INDEPENDENCE, TRANSPARENCY AND ACCOUNTABILITY OF THE
JUDICIARY IN JAPANBy
Mr. Toru MIURA,
Professor UNAFEII.

INTRODUCTION…While paying due heed to the independence of the judiciary, the reforms andimprovements of the justice system this time must be carried out in a manner that is visible
to and easily understood by the general public, with the major objectives of making clear
the locus of responsibility, responding properly to social and economic conditions and to
the needs of the people, and securing and strengthening accountability and transparency,
without being imprisoned by past history.
Recommendations of the Justice System Reform Council-For a Justice System to Support Japan in the 21st Century-

The Justice System Reform Council, which was established under the Cabinet of Japan in
July 1999, submitted its Final Report to the Prime Minister on 12 June 2001 1 . The mission of thisCouncil was to consider fundamental measures necessary for judicial reform and judicial
infrastructure arrangement by defining the role of the judicature in Japan in the 21st Century. The
Final Report includes various proposals that cover every area of the nation’s legal system, and theJapanese government is endeavoring to realize these proposals in the near future.
The Final Report pointed out that Japan has been trying to transform the excessive
advance-control/adjustment type society to an after-the-fact review/remedy type society and toreform the bloated administrative system. As a consequence, the role of the justice system must
become dramatically more important in the Japanese society of the 21st century. In order for thepeople to easily secure and realize their own rights and interests, and in order to prevent those ina weak position from suffering unfair disadvantage in connection with the abolition orderegulation of advance control, a system must be coordinated to properly and promptly resolve
various disputes between the people based on fair and clear legal rules.
The Final Report also pointed out that the judicial branch must also establish a popularbase by meeting the demand for accountability to the people, while paying heed to judicial
independence. Justice can play its role fully only if its activities are easily seen, understood, andworthy of reliance by the people.
In this regard, transparency and accountability are very important in improving the judicial
system, and independence is a prerequisite of these improvements. In the whole text of the Final
Report, we find the term “independence” 12 times, the term “transparency” 25 times, and theterm “accountability” 15 times, which implies these three terms are of significant importance inthe justice system.
However, these principles sometimes have a contradictory nature. For example, to be
1 Available on www.kantei.go.jp/foreign/judiciary/2001/0612reports.html−129−transparent and accountable can mean to give information to the public and to submit the courts
to criticism. There may be a possibility of undermining the independence of the judiciary,
especially when these criticisms involve political powers and other governmental organizations.
How we can materialize these three principles in harmony is a difficult challenge in many
countries. That is why the Council uses the phrase “while paying due heed to the independence ofthe judiciary” many times in the Final Report.
In this paper, I would like to discuss the independence, transparency and accountability of
the Japanese judiciary, by reflecting on its history, briefly describing the basic structure of its
system, and referring to the recent recommendations, in order to share with Indonesia our
experience on how we have been and are going to be trying to accommodate these principles.
II.

THE HISTORY AND DEVELOPMENT OF THE JUDICIARY IN JAPAN1.

The Meiji Constitution

Japan has had two modern constitutions, one is the Constitution of 1889 and the other isthe Constitution of 1946. The Constitution of 1889 is often called the Meiji Constitution, since itestablished the regime of Japan following the Meiji Restoration in 1868, which lasted until theend of the Second World War 2 . This regime was characterized as a constitutional monarchy withthe sovereign Emperor.
The Supreme Court in the Meiji Regime, which was called Taishinin, was established in
1875, ahead of the promulgation of the Meiji Constitution3 . Taishinin was the highest appellate
Court, and at the same time had the original jurisdiction to some important cases. Each case washeard by at least 5 judges (7 judges in principle later). There were some chambers in Taishinin(the number of chambers varied from time to time, but in the 1930's there were five civilchambers and four criminal chambers), and there were 45 judges in Taishinin at the maximum.
There were High Courts, Circuit Courts and Prefectural Courts as inferior courts to Taishinin.
The Meiji Constitution was interpreted to guarantee judicial independence from theexecutive authority, while the administration of the judiciary was under the supervision of the
Minister of Justice, as is common in countries in Continental Europe. Regarding how the courtsin the Meiji era were independent, there was a well-known case called the Otsu case.
In May 1891, a policeman named Sanzo Tsuda on guard duty for the Crown Prince ofRussia who was traveling in Japan, tried to slash the Prince with a sword in Otsu City. The
government, fearing grave consequences, asked the President of the Taishinin, Iken Kojima tohave Tsuda sentenced to death, by an analogous application of provisions concerning offences
against the Japanese imperial household. However, the Penal Code then in force did not
specifically regulate offences against members of a foreign royal household, no penalty heavier
than imprisonment for life - the maximum punishment for an ordinary attempt at murder - wasavailable under the code. Kojima rejected the government’s interference, and encouraged thejudges in charge of Tsuda’s case not to submit to the interference. Tsuda was given a sentence ofimprisonment for life, not the death penalty.
Thus the judges dramatically guarded their independence, rejecting all governmental
2 The drafters of this Constitution referred to the German Constitution as a model of a constitutional monarchy.
3 The influence of Cour de cassation in France was often pointed out.

−130−pressure. However, there were remarks, on the other hand, that Kojima himself infringed uponjudicial independence, because he was not presiding at the trial or hearing the case of Tsuda.
There has been a lot of discussion regarding whether what Kojima did was justifiable.
Nevertheless, the Otsu case has quite often cited as the monumental incident that maintained
judicial independence in Japan.
2.

The Present Constitution

The present Constitution of Japan was promulgated on 3 November 1946, and came into
force on 3 May 1947. After the Second World War, Japan changed its legal framework as
suggested by the General Headquarters of the Allied Forces occupying Japan4 . The constitutionalmonarchy with the sovereign Emperor was superseded by a constitutional democracy where thesovereignty resides in the people.
The present Constitution provides for a fundamental separation of state powers. The
legislative power is vested in the Diet; executive power is vested in the Cabinet; and all judicial
power is vested in the Supreme Court and in other inferior courts. The Constitution provides forthe means of checks and balances among these three powers, so that none of them may exercise
their powers excessively.

Diet (Legislative Branch)
Dissolution of the Houseof Representative

House of Representative/
House of Councilors

Impeachment
Proceedings

Designation ofPrime Minister

Judicial Review
The People

Appointment of Judges
Cabinet(Executive Branch)

Courts(Judicial Branch)
Judicial Review

The Constitution furthered the independence and autonomy of the judiciary. The
Constitution vested the Supreme Court with rule-making powers as well as the authority of
judicial administration, whereas this authority had been handled by the Minister of Justice before
the Second World War. Since 1945 the Supreme Court appoints and removes all officials otherthan judges, and manages the financial and other administrative affairs of the courts. In order tomanage affairs concerning judicial administration, the General Secretariat and other agencies areattached to the Supreme Court. The details of judicial administration will be mentioned later.
The independence of the judiciary includes independence from influence both outside and
4 Consequently, we see remarkable influences of the United States system on the Constitution and other legislation drafted in the late 1940s and early 1950s−131−

inside the judiciary. Article 81 of the Court Organization Law stipulates that the power ofsupervision over judicial administration shall not influence or restrict the judicial power ofjudges.
The promulgation of the present Constitution was followed by cases or incidents of which
the main issue was judicial independence. Among them is the Urawa case in 1949.
In 1948 a female defendant was sentenced to three years imprisonment with three years
suspension of execution of the sentence. The court found that she had become so depressed byher husband’s gambling habits, that she killed her children and attempted to kill herself.
The Committee on Judicial Affairs of the House of Councilors researched this case as
exercising the Diet's investigative power in relation to the government 5 , and concluded that thefacts found by the courts were wrong and the sentence imposed was too lenient. The Supreme
Court protested to the House of Councilors, while the Committee of the House of Councilors
rebutted the Supreme Court.
There were some other cases concerning judicial independence 6 .
However, in recent years there have been no major cases in which judicial independence
was the main issue. It is probably because judicial independence has established a firm ground inJapanese society.
There are several other different characteristics between the present courts and the courts
under the Meiji Constitution. For example, the present courts have the power to review theconstitutionality of any law, etc. The number of Justices of the Supreme Court is 15, one third of
the number in Taishinin. Not all Justices are required to be jurists, considering the important roleof the Supreme Court’s power to make final decisions concerning constitutionality. The Supreme
Court has jurisdiction over all appellate cases including administrative litigation, while the Meiji
Regime had the Administrative Court which was not incorporated into the ordinary judiciary
system.
In short, the Supreme Court has a mixed character as the highest appellate court and thecourt that upholds the Constitution, while the Taishinin was basically the highest appellate court.
3.

Issues on the Reform of the Supreme Court in the 1950’s

As a consequence of the mixed character mentioned above, the present Supreme Court has
an extremely wide range of responsibilities, such as dealing with civil, criminal andadministrative cases, review of the constitutionality as well as judicial administration, while it has
only 15 Justices and not all of them are jurists. Naturally, soon after its inauguration the Supreme
Court was stuck with a heavy caseload, and the argument of reforming the structure of theSupreme Court arose in the 1950’s. A bill to amend the Court Organization Law was submitted to
the Diet in 1957 7 , but this bill was shelved and died on the Diet floor.

