• Internal Code :
  • Subject Code : GOVT 1641
  • University : University of Sydney
  • Subject Name : Political Sciences

Comparative study: Supreme Court of Japan vs Constitutional Court of Russia

Introduction

A constitutional court or ‘tribunal’ is an exclusive institution with the sole purpose of exercising the powers of ‘Judicial Review’, and is defined as “a constitutionally established, independent organ of the state whose central purpose is to defend the normative superiority of constitutional law within the juridical order”.

To state it alternatively, a Constitutional Court’s purpose is to evaluate laws, also including the acts performed consequentially to decisions taken by the executive. Further, to review the Constitution is a purpose for none other, but solely and exclusively borne by the Constitutional Court.

Interestingly, the system also goes by the nomenclature of the ‘European’ system on grounds of its inception being credited to legal aficionado Hans Kelsen, who could trace his origins to Austria while the system simultaneously finds marked presence in prime territories of Europe like Germany & Spain, along with other countries they influenced including Colombia, Russia, Taiwan and Turkey.

Japanese Supreme Court

Often cited as a textbook-example of a ‘weak’, or alternately, ‘ineffective’ Court, the Supreme Court of Japan is perceived as an illustration of a judiciary which is conservative to a fault. The sole basis for this presumption is taken to be the measly 8 occasions where a constitutional provision was invalidated. On certain other instances, the same sleepy Court protected certain rights of its citizens via constricted interpretations to certain regulations.

Beyond the numbers also, unfortunately, the miniscule interference of the Apex Court is evident, its role being motivated by political reasons instead of the expected judicial ones (Martin, 2017).

The Japanese Apex Court’s low profile can be explained through the observance of two legal practices prevalent in the island country, supplementary to its own rare employing of the powers of invalidation of a statute. The first practice is that of extremely delayed appointment of judges to the Apex Court, and the second is the narrow interpretation of the Supreme Court’s powers by the Court itself.

Beginning with the former, one observes that as per law, the superannuation of the judges takes place when they turn 70 years old. Placing this rule alongside the general practice of appointing judges when they are, on average, aged between 62-65 years, it can be concluded that the appointed judges are not allowed sufficient time to ease into their positions, or familiarise with the general practices involved with the everyday functioning of the Court. In a nutshell, the quick–switch routine prevents judges from becoming accustomed to the powers of the Court, thus creating a dearth of the display of the Court’s powers in its full capacity.

Moving to the next issue, the Japanese Top Court has, of its own motion continuously established the presence of certain political questions which deny it jurisdiction and thus prevent it from performing its full functions. This stand of the Court is especially visible when proceeding against administrative bodies of the Kingdom.

In a nutshell, the statutes providing which form the foundation of the Japanese Supreme Court do not form a reliable source, for despite the possibility of inflating the conservatism of its approach, the Supreme Court does not play a principal part when resolving the noticeable problems arising in its jurisdictional territory.

The root cause for the apparent ineffectiveness of the Apex Court points to the collocation of the regular judiciary bearing a much lower status when placed beside the decentralized function of judicial review. Furthermore, a dominant party sans constitutional or additional shields for unprejudiced engagements of judges of the Court, as opposed to a scarcity of legal powers or framework weaknesses, are a major influence to the ineffectiveness of the Japanese Supreme Court.

An illustration to the aforementioned point is the fact that the Chief Justice can be appointed with full interference of the Prime Minister of the Land of the Rising Sun, since there has long been a trend of politically-influenced judicial appointments. Although there is the presence of a rule for the Chief Justice to recommend appointments or replacements of the other judges, they are generally accepted only upon the affirmation that such suggestions of the Chief Justice are not of any significance, and are incapable of independent thinking (Chen & Ginsburg, 2013).

Conseil Constitutionnel of the Republic of France

Founded at the time of adoption of the present system of governance of the French, the Conseil Constitutionnel, otherwise called the Consitutional Council of France, was brought into this world with a multitude of powers, consisting of, in addition to others, the power to scrutinise the validity of a law, subject to the constitution of France. It is pertinent to note that the Council is not superior to the Council of State or the Court of Cassation. Instead, both these institutions may seek advises from the Council on matters as varied as enhancement of the manner in which elections are conducted (Conseil Constitutionnel, 2020).

The Council was brought into being in an atmosphere of triviality, and upon its inception, it performed the duties of a guard for the executive, and it ended up being a check-and –balance which ensured that the Parliament did not trespass into the government’s autonomy The principle is that the Council’s powers are limited to those powers which have been expressly conferred upon it. This principle of limited constitutional jurisdiction was first expressed in a 1961 decision when the Council considered that its competence in giving consultative advice was a limited and not a general one (Debre, 2016).

The Council, hence, was not a part of the league of Constitutional courts/councils which were established after World War 2 in Germany or in Italy, but was a very powerless dwarf (Bell, J. & Paris, M-L, 2016).

The renovation of the Council from an auxiliary institution into a constitutional court is renowned. It accomplished an escape from the ghettoish imprisonment attributed to it by the Constitution via a blend of two major lines of action: a remarkable autonomous enlargement of its jurisdiction and a set of impeccably timed reforms to the Constitution.

