Ramifications of Supreme Court decision, etc

Before getting into the substance of the title of this post, I should report that in the period since the last post I've managed to file a request for retrial with respect to the supreme court decision from about five years ago that my attorney had decided not to cite in our original petition, as mentioned in earlier posts. there is only a thirty day time limit from the day the supreme court issues a decision to request a retrial--assuming that there is a reason--and considering that they'd handed down the decision on December 24th, just in time for the holiday season, there was very little time.
The retrial will be discussed after the court hands down its decision, but I'll just reiterate now that the supreme court decision that has served as the precedent upon which the retrial was requested relates to Article 24 of the Child Welfare Act. What I'm going to discuss in this post below relates to the clauses of the Administrative Procedure Act and the Constitution.

By refusing to explicitly describe the rationale on the basis of which the court did not recognize our petition to hear the case based on our claims of violations of prior supreme court decision that had become final and binding (at least in the civil law sense of predictability), the Supreme Court has practically gutted Article 5 and Article 8 of the Administrative Procedure Act.

In the last post (Into the Labyrinth), I introduced the two parallel sets of clauses pertaining to Administrative Dispositions upon Application and Adverse Dispositions, respectively. In this post I’m going to introduce three Articles of the Constitution and briefly discuss some points shared in common by the precedents with respect to which the Supreme Court refused to recognize our claims of violation.

This is by no means--obviously--an exhaustive analysis, as I am not an attorney and the issue of precedents appears to be somewhat contentious, not to mention involved. I've been reading a little about the issues and the topic of 'substantive due process', which seems to be that to which this case is most directly relevant.

First, one of the precedents pertained to an disposition upon application relating to a case in which an individual was applying for a license to operate an “individual taxi” business. In that case, reference was made to Article 22 of the Constitution, which pertains to the freedom to choose one’s occupation. That might sound odd to modern Westerners, but there had been a feudal system in place in Japan for an extended period before the so-called modernization of the late 19^th century, which was actually not so modern(ized) in the socio-political sense. The Article secures a right for the individual in terms of a ‘negative liberty’ against an imposed occupation related to class, family, etc.

Article 22 of the Constitution

Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.

Freedom of all persons to move to a foreign country and to divest themselves of their nationality shall be inviolate.

Second, the two other precedents not recognized by the Supreme Court in our case pertained to the reason appended to notification in cases of adverse dispositions related to the sequestering of funds to pay delinquent taxes. All three of the precedents were from prior to the enactment of the Administrative Procedure Act.

Third, the only high court decision pertaining to Articles 5 and 8 of the Administrative Procedure Act was the Tokyo High Court decision of 2000. That case related to the denial of an application to sit for the medical exam to become a licensed physician, and reference to Article 22 of the Constitution was made in that case as well. Furthermore, all three of the precedents we cited were also cited in the Tokyo High Court decision of 2000.

What that all means is that in our case, the nursery school system, which is operated by the Ministry of Health, Labour and Welfare and has been explicitly revised in recent years in a manner such as to facilitate the diversification of careers and working life-styles of women and to also protect a specific right to choose the nursery school in the letter of the law, has been deemed not to merit protection under Article 13 of the Constitution. In other words, though a young mother basically cannot work unless she can place her child in daycare, and the right to guardians to daycare services has been explicitly provided for by Article 24, the situation in which access to daycare represents the ability to work at all has not been afforded the same level of protection as the right to choose one’s occupation provided for under Article 22 of the Constitution.

Article 13 of the Constitution

All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.

Note that the Constitution of the United States does not even explicitly protect the right to “the pursuit of happiness” as in Article 13 of the Constitution of Japan. There implicit protections of that right through case law and the like, and it is not the case that the Japanese Constitution exceeds the protections afforded to Americans, it just articulates them in a more modern form. The key phrase, again, is “to the extent that it does not interfere with the public welfare”. This is not intended as a lesson in law, but in the USA today you have so-called “libertarians” advocating for extreme individual rights over and against the government, and that has always been counter to the role of the Constitution in a Constitutional Republic. The Japanese Constitution—which was drafted by Americans—simply articulates that explicitly. Compared to Article 22, there is a question as to the degree of parallelism related to the definition of the right in terms of a negative liberty, as the scope is broader, extending to “the supreme consideration in legislation and in other governmental affairs”.

