Although several explanations have been offered for the apparent conservatism of
the Supreme Court,
(^59) I would like to emphasize two factors.
The first is the existence of the CLB. Since the CLB has checked the
constitutionality of statutesex ante, the Supreme Court has rarely had a chance
to declare a statute unconstitutional. Between 1947 and 2001 , only five statutes
were declared unconstitutional, and, of these, four were submitted to the Diet as
individual Diet member’s bills and were not reviewed by the CLB initially.^60
The second factor is that the LDP has governed Japan almost without interrup-
tion and appointed justices who share the same political preferences. However, the
relationship between the long rule of the LDP and the conservatism of
the Supreme Court is not so simple. The judiciary was not a mere puppet of the
LDP and the judiciary itself seems to have built up a strong internal system of self-
restraint in order to avoid direct control from politics. The independence of
the lower-court judges was severely controlled not by the LDP, but by the chief
justice and the General Secretariat of the Supreme Court.
61
iii. conclusion
Japanese conservative political forces have been eager not only to revise Article 9 ,
but also to reform the education system. They believe that the curriculum in
postwar Japan has eschewed the teaching of morality and patriotism. Conservatives
have been zealous in their criticism of the teaching of Japanese history, arguing that
the progressive textbooks and pedagogy are the main causes of the dearth of
patriotism being promoted among students. In particular, they have disparaged
textbook accounts portraying Japan’s conduct in the Second World War as aggres-
sive and giving details of incidents such as the Nanjing Massacre and the “comfort
women” system (the Japanese military’s system of forced prostitution). They have
also criticized the attitudes of some teachers who have refused to stand and sing the
national anthem as part of the rituals of school entrance and graduation
ceremonies.
After a long struggle with liberals, conservatives finally succeeded in revising the
Fundamental Law of Education (FLE) in 2006. The FLE was enacted in 1947 and
has been considered a mainstay of the demilitarization and democratization of the
(^59) See Hasebe, “The Supreme Court of Japan,” pp. 298 – 300 ; Law, “The anatomy of a
conservative court,” 1549 – 86 ; Law, “Why has judicial review failed in Japan?,” p. 1425 ;
Matsui, “Why is the Japanese Supreme Court so conservative?,” pp. 1400 – 16.
(^60) Samuels, “Politics, security policy, and Japan’s Cabinet Legislation Bureau,” p. 3.
(^61) David M. O’Brien and Yasuo Ohkoshi, “Stifling judicial independence from within: the
Japanese judiciary,” in Peter H. Russell and David M. O’Brien (eds.),Judicial Independence
in the Age of Democracy: Critical Perspectives from around the World(Charlotteville:
University of Virginia Press, 2001 ), p. 37 ; Law, “The anatomy of a conservative court,” p. 1587.