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Mamiko Ueno

Mamiko Ueno [Profile]

Constitutional Courts: A Comparative Law Study

Mamiko Ueno
Professor, Faculty of Science and Engineering, Chuo University
Area of Specialization: Constitutional law

Preface

The March 11, 2011, magnitude 9.0 earthquake, the strongest in Japan's history, triggered an unprecedented tsunami which claimed thousands of lives, and left many others reported missing. My mother's home is in Kesennuma and while my relatives managed a narrow escape, the house was washed away without trace. I pray for the souls of the victims and for the speedy assistance of those struck by the disaster. There seems no end in sight to the crisis caused by the damage to the nuclear power plant, either. In the past, when I held educational seminars for the Faculty of Science and Engineering, we would watch videos about the threat of nuclear warfare in the seventies and the Chernobyl incident and learn about the importance of peace and protecting the environment. It is heartbreaking to see these dangers becoming a reality.

France's International Association of Constitutional Justice

Incidentally, I specialize in constitutional law and adopt a comparative approach in my studies of Japan's constitution by drawing parallels with France. In 1987, I was afforded the opportunity to research abroad and spent a year at Paul Cézanne University Aix-Marseille III in Aix-en-Provence (a partner institution of Chuo University). Since then, I have attended the International Association of Constitutional Justice forums held every year by the university and given reports on Japan's Constitutional Court. Last year marked the 26th anniversary of this academic conference, and in addition to each of the countries belonging to the European Union, delegates came from Switzerland, the United States, Morocco, Tunisia, Egypt, the Republic of South Africa and Brazil, as nations throughout the world participated in the event. Not only researchers but also Constitutional Court judges gathered from many countries and joined discussions.

Perception of the Judiciary in France

In Japan, the right of the judiciary to review legislation for unconstitutionality (known as judicial review) is perceived as a natural counterweight to the powers of the legislature and administration in the separation-of-powers/checks-and-balances system. However, in France, adoption of the legal doctrine in which "the law is the expression of the general will" (Article 6 of the 1789 declaration of human and civic rights) passed down as a tradition by the revolution, sparked great debate about who, and on what authority, might act to curb laws which represent the general will. In addition, although the High Court of Justice under the pre-revolution rule of the monarchy had been given the authority to ratify the king's orders, gradually occasions arose where, contrary to the king's will, such orders were not ratified, and the judiciary was perceived as an institution that obstructed the legislative and administrative branches of power. Even now, there is a deep-rooted criticism in France towards the kind of "judicial politics" in which the judiciary may act to alter the way politics functions.

The Need for Judicial Review

As a reaction to the function of the system of governance that preceded it, the present Fifth Republic constitution was introduced in 1958 to establish the notion of administrative supremacy on the initiative of Charles De Gaulle. A Constitutional Council was established in order to supervise how parliament used its authority in the framework of the constitution. By the 1970s, it had achieved the kind of scrutiny of legislative conformity with the constitution seen today. According to the late Louis Favoreu, professor at Paul Cézanne University Aix-Marseille III and founder of the International Association of Constitutional Justice, judicial review was deemed necessary from the viewpoint of protecting human rights with the collapse of the infallibility of parliament that followed the rise of Nazism.

Movement Towards Expansion in the Remit of Judicial Review

Having said this, the judicial review of statutes by the Constitutional Council in France was, for a long time, restricted to an abstract examination procedure known as preliminary review, an examination which took place prior to promulgation, with only the President of the Republic, the Prime Minister, the Presidents of both legislatures and 60 members of the National Assembly or Senate eligible to appeal to the Council. The constitutional amendment passed in July, 2008 made judgment possible for concrete instances of suspicion over the constitutionality of a statute. Requests are sent from the administrative court or the judicial court to each the High Court and then referred to the Constitutional Council.

French Efforts to Rejuvenate the Constitutional Courtroom

You could argue that this system of judicial review in France was somewhat slow start but my experience in the International Association of Constitutional Justice has made me realize that France has tackled a range of problems Japan has seldom addressed. First and foremost is the basis of the propriety by which constitutional judges are able to pass judgment. In France, the President of the Republic, the President of the National Assembly and the President of the Senate each appoint three members of the Constitutional Council, with former Presidents of the Republic granted life membership. It is thought that democratic legitimacy is reflected by virtue of the fact that members of the Constitutional Council are nominated by the President of the Republic, the President of the National Assembly and President of the Senate, who all have the democratic legitimacy of having been chosen through election. This is substantially different to Japan, where it is thought that neutrality is guaranteed through a lack of political ties. Next, would be consideration regarding the principles that form the basis of judgments. The principles of proportionality and legal stability and the creation of fixed rules such as the apportionment of general profits are discussed eagerly and also utilized in judgment. In Japan, rules that are raised eventually become ambiguous and are considered to amount to little more than Res Judicata-a matter finally decided on its merits by a court having competent jurisdiction and not subject to litigation again between the same parties. Furthermore, as can be seen in the International Association of Constitutional Justice, both constitutional judges and researchers debate in order to rejuvenate the constitutional courtroom, and this sort of thing does not happen in Japan, either.

Finally

I can only hope that from now on, such aspects, which have been gleaned from France, will be taken up in Japan and incorporated into the constitutional courtroom. In addition, while I am a full-time professor teaching at the Graduate School of Public Policy, there are graduates who have gone on to work for the Secretariat of the House of Councilors or to become court officials. I would like to advise students to consider public policy from the legal perspective.

Mamiko Ueno
Professor, Faculty of Science and Engineering, Chuo University
Area of Specialization: Constitutional law
Born in Tokyo in 1949, Mamiko Ueno graduated from the Faculty of Law at Chuo University before completing her master's degree and withdrawing at the end of her doctoral course at the university's Graduate School of Law. Having first served on the Faculty of Science and Engineering at Chuo University as lecturer and associate professor, she has been a professor there since 1993. A professor for courses of study at the Graduate School of Law since 2004, she has also been a professor at the Graduate School of Public Policy since 2005. She obtained her doctor of Lows from Paul Cézanne University Aix-Marseille III in 2006 and now she is the chair of the Graduate School of Public Policy. She specializes in constitutional and French public law.
Major Works
Justice, the Constitution, and Fundamental Rights in Japan (Published by LGDJ, 2010)
Article 24 of the Constitution of Japan Today: Thoughts on the Function of the Family [Kenpo 24 Jyo Ima Kazoku No Arikata Wo Kangaeru] (Published by Akashi Shoten, 2005)
The Fundamentals of the Constitution: Rights, Peace, and Equality [Kenpo No Kihon - Jinken/Heiwa/Danjyo Kyosei] (Published by Gakuyo Shobo, 2000)
Every year, Professor Ueno attends the International Association of Constitutional Justice held in Aix-en-Provence, France to report on Japan's Constitutional Court, and she is well versed in the challenges that arise within French law.