Strasbourg, 12 January 2007
Consultative Council of European Judges (CCJE)
Questionnaire for 2007 CCJE opinion concerning the Councils for the Judiciary: Reply submitted by the delegation of Japan
Part I - General context concerning the judiciary
1. Is there possible interference of the legislative power concerning judges? If yes, please specify.
(Answer to Questions 1, 3 and 4)
Under the Japanese Constitution, judicial power is vested entirely in courts, while legislative and executive powers are the prerogatives of the Diet (parliament) and the Cabinet, respectively. The Constitution provides for the separation of the judicial, legislative and executive branches as a system of checks and balances to prevent any of them from going too far in the exercise of their power.
Thus, courts are charged with the duty and responsibility of protecting citizens’ rights through their exercise of judicial power and conduct of proceedings in specific cases.
For courts to fully perform this duty, it is necessary to ensure that specific court cases will not be bound by any power other than the law. To this end, judicial independence is provided for by the Constitution as an institutional guarantee.
Judicial independence requires as a fundamental element the independence of judges in their exercise of authority. This means the principle that in handling specific court cases, judges should not be subject to any interference such as orders or instructions from organizations belonging to the other branches of the state, such as the Diet, the Cabinet and political parties, or from other political and social elements. Thus, judges should follow only the law and their conscience in their conduct of court proceedings. Also, the status of judges is duly guaranteed by the Constitution in order to ensure their independence in the exercise of authority. Furthermore, as a way to effectively ensure judicial independence as well as judges’ independence in the exercise of authority, the Supreme Court is vested with judicial administrative power. With the authority over personnel management and budget matters related to courts thus placed in the hands of the judicial branch itself, enhanced judicial independence is secured.
Under these circumstances, there is no possibility of either the legislative branch or the executive branch interfering with courts or judges by exceeding the limits imposed by the Constitution to secure the separation of the three powers.
2. Is it possible for the legislative power or the Parliament to order investigations or to establish commissions :
§ in general concerning judges? If yes, please specify.
§ concerning judicial performance?
§ concerning facts already submitted to courts?
§ concerning procedural acts (eg. telephonic tapping, police custody)
The Diet has no supervisory authority over court judgments concerning specific cases. Although the Diet is empowered to conduct investigations into matters concerning the government (Article 62, Constitution) as a way to allow it to exercise its authority effectively and appropriately, it is not allowed to investigate judges’ conduct of court proceedings or court procedures or to conduct investigations exclusively for the purpose of determining the appropriateness of the substance of trials with regard to ongoing cases. Concerning closed cases, it is understood that the Diet is, in principle, not permitted to conduct investigations similar in nature to retrials.
3. Is there possible interference of the executive power concerning judges?
4. If yes, is it possible for the executive power to interfere:
§ in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)
The Chief Justice of the Supreme Court is designated by the Cabinet (Article 6, Constitution), and the other justices of the court are appointed by the Cabinet (Paragraph 1, Article 79, Constitution). Judges at lower courts are appointed by the Cabinet from a list of persons nominated by the Supreme Court (Paragraph 1, Article 80, Constitution).
On the other hand, the assignment of judges to specific courts, the nomination of the officials who supervise administrative affairs of divisions and the appointment of the presidents of courts are decided based on deliberations at the Judicial Conference of the Supreme Court (Article 12, Law of Courts, etc.). Training of judges is undertaken by the Legal Training and Research Institute established under the Supreme Court (Article 14, Law of Courts). Therefore, the executive branch has no involvement in these matters.
With regard to proceedings concerning disciplinary cases, please refer to the answers to Question No. 23.
§ in designation of presidents of courts? (if yes, please specify which authority from the executive power)
The presidents of district and family courts are appointed by the Supreme Court (Articles 29 and Paragraph 5, Article 31, Law of Courts). The presidents of high courts are appointed by the Cabinet (Paragraph 1, Article 80, Constitution), but it is the Supreme Court that decides to which high courts they are assigned (Article 47, Law of Courts).
§ in management of courts? (if yes, please specify which authority from the executive power)
5. Is the judicial staff working under the authority of:
§ a judge?
§ the president of the court?
§ the Ministry of Justice?
In order to effectively ensure judicial independence, the Supreme Court is vested with judicial administrative power. The Supreme Court is responsible for supervising its own personnel, lower courts and their personnel and high courts for supervising their own personnel, lower courts under their territorial jurisdiction and the lower-courts’ personnel. District courts are responsible for supervising their own personnel as well as summary courts located in their districts and summary court personnel, while family courts should supervise their personnel (Article 80, Law of Courts).
