In Japan, the status of the judges is constitutionally secured, including their freedom of expression. However in practice, it is highly arguable whether or not they truly enjoy that freedom, and there are widely shared observations of constraining elements that induce excessive self-regulations among judges.
In October 1997, Judge Teranishi contributed an essay to a major newspaper, the Asahi Shimbun. It was just about the time that the Anti-Organized Crimes Bill had been presented to the Diet and opposition to it was being raised by concerned lawyers. In his article, Teranishi objected to the wiretapping provision in the bill, arguing that it would continue the current practice of judges issuing search warrants without any substantial examination and practically “at the beck and call of” the prosecutors or the police. Another judge made a counter-argument in the same newspaper, and the controversy attracted public attention. On account of his public criticism of the proposed law, the Asahikawa District Court, where he worked at that time, issued a warning against him not to repeat such conduct which “would eventually damage the trust of the public towards the court” and was “quite improper and clearly inappropriate as a judge.”
On May 1, 1998, the Sendai District Court filed an application for a disciplinary measure with the Sendai High Court against Teranishi, who is now a judge of the Sendai District Court. The application was submitted under the Law Concerning the Status of Judges. Judge Teranishi was held accountable for his remarks he made from the floor at a public meeting on the Anti-Organized Crimes Act Bill. The Sendai District Court claimed that his statements fall into the category of “political activism” which judges are prohibited from participating in under Article 52 of the Court Organization Law. Thus, it argued that he had breached an obligation of judges and should be subject to disciplinary action as provided under Article 49 of the said law.
According to the application, Teranishi introduced himself as a judge at the meeting and said that he had originally planned to participate in the meeting as a panel member but was told by the director of the District Court that if he did so he could be disciplined. The application further alleges that Teranishi also mentioned that he did not think that the law prohibits him from expressing an objection to the Anti-Organized Crimes Act Bill. However, the Sendai District Court insists that Teranishi should be blamed for his conduct as his opposition to the bill falls into the prohibited category of “political activism.”
Lawyers and bar associations have issued statements in support of Judge Teranishi. As of July 1,1998, 1067 lawyers nationwide have registered as his defense counsel in the disciplinary procedure.
Teranishi himself claims that he did not express a clear opposition to the bill at the meeting. It is arguable as to whether or not his statement at the meeting was meant in substance to be “in opposition” to the bill. Even if it is deemed as being “in opposition,” it can still be argued that it did not constitute “political activism.”
Needless to say, it is taken granted under the Japanese Constitution that a judge, as an individual citizen, is guaranteed to express freely his/her opinions under the principle of freedom of expression. Freedom of expression of judges is also endorsed in international law. The UN Basic Principles on the Independence of the Judiciary provides in Article 8 that “[i]n accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly.”
Of particular note is that this application for a disciplinary measure was filed without any prior discussion, and in an attempt to make a problem of Teranishi’s speech, it was made immediately into a judicial and administrative action. The criterion for the application is quite unclear. Therefore, Judge Teranishi’s being charged for a breach of discipline on such insubstantial grounds will critically daunt other judges’ attempts to express their free political opinion, and might be conducive to further unfair constrains on the freedom of expression of judges.
The concept of “political activism” is quite ambiguous, making the criterion of its application also unclear. Freedom of political expression deserves the utmost constitutional protection as it intrinsically entails the value of self-governance. Therefore, regulations on the freedom of political expression need to be stipulated precisely in the law. In this view, the term “political activism” might conflict with the constitution because of its ambiguity.
The Supreme Court General Secretariat interprets that “political activism” does not include such conduct as simply joining in a certain political party or criticizing certain policies. The application was filed in defiance of the commentary by the Supreme Court.
The High Court had held two sessions without going into substantial examinations, as the main argument centered around whether or not they should be made public. While the defense counsel called for an open session based on the Constitution, the International Covenant on Political and Civil Rights, along with the Supreme Court Grand Bench decisions, the High Court rejected the request. The mass media was not allowed to cover the session.
This case will first be tried in front of the Sendai High Court, and can be immediately appealed to the Supreme Court. Because the Supreme Court does not have hearings and examines the lower court’s proceedings solely on the basis of written documents, should the trial at the Sendai High Court be kept closed the appeal itself also will be effectively a closed trial.
This suit on the status of a judge takes on an aspect of a constitutional lawsuit as it questions the freedom of expression of judges, and it questions of the very way in which Japan’s judicial system should be managed. It is also a suit that calls for punishment of a judge, whose status is deliberately protected under constitution. Therefore, the proceedings of the trial need to be made open to the public, including easy access by the mass media. In terms of the issue of his privacy or honor, there should be little apprehension since, reportedly, Teranishi himself has requested open proceedings.
At the second session held on June 12, the judges even limited the admissible number of Teranishi’s attorneys to 35. The attorneys filed a request to challenge the judges, only to have it rejected on June 30. On July 2, the High Court notified the defense counsel that there would be no more hearings and the counsel should submit any final briefs by July 10, indicating that the ruling would be delivered shortly.
The ruling, as well as the future development of the case should be closely watched.