5 Article 62 of the present Constitution.
6 Suita Mokuto case in 1953, Heraga Letter case in 1970, etc.
7 The idea of this bill was called "the mezzanine system". This bill proposed to differentiate the Grand Bench and the Petty Benches completely, and characterize thelatter as the courts between the Grand Bench and the High Courts.

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Meanwhile, the situation concerning the caseload of the Supreme Court improved as thetable below shows, and this argument has been suspended to date. Actually the peak of criminalcases was in 1951.
Year

Civil Cases
Criminal Cases
Commenced
Pending
Commenced
Pending
1949
502
370
5,014
2,096
1950
651
630
7,106
4,404
1951
1,301
1,140
10,536
8,610
1952
1,801
1,666
9,994
7,668
1953
1,982
1,983
8,505
4,894
1954
1,370
1,600
7,176
4,020
1955
1,330
1,676
6,609
3,849
1956
1,553
1,865
7,849
4,657
1957
1,619
1,927
5,875
3,296
1958
1,608
2,094
4,642
2,928
1959
1,814
2,566
3,931
2,672
1960
2,074
2,636
4,717
2,668
1961
2,074
2,288
4,691
2,282
1962
2,014
2,029
4,891
2,502
1963
2,141
1,898
5,069
2,483
1964
2,317
1,847
4,764
2,031
1965
2,354
2,004
4,493
1,899
----------1995
3,027
2,057
1,331
604
1996
3,144
2,087
1,429
590
1997
2,961
1,704
1,390
546
1998
3,521
1,605
1,643
699
1999
3,980
1,617
1,720
749

This improvement can be attributable to many factors, such as the efforts of the Supreme
Court itself and the decrease of the number of criminal cases appealed to the Supreme Court. The
accumulation of precedents during the first few years may have contributed a lot. As for the civil
cases, there have been a couple of amendments to the laws concerned, in order to lighten theburden on the Supreme Court 8 .
III.

THE CURRENT JAPANESE JUDICIARY SYSTEM

A.

CourtsThere are five types of courts in Japan: the Supreme Court, High Court, District Court,
Family Court and Summary Court.

8 The Code of Civil Procedure of 1996 is the most recent effort.

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Supreme Court (Tokyo)

High Court (8)Family Court (50)District Court (50)

Civil cases

Summary Court (438)Criminal cases
Family Disputes and Juvenile Cases

1.

Supreme Court

The Supreme Court, located in Tokyo, is the highest court in Japan and consists of 15
Justices. The Supreme Court has one Grand Bench, consisting of all the Justices, and three Petty
Benches, each consisting of five Justices. All cases are first distributed to Petty Benches, and thenif the Petty Bench decides that the case must be adjudicated by the Grand Bench, it will transfer
the case to the Grand Bench. The Supreme Court exercises appellate jurisdiction of Jokoku
appeals and Kokoku appeals as provided by law. It ordinarily hears a Jokoku appeal from a High
Court on the following grounds:(i) a violation of the Constitution or an error in constitutional interpretation, or(ii) adjudication contrary to precedents of the Supreme Court or High Courts.
The Supreme Court may also hear at its discretion Jokoku appeals of any case which
involves an important point of statutory interpretation.
To assist the Justices of the Supreme Court in their judicial work, there are a certain
number of Judicial Research Officials in the Supreme Court9 . They are selected from among theinferior court judges.
2.

High Courts

The eight High Courts are located in eight major cities in Japan, namely; in Tokyo, Osaka,
Nagoya, Hiroshima, Fukuoka, Sendai, Sapporo and Takamatsu. There are also six branches. The
High Courts have jurisdiction over Koso appeals filed against judgments rendered by the District
Courts and Family Courts, as well as the Summary Courts in criminal cases. High Court cases areheard by a collegiate body of judges.
3.

District Courts
There are 50 District Courts and their 203 branch offices throughout Japan. District Courts

9 There are 33 Judicial Research Officials in the Supreme Court as of 2002.

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have general jurisdiction over all civil and criminal cases in the first instance, except for thosecases exclusively reserved for Summary Courts, Family Courts and High Courts.
The overwhelming majority of District Court cases are tried by a single judge. However,with regard to criminal cases, cases involving possible sentences of death, life imprisonment or“imprisonment for a minimum period of not less than one year” are handled by a collegiate courtof three judges, as well as any other cases deemed appropriate. The former are called “statutory
collegiate cases" and the latter "discretionary collegiate cases.”
4.

Family Courts

Family Courts and their branch offices are located in the same place as the District Courts
and their branches. Seventy-seven local offices handle family affairs cases. The Family Courts
have jurisdiction primarily over family disputes and juvenile delinquency cases (involving
persons under 20 years of age). Additionally, these courts handle adult criminal cases involving
offences harmful to the welfare of juveniles.
5.

Summary Court

There are 438 Summary Courts throughout Japan. The Summary Courts have jurisdiction
over minor civil and criminal cases. All cases are presided over by a single Summary Court
judge.
B.

Appointment, Qualification and Dismissal of Justices of the Supreme Court

The Justices of the Supreme Court are appointed by the Cabinet; except for the Chief
Justice, who is appointed by the Emperor as designated by the Cabinet10 . At least ten of the fifteen,
including the Chief Justice, must be appointed from among those with distinguished careers as
lower court judges, public prosecutors, practicing lawyers or law professors. However, theremaining five Justices need not be qualified as jurists, as long as they are learned, have an
extensive knowledge of the law, and are at least 40 years of age 11 . Having non-jurists in theSupreme Court may imply that the original idea of the Supreme Court was rather closer to a
Constitutional court, since it is uncommon to have these people in the appellate courts in othercountries.
The appointment of the Justices is reviewed by the people at the first general election ofmembers of the House of Representatives following their appointment, and in addition they are
subject to review at the first general election of members of the House of Representatives after alapse of ten years, and in the same manner thereafter. If the majority of the voters favour thedismissal of a justice, he/she shall be dismissed. To date no Justices have been removed by thisrecall system. There have been criticisms that this system was becoming a name only. The
justices of the Supreme Court retire at the age of 70.
C.

Categories, Appointment, Qualification and Dismissal of Judges of Inferior Courts
Inferior court judges are divided into fully- fledged judges, assistant judges and summary

10 This means the Chief Justice is of the same rank as the Prime Mini ster. Other Justices’ ranks are as high as those of Ministers of the cabinet.
11 According to the recent practice, the backgrounds of Justices are 6 judges ,4 practicing lawyers, 2 public prosecutors, 1 diplomat, 1 administrative official and 1 professor at auniversity.

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court judges.
The assistant judge system aims to provide professional experience through on-the job
training as an assistant judge before qualifying as a fully-fledged judge.
Assistant judges are appointed from among those who have passed the National Law
Examination, have completed 18 months of training in the Legal Training and Research Instituteof the Supreme Court, and passed the final qualifying examination.
For the first five years, the judicial authority of an assistant judge is restricted. He/she canbe an associate judge of a three-judge court, but as a single judge, can decide only limited matterssuch as detention at the investigation stage. After five years experience, an assistant judge isqualified as a special assistant judge (or a senior assistant judge) to preside over a trial in the
single judge court. However, an assistant judge can preside over a juvenile hearing and render adecision except when referring the case to the public prosecutor.
To be a fully- fledged judge, it is necessary to have practical experience of not less than ten
years as an assistant judge, a public prosecutor, a practicing lawyer, a professor of law at adesignated university, or equivalent related experience as prescribed by statute. However, most ofthem have been appointed from among the assistant judges. Currently the appropriateness of thispractice and the special assistant judge system is among the hot issues, as I will mention later.
In contrast, Summary Court judges can be appointed from among individuals unqualified
as jurists. In practice, they are appointed primarily from among learned and experienced court
clerks who are selected by a special Supreme Court committee. Assistant judges, after three years
experience, can be appointed as Summary Court judges.
All inferior court judges are appointed by the Cabinet, from a list of persons nominated by
the Supreme Court. Once appointed, most judges serve until retirement, which is 65 years of age
for lower court judges, and 70 years of age for Summary Court judges. In general, judges arecontinuously reappointed every ten years, unless judicially declared mentally or physically
incompetent to perform their official duties or unless publicly impeached.
No executive organ or agency can take disciplinary action against judges. This power isvested only in the Court of Impeachment, a legislative body composed of Representatives andCouncilors drawn from the Diet. As one of the check and balance systems among the threebranches of government, the Court of Impeachment may dismiss a judge if he/she neglects his
duties to a remarkable degree, or if there has been misconduct, whether or not it relates to official
duties.
D.

