JCLU Proposes the System of an Amicus Curiae Brief to the Judicial Reform Council

On the 20th of September, 2000, the Japan Civil Liberties Union (JCLU) unveiled a proposal to the Judicial System Reform Advisory Council which is a deliberative body established under the Cabinet in July 1999, and whose mission is to consider fundamental measures necessary for judicial reform and judicial infrastructure arrangement by defining the role of the Japanese administration of justice in Japan in the 21st century. This proposed introduction of amicus curiae brief system to the judicial proceedings was presented in response to one of the agenda of the Judicial System Reform Advisory Council -public participation in the judicial system. At present in Japan, there is some public participation such as mediators in the family courts and Summary courts, but ways to increase public participation have been rather limited. The JCLU proposed the amicus curiae brief system as a necessary means for citizens to participate in the judicial system. The Japanese judicial system is not familiar to the amicus curiae brief system whose root is Roman Law, and which has developed in England and the United States.

The JCLU formed a project team, ”the project on citizens and the judicial reform (the Project),” consisting of citizens, university professors and attorneys, in order to study the deliberation of the Judicial System Reform Advisory Council. The Project enthusiastically started to conduct a study of the amicus curiae brief system. The team consulted the United States’ system after the Judicial Reform Council issued an interim report because the measures of public participation in the interim report could be considered to be limited mainly to the jury system and to be unsatisfactory from a civil point of view.

The proposed system is as follows;

1. Anyone may submit an amicus curiae brief concerning legal and factual issues of the cases before the courts, if such courts grant leave to file.
2. A motion for leave to submit an amicus curiae brief shall be filed to the courts dealing such cases if accompanied by the brief specifying the following items;
   1. the case number and the parties,
   2. the address and name of the amicus curiae
   3. the supporting judgment (approval, dismissal on the merits, dismissal without prejudice)
   4. the outline of the amicus curiae brief.
3. A person filing a motion for leave to submit an amicus curiae shall send the copies of both the motion brief and the amicus curiae brief to all parties of such case.
4. The motion shall be allowed by the time of the final oral argument in the district courts and higher courts, and by the time of the deadline to submit the appellant brief or statement of defense before the supreme court.
5. The courts generally shall grant leave to file, except when such amicus curiae briefs are irrelevant to the contents or main issues of the case, or when such amicus curiae briefs may be considered to delay the court proceedings.
6. A person filing a motion for leave to submit an amicus curiae shall not make an objection against the court’s decision if such court does not grant leave to file.
7. The courts may take the submitted amicus curiae brief into consideration in the formation of judgment.

This new system could secure just trials in support of the citizens, and as a result bring about trust in the judicial proceedings. It could also further fair trials by supporting parties without sufficient competence in handling court proceedings. It could supplement the courts’ research activities and as the result secure just trials. The new system is useful for understanding special or technical matters and for the globalization of trials.

On the 12th of June, 2001, the Judicial Reform Council released the final long report. Contrary to the JCLU’s expectation, the Judicial Reform Council adopted the lay-judge system, but not the amicus curiae brief system as a means of public participation in the judicial proceedings. In its efforts to encourage real public participation, the JCLU will continue to propose the amicus curiae brief system to the committee for realizing the final report in the near future.

[Jinken Shinbun, September 26, 2000, No.326]
Translated by Ikuko Komachiya