The problem is that the Supreme Court of Japan almost never directly recognizes rights as being protected under Article 13, and in our case, the decision was perhaps one of the most resounding denials made by the court in this respect. More detailed analysis will follow in the not-too-distant future.

One other very important point pertains to the relationship of the Administrative Procedure Act to the due process clause of the Japanese Constitution.

Article 31 of the Constitution

No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.

There have been cases in which it has been recognized that Article 31 applies to administrative procedures, not only criminal trials. However, the cases in which rights have been recognized as being protected under Article 31 thus far have been limited to cases of adverse dispositions (Articles 12 and 14 of the Administrative Procedure Act). Accordingly, the refusal of the Supreme Court to recognize our claim that the egregious violations of Articles 5 and 8 of the Administrative Procedure Act are violations of the protection afforded by Article 31 of the Constitution, the Supreme Court has in effect promulgated an intention not to enforce the provisions of Articles 5 and 8, which would seem to signal to lower courts that the provisions offer only weak protection, perhaps opened the door to local administrative agencies to violate those clauses with a higher degree of impunity than would seem to be the case at present.

The following consists of a couple of excerpts from the Tokyo High Court decision, which I will translate into English here eventually.

Tokyo High Court decision of H13.6.14

ア 裁量性ある処分に対する司法審査の視点

本件における厚生大臣の裁量は一見広いようにみえるが、憲法上の制約があることを考慮しなければならない。憲法二二条の定める職業選択の自由は、日本人のみに留保されている特殊な職業を除いて、外国人にも保障されているから、外国人といえども怒意的、差別的な理由で職業選択の自由を害されない権利が憲法二二条及び一四条により保障されている。したがって、この点で、厚生大臣の法（医師法）に基づく裁量は、大きく制限されているのである。

個人タクシー事件最高裁判決が、内部的にせよ審査基準を設定しなければならないという、法律の条文にない新たな要請を創造したのは、個人タクシー事業の免許の拒否は個人の職業選択の自由にかかわりを有することが一つの根拠になっていることに留意すべきである。本件も、控訴人の職業選択の自由にかかわっているので、あるから、個人タクシ一事件最高裁判決にならって、行政の裁量に任せずに、それを制約する法創造的な司法活動を行うことが裁判所に期待されるのである。

そこで検討するに、行政手続法は、行政処分、行政指導及び届出に関する手続に関し、共通する事項を定めることによって、行政運営における公正の確保と透明性（行政上の意思決定について、その内容及び過程が国民にとって明らかで、あること）の向上を図り、もって国民の権利利益の保護に資することを目的として制定されたものであり、そのような目的の下に、申請に対する処分については、審査基準の設定・公表（同法五条）、理由の提示（八条）等の規定を、不利益処分については、聴聞あるいは弁明の機会の付与（一三条）、理由の提示（一四条）、文書等の閲覧（一八条）等の規定を置いているのであるから、行政手続法は、その適用を受ける処分について、申請者等に対し、同法の規定する適正な手続によって行政処分を受ける権利を保障したものとするのが相当である。本件においては、既に籾定したとおり、厚生大臣は、本件認定申請を行った控訴人に対し、審査基準を公表せず、また法律上提示すべきものとされている理由を提示することなく本却下処分を行っているところ、このように行政手続上の規定する重要な手続を履践しないで行われた処分は、当該申請が不適法なものであることが一見して明白であるなどの特段の情のある場合を除き、行政手続法に違反した違法な処分として取消しを免れないものというべきである。そして、前記認定に係る本件却下処分に至るまでの経緯に照らすと、本件において前記特段の事情があるとは到底いえないから、厚生大臣の行った本件却下処分は、違法な処分として、取消しを免れない。