Thus, the administrative organization of the judicial branch forms a pyramid structure with the Supreme Court at its apex. Judicial administrative affairs at each court are conducted based on decisions by the court’s judicial conference composed of all judges of the court. The head of the court supervises its administrative affairs as he or she presides over the judicial conference (Article 12, Court Law).
It is obvious that the exercise of judicial administrative authority for the conduct of court-related administrative affairs should not undermine the judicial independence guaranteed by the Constitution and, in particular, the independence of judges when exercising judicial authority, which is a fundamental element of judicial independence. To underscore this, Article 81 of the Law of Courts stipulates that the supervisory authority concerning judicial administrative affairs should not affect or restrict judges’ authority concerning court proceedings. For example, it is not permissible to use such supervisory power to give instructions to a judge as to how to conduct court proceedings, etc. concerning an ongoing case.
6. What are the competences of the president of the Court:
§ to evaluate the work of the judges of the court?
Personnel assessment with regard to each judge is conducted by the head of the court he or she serves.
§ to distribute the work between judges?
The assignment of work for each judge, which is regarded as a judicial administrative matter, is decided based on the deliberations of the judicial conference of the court he or she serves.
§ to act as a disciplinary authority vis-à-vis judges?
Disciplinary measures against judges are determined in trials based on the Law Concerning Status of Judges. Court procedures for a disciplinary case are initiated by a filing of suit by the court which has the supervisory authority over the judge concerned (as defined by Article 80, Law of Courts), according to Article 6 of the Law Concerning Status of Judges.
As stated in an earlier answer, the heads of courts are due to supervise the conduct of judicial administrative affairs at their own courts as the chairs of judicial conferences (Articles 12, 20, and 29 and Item 5 of Article 31, Law of Courts)
The dismissal of judges from office must be based on public impeachment. According to Paragraph 2, Article 15 of the Law for Impeachment of Judges, the presidents of high courts are required to notify the Supreme Court when they reckon that there are grounds for removal from office by impeachment of judges of the courts or judges of lower courts over which they have territorial jurisdiction. A similar notification is required when the presidents of district courts believe there are grounds for removal from office by impeachment of judges of their courts and of summary courts in their districts and when the presidents of family courts believe the same with regard to the judges of their courts, according to this provision of the law.
Also stipulated is that "The Supreme Court shall ask the Impeachment Committee to initiate impeachment proceedings when it reckons that there are grounds for impeaching a judge."(Paragraph 3, Article 15, Law for Impeachment of Judges)
§ to intervene in the career of judges?
The president of the Court has no authority to intervene in specific matters of personnel management.
§ other? If yes, please specify.
Part II – General concerning Councils for the Judiciary
7. Is there a Council for the Judiciary in your judicial system?
8. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)
9. What is the legal basis for the Council for the Judiciary:
§ the Constitution?
§ the law?
§ other? If yes, please specify.
10. Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)
(Answers to Questions 7 to 10)
As stated earlier, the separation of the three powers of the state established in Japan ensures that courts exercise judicial power with their independence guaranteed by the Constitution. Therefore, Japan does not have a council for the judiciary of the kind referred to in your questionnaire or laws and other regulatory rules that govern such a body.
Part III - Composition
11. What is the composition of the Council for the Judiciary:
§ Number of members?
§ Qualification of the members?
§ For the “judges” members, do they need specific qualifications or experiences?
§ Can non-judges be members of the Council? Please specify (number, qualification/specific functions)
12. Please describe the whole procedure of appointment:
§ Who designates the members (judges or other institutions or authorities – please specify)?
§ What is the appointment system (voting, individual candidates, designation, etc.)?
13. How is appointed the President and/or Vice-President of the Council?
14. What is the term of office for a member of the Council?
15. May a member be removed from office against his/her will and, if so, under what circumstances?
Part IV - Resources
16. Where does the Council receive its financial resources?
17. Does the Council have its own staff?
18. If not, is the personnel provided by:
§ the Ministry of Justice?
§ the Supreme Court?
§ other institution? Please specify
19. What is the staff number?
20. What are the qualifications of the staff?
21. Must the staff be composed, albeit only in part, by judges?
22. What are the tasks of the staff of the Council:
§ preparing materials for the Council members?
