Dual System of Control of Constitutionality of Acts in Japan : On the Relation between Examination by the Legislative Bureaus and Judicial Review

Abstract

In order to understand the reality of the constitutional review system, it would

be necessary to analyze not merely the modalities of constitutional review by the

judicial branch, but also the integrated government structure as a whole, while

taking into account the function and practices of various prior check systems.

If the function of control of constitutionality is understood merely as ex-post

review by the judicial court, it would lead to an impression that constitutional

review is not always actively exercised in Japan and that the Supreme Court is

not fully performing the function of constitutional review. However, regarding the

Government bills which account for the majority of the bills submitted to the

Diet, prior strict legal scrutiny on a bill by the Cabinet Legislation Bureau is

required. Moreover, the Diet members bills also receive a prior check by the

Legislative Bureau of the House which is an assisting body.

Therefore, it would not be proper to criticize the practices of constitutional

review by the Supreme Court as judicial passivism in the sense that it is not

fully performing the function of constitutional review. Rather, it should be

considered that there are few opportunities for invoking the ex-post review system

effectively, because the prior constitutionality examination by the assisting bodies

of the democratic institutions are effectively functioning.