How Japanese Courts Save Laws from Unconstitutionality: The Doctrine of "Constitutionally Limited Interpretation"

In the landscape of Japanese judicial review, courts employ various interpretive techniques to navigate the delicate balance between upholding legislative enactments and ensuring conformity with the Constitution. One of the most significant of these is the doctrine of "constitutionally limited interpretation" (合憲限定解釈 - gōken gentei kaishaku). This judicial approach allows courts to interpret a statute in a way that avoids a finding of unconstitutionality, thereby preserving the statute's validity while safeguarding constitutional principles. This article delves into the concept, justifications, limits, and practical application of this pivotal doctrine in Japanese law.

Defining "Constitutionally Limited Interpretation" (Gōken Gentei Kaishaku)

Constitutionally limited interpretation refers to a method where, if a statutory provision is open to multiple reasonable interpretations, and one or more of those interpretations would render the statute unconstitutional (or raise serious constitutional doubts), the court will choose an interpretation that aligns with the Constitution, or will narrow the meaning of the provision to ensure its constitutional compliance.

This doctrine can manifest in a few ways:

1. Selective Constitutional Interpretation (選択的合憲解釈 - sentakuteki gōken kaishaku): When faced with several plausible readings of a statute, the court selects the one that is constitutional.
2. Restrictive Constitutional Interpretation (制限的合憲解釈 - seigenteki gōken kaishaku): The court narrows the scope or meaning of the statutory language to bring it within constitutional bounds.

The latter, restrictive interpretation, can be further conceptualized as:

• Defining the Constitutional Part (合憲部分画定型 - gōken bubun kakutei gata): The court affirmatively defines the statute's meaning in a way that is constitutional.
• Defining and Removing the Unconstitutional Part (違憲部分画定型 - iken bubun kakutei gata): The court identifies and excises or neutralizes a potentially unconstitutional meaning or application of the statute. This distinction can be relevant in deciding whether such an interpretation is appropriate in a given case.

While this doctrine is a cornerstone of constitutional adjudication, its application is not without controversy and complexity, as seen in cases like the Hiroshima City Ordinance Regulating Motorcycle Gangs (Supreme Court, Third Petty Bench, September 18, 2007 (Heisei 19)).

Justifications for Constitutionally Limited Interpretation

Several fundamental principles underpin the use of constitutionally limited interpretation by Japanese courts:

1. Principle of the Unity of the Legal Order (法秩序の統一性の原理 - hōchitsujo no tōitsusei no genri): The Constitution stands at the apex of the Japanese legal system. To maintain the coherence and integrity of this system, all laws should, as far as possible, be interpreted in a manner consistent with constitutional norms. This principle is not unique to Japan; it is also a recognized tenet of constitutional interpretation in civil law countries in continental Europe, where the concept of "constitutionally conformable interpretation" (verfassungskonforme Auslegung) is well-established. This interpretative duty extends not only to courts but also to the Diet (legislature) and administrative bodies.
2. Presumption of Constitutionality of Laws (法律の合憲性推定の原則 - hōritsu no gōkensei suitei no gensoku): Laws enacted by the Diet, as the democratically legitimized legislative body, are presumed to be constitutional. This presumption obliges courts to make reasonable efforts to uphold legislation, resorting to a declaration of unconstitutionality only as a last resort. This reflects judicial self-restraint and deference to the legislature.
3. Avoidance of Legal Disruption (法的混乱の回避 - hōteki konran no kaihi): A judgment declaring a statute unconstitutional can create legal uncertainty and a regulatory vacuum. Constitutionally limited interpretation allows courts to address constitutional concerns without completely nullifying a law, thereby minimizing potential legal and social disruption.

While sometimes associated with the American doctrine of constitutional avoidance (e.g., the Brandeis Rules), the justifications in Japanese law are broader, rooted deeply in the structure of the legal order and the relationship between the judiciary and the legislature.

Limits of Constitutionally Limited Interpretation

Despite its utility, the power of constitutionally limited interpretation is not unbounded. Courts must operate within recognized constraints to maintain interpretative legitimacy and legal certainty:

1. Deviation from Statutory Text and Legislative Purpose: The interpretation must remain within the permissible semantic range of the statutory language and must not contradict the clear purpose intended by the legislature, as ascertainable from the legislative history and other relevant materials. An interpretation that amounts to a judicial rewriting of the law is impermissible.
2. The Principle of Clarity (Meikakusei no Yōsei) and Due Process: A constitutionally limited interpretation should not result in the law becoming unduly vague or ambiguous. Citizens must be able to understand what conduct is prohibited or required. This is particularly crucial for penal statutes (due to the principle of legality, nullum crimen, nulla poena sine lege) and laws restricting fundamental freedoms like expression. The Supreme Court, in the Sapporo Customs Inspection case (Grand Bench, December 12, 1984 (Shōwa 59)), laid down a key standard: a limited interpretation is permissible only if it "clearly distinguishes between what is regulated and what is not, and makes it clear that only constitutionally permissible regulations are intended," and if "an ordinary person can discern from the provision whether a specific expression falls under the regulation in a concrete case".
3. Consideration of the "Chilling Effect" (Ishuku Kōka): If a statute is overly broad or vague, even if a court attempts to narrow it through interpretation, its mere existence can deter individuals from engaging in lawful activities, particularly in the realm of free speech. This "chilling effect" is a significant concern, and in such cases, outright invalidation might be preferred over a strained limiting interpretation. The "defining and removing the unconstitutional part" type of interpretation may be inappropriate where a chilling effect is a primary concern, as it still leaves a potentially problematic statute on the books.
4. Exceptions to the Presumption of Constitutionality: In certain contexts, particularly concerning fundamental spiritual freedoms or suspect classifications, the presumption of constitutionality may be weakened or even reversed, leading to stricter scrutiny and less inclination towards saving a problematic statute through interpretation.

