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The Generation, Development of Japanese Constitutional Review System and Its Enlightenment to China

Author: ZuoSuo
Tutor: TongZhiWei
School: East China University of Politics and Law
Course: History of foreign law
Keywords: constitutional review judicial power judicial self-restraint National People Congress System
CLC: D931.3
Type: PhD thesis
Year: 2006
Downloads: 876
Quote: 2
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After World War II, Japan, under the influence exerted by the U.S. government promulgated the Constitution of Japan. The new Constitution introduced from the U.S. the system which entitled the common law court to review the constitutionality based on the principle of separation of powers, protection of human rights, limitation of power of the Congress and government and the theory advocating that the Constitution shall have the supreme legal effect. Therefore the function of the system in Japan is to protect the basic rights of the citizens, solve the dispute of competency among the national authorities and the uniform of the legal system. However, since the Japanese government adopts a resistant attitude toward the modification to Meiji Constitution in support of the absolute monarch. When the Japanese government was forced to work out the draft of the modified constitution under the influence of the U.S. government, it still adopted a resistant attitude toward the system for review of constitutionality. After the new Constitution took effect, the Japanese government tried to centralize the power of review of constitutionality to the Supreme Court, with an attempt to restrict the power of the court to review constitutionality by controlling the candidate for the judges of the Supreme Court, which had a great effect on the Supreme Court’s policy of judicial self-restraint review on the issue related with review of constitutionality.In the cases that the reserve force was in violation of the Constitution, the Japanese Supreme Court determined the character of review in Japan through the instances of judgment in these cases. The Supreme Court upheld that the review should be limited to accessory review and should not be of abstract character. The judicial power referred to in Article 76 of the Constitution only dealt with the case that the specific rights and obligations were involved. The court would make the judgment as to the constitutionality of the government action such as the laws, orders and regulations in dispute only in the case that the specific rights and obligations were involved. The review only took effect on this specific case. The court would not make any judgment as to the constitutionality of any abstract provisions where no specific dispute was arising. Under the system of judicial accessory review, the power to review the constitutionality was based on the exercise of the judicial power and was required to be exercised within the scope of the judicial power. In addition, the Supreme Court has determined the scope of the power of the lower court to review the constitutionality through the case. The Supreme Court was the last resort to judge the constitutionality of the government action. In the respect of procedures, the procedures for review of constitutionality were integrated into the system of ordinary procedures. The court will handle the dispute submitted by the concerned party in respect of constitutionality in ordinary procedures.Basically, the subject under the review of the Japanese court in regard with constitutionality was any law, order, regulation and decision subject to the principle of accessory review established in the case made by the Supreme Court. Since the review of constitutionality was based on the exercise of the judicial power, the issue which was not governed by the judicial power would therefore not be the subject under the review in regard with its constitutionality. In the cases where the specific rights and obligations were involved, the subject under the review would be subject to the procedural elements. The court would determine whether the subject could be put under the review in regard with its constitutionality based on the character of the judicial power and the standing of the court. The court would not put any government action under the review which was of high political problem unless it had been obvious violation of the Constitution. Furthermore, the court would not review the issues such as the validity of Japanese Constitution and the constitutionality of the laws promulgated under the old Constitution.Pursuant to the principles of mutual respect among the three types of powers, democracy and the significance of the liability for review of constitutionality, it was widely accepted in the Japan that the power of review should be exercised discreetly. Under such guidance, the Japanese court established a detailed system related with review of constitutionality when it exercise such power to give a judgment, which included the challenge rules, theory of action of sovereignty, theory of discretion in legislation, theory of balance of interest and theory of the public interest. For assessing a violation, abstract government action should be distinguished from the specific government. With respect to the abstract violation, a violation might be committed due to the provision of the laws as well as the application of them.It has been more than fifty years since the Constitution of Japan took into effect. The constitutional review system of Japan has been played an important role in human rights protection, but the Japanese court, especially the Supreme Court, has adopted the policy of extremely judicial self-restraint review in regard with review of constitutionality, which has had an adverse effect on the function of the Japanese review system for constitutionality. The main reason for adoption of such policy was due to the Japanese personnel policy. Liberal and Democratic Party of Japan which has been in power for long, dominates the power of nomination for the judges