§ providing them with analysis and evaluation of the courts’ practice?
§ other? Please specify.
Part V - Tasks
23. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks– see also part VIII of this questionnaire):
§ in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?
All such matters are decided through the deliberations of the Judicial Conference of the Supreme Court.
§ in area of initial and/or continuous training for judges and/or courts’ staff1?
Training of judges and court officials is undertaken by the Legal Training and Research Institute and the Training and Research Institute for Court Officials.
§ in area of courts’ performance in general (assessment of quality of court performance2, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?
§ in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements3)?
Evaluation of each judge's work is conducted by the head of the court he or she serves, according to assessment criteria determined by rules set by the Supreme Court.
§ in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?
In order to ensure the independence of judges in their exercise of authority, the Constitution stipulates, "No disciplinary action against judges shall be administered by any executive organ or agency (Article 78)." In line with this provision, disciplinary action against judges must be determined in trials based on the Law Concerning Status of Judges. With regard to judges at district, family and summary courts, disciplinary action cases should be handled by the high courts that have territorial jurisdiction over the courts concerned. With regard to Supreme Court justices and high court judges, such cases should be handled by the Supreme Court (Article 3, Law Concerning Status of Judges) The court that initiated the disciplinary case proceedings and the judge concerned may immediately appeal against the final judgment rendered by a high court (Article 8, Law Concerning Status of Judges).
As an exception to the guarantee of the status of judges, the Constitution provides for dismissal of judges from office by public impeachment (Article 78). Public impeachment shall be conducted by an Impeachment Court composed of members of both Houses of the Diet. (Article 64, Constitution and Paragraph 1, Article 16, Law for Impeachment of Judges). An impeachment trial shall be conducted based on an impeachment filing made by a judge impeachment committee composed of members of both Houses of the Diet (Articles 5 and 14, Law for Impeachment of Judges).
§ in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?
(Please refer to the answer to Question 48)
§ in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify
24. Does the Council have investigation powers? If yes, please specify
25. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe
26. What are the types of norms that the Council can issue:
§ opinions on the functioning of the judiciary?
§ instructions to the courts?
27. Are the functions or responsibilities of the Council described in law or other norms? Please specify.
28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?
29. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?
Evaluation of each judge's work is conducted by the head of the court he or she serves, according to assessment criteria determined by rules set by the Supreme Court.
30. Does the Council handle external relationships of the courts:
§ has it a public relations department?
§ how does it ensure the transparency of its functioning and organisation?
31. Are decisions of the Council published and available to all?
Part VI – Assessment of the self-governance and the independence of the judiciary
32. To what extent is the work of the Council influenced by:
§ the executive power?
§ the legislative power?
33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect?
34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?
35. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?
36. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?
37. Who decides which the priorities of actions of the Council are?
38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?
39. Which instruments or practices are used by the Council:
§ to guard the independence of judges?
§ to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?
§ to intervene in case of attacks against its own interests4?
§ to improve the working methods of judges?
Part VII – Future trends of Councils for the Judiciary
40. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.
41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.
42. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?
43. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:
§ concerning the national actions of your Council?
§ concerning international co-operation?
44. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.
Part VIII – Countries without a Council of the Judiciary
45. Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?
1. Relations between courts and the Diet
In order to effectively ensure the separation of the three powers of the state, the Supreme Court is accorded the status as the court of last resort with the power to determine the constitutionality of any law, order, regulation or official act (Article 81, Constitution). Lower courts are also deemed to have the right to review the constitutionality of any law. It should be noted, however, that the review of constitutionality allowed for courts is in principle an “incidental” one, which means that courts shall exercise the right to the review only in their handling of specific cases, within the limits necessary for the resolution of the cases. In other words, courts are not allowed to conduct an “abstract” review of the constitutionality separately from proceedings concerning specific cases. This means that a judgment rejecting the constitutionality of a certain law applies only to the court case concerned, leaving the issue of what to do with that law to the discretion of the Diet.
The Supreme Court is vested with the rule-making power under which it determines the rules of court procedures and of practices (Paragraph 1, Article 77, Constitution), meaning that the independence of courts in their conduct of judicial affairs is respected. However, the Supreme Court is not allowed to submit bills including those for the revision of existing laws, as the power to submit bills to the Diet is limited to Diet members and the Cabinet (Article 5, Cabinet Law).
