Yuichiro Tsuji (University of Tsukuba) has posted Independence of the Judiciary and Judges in Japan (Revista Forumul Judecatorilor, No.2 Revista Forumul Judecatorilor (2017)) on SSRN. Here is the abstract:
As officials working in the executive branch and as stated under Article 15 of the Japanese Constitution, judges in the judiciary are public servants for the people. Their mission is to interpret the text of the Constitution and statutes when hearing court cases. Sixty years ago, the Japanese Constitution was drafted by both the American and Japanese people. It is important, though not critical, to interpret the records and intent of the drafters. We are not bound to the hand of the dead. Extreme textualist and originalist approaches are not adopted. By examining these arguments, however, we gain insight that can be used when reviewing the system and text carefully, and thus come to a more thorough understanding of the purpose. The Kojima, Naganuma, and Teranishi cases suggest that both the judiciary and judges should be independent. Under the current Constitution, we examined one questionable case of Judge Teranishi. Although we understand the mission of the judges is to work neutrally and fairly, as written by the Supreme Court, it is still questionable as to independence of judge. The judges’ salaries are guaranteed by the Constitution and regulated by the law. The salary is based on those of private sector workers. It is against the Constitution to reduce only the salaries of certain classes of judges, but it is not against the Constitution to reduce all of the salaries in the judiciary. The review of Supreme Court judges by the people was conducted at the first general election of members of the House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the House of Representatives after a lapse of ten years, and in the same manner thereafter. This system is questionable because many Japanese people are unaware of the judges’ names and of the Supreme Court cases. The only way to remove a judge is through impeachment. The Japanese Constitution stipulates impeachment in the parliament; therefore, the Diet organizes impeachment committees in cases where judges are being sued. The politicians decide if the judge should be impeached. To date, several judges have been sued and impeached. Some reasons for this were political, and others were not. In Japan, we need to be vigilant against measurements that infringe on the independence of judges. The independence of the judiciary and judges is required for the formation of the legal mind to occur. Their duties can be fully exercised only after their positions become independent of the political powers of the executive and legislative powers.