Judicial Administration

Under the present Constitution, the power to exercise judicial administration is vested in
the Supreme Court. In its conduct of exercising administrative power, the Supreme Court acts
upon the resolutions of the Judicial Conference, which consists of the fifteen Justices and ispresided over by the Chief Justice. I would like to elaborate on the detail of this power.
(i) Rule-making PowerWith the rule-making power, the Supreme Court may establish rules of practice and procedure,and of matters relating to attorneys, the internal discipline of the courts and the administration−136−

of judicial affairs 12 . In establishing rules on important matters, the Supreme Court refers thematters to the Advisory Committee on Rule-making composed of judges, public prosecutors,
practicing attorneys, officers from related institutions and scholars. The Supreme Court has
adopted more than one hundred rules since its establishment.
(ii) Nomination of candidates to be inferior court judges
The nomination of candidates to be inferior court judges including the Presidents of the High
Courts, and the assignment of judges to a specific court are within the purview of the Supreme
Court, which exercises the authority through the resolutions of the Judicial Conference.
(iii) Budget
As to the budget of the courts, the Supreme Court, upon the resolution of the Judicial
Conference, submits annual estimates of necessary expenditures directly to the Cabinet. In
case the Cabinet does not concede, and reduces the estimates, the Court may request that theoriginal estimates be restored. In this case, the Cabinet has to set out in the budget bill of
revenues and expenditures, the full details of the matter and present it to the Diet for its
deliberation.
(iv) Auxiliary machinery
In order to carry out these administrative affairs, the Supreme Court is equipped with such
auxiliary machinery as the General Secretariat of the Supreme Court. Besides, the Supreme
Court has the Legal Training and Research Institute, the Research and Training Institute for
Court Clerks and the Research, Training Institute for Family Court Probation Officers and theSupreme Court Library as its affiliates.
The General Secretariat of the Supreme Court is an auxiliary office of the Supreme Court
which renders services to the Judicial Conference, which functions as a decision-making
organ of the Court in exercising the authority of judicial administration. The key staff of theGeneral Secretariat may be selected from volunteers among the judges of the inferior courts.
The Legal Training and Research Institute is an affiliate of the Supreme Court and provides
practical training and instruction in the practice of law as well as in the theoretical aspects
necessary for the legal profession (judges, public prosecutors and practicing attorneys) to thelegal apprentices admitted by the Supreme Court from among those who have passed the
National Law Examination. As a rule, a year and a half of training at the Institute is required toqualify to practice law. The Institute also provides advanced education for judges and assists theirresearch programme on law and practices.
The Research and Training Institute for Court Clerks is an affiliate of the Supreme Court
which trains court clerks and conducts research and education necessary for the performance ofthe dut ies of court clerks and court secretaries.
The Research and Training Institute for Family Court Probation Officers is an affiliate of
the Supreme Court in charge of training the family court probation officers and conducting
research and education necessary for the performance of their duties.
Thus, the Supreme Court administers the whole judicial system independently without any
intervention by the executive and the legislative branches.
12 Rule-making power originates in common law countries, not in civil law countries. Japan modeled this system on the system of the United States.

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ORGANZITIONAL CHART OF THE SUPREME COURT
Grand Bench
Adjudication

First Petty Bench
Second Petty Bench
Third Petty Bench

Judicial Research
Officials

Supreme
Court
Judicial Assembly
Judicial
Administration

General Secretariat*Secretary Division*Public Information Division*General Affairs Bureau*Personnel Affairs Bureau*Financial Affairs Bureau*Civil Affairs Bureau*Criminal Affairs Bureau*Administrative Affairs Bureau*Family Bureau

Legal Training and Research InstituteResearch and Training Institute for Court Clerks
Research and Training Institute for Family Court
Probation Officers
LibraryE.

Judicial Review of Constitutionality

Article 81 of the Constitution empowers the Supreme Court, as the court of last resort, todetermine the constitutionality of any law, order, regulation or official act. All inferior courts canalso determine constitutionality in the same way as the Supreme Court does. Through theexercise of this authority, the judiciary was expected to serve as the ultimate guardian of therights and freedoms of the people and to maintain the legal order under the Constitution.
It should be noted that the courts could not exercise this power “in the abstract” asConstitutional Courts in Continental European countries, for example like Germany does. The
courts only exercise this power in connection with its function to decide an actual case orcontroversy. 13 This system evidently reflects the influence of the system in the United States.
13 Supreme Court Judgment, 8 October 1952, 6 Minshu 783.

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There are some observations that the Supreme Court has been too discreet in exercising
this power 14 . The Final Report of the Justice System Reform Council discusses this issue asfollows.
In the case of the system for reviewing the constitutionality of laws, if there are ways inwhich that system has not always functioned adequately, various backgrounds andcircumstances may be thinkable as reasons for that. Among others, it may be pointed outthat the Supreme Court, which is the court of last resort for exercising the power of
constitutional review; must handle an extremely large number of appeals, so it may bedifficult for that court to adopt a stance for dealing with constitutional questions. This isdifferent, for example, from the situation of the U.S. Supreme Court. The following matters
are worth considering: to what degree can the number of appeals be reduced and whether
or not it is possible, by reviewing the relationship between the Grand Bench and the Petty
Benches, to allow the Grand Bench to take the lead and devote its efforts to vital casessuch as those involving constitutional questions. Also, there is probably room for further
efforts with regard to the manner in which justices of the Supreme Court are appointed.
IV.

REFORM OF THE JUDGE SYSTEMA.

The Recommendations of the Justice System Reform Council

The members of the Justice System Reform Council were selected from among various
fields of society, so as not to limit the discussion within the world of jurists 15 . The Council held
over 60 meetings to discuss the issues thoroughly and heard opinions in society through various
means such as holding public hearings and accepting opinions via the Internet. Therefore, theFinal Report of the Justice System Reform Council is thought to reflect the opinions or feelingsof the general public on the judiciary in Japan. There is no mention of corruption, which may
imply that people think almost no judges in Japan are corrupt. On the other hand, the Final Report
includes many recommendations concerning the judge system. This may imply people think there
is something to be improved other than integrity regarding the current judges. Let us look throughthe Recommendations of the Final Report:
1.

Diversification of the Sources of Supply• In order to secure judges with abundant, diversified knowledge and experience,mechanisms should be established to ensure as a system that, in principle, all assistantjudges gather diversified experience as legal professionals in positions other than the
judiciary.
• The special assistant judge system should be phased out in stages and on a planned basis.
For that purpose, as well as others, the number of judges should be increased and, so as toaccomplish this, appointment of lawyers and others as judges should be promoted.
• In order to promote the appointment of lawyers and others as judges , the Supreme Court

14 There exist opinions: supporting establishing a Constitutional Court similar to the one in Germany and some other European countries. However, to establish such aConstitutional Court, would inevitablely require amendments to the Constitution.
15 A total of thirteen members were appointed of which six members had previous law practice experience or were law scholars and seven members were of academic standing invarious fields.

−139−and the Japan Federation of Bar Associations should make unified efforts and should
establish continuous and effective measures, by building a constant framework andpromoting consultation and collaboration.
2.

Re-examination of Procedures for Appointment of Judges• In order to reflect the views of the people in the process whereby the Supreme Court
nominates those to be appointed as lower court judges, a body should be established in theSupreme Court, which, upon receiving consultations from the Supreme Court, selects
appropriate candidates for nomination, and recommends the results of its consideration to
the Supreme Court.
• Appropriate mechanisms should be established so that this body can make its selection of
appropriate candidates meaningfully, based on sufficient and accurate information, such as,
for example, establishing subsidiary bodies in each geographical region.

3.

Re-examination of the Personnel System for Judges (Securing Transparency, Objectivity)• With regard to the personnel evaluation of judges, appropriate mechanisms should beestablished for the purpose of securing transparency and objectivity as much as possible,
by making clear and transparent who should be the evaluator and the standards forevaluation, by enriching and making clear the materials used in making the evaluation, andby disclosing the contents of the evaluation to the candidate and establishing appropriate
complaint procedures in the event the candidate objects.
• Consideration should be given to what the appropriate system is for increases incompensation (raises) for judges, including possible consideration of simplification of thecurrent compensation grades.

4.

Popular Participation in the Management of the Courts• Measures should be introduced to enable the views of the people to be reflected broadly
in the management of the courts, such as reinforcing Family Court councils and newly
establishing District Court bodies similar to such councils.

5.

With Regard to How Supreme Court Justices Should be Appointed, etc.
• Paying due respect to the importance of the position of Supreme Court justices,
appropriate measures should be considered to secure a transparent and objective process
for their appointment.
• Studies should be made on measures to increase the effectiveness of the system for
popular review of Supreme Court justices, such as by making efforts to reinforce thedisclosure of information related to each individual justice subject to review so as to makeit possible for the people to make substantive judgments.

6.

