practical purposes dysfunctional in reviewing whatever constitutional disputes might have been raised, there was no institution that effectively checked the legality or constitutionality of governmental policies and actions.Judicial review has been firmly established since 1947.The administrative court, the privy council, and all other forms of special tribunals have been abolished.Thejudiciary, headed by the Supreme Court, now has the final say as to what the law is in any legal dispute.With the power of judicial review and the working principle of stare decisis, the courts have come to make case law and to delineate through litigants the constitutional boundaries of each branch of the national and local governments.