What we need to do in order to make use of unconstitutional rulings

Meaning of an unconstitutional ruling

We have the tools to control our own actions and coordinate our interests in our social lives. For example, there are morality and religion, as well as individual values, views of life and views of society. And law is one of those tools. The law, as a tool to control human behavior, has its limits.

We tend to think that laws are the absolute foundations and rules that support society, but in fact, this is not the case.

For example, as values and perspectives of life differ from person to person, as morality and religion change from time to time or are interpreted differently, laws change according to people’s consciousness and social change.

One might say that outdated laws may have to be changed. The law supports society, but it is also supported by society.

One of the institutions that determines that a law is out of date is the court. This is because the court has a mission to interpret the applicable law and discover its meaning through disputes when dealing with disputes on the law between conflicting parties. Therefore, a court judgment is a demonstration of the meaning of the law not only to the parties to the trial, but also to our citizens.

Next, we should examine how judges interpret the law and discover its meaning. The trial process is based on the testimony, opinions and evidence of the parties concerned, and reflects a society that supports our consciousness and laws in today’s society. This could lead judges to conclude that some laws applied to a specific case are not adapted to society well. In other words, the law is outdated. The statutes will be judged according to the Constitution under the supremacy of the law.

As a famous example, there is the so-called murder of an ascendant. An ascendant means one’s father, mother, or spouse. Article 200 of the Penal Code stipulates that if a child kills his/her parents, it is considered murder of an ascendant, and the crime is heavier than other murders, so the child faces the death penalty or life imprisonment. Here, there is the implication that children should take good care of their parents. However, in 1968, there was the case of a 29-year-old female who murdered her biological father. Naturally, the murder of an ascendant is applicable, but during the trial it was found that the female had been raped by her father repeatedly over a long period of time since she was a child.

Some people felt that it would be too cruel for the female to be sentenced to death or life imprisonment despite the circumstances. As a result, the Supreme Court ruled in 1973 that the murder of an ascendant was unconstitutional because it violated equality under the law under Article 14 of the Constitution. In this way, the consciousness, values, and ethics of the people living in society change with the times, and the general public changes the laws accordingly in order to support society.

One of the institutions that give such a meaning to the law is the court, which can be shown in the form of an unconstitutionality ruling.

Increasing number of unconstitutionality rulings in Japan

The Constitution of Japan, which was established soon after the war, was strongly influenced by the United States under the guidance of the General Headquarters at that time. For example, the judicial review system is one of the influences. Unlike the Constitution of the United States, the Japanese Constitution explicitly provides for judicial review.

Judicial review is the authority of a court to determine, through a dispute, whether an applicable law is unconstitutional or constitutional under the Constitution. The previously mentioned unconstitutionality ruling of the murder of an ascendant was also made under this system. However, there are far fewer cases of unconstitutionality rulings in Japan than in the United States.

For example, in the United States, religious groups have called for the temporary suspension of state regulations in the COVID-19 crisis, when laws designed to avoid the so-called three Cs (closed spaces, crowded places, and close-contact settings) have blocked public gatherings for church services.

The U.S. Supreme Court temporarily suspended the New York and California distance limits successively, finding that having different standards between shopping at a supermarket and gambling at a casino, and religious worship, infringes freedom of religion. By contrast, there have only been a few cases of unconstitutionality rulings in the 75 years since the war in Japan.

For example, in 1969, a lawsuit was filed by residents in Naganuma Town, Hokkaido, alleging that the use of a protected forest to construct a Self-Defense Forces base was unconstitutional because the Self-Defense Forces were unconstitutional in the first place.

In the first instance, the Sapporo District Court ruled that the Self-Defense Forces violated Article 9 of the Constitution. The Sapporo High Court, the second instance court, did not judge the constitutionality of the SDF, stating that the possibility of natural disasters caused by the removal of the designation of national forests was lost with the construction of the dam. The case went to the Supreme Court, but in 1982, a decision was made to dismiss the appeal on the grounds that the plaintiffs had lost the benefit of suit owing to the completion of alternative facilities at the base, without touching on the unconstitutionality judgement of the Self-Defense Forces.