Mutual Exchanges Among Legal Professions• By promoting the mutual exchange of personnel among the legal professions (judges,
public prosecutors, lawyers, and legal scholars), a justice system (legal profession) should−140−be built up that truly is able to meet the expectations and trust of the people.
One of the characteristic features of Japanese judges is its career system. The Court
Organization Law anticipates that judges will be drawn from among a variety of sources
including assistant judges, practicing lawyers and prosecutors. However, assistant judges havebeen the primary source of supply for judges in actual operation. The assistant judge system has
merits in providing qualified and trained candidates for judges, by providing on-the job training
in daily services in the judiciary, while one of the demerits is that most of them have experience
only in the judiciary. Naturally judges sometimes face observations that they do not know about
real life. In addition, the justice system which has less diversified ground may not cope well withvarious cases arising from a changing society.
One solution to this problem would be to appoint judges from among other legal
professionals more and more. Although Japan has been trying to increase the number of
appointments from among other legal professionals, however, the effort has not been successful
so far. Then the Final Report recommends that all assistant judges should have experience otherthan the judiciary, and appointing judges from among other legal professionals should be strongly
promoted by unified efforts of the organizations concerned.
The process by which the Supreme Court nominates candidates to be judges is notnecessarily clear. In order to reflect the views of the people in this process and make this process
more transparent, establishing a body in the Supreme Court is recommended by the Final Report.
The status of Japanese judges is strongly protected by the Constitution. However, Japanesejudges are requested to move on a rotation basis. There exists an observation that the personnel
evaluation that serves as the personnel management lacks transparency and objectivity. In orderto strengthen the independence of judges establishing appropriate mechanisms is recommended
by the Final Report.
The Final Report also recommends public participation in the nomination of judges and thepersonnel system of judges as well as the general management of the courts. Public participationis one of the most important suggestions in this Report to strengthen the judiciary by establishinga popular basis, as I will discuss later.
The Justices of the Supreme Court are appointed by the Cabinet (except the Chief Justice
who is appointed by the Emperor as designated by the Cabinet). These are extremely important
positions, but the processes for appointment and nomination are not necessarily transparent.
Therefore, the Final Report recommends considering appropriate measures to secure a transparent
and objective process for their appointment. The system of the Justice Appointment Consultation
Commission was established in 1947, but later abolished in 1948, is also referred to in theReport16 .
In addition, the system for the so-called popular review of Supreme Court Justices has
been observed as not working well. The Final Report recommends studying measures to increase
the effectiveness of the system.

16 The reason to abolish this Commission was to clarify the responsibility of the Cabinet to appoint Justices. However, this reasoning has not been persuasive, and an attempt wasmade to introduce it later but this was unsuccessful .

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V.

ACCESS TO INFORMATION CONCERNING COURTS

Access to information concerning courts is essential for a transparent and accountablejustice system. The Final Report recommends that disclosure and furnishing of information by the
courts should be promoted. Information concerning courts is accessible through various ways.
A.

Trial in Open Court

The Constitution stipulates that, “trials must be conducted and judgments must be declared
publicly", and “in all criminal cases, the accused shall enjoy the right to a speedy and public trial”.
Exceptions to public trials are permitted under extremely strict conditions.
Taking memos into the courtroom by an observer was not allowed in principle in Japan, inorder to avoid disturbance to the fair trial and to keep order in the courtroom. This practice wasoverturned by a Supreme Court precedent in 1989 17 . Since then taking memos in the courtroom ispermitted in principle.
TV cameras are allowed, in general practice, for the very first few minutes of the trial
before the defendant enters the courtroom. This practice aims mainly to harmonize the freedomof the press and the rights of defendants.
In 2000, a new law was enacted, which includes a provision to give the court legal grounds
for giving priority to the victims in assigning observer's seats in the courtroom though thisconsideration was observed by most judges even before the enactment of this law.
B.

Plain and Understandable Procedures and Judgments

Sometimes legal practitioners tend to rely on the same old procedure, which may bedifficult for ordinary people to understand. In order to improve the transparency andaccountability of the justice process, all legal practitioners should be encouraged to use plain
words and explain the procedure to the people concerned as much as possible.
In recent years, judges in Japan have been consciously trying to improve and use plainer
words in judgments. When Japan introduces the lay judge system, which will be discussed laterin this paper, the procedure must be much plainer so that the lay judges can easily understand andfully participate in making judgments of the panel. Plain and clear procedures will also enhance
public support for the justice system.
In Japan, Justices of the Supreme Court have to express their own opinions in every
written decision18 . However, judges on the panel in inferior courts are not allowed to express theirown opinions 19 . Individual opinions will promote transparency and accountability of thejudgments, while not expressing individual opinions in the judgment has some advantage toencourage each judge to express their opinions at the deliberation stage freely. In Japan, as far asa Supreme Court Judgment is concerned, the necessity of expressing individual opinions is
17 Supreme Court Judgment, 8 March 1989, 43 Minshu 89
18 Article 11 of the Court Organization Law stipulates, “The opinion of every judge shall b e expressed in written decisions.”
19 Article 75 of the Court Organization Law stipulates, “The deliberation of decisions in a collegiate court shall not take place in public.... Except as otherwise provided for in thislaw, strict secrecy shall be observed in respect of the proceedings of deliberation, the opinion of each judge and the number of opinions.” This regulation is common in civil law
countries.

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thought to prevail over other interests, and this system has been functioning to make the Supreme
Court accountable in deciding controversial issues.
C.

Notification of the Judgment to the Victims, etc.

The people concerned in the case, especially the victims, etc. of the crime, are eager toknow the decision of the court. However, the victims, etc. are not parties in the criminal trial orjuvenile hearing procedure. Moreover, the juvenile hearings are held in camera. In order toimprove accountability of the adjudication to the victims, Japan has made special efforts.
The Notification Programme to Victims etc. was launched in 1999 in the publicprosecutors offices 20 . When the victims, etc. desire such notification, a public prosecutor has toinform them orally or in writing of the necessary information including the results of thejudgment and sentencing.
Family Courts, which hear offe nces committed by juveniles were given legal grounds to
notify the decision of the court to the victim, etc. of the offence by the Amendments to theJuvenile Law in 2000.
D.

Examination and Copy of the Record of Trial

The records of trial are the most valuable documents for transparency and accountability of
the justice process. The public can examine the records of criminal trials after the conclusion of
the case, with some exceptions where other public interests prevail. On the other hand, therecords of juvenile cases in Family Courts are not accessible to the public in consideration of theneed to promote the sound upbringing of juveniles.
In 2000, a new law was enacted to make it possible for the victims, etc. of crimes to
examine and copy the record of the criminal trial at the court even during the stage between thefirst date of trial and the conclusion of the case. In the same year amendments were made to theJuvenile Law to make it possible for the victims, etc. of crime to examine and copy the record of
the juvenile case after the decision of the Family Court to hold a hearing.
E.

Access to Legal Materials(i) Statutes
In Japan, it is very easy to research legislation by consulting Roppo, the compendium oflaws. Various versions of Roppo are published annually by private companies andgovernmental authorities. Some of them are a handy type, others are thick and comprehensive.
Some of them annotate each article by citing summaries of court precedents. Each Roppo has
an index, so that everyone can find the text without difficulty. Roppo is available at almost all
bookstores throughout Japan.

20 This programme promotes the transparency and accountability of the public prosecutor’s decision. When the victims, a bereaved family or witnesses desire, a public prosecutor
has to inform them orally or in writing of such information as 1) the disposition of the case (e.g. prosecution for the formal trial, prosecution for the summary proceedings, nonprosecution or referral to the family court), 2) in prosecuted cases, the name of the court and the date of the trial, 3) the result of the judgment, sentencing, whether to appeal to ahigher court, 4) a summary of the prosecuted offences, the title and the su mmary of the non-prosecution, whether to detain, bail etc. Even before thisprogramme came into force, apublic prosecutor is obliged by the Code of Criminal Procedure to inform the reasons why the case was not prosecuted, on request of the complainant, accuser or claimant.

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(ii) Judicial Precedents
The courts have compiled and published case reports for the Supreme Court and High
Courts, containing information on decisions with presidential value. The courts also havecompiled and published case reports for certain specialized fields such as intellectual property
rights. In addition, some private companies publish law journals periodically.
In 1997 the Supreme Court established its own Internet home page, and at present the fulltext of recent major Supreme Court decisions, and the full text of decisions in intellectual
property rights cases and so forth at inferior courts are promptly disclosed 21 .
F.

Public Participation

Public participation or community involvement in the justice process is of significant
importance in increasing the transparency of the justice system and clarifying accountability. It is
important not only from the democratic perspective, but also from the perspective that the system
can only be effective when it is supported by public confidence and cooperation. This is why the
Final Report recommends the promotion of public participation in every aspect of the justiceprocess. I would like to discuss this issue further in the next chapter.
VI.

PUBLIC PARTICIPATION IN THE JUSTICE PROCESSThe type and the extent of public participation in the justice system varies from country tocountry, and even within one country, it varies depending on the organization and procedure.
I would like to discuss this issue in the order of 1) civil and family cases, 2) juvenile cases,3) criminal cases and 4) judicial administration. I will describe the current situation of public
participation in each field in Japan, and then refer to the recent discussions on the enhancement ofpublic participation in relation to the Final Report of the Justice System Reform Council.
A

Participation of Laypersons in Judicial Proceedings in Civil and Family Cases

In Japan, some Laypersons who are selected by the court from among the general public
take part in civil and family judicial proceedings as Conciliation Commissioners, Judicial
Commissioners and Family Court Councilors.
1.