Application and Development in Japanese Case Law

The doctrine of constitutionally limited interpretation has a rich history in Japanese jurisprudence:

• Early Applications: An early Supreme Court case concerning the confiscation of goods from an innocent third party under the old Customs Law (Grand Bench, November 27, 1957 (Shōwa 32)) saw the Court interpret the statute to apply only to third parties acting in bad faith, thereby avoiding a potential conflict with property rights under Article 29 of the Constitution. However, some scholars view this as an application of ordinary statutory interpretation (focusing on legislative intent) rather than a strict instance of constitutionally limited interpretation.
• The "Double Narrowing" for Public Servant Labor Rights: More refined applications appeared in two Grand Bench decisions on April 2, 1969 (Shōwa 44): the Tokyo Metropolitan Teachers' Union case and the All-Japan Judiciary Employees' Union Sendai case. In these cases, the Court narrowly interpreted provisions of the Local Public Service Act and National Public Service Act that criminalized certain dispute acts by public servants, limiting their application to acts of a particularly malicious or illegal nature (the so-called "double narrowing" - 二重の絞り, nijū no shibori). This avoided finding the broad statutory prohibitions unconstitutional.
• Shift in the All Norin (Agriculture and Forestry Ministry Employees' Union) Keishokuho (Police Duties Execution Law) case: This approach was later modified. In the All Norin Keishokuho case (Grand Bench, April 25, 1973 (Shōwa 48)), the Supreme Court held that such an unclear limiting interpretation could undermine the protective function of criminal statutes (guaranteed by due process under Article 31). It then upheld a blanket prohibition on dispute acts by public servants as constitutional, effectively abandoning the "double narrowing" for that context. This decision was, in part, a reaction to criticisms that the earlier limiting interpretations lacked clarity.
• Recent Challenges – Clarity and the "Ordinary Person's Understanding":
  • The Fukuoka Prefecture Juvenile Protection and Upbringing Ordinance case (Grand Bench, October 23, 1985 (Shōwa 60)) involved the interpretation of "immoral sexual conduct" (inkō). The Court construed this narrowly to avoid constitutional issues, but questions remained whether such a judicial narrowing met the standard of clarity for an ordinary citizen.
  • More recently, the Hiroshima City Ordinance Regulating Motorcycle Gangs (Bōsōzoku) (Supreme Court, Third Petty Bench, September 18, 2007 (Heisei 19)) highlighted ongoing tensions. The majority engaged in a "holistic interpretation" (全体論的解釈 - zentaironteki kaishaku), considering the "overall purport readable from the entire ordinance" and related regulations, to limit the scope of the ordinance to what it deemed constitutionally permissible. However, dissenting opinions, notably by Justice Fujita, questioned whether such a complex, judicially constructed limitation could truly be clear to an "ordinary person" or adequately address the ordinance's facial overbreadth.

Comparison with Other Methods of Constitutional Review

Constitutionally limited interpretation is one of several tools courts use when a statute's constitutionality is challenged. If this interpretive route is unavailable or inappropriate (e.g., the statute's language is too resistant to a constitutional reading, or the chilling effect is too severe), courts may consider:

• Facial Unconstitutionality (文面違憲 - bunmen iken): Declaring the law unconstitutional on its face, applicable to all.
• As-Applied Unconstitutionality (適用違憲 - tekiyo iken): Declaring the law unconstitutional only as it applies to the specific facts of the case before the court.
• Partial Unconstitutionality (部分違憲 - bubun iken): Invalidating only a specific portion of the statute while leaving the remainder intact, if severable.

The choice among these depends on the nature of the constitutional defect, the statutory language, and the potential consequences of each remedy.

Conclusion

The doctrine of constitutionally limited interpretation is a powerful and frequently utilized instrument in Japanese constitutional law. It reflects a judicial commitment to respecting legislative authority and preserving legal stability, while simultaneously ensuring that laws operate within the boundaries set by the Constitution. However, its application is not a mere mechanical exercise. It demands a careful balancing of competing principles, a deep understanding of statutory and constitutional texts, and a keen awareness of the practical implications for individual rights and legal clarity. For those engaging with Japanese law, recognizing the potential for, and the limits of, this interpretive doctrine is essential for accurately assessing the scope of legal provisions and the potential outcomes of constitutional challenges.