Freedom of Expression and Administration of Justice in Japan

December 27, 2002
Kenta Yamada, JCLU Director

1. Introduction

Protection of the freedom of expression in Japan underwent a major change after the Second World War, with the conversion from the prewar regulation-based system, to the present freedoms-based system.

In Japan, as in many other countries, the form of regulation of freedom of expression has traditionally depended on the type of media in question (see figure 1), i.e. the published media, the broadcasting media and telecommunications media (represented by the telephone). There are thus major differences in the way that both the content of information and business activity are regulated between each category of media. It is important to note that traditionally, where print media is concerned, there was no law that comprehensively regulated either content or business activity. Before the Second World War, the content and publication of newspapers was strictly regulated by a web of regulations such as the Newspaper Ordinance. Under the present Constitution, however, they have been abolished, allowing the establishment of an absolute freedom.

The position of telecommunications, which has traditionally been regarded as a means of personal communication, has drastically changed with the development of the Internet. As exemplified by the word "internet broadcasting," we have come to a point where telecommunications and broadcasting are much the same: with newspapers being broadcast as print broadcast (katsuji housou,) and flash news bulletins being given on the Internet becoming the norm. As a result, there is an increasing possibility that the current method of categorizing media types will undergo a change. For example, it is possible that there will be the establishment of a whole new category of types of media called "cyber media," although this assumes that the present practice of differentiating between categories is continued.

Another point to consider when discussing the restrictions on freedom expression is the question of which competing interests are recognized as valid reasons for such restrictions (see figure 2). First, there is the distinction between prior and ex post facto regulation, the former including the state's power of censorship which is absolutely prohibited by article 21 of Japan's Constitution (the fact that this includes state censorship during wartime has led to the protection of freedom of expression in Japan being considered particularly strong). Second, there are two distinguishable methods of regulation, namely regulation of content, and regulation unrelated to content, e.g. selling restrictions.

Another consideration is the source of regulation. The state's "power of regulation" was mentioned above, but it is important to distinguish whether this is exercised by the legislature, the courts, or even social pressure. These distinctions are illustrated by figure 3.

The last half of the 1990s saw an increase in the introduction in the Diet of bills affecting the general media and private individuals. As mentioned above, an important reason for this was the event of the Internet. For details on which laws were actually passed, or are at present being debated please see figure 4. These laws will not just regulate the Internet, but are bound to have an effect on the media in general.

2.Constitutional Provisions

a) Freedom of Expression

Article 21 of the 1947 Constitution of Japan ("the Constitution") establishes the absolute protection of the freedom of expression, providing: "Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. 2) No censorship shall be maintained, nor shall the secrecy of any means of communication be violated "(See Article 19 World Report 1999.) However, in the courts, there is a tendency for the freedom of expression that is protected by Article 21 to be interpreted as the freedom to assert opinion, giving the freedom to receive information and the freedom to amass information a comparatively lower level of protection. As for the freedom to transmit information, it can be argued that there has not been a complete and clear decision whether it comes within the scope of Article 21.

b) Administration of Justice

The independence of judges is protected by Article 76 of the Constitution. Article 77 grants administrative power to the Supreme Court and Article 78 protects judges from impeachment or other disciplinary action.

"Article 76. [Judicial Power]

The whole judicial power is vested in a Supreme Court and in such inferior courts as are established by law.

All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws."

In reality however, it cannot be said that judges enjoy complete independence as their actions as they are closely observed, and their actions are in practice restricted by the Supreme Court (see section 6)

"Article 77 [Judicial Procedure]

  1. The Supreme Court is vested with the rule-making power under which it determines the rules of procedure and of practice and of matters relating to attorneys, the internal discipline of the courts and the administration of judicial affairs.
  2. Public procurators shall be subject to the rule-making power of the Supreme Court.
  3. The Supreme Court may delegate the power to make rules for inferior courts to such courts.

Article 78 [Public Impeachment]

  1. Judges shall not be removed except by public impeachment unless judicially declared mentally or physically incompetent to perform official duties.
  2. No disciplinary action against judges shall be administered by any executive organ or agency."

3.Commenting on Legal Proceedings

a) Scope and Elements

There is no contempt of court law in Japan. Furthermore, there are no specific provisions restricting comments regarding legal proceedings that are made outside the courtroom.

The law of defamation is set out in Article 710 of the Civil Code. However, the following situations have been established by precedent as constituting exceptions:

The fact that there is no law relating to contempt of court in Japan is linked to the fact that there is no jury system in Japan, cases always being decided by professional judges. So in the case of criminal trials, after arrest, after indictment and during the trial, there is no restriction on the publication of material relating to the trial. Similarly, there are no restrictions on criticizing a court's judgment after it has been delivered. For example, after a not guilty verdict has been delivered, comments such as, "the suspect is as guilty as ever" or, "the not guilty verdict is mistaken" are permissible. Similarly for civil proceedings, there are no restrictions on the publication of information relating to the proceedings. Furthermore, there is no offence equivalent to that of "scandalizing the court", and criticism of individual judges or lawyers is completely free.