Conciliation Commissioners

The Conciliation Committee of the District Courts, the Family Courts or the Summary
Courts deals with various kinds of civil disputes as well as conflicts in family affairs. The
Committee works to secure an amicable settlement of disputes by recommending mutual
concession and compromise to both parties or persuading the parties to reconcile themselves to an
appropriate compromise worked out by the committee.
The Committee is usually composed of one judge and two or more Conciliation
Commissioners. Most Conciliation Commissioners are selected from citizens with broad
knowledge and experience in the community. They play an important role in drawing up
appropriate settlement proposals in line with the circumstances of the disputes, as well as inconvincing the parties concerned to accept the proposals.
21 www.courts.go.jp−144−

The total number of Conciliation Commissioners for civil disputes is approximately 12,000,
and for conflicts in family affairs it is also approximately 12,000, including 5,400 who serve as
both.
2.

Judicial Commissioners (or Summary Court Councilors)

Judicial Commissioners may assist the Summary Court judge in effecting a compromise
between the parties to a civil lawsuit in the Summary Court or attending a civil trial in theSummary Court to express their opinion to the judge in the case. Judicial Commissioners are
specially selected from among the public, they number approximately 5,900.
3.

Family Court Councilors

When the Family Court deals with such cases as guardianship for adults, change of name,support, and partition of estate, Family Court Councilors specially appointed from among the
public by the court assist a judge in the determination process by offering their opinions to
him/her. The total number of Family Court Councilors is approximately 6,000.
4.

Introduction of an Expert Commissioner System, etc.

The Final Report recommends introduction of an expert commissioner system, as well as
reinforcement of the above three systems.
The Report says “While paying due regard to securing the neutrality and fairness of thecourts in connection with matters such as the method of appointment and the manner ofparticipation in proceedings, study should be given, according to the nature of the respective
expertise involved, to how new systems should be introduced for participation in litigation
procedures as expert commissioners, in which non-lawyer experts in each specialized field
become involved in all or part of trials and support judges from the standpoint of their own
specialized expertise.”
Under the current law, there are no measures to utilize experts in legal proceedings otherthan the court-appointed experts witness system and the judicial research clerk system22 . The
Report is of the opinion that it is desirable to obtain the involvement of experts from an earlystage of the proceedings in the case of litigation requiring specialized knowledge.
Some new ideas to involve experts in these proceedings were discussed in the Justice
System Reform Council. One of the crucial points then was the neutrality and fairness of theexperts. The Council came to the conclusion to recommend the introduction of an Expert
Commissioner System with emphasis on paying due regard to securing the neutrality and fairnessof the courts in matters such as the selection methods and the manner of their participation inproceedings.

22 Judicial research officials conduct research concerning the hearing or adjudication of a case under the instruction of the justices and judges in charge. Besides lawyers, experts on
industrial property rights or taxes are appointed as judicial research officials, and they are assigned to courts of big cities such as Tokyo or Osaka.

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B.
Participation of Laypersons in Judicial Proceedings in Juvenile Cases - The Family
Court has a Unique System of Public Participation in Juvenile Proceedings.
1.

Attendant (Juvenile Friendship Association)

At the first opportunity, when a juvenile has no guardian or receives no proper support
from his/her guardian, the Court selects a member of the public as an attendant, other than thelawyer attendant. The Court expects this attendant to take emotional care of the juvenile, assist
him in finding a job or compensating the victims, and attend the hearing session. In practice there
are public voluntary groups such as the “Juvenile Friendship Association” (shounen-tomo-no-kai
in Japanese), that consist of those who are interested in the guidance and assistance of delinquentjuveniles. The court often selects an attendant out of these groups.
2.
Tentative Probationary Supervision (commitment of juvenile guidance and social service
activities)
The second opportunity is when the judge places the juvenile under the tentative
probationary supervision of the Family Court Probation Officer. This is one of the intermediate
dispositions while the final disposition of the Court is held in suspension. During this period ofsupervision, the Family Court Probation Officer makes various educational approaches to thejuveniles, utilizing the assistance and cooperation of the public. This is of two types.
One type is to commit the juvenile to a suitable institution, agency or individual for his/herguidance for a reasonable term. This system was utilized soon after the establishment of theJuvenile Law in 1948, and the institutions, agencies and individuals to which the juveniles arecommitted have devoted themselves to guide the juveniles, treating them as if they were amember of their family. This is especially effective for juveniles without a happy family life.
The other type is social service activities performed by juvenile offenders. This is different
from the social service order that offenders are subject to in some countries. This is conducted notupon a court order but upon the recommendation of the court. Juveniles who are recommended totake part in social service activities, and consent to perform them, go several times to social
welfare institutions, such as special nursing homes for the aged, with the assistance of membersof the “Juvenile Friendship Associations”. This is effective for juveniles who lack motivation andlife experience. From the experience of nursing the aged, the juveniles are expected to reflect
upon the delinquency they committed. From the close relationships they form with the staff inthese institutions, watching them devotedly nurse the aged, etc., they are expected to raise theirwill to work.
C.

Participation of Laypersons in Judicial Proceedings in Criminal Cases

Relatively speaking, the public has limited opportunities to participate in the criminal
procedure in Japan. The jury and lay judge systems are typical examples of public participation intrials. However, in Japan, there are neither jury trials nor trials by lay judges. Rather, all cases areheard and tried by professional judges. Japan, in fact, enacted a Jury Trial Law in 1923. However,since the general public preferred trials by career judges to those by jury, this law was suspended
in 1943. Therefore, no system exists in which laypersons can participate in fact-finding andsentencing procedures in criminal cases. Japan has only Committees for the Inquest into the−146−Prosecution system23 which involve the general public at the prosecution stage.
The Recommendations of the Justice System Reform Council established the participationof laypersons in criminal trials to be one of the hottest issues currently, though this issue had long
been discussed since the end of the Second World War, but had not been regarded as realizable bymany people.
The systems vary throughout the world. Some countries such as India, the Philippines,
Singapore, Thailand, Korea, Pakistan, Bangladesh, Israel, Turkey, Argentina, Indonesia and Japando not have jury trials 24 nor a lay judge system25 . Some countries such as Sri Lanka, Greece, theUnited Kingdom, the United States, Canada, Australia and New Zealand have jury trials. Somecountries such as Malaysia, Italy, Germany, France and Finland have a lay judge system. Somecountries such as Austria, Sweden, England, Denmark and Norway have both systems.
There are many arguments supporting jury trial and a lay judge system. It isunquestionable that the jury trial is a very democratic system. It is based on trust in the wisdom ofcommon citizens to act as the conscience of the community. It makes the judicial procedure moretransparent and accountable, and also helps speedy trials.
As for the lay judge system, similar merits have been pointed out, such as the democracy
principle, the popular educative effect, and improvement of transparency and accountability. The
participation of lay judges forces the professionals, including professional judges, to submit theirargument to the critique of a non-jurist, and to deliver factual and legal deliberations in such a
way that even a layperson would be able to follow them.
However, lots of practical problems for both systems have also been pointed out, such as
the burden on ordinary citizens, the expensive and time consuming nature of the system, thelimited right of appeal compared to the current Japanese system, the uncertainty of judgments,and so on.
During the discussion before and after the Final Report, the following are some of thepoints which have been examined:• Evaluation of current trials by career judges• Evaluation of public participation systems in other legal fields in Japan• Evaluation of the systems and practices in foreign countries• Evaluation of the failure of the jury system which Japan had before the Second WorldWar
23 This system aims to act as a check on the discretionary exercise of prosecuting authority. The committee, composed of 1 l ordinary citi zens randomly selected from among thesame voters who elect members of the House of Representatives, reviews a public prosecutor’s determination not to institute prosecution, either upon application of complainants or
ex officio. If the committee considers the determination unjustified, it may recommend instituting the prosecution to the chief prosecutor. However, this recommendation does notbind the prosecutor.
24 A typical jury trial is as follows. A trial jury is entrusted with deciding whether or not th e defendant is guilty of the crime charged. Jurors are selected from members of the public
on a case by case basis. They perform jury service as a civil duty. Jurors are given no special training in law to prepare them for their important task, but these diverse citizens are
expected to sit together in the courtroom at public trials and listen carefully to the evidence the judge permits to be presented. Under the guidance of the judge, who explains thegoverning law, the jury determines the facts and reaches a decision (verdict) of either guilty or not guilty.
25 There are a variety of lay judge systems. For example, in Germany, one or three professional judges sit together with two lay judges. The lay judges practice their judicial
function in an honorary capacity. By cooperating in court decisions like this, the lay judge has the same rights as the professional judge in principle. In other words, the lay judge
has the same voting power as the professional judge. The lay judge has to co-decide on the facts an d circumstances of the case, as well as in the application of the law. The lay
judges are not necessarily selected, but rather appointed. The term of a lay judge is four years.

