Is a Japanese Law Unconstitutional Only "As Applied" to You? Understanding "Applied Review" and "As-Applied Unconstitutionality"

When a law is challenged on constitutional grounds in Japan, courts employ different methods of review. While some laws might be deemed unconstitutional on their face, applicable to everyone, there are instances where a law, though generally permissible, may operate unconstitutionally in specific factual circumstances. This gives rise to the concepts of "as-applied review" (適用審査 - tekiō shinsa) and "as-applied unconstitutionality" (適用違憲 - tekiō iken), crucial doctrines for understanding the nuanced ways in which constitutional protections are enforced. This article explores these concepts, their methodology, and their significance in Japanese constitutional adjudication.

Distinguishing Methods of Constitutional Review: Facial vs. As-Applied

At the outset, it's important to differentiate between two primary modes of constitutional scrutiny:

1. Facial Review (文面審査 - Bunmen Shinsa or 法令一般審査 - Hōrei Ippan Shinsa):
   This involves an assessment of a law's constitutionality based on its text, legislative purpose, and general application, without primary regard to the specific facts of the particular case before the court. Facial review can take several forms:
   • Narrow Facial Review: This focuses on the wording of the law itself, examining issues like vagueness (where the law is so unclear that ordinary people cannot understand what conduct is prohibited) or overbreadth (where the law prohibits substantially more protected conduct than is necessary to achieve its legitimate purpose). It also applies to assessing if a law constitutes prohibited censorship.
   • Broader Facial Review: This examines the inherent rationality and constitutionality of the law's regulatory structure and its purpose-means fit, often based on "legislative facts" (general social facts and policy considerations underlying the law) rather than "adjudicative facts" (facts specific to the litigants).
2. As-Applied Review (適用審査 - Tekiō Shinsa):
   This method scrutinizes the constitutionality of a law specifically in the context of its application to the particular facts and circumstances of the case at hand, or to a defined category of factual situations represented by the case. The focus is not on the law's abstract validity but on its concrete effect on the litigant or a similarly situated group.

Understanding "As-Applied Unconstitutionality" (Tekiō Iken)

A finding of "as-applied unconstitutionality" means that a court has determined that a legislative provision, while it might be constitutional in many or most of its applications, is unconstitutional when applied to the specific factual scenario presented by the litigant. This is a judgment that the law itself, or at least a discernible part of its operative scope, is flawed in that particular context.

It is crucial to distinguish "as-applied unconstitutionality" from two related but distinct judicial findings:

• Unconstitutionality of an Administrative Disposition (Shobun Iken): This occurs when an administrative agency takes an action (a "disposition" or shobun) that is itself unconstitutional, even if the underlying law authorizing such actions is perfectly valid. The flaw lies in the executive act, not the law. For example, an agency might apply a valid law in a discriminatory manner.
• Illegality of an Administrative Disposition due to Misapplication of a Constitutionally Interpreted Law (Shobun Ihō): Sometimes, a court will interpret a broadly worded statute narrowly to ensure its constitutionality (this is known as "constitutionally limited interpretation" or 合憲限定解釈 - gōken gentei kaishaku). If an administrative agency subsequently applies the statute in a manner that goes beyond this narrowed, constitutional interpretation, the agency's action is deemed illegal (ihō) because it violates the statute as constitutionally construed. The law itself (as interpreted) remains valid, but the specific application was improper. The Supreme Court's decision in the Izumisano Civic Hall Case (Third Petty Bench, March 7, 1995 (Heisei 7)), concerning the use of public facilities for assemblies, can be understood in this light.

True "as-applied unconstitutionality," as discussed here, implies that the law's reach or its designed effect is constitutionally problematic when it encounters a certain type of factual situation. It suggests a defect in the law's interaction with those facts, rather than solely an error in executive implementation.

The Mechanics of As-Applied Review: Purpose-Means in Context

When conducting an as-applied review, courts typically examine the relationship between the law's purpose and the means it employs, but specifically concerning the "application fact pattern" (適用事実類型 - tekiō jijitsu ruikei) before them. The key questions are:

• Does applying the law to this particular set of facts genuinely serve the intended legislative purpose (suitability or rationality)?
• Is this specific application necessary to achieve that purpose, or are there less intrusive ways the purpose could be served in this context (necessity and proportionality)?

A classic illustration is the first instance judgment (Asahikawa District Court) in the Saruhashi Case, which involved the National Public Service Act's criminalization of political activities by public servants (specifically Article 110, Paragraph 1, Item 19). The court did not invalidate the entire provision. Instead, it meticulously identified a specific category of public servant: those who are non-managerial, whose duties are purely mechanical, and who engage in political activity off-duty, without using public facilities or their official capacity. The court found that applying the criminal penalty to such individuals for such acts was a disproportionate restriction on their freedom of expression and thus unconstitutional "to the extent that [the law] is applied" to this category of acts by this category of public servants. The judgment effectively carved out an unconstitutional range of application within the broader statutory prohibition.

Another pertinent example is a Tokyo High Court decision on March 10, 2010 (Heisei 22), concerning inheritance rights of extramarital children. Civil Code Article 900, Paragraph 4, Proviso, at the time, stipulated that an extramarital child's statutory inheritance share was half that of a marital child. The High Court, in a specific case where the deceased father had never married and the only other heir was an adopted child (who was also born out of wedlock), found that applying this halving provision was unconstitutional. The rationale was that in such a particular factual context, the legislative purpose often cited for the distinction—respect for the institution of legal marriage—was not served. The court declared the provision "ineffective insofar as it applies to the present case," targeting the law's operation within that specific factual matrix. (Note: The Supreme Court later, in a Grand Bench decision on September 4, 2013 (Heisei 25), found this provision of the Civil Code generally unconstitutional).