I think there are various reasons why there are few unconstitutionality rulings in Japan. However, since judicial system reforms began with the introduction of the lay judge system around 2000, the number of unconstitutionality rulings has gradually increased.

For example, in 2008, the Supreme Court ruled that the Nationality Act was unconstitutional in a lawsuit brought against the inability of an out-of-marriage child of a Japanese man and a Filipino woman to acquire Japanese nationality.

In 2021, the Sapporo District Court ruled in favor of a same-sex couple who had been unable to receive even part of the legal benefits of marriage, stating that it violated Article 24 of the Constitution.

Looking at this trend, there may be an increasing number of unconstitutionality rulings in Japan in the future. However, this does not mean that it would be better if there were more unconstitutionality rulings. It is a message from the court that the meaning of the law has become outdated, and thus what actions should be taken regarding the law by the Diet, composed of our citizens and our elected representatives, is important.

For example, the Nationality Act was quickly revised in the year when it was ruled unconstitutional. On the other hand, murder of an ascendant was revised in 1995, 22 years after the ruling that it was unconstitutional. There are many media reports about the trial itself questioning unconstitutionality, and it has attracted public attention, but what really matters is after the ruling.

We ourselves think about a new way of freedom of expression

Recently, one of the changes that I have been paying attention to is freedom of expression due to the development of the Internet.

For example, there is the argument that the Internet is a public forum. The public forum was theory as proposed by Justice Masami Ito, a famous jurist, maintains that publicly owned and managed facilities such as parks and plazas are useful as places where people gather and engage in expressive activities.

So, when I consider whether social networking services (SNS) on the Internet fall into that category, I actually have a question.

First of all, personal computers and smartphones are personal property purchased by individuals (the combination of computer servers owned by individuals and companies is the Internet). I think it is difficult to call an SNS, which is conducted using such personal tools, a forum (physical place) owned and managed by public assets. However, publicness can also be viewed as a public concern (matters we citizens need to think about to live together with others). For example, publicness can be viewed as matters discussed that are of common interest such as politics and same-sex marriage on social media. In other words, the physical environment of the Internet itself is not public, but matters discussed there are public.

It could be called a square, not a “forum,” in the sense that with such tools, anyone in the world can have a place to see and participate in discussions. In other words, the Internet is a public square. Forum and square sound similar, but we distinguish them by considering which of physical places or discussion matters (topics) has publicness.

Before the spread of the Internet, information was transmitted mainly by newspaper companies and TV stations that had the tools to do so, and having the right of access was important for us citizens. For us, a forum where we could transmit information or express ourselves was valuable.

Today, we are able to transmit information easily, and the forum has become a square where everyone comes and goes, and what is more important is what topics are selected and how they are discussed.

For example, can we call a place where there is hate speech, personal slander, invasion of privacy, and obscene images a square?

With the spread of the Internet, the means to transmit information has expanded, and the concept of publicness and freedom of expression has also changed. As a result, applicable laws will become outdated and laws will be created in accordance with modern society.

As a researcher, I would like to keep an eye on what kind of opportunities will create such new laws and in what way. However, it’s not just about focusing on court rulings. The opportunity is not only the court’s unconstitutionality ruling.

We citizens ourselves think about issues, and as a result, many people will limit the transmission of information, and new laws can be created by appealing to politicians and administration.

Rather, I think we can say that it is healthy to have a society in which the revision of laws in accordance with society comes first and courts follow that.

* The information contained herein is current as of June 2021.
* The contents of articles on Meiji.net are based on the personal ideas and opinions of the author and do not indicate the official opinion of Meiji University.
* I work to achieve SDGs related to the educational and research themes that I am currently engaged in.

Information noted in the articles and videos, such as positions and affiliations, are current at the time of production.