Q: How is judicial independence ensured in Japan, covering both judges' exercise of their functions and their status? What are the rules for public trials?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Judicial independence is a bedrock principle of any state governed by the rule of law. It ensures that courts can adjudicate disputes impartially, based on law and evidence, free from undue influence from other branches of government, private interests, or even internal pressures within the judiciary itself. The Constitution of Japan explicitly enshrines this principle and provides several layers of guarantees to protect both the functional independence of judges in their decision-making and the security of their status. Complementing this is the vital principle of public trials, designed to ensure transparency and accountability in the administration of justice. This article explores these crucial safeguards within the Japanese legal system.

The Constitutional Mandate for Judicial Independence

The core constitutional provision guaranteeing judicial independence is Article 76, paragraph 3, which states: "All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws." This concise but powerful declaration underpins the entire framework for judicial autonomy in Japan.

This principle can be understood to have two primary dimensions:

  1. Independence of the Judiciary as an Institution (Shihōfu no Dokuritsu - 司法府の独立): This refers to the judiciary's autonomy as a distinct branch of government, separate from the legislative (Diet) and executive (Cabinet) branches. This institutional independence is a fundamental aspect of the separation of powers and is reinforced by the Supreme Court's authority over judicial administration, including personnel matters and rule-making.
  2. Independence of Individual Judges in Exercising their Functions (Saibankan no Shokken Kōshi no Dokuritsu - 裁判官の職権行使の独立): This is the specific guarantee of Article 76(3), focusing on ensuring that each judge can make decisions in individual cases without fear or favor.

Safeguarding the Functional Independence of Judges

Several elements contribute to the functional independence of judges:

  1. "In the Exercise of their Conscience" (Ryōshin ni Shitagai - 良心に従ひ):
    The term "conscience" in this constitutional context has been subject to scholarly interpretation. It is not generally taken to mean a judge's purely personal or subjective moral beliefs divorced from the law.
    • Early Supreme Court interpretations, such as a judgment on November 17, 1948 (Shōwa 23), described it as acting according to one's inner sense of justice and morality, free from external pressure. Another ruling on December 15, 1948 (Shōwa 23), indicated that judging according to what one believes to be right within the scope of valid law constitutes judging "according to conscience."
    • Prevailing modern academic views tend to interpret "judicial conscience" as an objective standard – a commitment to impartially ascertain facts and apply the law correctly, guided by the overall spirit and principles of the legal order, rather than purely personal whims or external directives. It implies a professional duty to strive for the objectively correct legal outcome.
  2. "Bound Only by this Constitution and the Laws":
    This crucial phrase means that judges, in their adjudicative capacity, are subordinate to no authority other than the Constitution and the body of valid laws.
    • This shields them from political influence from the Diet or Cabinet, pressure from public opinion, or hierarchical commands from within the judiciary concerning the outcome of specific cases.
    • The term "laws" (hōritsu - 法律) in this context is interpreted broadly to include not just statutes enacted by the Diet, but the entire hierarchy of legal norms, such as cabinet orders, court rules, local ordinances, and potentially unwritten sources like established customary law and jōri (条理 – general principles of reason or natural justice).
    • The role of judicial precedents, particularly those of the Supreme Court, is significant. While Japan does not have a strict doctrine of stare decisis as in common law systems (where lower courts are formally bound by higher court precedents), Supreme Court interpretations are highly authoritative and practically binding on lower courts to ensure consistency and predictability in the application of law.
  3. Protection from Interference:
    Judicial independence requires robust protection from both external and internal interference.
    • External Interference: Historically, there have been instances, even pre-dating the current Constitution (like the Ōtsu Incident of 1891 where the government attempted to influence a trial involving the Russian Crown Prince), highlighting the importance of judicial fortitude against political pressure. Post-war, events like the Urawa Mitsuko Affair (where a Diet committee's investigation into a court decision was criticized by the Supreme Court as infringing judicial independence) or the Suita May Day Incident investigations (where the Supreme Court expressed concern over prosecutorial actions regarding a judge's courtroom management) have underscored ongoing sensitivities.
    • Internal Interference: Independence must also be maintained within the judiciary itself. While the Supreme Court has administrative oversight over lower courts (shihō gyōsei-ken - 司法行政権), this power must not be exercised in a way that dictates or influences the decisions of individual judges in specific cases. Incidents like the Hiraga Letter Incident (where a chief judge of a district court attempted to influence a presiding judge in a sensitive case) have highlighted the potential for, and condemnation of, such internal pressures.

Guarantees of Judges' Status: The Foundation of Independence

To ensure that judges can exercise their functions independently without fear of reprisal, the Constitution provides strong guarantees regarding their status, appointment, and tenure.

