Business law essay

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BUSL377 Japanese Trade Law Week 2 – Governmental Structure and the Constitution

Dr Kay-Wah Chan E4A 241 Tel: 9850 7088 Email: [email protected] (2017)

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Note:

 If there is any discrepancy between the Textbook and these slides/lecture notes, follow these slides/lecture notes.

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Structure of the State

The Emperor (Akihito) • The symbol of Japan and of the unity of the

people

Government (Separation of powers)

 Legislative: The National Diet

 Executive: The Cabinet

 Judiciary: Courts (Supreme Court and lower courts)

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Legislative: The National Diet

 House of Representatives • 475 members (at least 25 years old) • four-year terms

 House of Councillors • 242 members (at least 30 years old) • six-year terms • half of the members to be elected every 3 years

 Members of both Houses elected by universal suffrage among citizens of 18 years old or above

 Legislative procedure (Week 3)

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Executive: The Cabinet

Members:

1. Prime Minister – The head of the Cabinet

– Appointed by the Emperor as designated by the National Diet

– Designated from among the National Diet members by a resolution of the National Diet

– Current PM: Shinzo ABE (安倍晋三)

2. Not more than 17 ministers of state – Appointed and removed by the Prime Minister

– A majority of them must be from among the members of the National Diet2017 5

The Cabinet  Collectively responsible to the National Diet  Power/functions:

1. Its advice and approval is required for all acts of the Emperor in matters of state (Art. 3, the Constitution)

2. (Art. 73, the Constitution): in addition to other general administrative functions:

a. Administer the law faithfully b. Conduct affairs of the state c. Manage foreign affairs d. Conclude treaties (approval from National Diet required) e. Prepare the budget and present it to the National Diet f. Enact cabinet orders to execute the provisions of the

Constitution or of the law g. Administer the civil service h. Etc.

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The Cabinet  Power/functions:

3. Designate the Chief Justice of the Supreme Court (to be appointed by the Emperor) (Art. 6, the Constitution)

4. Appoint the Justices (except the Chief Justice) of the Supreme Court (Art.79, the Constitution) and judges of lower courts (Art. 80, the Constitution)

5. The PM, representing the Cabinet, submit bills to the Diet (Art. 72, the Constitution)

 The Cabinet performs its functions through Cabinet Meeting, which is presided by the PM.

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Executive: The Cabinet

1. The Cabinet Office (内閣府) (headed by the PM) a. Imperial Household Agency (宮内庁) b. National Public Safety Commission (国家公安委員会)

i. National Police Agency (警察庁) c. Japan Fair Trade Commission (公正取引委員会) d. Financial Services Agency (金融庁)

2. Cabinet Secretariat (内閣官房) a. Cabinet Legislation Bureau (内閣法制局) b. National Personnel Authority (人事院)

3. Eleven (11) ministries (increased from ten on 9 January 2007)

Board of Audit (会計検査院) 2017 8

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Ministries 1. Ministry of Internal Affairs and Communications（総

務省）

2. Ministry of Justice （法務省） • Public Prosecutors Office

3. Ministry of Finance （財務省） • National Tax Agency

4. Ministry of Economy, Trade and Industry (METI) （経 済産業省）

• Japan Patent Office （特許庁） • Small and Medium Enterprise Agency （中小企業庁） • Agency for Natural Resources and Energy （資源エネルギー

庁）

5. Ministry of Defense （防衛省） (upgraded from The Japan Defense Agency on 9 January 2007)

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Ministries

6. Ministry of Foreign Affairs (外務省)

7. Ministry of Education, Culture, Sports, Science and Technology (文部科学省) (MEXT)

8. Ministry of Health, Labour and Welfare (厚生労働省)

9. Ministry of Agriculture, Forestry and Fisheries (農林水 産省)

10. Ministry of Land, Infrastructure, Transport and Tourism (国土交通省)

11. Ministry of the Environment (環境省)

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Judicial Branch: Courts

 Details in Week 3

Supreme Court

High Courts

District Courts

Summary Courts

Family Courts

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Checks and Balances between the three branches of the Government

 Between Executive (the Cabinet) and Legislative (the Diet): • The Cabinet is collectively responsible to the

Diet

• Majority of ministers of state must be members of the Diet

• If the House of Representatives pass a no- confidence resolution against the Cabinet, then the Cabinet has to resign en masse unless the House of Representatives is dissolved within 10 days

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Checks and Balances between the three branches of the Government

 Between Executive (the Cabinet) and Legislative (the Diet): • The Cabinet can dissolve the House of

Representatives (N.B. the House of Councillors cannot be dissolved.)