of the Supreme Court and prefers the candidate who is in support of the policy of passive interference of the judicial power. It is the Supreme Court enjoying the judicial administrative power that determines the promotion possibility of the judges in the lower courts. Therefore, the judges in the lower court have to take into consideration the attitude of the Supreme Court when dealing with the case in regard with review of constitutionality. The judges are burdened with huge amount of civil and criminal cases, so they can hardly pay more attention to the issue in regard with review of constitutionality. Furthermore, although Japan maintains a system with a principle of separation of powers, the Constitution provides that the Congress is the highest organ of the state power. The Congress is the center of the political structure, the influence of which overweighs that of the Supreme Court. Therefore the Supreme Court has to be very discreet when it determines whether the laws passed by the Congress are in compliance with the Constitution. In order to change the extreme policy adopted by the courts of the passive interference of the judicial power, the academics have put forward their contentions of establishment the German styled constitutional court or reform within the existing framework. The Japanese government has actually accepted the latter one.Despite that China and Japan share similar theoretical basis and functions in respect of the review system, i.e., protection of the basic rights of the citizens and upholding the uniformity of the socialist legal system., we maintains a framework under which the review is to be made by the organization of state power, i.e., the National People’s Congress and its Standing Committee are entitle with the review power. In terms of the method of review, there are active review and passive review. In spite of the fact that pre-review has occurred in practice in China, it is only part of legislation procedures. Post-review of the laws is achieved through the amendment or abolishment of the laws. Due to the status of the National People’s Congress and its Standing Committee, the writer holds that it has not been the key issue for review of constitutionality in China whether the laws are in conformity with the Constitution.The constitutional review system has been included in the existing Constitution of China, however the detailed constitutional review procedures have not yet been established for long. In spite of the fact that the basic procedures for constitutional review system were clarified in the Law on Legislation of the People’s Republic of China passed by the National People’s Congress in 2000, in which the basic procedure of review of Standing Committee is established, the problems still exist, for instance, in terms of the review procedure of normative documents the legal effect of which is inferior to the laws, the right of discretion is not exercised appropriately with respect of hearing citizen’s submission of review proposal, suspicion arises that review by special committee is replacing the role of National People’s Congress, validity of normative documents before review is explicitly conducted, and lacking transparency and public non-disclosure are found in the review procedures.Based upon the aforesaid factors, the constitutional review system, in practice, is not being effectively implemented, which means it has not given sufficient protection to citizens in terms of their basic rights and upholding the uniformity of the socialist legal system. In order to improve the current situation and boost its function, the writer thinks that the constitutional review system shall be amended under the existing framework, which is fundamentally in conformity with China’s political structure. Therefore, for the sake of a stable and long-term constitution, it is unfeasible to revamp the existing Constitution of China.Despite the fact that there exists a great difference between China constitution review and Japanese constitution review systems in respect of system foundation, review pattern and mode, as well as system implementation, a range of technical issues, such as effective exertion of system function and specific review criteria are undoubtedly involved in the process of system implementation. China is supposed to draw lessons from Japan with regard to the experience and lessons of Japan in the aforementioned aspects.The exertion of the function of the review system depends on the complete and transparent procedures as well as the judgment in strict compliance with the Constitution, and especially on the personnel with the constitution awareness. To draw lessons from the Japanese experience in this aspect, it is necessary to further strengthen the transparency and enhance the publicity and fairness of the review procedures for constitutionality in order to safeguard fairness and authority of review result. The judgment of constitutionality is not only a technical issue but also a value judgment, which requires the professionals aware of the value of constitution to participate in the proceedings for review of constitutionality. Moreover, we can also learn from the review technology adopted by the Japanese court, e.g., the substantial review criteria based on the principles of the constitution, distinction of unconstitutional action and the illegal activity, prudent treatment of unconstitutional action and distinction of the abstract unconstitutional government action and the concrete unconstitutional government action. We should learn from the Japanese scholars in terms of their in-depth study on the review techniques of constitutionality to facilitate the practice of review of constitutionality, interaction between the practice and academic and exertion of the function of the review system. As to the comparison study of review of constitutionality, the Japanese scholars are conducting in-depth research rather than a superficial one on the foreign system in order to solve their country’s problems.

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