On the other hand, there are severe restrictions on the gathering of information during legal proceedings. For individuals observing legal proceedings in a private capacity, apart from note taking, all forms of gathering information such as photography, recording and the use of personal computers is prohibited (the taking of notes was also prohibited up until 1989). As for the press, they are only allowed to photograph or film in the courtroom for three minutes before the proceedings commence (from the time that the judge(s) enter the court room to the time of the commencement of proceedings). Moreover, the angle of the lens is restricted to that as approved by the judge(s). These rules relating to the gathering of information in the courtroom are based on a tacit agreement between the Supreme Court and the press. The grant of approvals to conduct newsgathering is based on the discretion of the courts; there is no recognized right to receive such approvals. (Photography and filming in the courtroom are prohibited by the rules of criminal and civil procedure).

Public access to court records is also severely restricted. Regarding decisions in criminal trials, there is a Law of Court Records of Criminal Decisions, which establishes a system for public access to these documents. In reality however, examples of refusals based on the grounds of the fair administration of criminal trials or the privacy of the parties are numerous (despite the fact that even the law of criminal procedure recognizes the principle that there must be public access to court records). Refusals are particularly common in the cases of criminal trials involving politicians or government officials. Even if reference to records is allowed, it is not possible to make copies of them. Since 1990, there have been a series of cases relating to reference to, and photocopying of court records. The majority of these have however ended in a judgement against the plaintiff. The courts have recently established a system of public access to decisions on the Internet, but the available records are limited to a selected few, meaning that in practice public access to court records in Japan is closed. Since 2001, an information disclosure law has been in force in Japan, but again court records are excluded from its application.

b) Penalties

As previously mentioned, there are no direct restrictions on the freedom of expression in Japan. However, actions that fall under the general laws of defamation may be subject to a criminal punishment or the obligation to pay compensation. Separate from these, there is a law of contempt in the face of the court, so that making a noise, or other actions that disrupt legal proceedings are subject to a criminal penalty.

The criminal punishment for defamation is up to three years forced labor or imprisonment and a fine of up to 500,000 Yen.

c) Legal Reform

The press has continuously been pushing for restrictions on the freedom to gather information to be relaxed.

JCLU is in the process of considering a draft bill that would relax the restrictions on the release of criminal records.

4. Criticism of Judges and Courts

a) Scope and Elements

As no specific regulation exists restricting the freedom to criticize judges and the court, it becomes the object of criminal punishment and civil compensation only when the behaviour corresponds to the general crime of defamation. In reality however, the writer is not aware of any cases in which a judge or court has brought a proceeding for defamation.

b) Penalties

Please refer to the previous section for the penalties for defamation.

5. Expression in Court

a) Scope and Elements

Article 71 of the Court Organization Law and Article 288 of the Code of Criminal Procedure establish the power of the court to maintain the order in the courtroom and to regulate actions inside the courtroom.

The power to maintain order in the court has been actively invoked by the courts in order to restrict the collection of data by the press and visitors in the gallery.

Regarding an action brought in 1987, concerning the right of visitors in the gallery to take notes during a court case, the Tokyo High Court ruled that "the courtroom is a place where judges carry out the difficult task of accurately applying the law to the correct facts without error; in order to ensure fair and smooth proceedings, actions that may interfere with the administration of justice should be prohibited under the court's police power. Although the right to take notes during a case is now recognized there are numerous other restrictions as were mentioned in section 3.

In addition, if a visitor speaks out loud during a case, they will usually be given an order to leave the courtroom under the authority of the power to maintain the order in the court.

b) Penalties

The Court Organization Law stipulates a penalty of up to 20 days under observation or up to 30,000 yen for the obstruction of the work of the court or the harming of the dignity of a judgment. There are numerous cases where visitors have been ordered to leave the courtroom.

6. Expression of Judges

As explained in section 2, although the freedom of expression of judges in Japan is constitutionally secured, it is in practice considerably restricted. Political statements by judges are strictly controlled as a matter of judicial administration and this restriction extends to the exercise of the right of assembly. The most remarkable illustration of the enforcement of such restriction is the disciplinary action taken by the Sendai District Court against Judge Kazushi Teranishi in 1998.

In April 1998 Judge Teranishi attended a public meeting opposing the controversial Anti-Organized Crimes Act Bill. During the meeting Judge Teranishi spoke from the floor, mentioning that although he had been invited to be a panelist at the meeting, he had received a warning from the District Court that if he participated as a panelist there was a possibility that he would be subject to disciplinary action.

On May 1, 1998, the Sendai District Court filed an application for a disciplinary measure with the Sendai High Court against Teranishi, who was by then 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 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 fell 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.

Article 52 of the Court Organization Law states that:

While in office, judges are prohibited from the following activities:

1) Taking posts as members of the National Diet or in local government and taking part in political activism.

The Supreme Court interpreted this provision as "not preventing judges from becoming members of a political party or political association" but went on to rule that participation in a political meeting was undoubtedly enough to fall within the scope of the provision.

Although disciplinary action is not taken in all cases, it can be said that the threat of such disciplinary action constitutes a constraining element that induces excessive self-regulation among judges.

In this way, the freedom of expression of and association of judges in Japan is severely restricted. 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. JCLU has published an opinion (July 1, 1998) opposing the disciplinary action against Judge Teranishi.