enhancing, or promoting a specific religion or the effect of oppressing
or interfering with those believing in other religions or those with no
religion.^47
According to a law clerk,^48 “taking into account the fact that the protection of
freedom of religion works in the background, the court ruled that the expulsion was
an abuse of discretion.”^49
Thus, even if we could regard this decision as protecting freedom of religion, we
should admit that it could do so without much constitutional argument.
The Supreme Court thus has oftentimes avoided even constitutional arguments
to protect fundamental rights. In the jurisprudence of the court, constitutional
protection of fundamental rights only works as a background fact.
In this sense, the attitude of the court was peculiar as compared with other
constitutional courts around the world.
Finally, the awakening of the court?
As mentioned above, over the course of its entire existence – a period spanning over
sixty years – the Supreme Court has struck down statutes on only eight occasions,
three of which were in the first decade of the twenty-first century. Before addressing
whether we are now finally witnessing the awakening of judicial review in Japan,
it is necessary to examine briefly a few important cases.
The first case is the 2002 Postal Actcase.
50
The court struck down Articles 68 and73 of the Postal Act because it deemed the government’s liability to be inadequate
in cases where it had mishandled the mail. At issue was the constitutionality of the
provisions of the Postal Act limiting the liability of the postal service for the loss of
registered mail. The Postal Act gave immunity to the government even when the
Post Office intentionally caused damage or was grossly negligent in handling
registered mail, while imposing limited liability only when the registered mail
was lost or damaged. The court found this immunity unreasonable and an uncon-
stitutional violation of the right to seek damages from the government under
Article 17 of the Constitution.
The second case is the 2005 Overseas Voterscase,^51 which the court struck down
as an unjust provision of the Public Office Election Act, which denied the right to
vote to Japanese nationals living abroad. The court held that the right to vote
(^47) Ibid.,p. 479.
(^48) On the role of Japan’s law clerk, see Masako Kamiya, “‘Chosakan’: research judge toiling at
the stone fortress” ( 2011 ) 88 Washington University Law Review 1601.
(^49) Hiroshi Kawakami, “Hanrei kaisetsu (Case account),” in Hosokai (ed.),Saiko Saibansho
Hanrei Kaisetsu Minjihen Heisei Hachi Nendo (Jo)(Case Accounts of the SCJ Cases on
Civil Law in the 1996 Term) (Tokyo: Hosokai, 1999 ), pp. 174 , 185.
(^5056) Minshu 1439 (Sup. Ct., G.B., September 11 , 2002 ).
(^5159) Minshu 2087 (Sup. Ct., G.B., September 14 , 2005 ).