Q: What is the system of judicial review of constitutionality in Japan, and how does it compare to US and German models?

Judicial review of constitutionality—the power of courts to assess whether laws and other governmental acts comply with the constitution—is a cornerstone of modern constitutionalism. It serves as a vital mechanism for upholding the supremacy of the constitution, protecting fundamental human rights, and ensuring that state power remains within its designated limits. Japan, under its post-WWII Constitution, explicitly adopted a system of judicial review. This article explores the nature of this system in Japan, its constitutional underpinnings, and how it compares and contrasts with two other prominent models: the American and German systems.

The Foundation: Constitutional Supremacy

The very premise of judicial review of constitutionality rests on the principle that the constitution is the supreme law of the land. Article 98, paragraph 1, of the Japanese Constitution unequivocally establishes this: "This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity." However, the mere declaration of constitutional supremacy does not automatically dictate which institution (e.g., the legislature itself, a specialized constitutional court, or ordinary courts) is entrusted with the final authoritative power to interpret the constitution and invalidate conflicting acts. Different constitutional systems have adopted different approaches.

Japan's System of Judicial Review: Constitutional Basis and Nature

The primary textual basis for judicial review in Japan is found in Article 81 of the Constitution: "The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act."

Key characteristics of the Japanese system include:

1. Incidental (or Concrete) Review (Fuzui-teki Iken Shinsa-sei - 付随的違憲審査制):
   Japan has adopted a system of incidental review, meaning that courts, including the Supreme Court, examine the constitutionality of a law or governmental act only when it is a necessary prerequisite to resolving a specific, concrete legal dispute brought before them. Courts do not issue advisory opinions on the constitutionality of laws in the abstract, nor do they rule on hypothetical questions. This was firmly established by the Supreme Court in the Police Reserve Unconstitutionality Case (Grand Bench judgment, October 8, 1952 [Shōwa 27]), where it declined to hear an abstract challenge to the constitutionality of the then-National Police Reserve, stating that under Japan's current system, judicial power is exercised only in the context of actual legal controversies affecting specific rights or legal relations.
2. Power Vested in All Courts:
   Although Article 81 specifically mentions the Supreme Court as the "court of last resort" with this power, it is firmly established in Japanese legal practice and widely accepted in scholarly doctrine that all courts—from Summary Courts to High Courts—possess the power to conduct constitutional review in the cases before them. If a lower court finds a law unconstitutional, it will not apply it in that specific case. The Supreme Court, then, provides the final and definitive interpretation of the Constitution upon appeal. This was acknowledged by the Supreme Court itself in early cases, such as the Code of Criminal Procedure Emergency Measures Act Case (Grand Bench judgment, July 7, 1948 [Shōwa 23]).
3. Influence of the U.S. Model:
   The Japanese system of judicial review was significantly influenced by the American model, a fact often attributed to the context of its drafting during the post-WWII Allied Occupation, where American legal advisors played a prominent role. The aforementioned 1948 Supreme Court judgment explicitly linked Article 81 to the system of judicial review established through constitutional interpretation in the United States.

Comparative Perspectives: The U.S. and German Models

To better understand Japan's system, it's useful to compare it with two other influential models of judicial review:

1. The U.S. Model (American Type):
   • Nature of Review: Primarily incidental and concrete, arising from actual "cases and controversies."
   • Reviewing Body: Decentralized. All federal courts, and state courts (when federal constitutional issues arise), can exercise judicial review, with the U.S. Supreme Court being the ultimate appellate authority on federal constitutional matters.
   • Effect of Unconstitutionality: A law found unconstitutional is typically considered void ab initio (from its inception) and is not applied by the courts. The decision has a broad impact through the doctrine of stare decisis (precedent).
   • Primary Focus: Historically, the protection of individual rights through the adjudication of specific disputes.
2. The German Model (Continental/Austrian-German Type):
   • Nature of Review: Features both concrete and abstract review.
   • Reviewing Body: Centralized. Constitutional review is concentrated in a specialized Federal Constitutional Court (Bundesverfassungsgericht). Ordinary courts, if they believe a law applicable to a case before them is unconstitutional, must suspend proceedings and refer the constitutional question to the Federal Constitutional Court (this is known as concrete norm control, or konkrete Normenkontrolle).
   • Abstract Norm Control (Abstrakte Normenkontrolle): A distinctive feature. The Federal Constitutional Court can review the constitutionality of a law in the abstract, without a specific case pending, upon application by certain state organs (e.g., the federal government, a state government, or a specified proportion of members of the federal parliament).
   • Constitutional Complaints (Verfassungsbeschwerde): Individuals can directly petition the Constitutional Court if they believe their fundamental rights have been violated by a public authority, after exhausting other legal remedies. This is a very significant part of the German court's caseload.
   • Effect of Unconstitutionality: A declaration of unconstitutionality by the Federal Constitutional Court typically has general binding force (allgemeine Verbindlichkeit) and can render the law void erga omnes (binding on all).
   • Primary Focus: While protecting individual rights (especially through constitutional complaints) is central, there is also a strong emphasis on the objective maintenance of the constitutional order and the proper functioning of state institutions.