On the other hand, the Diet has no supervisory authority over court judgments
concerning specific cases. Therefore, although the Diet is empowered to conduct
investigations into matters concerning the government (Article 62, Constitution) as already
explained, it is not allowed to investigate the judge’s conduct of court proceedings or
court procedures or to conduct investigations exclusively for the purpose of determining
the appropriateness of the substance of trials with regard to ongoing cases. Concerning
closed cases, it is understood that the Diet is, in principle, not permitted to conduct
investigations similar in nature to retrials. As an exception to the guarantee of the
status of judges, the Constitution provides for dismissal of judges from office by public
impeachment (Article 78). Public impeachment shall be conducted by an Impeachment
Court composed of members of both Houses of the Diet. (Article 64, Constitution).
2. Relations between Courts and the Cabinet
In order to effectively ensure the separation of the three powers of the state, the Supreme Court is accorded the status as the court of last resort with the power to determine the constitutionality of any cabinet order, regulation or official act as well as that of any law (Article 81, Constitution).
Lower courts are also deemed to have the right to review the constitutionality of any cabinet order, regulation or act. Just as in the case of review of laws, however, the review of the constitutionality of cabinet orders, regulations and acts is in principle an “incidental” one, which means that courts shall exercise the right to the review only in their handling of specific cases, within the limits necessary for the resolution of the cases. Meanwhile, no organ or agency of the executive branch is accorded final judicial power (Paragraph 2, Article 76, Constitution), or is empowered to administer disciplinary action against judges (Article 78, Constitution). So-called administrative case litigation shall be handled by ordinary courts, not by special tribunals.
On the other hand, the nomination of the Chief Justice of the Supreme Court and the appointment of other Supreme Court justices and judges at lower courts are the prerogatives of the Cabinet (Paragraph 1, Article 79, and Paragraph 1, Article 80, Constitution). With regard to the appointment of lower court judges, however, the independence of the judiciary is respected as the appointment is made from a list of persons nominated by the Supreme Court.
As a way to reflect public opinions in the process of nominating lower court judges, the Advisory Committee for the Nomination of Inferior Court Judges established under the Supreme Court investigates and deliberates the appropriateness of the nomination of candidates proposed by the Supreme Court and reports its findings to the court.
As explained above, the principle of separation of the three powers of the state is established in Japan in a way so as to ensure the independence of the judicial branch. At the same time, the judicial branch, with its right to constitutionality review, is guaranteed the ability to act as a check on any excessive exercise or abuse of the powers by the legislative and executive branches, thus ensuring an appropriate balance in the separation of powers.
46. How and by whom are judges appointed and promoted?
Please refer to the answers to Questions 4 and 6.
47. Does any authority (body) independent5 of the government and the administration take part in the appointment and promotion process:
§ If yes, how is this authority composed? Is a certain share of judges fixed?
§ How are the members selected?
§ what are the detailed competences of the authority with respect to the appointment and promotion of judges?
The appointment of justices of the Supreme Court other than the Chief Justice and judges at lower courts is made by the Cabinet from a list of persons nominated by the Supreme Court. With regard to the appointment of lower court judges, the Advisory Committee for the Nomination of Inferior Court Judges established under the Supreme Court provides to the Supreme Court its opinions as to the appropriateness of the nomination of nominee candidates. The advisory committee is comprised of 11 members appointed by the Supreme Court from among judges, prosecutors, attorneys and persons with relevant academic experiences.
48. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
1. Securing of funds necessary for courts’ activities
In Japan, the Cabinet prepares the budget and submits it to the Diet (Item 5, Article 73 and Article 86, Constitution). With regard to funds for courts’ activities, the Supreme Court calculates estimated expenses and submits a budget request to the Cabinet in each fiscal year. In the national budget, expenses for the judicial branch are appropriated separately from those for the other branches of the state (Paragraph 1, Article 83, Law of Courts).
2. Involvement of judges in securing of funds and budget administration
A budget request for the judicial branch submitted to the Cabinet in each fiscal year and budget administration are part of the judicial administrative affairs conducted by the Supreme Court based on decisions made by its Judicial Conference, comprised of the Chief Justice and the other 14 justices of the court (Article 12, Law of Courts).
The administration of a budget for each lower court is part of the judicial administrative affairs conducted by the court based on decisions made by its own judicial conference, comprised of judges of the court (Article 20, Law of Courts, etc.).
49. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?
There is no plan to establish a council for the judiciary.