−147−• Burdens on jurors or ordinary citizens• Ways of selecting jurors / lay judges (random sampling, appointment)• Number of jurors / lay judges and the method of deciding the verdict• Matters in which laypersons participate in deciding (fact, law, sentencing)• Applicable cases (serious cases, minor cases, contested cases, non-contested cases)• Defendant ’s right to refuse the new procedure• Cost (time and budget)• Suitability to find the truth or the detailed facts• Capability to deal with very complicated cases• Possibility to be subject to sentimental reactions• Necessity to set out the reason of fact finding in the judgment• Effects on the appellate system• Necessity to regulate the mass media• Capacity of practicing lawyers to attend trials over consecutive days
The proposed system by the Final Report is an original one mixed with elements of various
systems and relatively, closer to the lay judge system in Continental Europe:
A. A new system should be introduced in criminal proceedings, enabling the broad generalpublic to cooperate with judges by sharing responsibilities, and to participate
autonomously and meaningfully in deciding the outcome of trials.
B. Judges and saiban-in should deliberate and make decisions both on guilt and on thesentence together. In the deliberations, saiban-in should possess generally equivalentauthority to that of judges; and in the hearing process, saiban-in should possess
appropriate authority including the authority to question witnesses.
C. The number of judges and saiban-in on one judicial panel and the method of deciding
the verdict should be determined appropriately, giving consideration to the need toensure the autonomous and meaningful participation of saiban-in and the need toensure the effectiveness of deliberations, and also taking into account the seriousness ofthe cases to which this system will apply and the significance and potential burden of
the system on the general public.
D. However, a minimum requirement should be that a decision adverse to a defendantcannot be made on the basis of a majority of either the judges or the saiban-in alone.
E. With regard to the selection of saiban-in, the selection pool should be made up of
persons randomly selected from among eligible voters, and further appropriate
mechanisms should be established to ensure a fair trial by an impartial court. Saiban-in
should be selected for each specific case and should serve for the entire case up to thefinal judgment.
F. Saiban-in candidates who have received a summons from the court should accept their
duty to appear.
G. Applicable cases should be cases of a serious nature to which heavy statutory penalties
attach.
H. No distinction should be made based on whether the defendant admits or denies the−148−charge.
I. Defendants should not be allowed to refuse trial by a judicial panel composed of judges
and saiban-in.
J. Various efforts should be made in connection with the administration of trial procedures
and, as necessary, the relevant laws should be modified, so as to ensure autonomousand meaningful participation by saiban-in.
K. The contents of judgments should fundamentally be structured in the same way as thosefor trials by judges alone.
L. Litigants should be allowed to appeal (koso) on the ground s of an error in fact finding oron the grounds of an improper sentence.
D.

Other Public Participation in the Justice System

The Final Report recommends public participation in the management of the courts as well
as nomination of judges by the Supreme Court as mentioned previously.
Currently, a Family Court Council is established at each Family Court, which is to express
its views with respect to the entire range of management of the Family Court. The members of
this Council are selected from people outside the three branches of the legal profession. The Final
Report recommends that measures should be introduced to enable the views of the people to bereflected broadly in the management of the courts, such as by reinforcing the Family Court
Council system and newly establishing District Courts bodies similar to the Family Court
Councils. The Report also recommends similar mechanisms to the public prosecutors offices andthe bar associations.
VII. SPEEDING UP JUSTICE
If a judgment is rendered after a lapse of many years from the commencement of the case,people would be disappointed in the justice system. In this case, the court cannot insist that it isreally accountable.
The Final Report says “What the people expect from the justice system is, in a word, asystem that is more accessible and easier to use; proper; prompt as well as effective judicial
redress in response to various needs; and the execution of accurate, proper and prompt
apprehension and punishment of offenders through fair procedures so that people can live
safely.”Generally speaking, the duration of proceedings in civil and criminal procedures on thewhole has been decreasing. For instance, the average duration of proceedings for all first instancecivil cases at district courts is 8.5 months (as of 2001), and that of proceedings for all first
instance criminal cases at district courts is 3.3 months (as of 2001).

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Average Duration of Proceedings for All First InstanceCases at District Courts
Year
1960
1965
1970
1975
1980
1985
1990
1995
2000
2001

Civil cases
12.6
12.1
12.8
16.3
12.8
12.4
12.9
10.1
8.8
8.5

Criminal cases
5.5
5.7
6.4
6.3
4.4
3.4
3.5
3.3
3.2
3.3

However, it cannot be denied that there are some cases in which trials in the first instancealone take a considerably long period of time. The Report includes many recommendations
concerning both civil and criminal procedures. Among them are as follows:
Reinforcement and Speeding Up of Civil JusticeA.

The following measures should be carried out, aiming to reduc e the duration ofproceedings for civil cases by about half:• In principle, for all cases, conferences to establish a proceeding plan should be madecompulsory, and planned proceedings should be further promoted.

• Methods for the parties concerned to collect evidence at an early stage, including theperiod before instituting a suit, should be expanded.
In addition to these, the Report includes specific recommendations for the improvement of
the handling of cases requiring specialized knowledge, cases relating to intellectual property
rights, labor-related cases, and so forth.
Reinforcement and Speeding Up of Criminal Trials
A.

The following new preparatory procedures should be introduced:• A new preparatory procedure presided over by the court should be introduced in order tosort out the contested issues and to establish a clear plan for the proceedings in advanceof the first trial date.
• To achieve the thorough ordering and clarification of the contested issues, it is necessary
to expand the disclosure of evidence. For that purpose, rules regarding the timing and thescope of the disclosure of evidence should be clearly set forth by law, and a frameworkthat enables the courts to judge, as necessary, the need for the disclosure of evidence
should be introduced as part of the new preparatory procedure.

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B.
C.
D.
E.

Trials should in principle be held over consecutive days, and necessary measures should betaken in order to secure the realization of this principle.
Consideration should be given to how the related systems should be so as to realize theprinciples of directness and orality.
Consideration should be given to concrete measures that secure the effectiveness of trial
direction by the courts in order that trials are managed in a thorough and smooth manner.
A system should be established that enables defense counsel to concentrate on individual
criminal cases, including the establishment of the public criminal defense system; and at
the same time, the human base of the courts and the public prosecutors offices should beenriched and strengthened.

In addition to these, the Report recommends expansion of the legal profession, which willcontribute to speeding up of both civil and criminal justice.
VIII.

CONCLUSION

As one branch of power in a democratic state, the judiciary must be supported by the
public, with the consequence that it must be transparent and accountable. On the other hand, thejudiciary must be independent and protected from interference in order to realize the rule of law
in the state. As I pointed out in the first chapter, independence and transparency/ accountability
sometimes have a contradictory nature.
In Japanese history, the courts first struggle was to establish independence by protecting
the judiciary from interference from outside, seen in such cases as the Otsu case and the Urawacase. This effort can be characterized as establishment of “passive independence.”
Now powers are required to be transparent and accountable more and more in a changing
society. The courts are no exception. Japan has endeavored to promote transparency andaccountability in various ways. The Final Report of the Justice System Reform Council, having
appreciated these efforts, pointed out that these efforts were not enough to meet the needs of the
21st century and recommended many reforms, such as the reform of the system of judges,
promoting public participation in every sphere of the justice process including introducing lay
judges in criminal proceedings, speeding up justice, and expansion of the legal profession.
The philosophy in accommodating the principles of independence andtransparency/accountability, in my view, should be to establish “positive independence” of the
judiciary. The courts should have a more popular base by being more transparent and accountable.
The courts with a firm popular base can be really independent from any interference.
Independence, transparency, accountability as well as integrity must be pursued at the same time.
I hope the Japanese experience provides some useful information.

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SUPREME COURT REFORM
AND JUDICIAL INDEPENDENCE
Prof. Dr. Bagir MANAN, SH, MCL
Chief Justice, Supreme Court, Indonesia
I.

INTRODUCTION

From the normative point of view, the independence of judicial authority is assured. Before
the constitution was amended, their independence was clearly stated in article 24 and 25. Soon
after this the third amendment was integrated into the body of the constitution, along with therules which manage judicial power and clarify and approve the freedom of the judicial authority.
However, some normative rules do not always meet the reality. There is a gap between‘das sollen’ and ‘das sein’. Experiences during the old and new order showed the limit of judicial
power and judges. It happened because the government had influence over the administration, theorganization, the manpower, and the finance of the judicial institution.
The reform that has been going on for almost five years has produced basic steps to returnthe state administration to the principle of democracy and a law-based country. One of the main
pillars that helps guarantee a democratic country is the freedom of judicial authority.
In an effort to eliminate government interference with judicial power, an act was passed;
Act No.35 of 1999. The Act is supposed to eradicate the government ’s influence on judicial
power. However, the Act has not been implemented and the government still has authority over
the judiciary.
Reform has added greatly to the freedom of judicial authority and the judges. The
government and the apparatus do not interfere in the function of the judicature any longer.
Although there are some comments, that can be categorized as intervention, they do not influence
the judge’s freedom. But, it does not mean judicial power is totally independent. Even though
judicial authority is free from government or other state organs’ interference, judicial power isnever free from new pressures such as public pressure. This has come in the form of commentson the judicial process or on judge ’s decisions. These comments often make the officers annoyed
especially comments regarding the work overload. In some areas, the judicial process could notfunction because of demonstrators asking the court to accede to their demands. The
demonstrations were also, often followed by the destruction of the offices and equipment.
Another pressure is in the execution process; by the mob with its threats of violence, there weresome efforts to disturb the execution process.
It should be admitted that the pressure was due to their disappointment in the judicial
authority. The judicial authority was accused of arbitrating a party, motivated by corruption,collusion, and nepotism and other immoral actions. On the other hand, public comments
regarding the judicature came out because of the misuse of freedom, egoism (selfishness), or the
feeling of being untouchable because they were part of the political elite.
Such conditions are of course not conducive to establishing the independence of judicial
power in a democratic and law-based society. The problem is not just the corrupt spirit of the−153−judges, but also the corrupt spirit of the public itself. Restructuring of the judicature will only
work in the same way as social reform to make the society transparent and responsible to a law
abiding society.
II.