The Interplay with Facial Constitutionality Determinations

The relationship between a prior finding of facial constitutionality (hōrei gōken) and a subsequent claim of as-applied unconstitutionality is complex. If a law has been definitively upheld as constitutional on its face, with the court finding no inherent constitutional defect in its text or general operation, it might seem logically challenging to then find it unconstitutional in a specific application. In such scenarios, a constitutional problem arising from a particular application might more readily be characterized as an unconstitutional administrative disposition (shobun iken) under an otherwise valid law.

However, as-applied challenges often become particularly relevant when a law exists in a "grey area." This occurs when a facial review does not result in a clear affirmation of the law's complete facial constitutionality across all potential applications. For instance, a court might:

• Acknowledge that a law is broadly worded and has the potential for unconstitutional applications, but refrain from striking it down facially because it also has a substantial range of legitimate and constitutional applications.
• Find that a narrowing, constitutionally limited interpretation is difficult to achieve without rewriting the statute.
• Conclude that while there are concerns, the unconstitutional applications constitute a relatively small subset of the law's overall scope, making a complete facial invalidation a disproportionate remedy.

In such situations, the law has not been given a clean bill of health facially. Its potential constitutional infirmities are recognized, creating an opening for as-applied challenges where these problematic aspects manifest in concrete factual circumstances. The Supreme Court's approach in the All Norin Keishokuho Case (Zennōrin Keishokuhō Jiken, Grand Bench, April 25, 1973 (Shōwa 48)), concerning restrictions on public servant labor activities, is sometimes seen as an example where the Court, while not invalidating the law on its face, acknowledged its potential for overbreadth, thereby leaving the door open for considering the constitutionality of its application in specific contexts.

Choosing Between Facial and As-Applied Review: Guiding Factors

The decision to pursue a facial challenge versus an as-applied challenge, or for a court to frame its review in one way or the other, is influenced by several factors:

1. Nature of the Right and the "Chilling Effect": When a law potentially infringes upon fundamental freedoms like freedom of expression, its mere existence, if vague or overly broad, can create a "chilling effect," deterring individuals from engaging in constitutionally protected speech. In such cases, a facial challenge seeking to invalidate the law entirely might be deemed more appropriate to broadly remove this chilling effect, rather than addressing it on a case-by-case basis through as-applied review. Similar considerations apply to rights with significant supra-individual value, such as certain equality rights (e.g., those related to combating systemic discrimination or stigma) or aspects of privacy that protect against totalitarian tendencies.
2. Severability (Kabunsei) and Legislative Intent: A crucial consideration is whether the unconstitutional application of a law is "severable" from its constitutional applications without fundamentally distorting the legislative scheme. If the problematic application is central to the law's main purpose or represents its "main target," an as-applied invalidation that leaves only peripheral or unintended applications intact might be seen as contradicting legislative intent. In such instances, a facial review of the core provision might be more appropriate. Conversely, if the unconstitutional application is an isolable aspect of a generally sound law, an as-applied (or partial) finding of unconstitutionality is more plausible.

The principle of judicial self-restraint, inherent in Japan's system of incidental constitutional review (where constitutionality is typically reviewed only as necessary to resolve a concrete case), might intuitively suggest a preference for as-applied review, as it focuses on the specific dispute. However, in practice, Japanese courts do engage in general (facial) review, especially when the law's structure or core purpose is challenged.

As-Applied Review and Constitutionally Conformative Interpretation

It's useful to briefly contrast as-applied unconstitutionality with an alternative judicial technique: "constitutionally conformative interpretation" (憲法適合的解釈 - kenpō tekigō-teki kaishaku). In the latter approach, instead of finding a law unconstitutional (either facially or as applied), courts interpret the statutory language narrowly from the outset to ensure that its meaning and application align with constitutional requirements. A notable example is the Supreme Court's decision in the Horikoshi Case (Second Petty Bench, December 7, 2012 (Heisei 24)), where the National Public Service Act's broad prohibition on "political acts" by public servants was interpreted narrowly to encompass only those acts that realistically and substantially undermine the perceived need for political neutrality in public service.

The key difference is that constitutionally conformative interpretation avoids finding any constitutional flaw in the law as interpreted, thereby preserving the law in its entirety while shaping its application. As-applied unconstitutionality, in contrast, identifies a constitutional defect in the law itself, albeit one that manifests only in certain factual contexts.

Conclusion

"As-applied review" and the resulting potential for a finding of "as-applied unconstitutionality" are sophisticated and essential components of Japanese constitutional adjudication. They provide a nuanced mechanism for courts to address specific instances of constitutional harm caused by a law's operation, without necessarily resorting to the more drastic remedy of declaring an entire statute facially void. This approach allows for a careful, context-sensitive examination of the interaction between legal provisions and concrete factual circumstances.

For individuals and entities subject to Japanese law, the availability of as-applied challenges means that even if a law appears generally valid, its specific impact on their situation may still provide grounds for a constitutional claim. This underscores the dynamic nature of constitutional rights protection, where the abstract guarantees of the Constitution are given concrete meaning through their application to the diverse realities of life and commerce.