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Checks and Balances between the three branches of the Government

 Between Executive (the Cabinet) and Judicial branch (the Courts/Judiciary): • The Cabinet designates the Chief Justice of the

Supreme Court and appoint the other judges

• The Judiciary rules on administrative litigation and the constitutionality of executive orders etc.

• No disciplinary action against judges shall be administered by any executive organ or agency (Art.78, the Constitution)

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Checks and Balances between the three branches of the Government

 Between Legislative (the Diet) and Judicial branch (the Courts/Judiciary): • The Judiciary rules on the constitutionality of laws

passed by the Diet (Art. 81, the Constitution)

• Judges cannot be removed except by impeachment or judicially declared mentally or physically incompetent to perform official duties (Art. 78, the Constitution)

• The Diet’s Judges Impeachment Court (composed of 14 Diet members) can impeach judges

More details on appointment of judges in Week 3.

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The Constitution

 Promulgated on 3 November 1946

 Effective from 3 May 1947

 Consisted of a Preface and eleven Chapters

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The Constitution

 Preface

 Chapter 1: the Emperor

 Chapter 2: renunciation of war

 Chapter 3: rights and duties of the People

 Chapter 4: the Diet

 Chapter 5: the Cabinet

 Chapter 6: the judiciary

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The Constitution

 Chapter 7: finance

 Chapter 8: local self-government

 Chapter 9: amendments of the Constitution

 Chapter 10: supremacy of the Constitution

 Chapter 11: supplementary provisions

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The Constitution

Three main principles:

1. People’s sovereignty

2. Pacifism

3. Human rights

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The Constitution – Chapter 1 (the Emperor)

Article 1: symbol of the state and of the unity of the People

Article 3: advice and approval of the Cabinet required for all acts of the Emperor in matters of state

Article 4: no power related to government other than performance of such acts in matters of state as provided in the Constitution

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The Constitution – Chapter 1 (the Emperor) Article 7 provides for the Emperor’s acts in matters

of state: • Promulgation of amendments of the constitution, laws

etc. • Convocation of the Diet • Dissolution of the House of Representatives • Attestation of the appointment and dismissal of

Ministers of State etc. • Awarding of honors • Performance of ceremonial functions • Etc.

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The Constitution – Chapter 1 (the Emperor)

Article 6:

 appointment of PM as designated by the Diet

 appointment of the Chief Justice of the Supreme Court as designated by the Cabinet

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The Constitution – Chapter 2

 Only one article: Article 9

 Renunciation of war

 Controversy over amendment or not

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The Constitution – Chapter 3 (Rights and duties of the People)

 Guarantee of human rights and equality

 A kind of social reform

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The Constitution – Chapter 3 (Rights and duties of the People)

Article 11: general provision on human rights

Article 13: each person respected as an individual

Article 14: equality under the law

Article 19: freedom of thought and conscience

Article 20: freedom of religion

The State refrains from religious

education & activity

Article 21: freedom of assembly, speech and press

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The Constitution – Chapter 3 (Rights and duties of the People)

Article 23: academic freedom Article 26: equality of education Article 28: labour rights Article 32: right of access to courts Article 37: right to speedy trial in criminal

cases and right of the accused to legal representation

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The Constitution – Chapter 9 (Amendments) Article 96:

Amendments of the Constitution needs:

 Initiation by the Diet

 Concurring vote of two-thirds or more of all members of each House

 Referendum: with affirmative vote of a majority of the votes cast

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The Constitution – Chapter 10 (Supremacy of the Constitution) Article 98:

 The Constitution is the supreme law of the nation

 law, ordinance, imperial rescript or other act of government, which are contrary to the provisions of the Constitution, do not have legal force or validity

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Reference List

 Hiroshi Oda, Japanese Law (2nd Edition and 3rd Edition).

 Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Hart, Oxford and Portland, 2011).

 The Constitution 1946.

 The National Diet Act (Law No.79 ,1947).

 The Cabinet Act (Law No.5, 1947).

 The Public Offices Election Act (Law No.100, 1950).

 The Cabinet Office Establishment Act (Law No.89, 1999).

 The National Government Organization Act (Law No.120, 1948).

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