RESTRUCTURING OF THE JUDICATURE AND DEMOCRACY

Restructuring of the judicature is commonly connected to the reform of the legalsettlement system. Some think that judicial reform is a pre-condition to the establishment of lawsupremacy or law reform in general. It is accepted that the judiciary has an important role insetting up the supremacy of law. But, there is a pre-condition: This condition is the existence of
democracy (in the social and political arena). The feudal social system and authoritarian politicalsystem do not give any chance for the institution to operate correctly because a healthy judicature
only works within freedom and openness.
III.

RESTRUCTURING OF THE JUDICATURE AND THE LAW

The Judicature is only one part of a legal system. Restructuring will be meaningful only iffollowed by the reform of other parts of the legal system, this covers:
A.

Restructuring of Legal Education

Legal education is the resource of the judicial apparatus. The quality of the officers in thefirst level is determined by the graduates. Besides preparing human resources, legal education
also produces concepts and theories of law that will assist the judicature to understand everything
about the application of the law.
B.

Restructuring of Legal Settlements

Outside of the judicature, there are some related boards such as immigration, the customs
office, and correctional institutions. The legal settlements and service performed by the judicial
authority sometimes reflects on the supremacy of the law itself.
C.

Restructuring of Lawyers

One of the important pillars to maintain the supremacy of law are the lawyers. Problems
concerning the integrity of the officers often comes up from the interaction between lawyers andjudicial officers. Rules are needed which regulate lawyers to perform their functions.
D.

Restructuring of the Bureaucracy

Bureaucracy is one of the trouble makers for the judicature since it is the medium ofcorruption, collusion, and nepotism. A clean bureaucracy will reduce the court’s work and otherbad effects such as bribery.
E.

Restructuring of the Political Parties (Infra and Supra-Structure)

Besides the function of political parties as the spokesman of freedom and supervision, theyshould become the mirror of a healthy and responsible political scheme. Political parties should
be clean and free from corruption, collusion, and nepotism, or other disabilities.

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F.

Restructuring the Rule of Law

The problems faced are not only the product of a colonial era. Even though the new rules
are not completed, are not in good harmony, are unclear, and contradictory, it should not cause
any problem. Such regulation will affect the process and the quality of the court’s decisions.
Judges are often forced to perform their acrobatic acts because of the bad or imperfectregulations.
G.

The Process of the Judicature and an Integrated Criminal Justice System

Boxes of Kuhap often invite trouble in maximizing the court process in criminal cases. The
process of the independence of each judicial institution often makes problems for an integrated
criminal justice system. To build up the system, a regulation is needed on the interaction among
the elements of the judicial institutions. For the judicial process, integrity is very important toavoid the presumption that the court is releasing suspects. There must be consciousness that every
problem always determines the other process. The boxes of Kuhap must be flexible to harmonize
the investigation, the tribunal before the court, the decision, and the process of correction.
H.

The Process of Adjudication

It is a fact that only some offenders are taken to court. Only a limited number of thieves arecaught and arrested. Some cases can be solved outside the court room. However, most cases
remain unsolved because investigation is a long and expensive process. To figure out thesolutions to these legal matters, it is important to help the public to get justice and ensure theirrights are upheld. Therefore, it is necessary to build up the legal aid organization. Besides that, it
is also important to arrange alternative resolution such as mediation.
IV.

THE REFORM ASPECT OF THE SUPREME COURT

Obstacles in dealing with judicial power cover public perception, resource limitations, dataand information limitations, medium and infrastructure, and the lack of implementation of Act
No.35 of 1999. Trust and conviction toward the justice system in Indonesia has decreased
because of slow problem solving, the perception of collusion, corruption, and nepotism, and thelimited access to the justice service. Besides, there have been piles of cases caused by several
factors such as the limit of resources, no limitation of in-coming cases, the shortage ofprofessional judges, bad management systems, ineffective administration control and a lack ofresources to respond to situations effectively, and also public awareness.
In the past, the Judicature was a part of the executive that worked to secure the authority’s
and the officers interest. So, the functions of the judicature did not work optimally. It had nofreedom and independence to manage either internal or institutional affairs. Such problems weremade worse by some of the judges who had no ethics, morality, integrity, and capability in
distributing justice. As a consequence, the principle of law and justice in the society were pushed
away, and worsened by corruption and collusion in the judicature.
In addition, the management and information systems of the judicature were not sufficient.
The people were frequently complaining about the difficulty of searching for sentences issued by
the court and too slow case management. Moreover, the capability of the judges was soapprehensive that arguments made did not meet the party’s needs.

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The Supreme Court as a state organ has the authority of dispensing justice as the highest
state court over all the other judicial boards. In performing these duties, the Supreme Court is freefrom government intervention and other parties, and carries out the highest level of control on thepractice of the judicature in the society. In meeting the people’s desires and satisfaction, theSupreme Court needs to reform the institution.
A.

Reducing Incoming Cases

As the highest state court, the Supreme Court is a cessation court, and its function is tokeep up the uniform application of the law through the cessation court decisions and review casedecisions on civil, criminal, military, religious, and administrative matters. Also, the Supreme
Court works to make sure that all rules and acts in all parts of this country are applied fairly,
accurately, and appropriately.
However, many cases have not been handled yet because there is no rule available to limit
the cessation to the Supreme Court and the shortage of judges. As a first step towards accelerating
the process of case management, previously once a case was received, checked, and decided by
the court, there were 27 steps, now this has been simplified into 10 steps. Whereas, to reduce theduties of the Supreme Court from the in-coming cases, rules have been made such as requests for
cessation cases which do not meet formal requirements. Also the Circular Letter of the Supreme
Court on the empowerment of the first instance court to set up negotiation, and cases that are
related to the ne bis in idem principle.
Besides that, a Decision Letter was released by the Chief Justice in regard to: cases that
attract people’s attention; priority to cases that fulfill some requirements; and a target of clearing
as many as 10,000 cases in 2002. As an alternative the Supreme Court also supports judges to use
problem solving out of the court through court connected ADR.
Concrete measures have been taken such as providing funds for crash programs for casehandling, activating working overtime, case management programs (Operasi Kikis Berkas
Perkara), proposing candidates for appointment as justices of the Supreme Court to replaceretired or deceased judges, and activating periodic coordination meetings.
B.

Management Effort

As regards aspects that are not regulated by the constitution, the Supreme Court released adecision to support the practice of the judicature taking responsibility for this. It is made toguarantee the laws certainty. The determinations made are such as a request for cessation casesthat do not meet the requirement s and class action rules. And by Circular Letter of the Supreme
Court on the empowerment of the first instance court to set up negotiations, the process ofdelivering corruption cases to a higher level, cases that are related to the ne bis in idem principle,
and to publish books on legal administration.
To develop human resources with a high level of integrity, the Chief Justice established aworking group on a Code of Conduct to produce guidelines for the behavior of the judicial
apparatus, so they can give justice to the people. The Supreme Court creates the application of theIntegrated Judiciary System with other judicial apparatus in setting up the laws supremacy inIndonesia. Therefore, it has a policy of forming work groups with judicial institutions and relatedboards such as the House, the Police, the Attorney General, academics and lawyer’s organizations.
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run an Integrated Judiciary System. It is then used as a proposal to arrange the draft law on the
Integrated Judiciary System. From the administration's point of view, the Supreme Court as astate organ has not been able to perform the function independently because organization,
administration, and finances of judicial boards (public courts, religious courts, military tribunals,
and administrative courts), are still managed by the related departments. Thus, administrative
efforts that have been performed just gave consideration to promote a class of court and theformation of a new court.
C.

Public Supervision and Access to JusticeIn principle supervision is carried out by the Supreme Court. The role of the appeal court isto operate as the guardian (voorpost) of the Supreme Court. The method used is by inspection,
and asking for periodic or special reports. In developing human resources, there is a Deputy Chief
Justice and assistant for supervision.
To anticipate public reaction to any decision made by the Supreme Court and the lower
courts, a clarifying team has been formed to check whether there is the possibility of bribery andto analyze whether a decision made is appropriate by law. In addition, the development of an
information network system of the Supreme Court is in progress to create transparency and to
give better service to the people. In the long term, this system is going to be on line to all courtsin the whole country.
D.

