creation in 1947 , the court has held legislation to be unconstitutional on only eight
occasions. On the other hand, since the court has usually declared statutes to be
constitutional, the net result of the rulings of the court has not departed from the
mainstream of views and preferences of Japan’s long-ruling conservative party,
the LDP. It should also be noted that even in the very rare cases when the court
has declared certain statutes unconstitutional, it barely raised the eyebrows of
conservative politicians.
A revisionist account: the method of limiting construction
Although the Supreme Court has proven reluctant to strike down legislation and
acts deferentially toward the other branches of government, this does not mean that
the court has abandoned its role of scrutinizing laws of the government and
conducting judicial review. The court has generally upheld the validity of laws,
but imposed a limiting construction on rather open-ended terms in statutes.
By giving a limiting construction, the court has imposed limits on legislative
discretion and protected the fundamental rights of citizens. The court’s jurispru-
dence on the tort law of defamation provides a good example.
In Japanese law, defamation gives rise to criminal as well as civil liability.
Article 230 of the Penal Code prohibits the publication of defamatory statements
revealing facts in public. It provides that a person who defames another by alleging
facts in public shall, regardless of whether such facts are true or false, be punished
by imprisonment with or without hard labor for a period not exceeding three years
or a fine not exceeding 500 , 000 yen. This provision was inserted in the Penal Code
under the Constitution of the Empire of Japan (Meiji Constitution), in which the
protection of freedom of speech was weak.
When the Japanese constitution was enacted, the Diet amended the Penal Code
and expanded Article 230 - 2. Section 1 of Article 230 - 2 provides that when an act
prescribed under paragraph ( 1 ) of the preceding Article is found to relate to matters
of public interest and has been conducted solely for the benefit of the public, the
truth or falsity of the alleged facts shall be examined, and punishment shall not
be imposed if they are proven to be true. By adding these exceptions, the Penal
Code gives immunity to those who publish defamatory statements which ( 1 ) relate
to matters of public interest, ( 2 ) are published with the sole purpose of advancing
the public interest, and ( 3 ) can each be proven to be true. This exception clause
still appears to require a defendant to establish the literal truth of the allegedly
defamatory statements in order to avoid liability.
Nevertheless, in the Evening Wakayama Newscase,
37
the court construedArticle 230 - 2 as also giving immunity when the publisher believed mistakenly in
(^3723) Keishu 975 (Sup. Ct. G.B., June 25 , 1969 ).