1 Private Drafts and Government Proposals for the Constitution

Article 81 in the Constitution of Japan provides a system of judicial review of constitutionality by the courts (including the lower courts) to overrule government actions (such as laws and ordinances, administrative measures, and judicial decisions) that are unconstitutional. This system, which did not exist prior to the war under the Meiji Constitution, was established along the lines of the system based on judicial precedent in the US. The American style structure of judicial review of constitutionality through a court system was articulated in such private drafts as the Japan Progressive Party's "Outline of Constitutional Reforms" (22), the Constitution Discussion Society's "Draft for the Constitution of Japan" (Article 62), and Masatsugu Inada's "Constitutional Reform Proposal" (Chapter 5).

Nevertheless there had been extensive arguments in Japan prior to the war on the proposed introduction of a continental type of constitutional court. The "constitutional court" is a system that allows a specially established court to determine the constitutionality of any laws that might be considered unconstitutional without being accompanied by legal disputes and issues. It was known as a "continental" type constitutional court because this system was established on the European Continent in Austria after the First World War, and in Germany and Italy among other countries after the Second World War. We can see the concept for a continental type of constitutional court in such government proposals as those from Soichi Sasaki, Commissioner to the Lord Keeper of the Privy Seal, "Necessity to Reform the Imperial Constitution" (Article 78) and Makoto Oike, member of the Constitutional Problems Investigation Committee, "Reform of the Imperial Constitution" (Article 77).

However, the American system and the contintental style of constitutional courts were not where Article 81 originated.

2 The GHQ Draft

Article 81 had its origins in Government Section at GHQ. The "Reform of the Japanese Governmental System (SWNCC 228)", the document on which it was based, specified that any bodies other than the Diet should possess only "a temporary veto power" over legislative measures. This was intended to give priority to the final judgment of the Diet, as the representatives of the people, if there were ever a dispute between the Diet and the judicial courts (including the lower courts) regarding constitutionality.

In consideration of this, the draft proposal put together by the "Judiciary Committee" in Government Section held that the final authority on the unconstitutionality of stipulations relating to fundamental human rights in the constitution lay with the Supreme Court, and that the Diet should have the authority to review and make any final decisions on deliberations relating to other parts of the constitution ("GHQ Draft Proposal"). The "Steering Committee" expressed deep concern about the fear that the Supreme Court could create an "oligarchy" by exercising its authority to judge the constitutionality of laws. Based on these discussions, however, it was considered that this situation could be prevented by the extremely powerful authority of the Diet as a whole, and by giving the Diet the authority to review all judgments on constitutionality with the exception of those concerned with fundamental human rights (Government Section, Constitution Drafting Committee Ellerman Note). This idea was submitted to the Japanese Government in "GHQ Original Draft" (Article 60) and then in "GHQ Draft" (Article 73.)

3 The Japanese Government Draft and Deliberations in the Privy Council and Imperial Diet

The Japanese Government drafted the "First Draft" February 28, 1946 and the "Second Draft" on March 1, 1946 based on the GHQ Draft. The following day, amendments were made to the Second Draft creating "March 2 Draft," which was presented for negotiations with GHQ on March 4. The clause in Article 73 of the GHQ Draft regarding review of Supreme Court decisions by the Diet was provisionally accepted in the form of Article 81 of the March 2 Draft, although the Japanese Government remained uncertain about it. However while negotiating with GHQ regarding the final authority on review of constitutionality, when the Japanese Government stated that "from the point of view of the separation of powers, the Judiciary would be more favorable than the Diet," GHQ readily agreed as noted in ("Details of Events at GHQ on March 4 and 5"). With that, in "Outline of a Draft for a Revised Constitution" of March 6, it was presented to the people stating that "The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act." (Article 77) Following that, in Article 77 of "Draft for a Revised Constitution" April 17, which was written in ordinary language, it was divided into two clauses as Clause 1, "The Supreme Court is the court of last resort," and Clause 2, "The Supreme Court has the power to determine the constitutionality of any law, order, regulation or official act."

As a result, the problem of whether the lower courts had the authority to carry out constitutional review, as clearly stated in the outline, was called into question in the Privy Council deliberations ("Records of the Privy Council Committee"). Then the House of Representatives debated the same question regarding whether to give the lower courts the right of constitutional review. Finally it was amended to the effect that the lower courts would also have the right of constitutional review, stating "The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act." (Article 81) ("Bill for Revision of Imperial Constitution" Revised and Passed by the House of Representatives .)

4 Characteristics of Constitutional Review

Article 81 of the Constitution is generally considered to operate on the US format of constitutional review. The courts have also been run on the precepts of this understanding. However, the Supreme Court, has been cautious in applying the constitutional review and has held only a limited number of acts by the state to be unconstitutional. At this point, there have been some people who considered amendment to Article 81 and the introduction of a continental type of constitutional court system a good idea to fully implement a constitutional review. There is also a constitutional interpretation that through legislative measures, under Article 81 as it is currently written, the introduction of a certain power of abstract review of constitutionality might not be in opposition to the principles of the Supreme Court as a court of justice.

Alternatively, however, concerns have been expressed that by changing to this continental type of court, the administration of justice would be politicized as well as making the legislature anxious about review by the judiciary. It has also been thought, considering the Supreme Court's present condition regarding review of constitutionality, that it would not be wise to make a hasty decision to establish a constitutional court vested with power of abstract review, assuming that it might result in changing the current situation and activating a judicial review of constitutionality.