Japan's System in Comparative Light: Similarities and Differences

When comparing Japan's system of judicial review to these models:

• Similarities with the U.S. Model:
  • The fundamental approach is incidental or concrete review, tied to specific legal disputes.
  • All courts (Supreme Court and lower courts) possess the power of constitutional review, with the Supreme Court having the final say.
• Differences from the German Model (and many other European systems):
  • Japan does not have a specialized constitutional court separate from the ordinary judicial hierarchy.
  • There is no formal system of abstract norm control that can be initiated by political organs independently of a concrete case. The Supreme Court's 1952 ruling explicitly rejected the notion that it possessed such a power "under the current system."

"Convergence" and Japan's Unique Path

Legal scholar Mauro Cappelletti and others have noted a global trend towards "convergence" or hybridization of judicial review models. The strictly distinct features of the American and German types have, in practice, shown some overlap. For example, the German Constitutional Court handles a vast number of constitutional complaints arising from concrete individual grievances, making much of its work rights-focused and case-driven. Conversely, the U.S. Supreme Court, through its discretionary appellate jurisdiction (certiorari), can select cases that allow it to address significant constitutional issues, giving it a role somewhat analogous to a constitutional court, and its decisions have a broad practical impact through precedent.

Japan's system, while structurally resembling the U.S. model, has developed its own operational characteristics, often described as a "Japanese-style" application of incidental review, reflecting its civil law tradition and unique judicial culture. Key aspects include:

• Judicial Restraint: Historically, the Japanese Supreme Court has demonstrated considerable judicial restraint, being far less likely to strike down legislation as unconstitutional compared to its counterparts in the U.S. or Germany. This has led to ongoing academic discussion about the "activation" of judicial review in Japan.
• The Role of "Objective Litigation" (Kyakkan Soshō): While Japan lacks formal abstract review, certain types of statutory "objective litigation"—such as popular actions (e.g., election recount lawsuits, taxpayer suits challenging local government expenditures) and inter-organ disputes—can bring systemic constitutional issues before the courts. These lawsuits are not primarily focused on individual rights but on upholding the legality of public administration or resolving disputes between public bodies. Their permissibility is strictly limited to what is authorized by law, and scholarly debate exists on whether they truly fall within the constitutional definition of "judicial power."
• Notification of Unconstitutionality: Under Supreme Court rules, if a law or order is found unconstitutional, the gist of the decision is published in the Official Gazette, and the full text of the judgment is sent to the Cabinet and the Diet. While this does not automatically nullify the law for all purposes, it serves as a formal notification to the political branches.

The Effect of a Declaration of Unconstitutionality

A significant point of ongoing debate in Japanese constitutional law concerns the precise legal effect of a Supreme Court declaration of unconstitutionality. Does it render the law void only for the specific case at hand (specific unconstitutionality theory - kobetsu-teki kōryoku setsu), or does it have a broader, general effect, nullifying the law for everyone (general unconstitutionality theory - ippan-teki kōryoku setsu)?

• The specific unconstitutionality theory aligns more closely with the incidental nature of review, suggesting the law is merely disapplied in the instant case.
• The general unconstitutionality theory draws support from Article 98 (supremacy of the Constitution), arguing that a law found to violate the supreme law cannot remain valid.
• A third view, the legislative mandate theory (hōritsu inin setsu), suggests the Constitution is silent on this point, leaving it to be determined by statute.

In practice, there is a convergence of views. Even proponents of the specific unconstitutionality theory often acknowledge a strong political, if not strictly legal, obligation on the part of the Diet to repeal or amend a law declared unconstitutional by the Supreme Court, and for the executive to cease its enforcement. Some scholars speak of a "weak general effect" or a "practical general effect." The retroactive effect (sokyūkō) of such a declaration is another complex issue, with the Supreme Court often taking a pragmatic approach to balance justice in past cases with the need for legal stability, as seen in its 2013 decision on the apportionment of inheritance for children born out of wedlock (Grand Bench decision, September 4, 2013 [Heisei 25]).

Conclusion: A Distinctive Approach to Constitutional Adjudication

Japan's system of judicial review of constitutionality is firmly rooted in the principle of incidental or concrete review, structurally similar to the model found in the United States. All courts have the capacity to engage in constitutional assessment, with the Supreme Court serving as the ultimate authority. This contrasts with the German model, which centralizes such power in a specialized constitutional court and permits abstract review.

Despite its American-style framework, the Japanese system has evolved with its own distinct operational characteristics, marked by a tradition of judicial self-restraint and ongoing debates regarding the broader impact of its constitutional rulings. Understanding these features and the comparative context provides valuable insight into how constitutional supremacy and the protection of fundamental rights are pursued within Japan's unique legal and political environment.