  1. Appointment Process:
    • Supreme Court Justices: The Chief Justice is designated by the Cabinet and then formally appointed by the Emperor. The other 14 Associate Justices are appointed by the Cabinet, with their appointments attested by the Emperor (Article 79, paragraph 1; Article 6, paragraph 2).
    • Lower Court Judges: Judges of High Courts, District Courts, Family Courts, and Summary Courts are appointed by the Cabinet from lists of persons nominated by the Supreme Court (Article 80, paragraph 1). This nomination process by the Supreme Court is intended to ensure that appointments are based on merit and to insulate the process from purely political considerations.
  2. Protection Against Removal from Office (Saibankan no Himen - 裁判官の罷免):
    Article 78 is central: "Judges shall not be removed except by public impeachment unless judicially declared mentally or physically incompetent to perform official duties." This provides very strong security of tenure.
    • Public Impeachment (Kō no Dangai - 公の弾劾): The Diet establishes an Impeachment Court, composed of members from both Houses, to try judges against whom removal proceedings have been initiated (Article 64). The grounds for impeachment, detailed in the Judges Impeachment Act, are severe professional misconduct or conduct unbecoming of a judge. A separate Judge Indictment Committee, also composed of Diet members, investigates and decides whether to file for impeachment. Actual removals through impeachment have been rare.
    • Judicial Declaration of Incompetence: A judge can also be removed if a court, through a special procedure under the Judges Status Act (Saibankan Bungen Hō - 裁判官分限法), declares them mentally or physically incapable of performing their duties.
  3. Protection Against Disciplinary Action by the Executive:
    Article 78 further states: "No disciplinary action against judges shall be administered by any executive organ or agency." Disciplinary actions (chōkai - 懲戒) for misconduct not serious enough to warrant removal (e.g., neglect of duty, conduct that impairs the dignity of the office – Court Act, Art. 49) are handled by the courts themselves through "status (disciplinary) trials" (bungen saiban - 分限裁判). Sanctions are limited to admonition or a minor non-penal fine (Judges Status Act, Art. 2). Cases such as the Teranishi Case (Supreme Court decision, December 1, 1998 [Heisei 10]), involving a judge's expression of views on a pending bill, and the Furukawa Case (Supreme Court decision, March 30, 2001 [Heisei 13]), concerning a judge's inappropriate communication regarding a criminal investigation involving his wife, illustrate the application of these disciplinary procedures and the judiciary's role in policing its own members.
  4. Guarantee of Remuneration (Saibankan no Hōshū - 裁判官の報酬):
    Article 79, paragraph 6, and Article 80, paragraph 2, provide that judges shall receive adequate remuneration which "shall not be decreased during their terms of office." This is designed to prevent financial leverage from being used to influence judicial decisions. However, this guarantee has generally been interpreted not to preclude general, non-discriminatory reductions in salary applicable to all public officials as part of broader fiscal measures, provided such reductions are not targeted at the judiciary to undermine its independence.

Impartiality in Specific Cases: Disqualification, Recusal, and Withdrawal

Beyond general independence, fairness in individual cases demands impartiality from the presiding judge(s). The Constitution guarantees the right to a fair trial (Article 32; Article 37, paragraph 1). Procedural laws provide mechanisms to address situations where a judge's impartiality might reasonably be questioned:

  1. Disqualification (Joseki - 除斥): Certain relationships between a judge and the parties or the subject matter of a case automatically disqualify the judge by law from hearing that case (e.g., if the judge is a party, related to a party, or has a direct pecuniary interest).
  2. Recusal / Challenge for Cause (Kihi - 忌避): Even if no statutory grounds for disqualification exist, a party to a case can file a motion to recuse (challenge) a judge if there are specific circumstances that would give rise to a reasonable apprehension of bias or partiality on the part of that judge. Courts tend to apply a stringent standard for granting such motions, requiring a substantial showing of potential bias. Cases involving judges' prior non-judicial roles or public statements have sometimes led to recusal motions, though these are often denied if the connection to the specific case is deemed too remote or the statements too general.
  3. Withdrawal (Kaihi - 回避): A judge who believes that grounds for their disqualification or recusal exist may voluntarily withdraw from hearing a case, subject to a decision by their court.

The Principle of Public Trials: Transparency and Accountability

The transparency of the judicial process is another vital safeguard for its integrity and a means of ensuring public trust. Article 82, paragraph 1, of the Constitution mandates: "Trials shall be conducted and judgment declared publicly."

  1. Scope of "Public": This generally means that courtrooms are open to the public and the media. The Supreme Court in the Courtroom Memo-Taking Case (Grand Bench judgment, March 8, 1989 [Heisei 1]) recognized that the freedom of spectators to take notes during public trials should be respected as it relates to freedom of expression and the right to know, unless it genuinely obstructs the fair and smooth administration of justice. Access to court records is also related, though governed more specifically by procedural statutes.
  2. "Trial" (Taishin - 対審) and "Judgment" (Hanketsu - 判決): The requirement for publicity applies to the "trial" – typically the oral proceedings where parties present arguments and evidence – and the "judgment" – the court's final decision, which must be announced publicly. Judges' private deliberations (hyōgi - 評議), however, are explicitly non-public (Court Act, Art. 75). Many non-contentious proceedings (hishō jiken) and certain family court matters are often not considered "trials" in the full Article 82 sense and may be conducted with less publicity.
  3. Exceptions to Public Trial: Article 82, paragraph 2, allows a trial to be conducted privately "where a court unanimously determines publicity to be dangerous to public order or morals." However, this exception is itself limited by a proviso: "trials of political offenses, offenses involving the press or cases wherein the rights of people as guaranteed in Chapter III of this Constitution are in question shall always be conducted publicly." This highlights the heightened importance of transparency in cases touching upon fundamental rights or politically sensitive matters. Modern legislative measures sometimes seek to balance the public trial principle with other concerns, such as victim and witness protection (e.g., use of screens or video links in criminal trials, upheld by the Supreme Court judgment of April 14, 2005 [Heisei 17] as not violating the public trial principle if properly implemented) or the protection of trade secrets in litigation.

Conclusion: A Robust Framework for Impartial Justice

The Japanese Constitution and its attendant laws establish a robust framework designed to secure judicial independence and ensure the transparency of court proceedings. The independence of judges in their functional capacity is protected by their freedom to exercise their conscience bound only by the Constitution and laws, while their status is safeguarded through stringent protections against arbitrary removal, executive disciplinary action, and salary reductions. Coupled with the vital principle of public trials, these mechanisms collectively aim to foster an environment where justice can be administered impartially, fairly, and with the confidence of the people, thereby upholding the rule of law as a cornerstone of Japan's democratic society. Nevertheless, maintaining and enhancing these safeguards requires continuous vigilance from within the judiciary, responsive action from the political branches, and an engaged public.