The Freedom of Association remains the foremost decision where the Council invalidated a law for being ultra vires the French fundamental rights and even today holds the title of being the earliest step in revolutionizing the Council’s position.

There onwards, the Council opted for the implementation of actual judicial review, from a bureaucratic point of view as also from a fundamental outlook. In this respect, its review could then encompass the conformity of laws vis-à-vis a body of rights and principles contained in various fundamental texts, including the 1789 “Declaration of Man and Citizen” and the Preamble (Bell, J. & Paris, M-L, 2016).

Developments which came into being in the 1970s grew skyward from then on. Many political analysts contend that the intensified prominence of the Council’s guard over the executive was responsible for a rise of a tradition of judicial review.

The 1971 Freedom of Association decision played an indispensable role in putting the Council where it stands today. Albeit in-charge of less significant roles also, such as the supervision as well as monitoring of elections, the penultimate purpose at present is maintaining scrutiny on executive power. Since its founding, the inflow of petitions have boomed exponentially and the Constitutional Council both, openly as well as covertly, holds the reins of the government by means of limitation and revision of its actions (Rieche, 2011).

Conclusion

In conclusion, it can be said that both systems have their own pros and cons. To place one system on top of another, would be a naive mistake, for both systems came out as products of research which was conducted by many, many great minds, and pioneers of the field.

Through evaluation of the Japanese system, we found that the system itself is not as harmful, as is the consitnuous majority their ruling party has enjoyed over the years, in addition to the much delayed age of ascension to the judges’ chair, which prevents the judges from developing habits which would involve the full use of the powers the Supreme Court is endowed with.

There was also the issue of appointment of officers who were not very high ranking as judges of the Japanese Supreme Court. But again, this issue is one which is indirectly a result of exploitation of the political machinery of the Kingdom, since such a jeopardy of the machinery cannot take place due to one man, or one part being corrupt.

An analysis of literature reveals that the only parameter on which the effectiveness of a Constitutional Tribunal is adjudged, is the number of legislations it invalidates in a given period of time. Keeping this in mind, one must remember that just because the Japanese Supreme Court is not as active as its other counterparts, it does not lead us to conclude that it is established for its namesake only. It can equally be possible that the legislations brought about by their ‘Diet’ or parliament, are generally in harmony with their Constitutional position, and that is why the Apex Court does not have to look into things as much. Case in point is the lack of unrest in the ‘Land of the Rising Sun’.

Moving to the other counterpart in our analysis, it was brought to light that the original idea behind the inception of the Constitutional Council was not half as significant as it has become today.

The French series of incidents reveal a lesson which is as important in individual life, as it proved to be to the Conseil: to achieve peace, war is necessary. In other words, the ’71 judgement paved way for the Council to initiate the carrying out of the tasks it was originally meant to. Prior to that, the Council was just a look-out for the Government, and it was not remotely close to standing for what it was founded in the first place: scrutiny of the enacted legislations of the French government.

True, of the two cases we find the French set of incidences more progressive. The purpose with which it was found is being fulfilled by the Conseil, and it is now a significant limb of the French society. And although the aforementioned arguments were made in favour of the Japanese Supreme Court, it is submitted that the Constitutional Court/Tribunal system, where a dedicated forum is established for dealing with Constitutional validity of enacted legislations, is more effective than a Supreme Court, which has Constitutional validity as only a part of its vast array of jurisdictions and powers.

References

Bell, J. & Paris, M-L. (2016). Rights-based constitutional review: Constitutional Courts in a changing landscape. Edward Elgard Publishing.

Brinks, D. & Blass, A. (2017). Rethinking judicial empowerment: The new foundations of constitutional justice. International Journal of Constitutional Law, 15(2), 307-311.

Chen, A. H. Y. & Ginsburg, T. (2013). Public Law in East Asia. Ashgate. Consseil Constitutionnel. 2020. https://www.conseil-constitutionnel.fr/en

Debre, J-M. (2016). Ce Que Je Ne Pouvais Pas Dire (What I could not tell). Robert Laffront.

Gardbaum, S. (2018). What makes for more powerful constitutional courts? Duke Journal of Comparative and International Law, 29(1), 36-39.

Guinchard, E. & Granger, M-P. (2016). The new EU judiciary: An analysis of current judicial reforms. Wolters Kluwer Publishing.

Gyorfi, T. (2016). Against the new constitutionalism. Edward Elgar Publishing.

Leckey, R. (2016). The harms of remedial discretion. International Journal of Constitutional Law, 14(3), 584-586.

Paris, M-L. (2016). The French constitutional council: Another ‘work-in-progress’. University college Dublin working papers in Law, Criminology and Socio-Legal Studies, paper 15/2017

Rieche, O. (2011). Preserving the Role of the French Constitutional Council as a Check on Executive Power. Inquiries Journal, 3(11)

Sajo, A. & Rosenfeld, M. (2012). Oxford handbook of comparative constitutional law. Oxford University Press.

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Political Science Assignment Help

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