Human Resource Development

To reform the institution, the Supreme Court needs to be supported by qualified humanresources through education and training such as the study of administration and management. A
comparative study is also required to research judicial technique either here or overseas. In
financial management, a study has been done on the government of Semarang, and overseas incooperation with the Federal Court of Australia and other donor institutions.
Studies have also been made on: the Judicial Commission Board in the Netherlands,
information technology and overcoming the backlog of cases in India; combating corruption in
Japan; class action suits in the US and Australia, and to Australia for environmental law and theadministration of court management.
Research has been done on contempt of court and class action topics, in order to anticipate
connected in-coming cases. Research has been performed to make a blueprint of the Supreme
Court by a special comparative study at the Philippine Supreme Court. It also made preparations
to make a draft of the Judicial Commission and research on Court Connected ADR.
V.

ASPECTS OF COOPERATION WITH OTHER JUDICIAL APPARATUS

The creation of judicial independence is not only the judge’s responsibility. In performing
his duties, the judge can be easily influenced by extra-judicial matters. So many cases in setting
up the laws supremacy involve executors, judges, police and lawyers. Each role in running thecode of conduct is an integrated part in creating an independent judicial authority. Unhealthy
conditions will go against the public’s desire for justice. Like the judicature board, the Supreme
Court supervises the notaries and lawyers. In the development, lawyer organizations get involved
in handling things connected to their members, including recruitment and registration for the
lawyers’ practical test.
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VI.

SUMMARY

From the explanation above, it can be seen that the public demand the supremacy of thelaw and that qualified court decisions are expected to come from the Supreme Court.
Independence is the first requirement to show fairness in making judicial decision. Support fromthe state administration secures the independence of judicial power, the Supreme Court is
supposed to implement the reform. In performing the task, the Supreme Court is assisted by otherapparatus.
It is also expected that judicial power be separated from other state organs. Structural
improvement through political will and the state administrator also needs support from any
existing possibility to change the paradigm of political actors to the independence of the court.
The professional role of judges needs to be established by making them free from otherinfluences. It is also important to keep up the press’ freedom and social control from the people
as an integrated part of judicial independence.
Therefore, the Supreme Court is required to make policy and strategy to achieve theoperational target. Judicial Independence in the management system of administration, includes
preparation to take over the organization, administration and finance handled centrally by theSupreme Court as the first step to a good and credible judicial system. It is to establish theindependence of the judges in creating a qualified judicature. The Supreme Court should be fully
responsible and transparent to the public, so that it can judge cases appropriately andprofessionally and base its decisions on justice and fairness.

−158−JUDICIAL REFORM1: PROSPECTS AND CHALLENGES OF THE
JUDICIARY SYSTEM IN INDONESIA
By
Prof. Dr. Romli ATMASASMITA, SH, LL.M
Head of the National Law Reform Agency, Dept. of Justice and Human Rights, Indonesia
It’s been thirty-five years since its Independence, but the struggle of the judiciary inIndonesia, and its legal reform has not been a successful one. During the 1950’s political turmoils,
some prominent judges of the Supreme Court and the Attorney General made tremendous efforts
to try to uphold their independence, but it ended with grievencies.3 And since then, we have notseen any success in combating corruption in the judiciary system.
The issue of independence within the judiciary has long been debated since the Suharto era,and now new issues have been added such as transparency, accountability, and public access toequal justice.4 I believe that our CJS5 in general and particularly, our judiciary system, faces many
problems ahead because of many factors such as, lack of qualified judges, prosecutors, and thepolice. This is due to the recruitment process; low renumeration which is related to state budget;and a lack of commitment and leadership among criminal justice officials; and corruption withincourt practices involving some lawyers, most of whom are not being prosecuted. And I believe
there are other factors that I cannot reveal in detail here.
Among those factors mentioned, the recruitment process of judiciary personnel is of prime
importance and it should be considered the root of the problem. Recruitment has been carried out
annually based on general rules of recruitment for the civil service. My opinion is that therecruitment for the CJS officials should be handled differently from that of the civil service. It
should be based on certain qualifications such as legal background and a strong commitment to
uphold legal certainty and justice, and to promote and protect human rights. Selection based on aquantity approach should be substituted by a quality approach.
To prevent further deterioration of such recruitment I suggest the staff development
strategy should be changed totally and must define clear criteria for selection, which should be
carried out consistently and without any corrupt practices.
The second factor that should be a priority is how to prevent corrupt practices within the
1 By “Judicial Reform”, I mean, the problems, challenges, and prospects within the context of the Criminal Justice System so as to need to be reformed. “Criminal Justice System”
has four interrelated components: the police, public prosecutors, judges, and correctional officials. “Judiciary system” means the mechanism and procedure of investigation,prosecution, trial, and the execution of the Court ’s decision which intermingle between the police, prosecutors, judges, and the correctional officers
3 I recalled the tragedy of Mr. Suprapto, the then Attorney General in the 1950 ’s who had a strong commitment of combating corruption but he had to sacrifice his right handbecause of a well-planned traffic accident.
4 Debate about “judicial independence” and “judicial responsibility” has been published (1985) with a very comprehensive analysis and has been supported by distinguishedscholars, such as Mauro Cappeleti (Italian), edited by Shimon Shetreet and Jules Deschenes. Cappeleti, in his paper acknowledges three models or types of judicial responsibility.
These models or types are: the repressive model or dependent model; the corporative-autonomous model or separate model, and the responsive or Consumer-Oriented model. The
first model basically referred to as “political-accountability”, which places the judiciary and or judges in a position of subservience. It means that the judiciary or judges areaccountable to the political branches, and especially to the executive. The second model is the exact opposite of the first. It represents the other extreme, i. e. “the absolutization of
the independence ” by making the judiciary totally insulated from the government and society. The third model, then, referred to as “the compromised model” which combines areasonable degree of political and societal responsibility with a reasonable degree of legal responsibility, without, however, either subordinating the judges to the political branches,to political parties, and to other societal organizations, or exposing them to the vexatious suits of irritated litigants.
5 CJS stands for Criminal Justice System.

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CJS. Corrupt practices have been increasing without any action or deterrent effect whatsoever.
This raises strong reactions from the people of this country, especially, from lawyers and people
from the business sectors of foreign countries. The government has promulgated law number 28,
1999, concerned with the registration of the wealth of government officials, and has revised law
number 31, 1999 by law number 20, 2001 concerned with combating corruption. The government
has also promulgated Law number 20, 2002 concerning the crime of money laundering to deter
and to punish those in the private sector who have committed money laundering which indirectly
could prevent further corrupt practices within the private sector.
In my observation, the efforts of combating corruption within the public sector as well as
the private sector has been in vain. Combating corruption especially within the court practices inIndonesia, faces many obstacles such as interference from some members of the legislative
branch as well as from the executive branch. And, yet, the problems have become worse since theon-going “trial by the press”; this has a negative effect upon the Judges’ integrity as well as thetrial process itself. It seems unclear, whether such conduct could be deemed as “obstruction ofjustice” or it might be categorized as “character-assassination”.
Based on such a situation, the solution seems closer to Cappeleti’s third model of judicial
responsibility (see footnote 4). Taking Cappeleti’s model of judicial responsibility, I suggest, the“Autonomous Model or Separation Model”, is the right choice. Obviously, the court
administration should be integrated into the Supreme Court of Justices' administration as it has
been stipulated in Law number 35, 1999.6
However, from the macro-perspective of judicial reform in combating corruption,
eventually we need a comprehensive national plan of action which should be supported by ahigh-tech infrastructure. The high-tech infrastructure will control and monitor the flow of cases ofcorruption, beginning with the police office, the Attorney General’s office up to the Secretariat
General of the Supreme Court of Justice.
Nowadays, a grand design system of monitoring and controlling the flow of cases from the
district court in Kota/Kabupaten up to the Supreme Court is obvious so as to prevent corruption,collusion or nepotism within the CJS.
The same design is very urgent for the Police’ office and the Attorney General’s Office.
The above mentioned proposal actually introduces management by system as opposed to
management by order. This approach, I think, is the sole answer to Cappeleti’s question, “Whowatches the Watchmen?” And, the design should be made sectorally or integrated and acomprehensive approach adopted.7 However, we still need an independent institution to control
and monitor these CJS agencies such as a Judicial Commission.
The next step that has to be taken is the training of the CJS personnel for the purpose of
introducing new technology and enhancing their skill in operating it. Therefore, the government
needs technical assistance from donor countries in the implementation of the new system ofmonitoring and control within the CJS.
6 Under Law number 35, 1999 which revokes Law number 14, 1970, the court administration should be integrated into the Supreme Court administration within 2 (two years) frompromulgation. But, after two years the integration has still not been concluded.
7 Sectorally means each agency such as the head of the police office, Attorney General’s office, the secretariat general of the SC office, and the Directorate General of Prisons,make each design complyto their legal regulations. The integrated and comprehensive approach means, one national system monitoring and controlling the operation of all theagencies tasks involved in CJS.

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Above all, the elements of the nation (politicians, bureaucrats, president and ministers, andsociety) should have one vision and mission in combating corruption and beyond. There is anurgent need to survive from the current crisis of trust as well as the need to recover from theeconomic crisis. Even though it seems that the legal system and law enforcement are desperate,
their future prospects are not hopeless.

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