Japan

   

Quality of Democracy

#33
Key Findings
Despite fair and open elections, Japan’s democratic system scores relatively poorly in international comparison (rank 33). Its score on this measure has fallen by 0.3 points since 2014.

The party- and campaign-financing system lacks transparency, and funding scandals remain alarmingly common, though no major incident emerged during the review period. Lower-house electoral districts have been redrawn to diminish size disparities, but an addition of new seats for a densely populated upper-house district was criticized as benefiting the governing LDP coalition.

In several public instances, the government has sought to block public access to records, or even deny that such records existed. The print and broadcast-media sectors are oligopolistically controlled, while online media sources provide more pluralistic, but often one-sided perspectives. Regulations block the use of a false online identity to make political social-media postings.

Civil rights and political liberties are generally protected, but gender discrimination remains significant, with sexual harassment laws inadequate. Anti-terror measures passed in preparation for the 2020 Olympics expand police powers, with critics charging that they undermine existing rights. Right-wing activism, including hate speech, is on the rise. Human trafficking remains a serious problem.

Electoral Processes

#29

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
9
Japan has a fair and open election system with transparent conditions for the registration of candidates. Candidates running in local electoral districts for the Lower House or the Upper House have to pay a deposit of JPY 3 million (around €23,300, plus an additional deposit of JPY 6 million if also running on the party list). This deposit is returned if the candidate receives at least one-tenth of the valid votes cast in the electoral district. The deposit is meant to deter candidatures that are not serious, but in effect presents a hurdle for independent candidates. The minimum age for candidates is 25 for the Lower House and 30 for the Upper House.

Citations:
Leo Lin, The High Cost of Running for Office, Tokyo Review, 28 August 2017, http://www.tokyoreview.net/2017/08/election-deposits-japan/

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
8
Access to the media for electioneering purposes is regulated by the Public Offices Election Law, and basically ensures a well-defined rule set for all candidates. In 2013, the Public Offices Election Law was revised; the new version allows the use of online networking sites such as Twitter in electoral campaigning, as well as more liberal use of banner advertisements. Regulations are in place to prevent abuses such as the use of a false online identity. In view of the alleged misuse of social media to spread disinformation during the 2016 U.S. presidential election and elsewhere, this proved a prescient reform.

The expanded campaign-media options were actively used in the October 2017 Lower House elections, though actual patterns of behavior varied strongly between parties.

Citations:
Nikkei.com: Diet OKs Bill To Allow Online Election Campaign, 19 April 2013

2017 Lower House Election/Parties bet on the web to reach voters, The Japan News by the Yomiuri Shimbun, 16 October 2017, http://the-japan-news.com/news/article/0004006308

Doug Tsuruoka, Asia ahead of US in passing laws against social media abuse, Asia Times, Bangkok, 1 March 2018, http://www.atimes.com/article/asia-ahead-us-passing-laws-social-media-abuse/

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
8
The Japanese constitution grants universal adult suffrage to all Japanese citizens. One exception applies to individuals currently in prison, who are not allowed to vote. Since 2006, Japanese citizens living abroad have also been able to participate in elections. In 2015, the general voting age was lowered from 20 to 18.

One long-standing and controversial issue concerns the relative size of electoral districts. Rural districts contain far fewer voters than the more heavily populated urban areas. In June 2017, the Lower House electoral system was changed to reduce the maximum vote-weight disparity to 1.99 to 1, just under the 2:1 threshold set by the Supreme Court. The number of Lower House seats consequently dropped by 10 to a postwar low of 465 (289 constituency seats, 176 proportional-representation seats).

Vote-weight disparities are even more pronounced for the Upper House. In 2018, the LDP-led coalition passed a law adding two seats in the densely populated Saitama prefecture, as well as four seats deriving from proportional-representation results. This latter move was criticized as partisan, as it may benefit incumbent LDP lawmakers.

Citations:
Tomohiro Osaki, Debate over LDP’s plan to reform electoral system for Upper House heats up, The Japan Times, 11 July 2018, https://www.japantimes.co.jp/news/2018/07/11/national/politics-diplomacy/debate-ldps-plan-reform-electoral-system-upper-house-heats/

Diet finally enacts electoral redistricting law to correct vote weight disparities in Japan, The Japan Times, 9 June 2017, https://www.japantimes.co.jp/news/2017/06/09/national/politics-diplomacy/diet-finally-enacts-electoral-redistricting-law-correct-vote-weight-disparities-across-japan/

Hiroshima court rules law denying inmates right to vote constitutional, The Japan Times, 21 July 2016, https://www.japantimes.co.jp/news/2016/07/21/national/crime-legal/hiroshima-court-rules-denial-inmates-right-vote-constitutional/

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
6
Infringements of the law governing political-party financing are common in Japan. To some extent, the problems underlying political funding in Japan are structural. Under the multi-member constituency system that existed until 1993, most candidates tried to elicit support by building individual and organizational links with local voters and constituent groups, which was often a costly undertaking. Over time, these candidate-centered vote-mobilizing machines (koenkai) became a deeply entrenched fixture of party politics in Japan. Even under the present electoral system, many politicians still find such machines useful. The personal networking involved in building local support offers considerable opportunity for illicit financial and other transactions. While the Political Funds Control Law requires parties and individual politicians to disclose revenues and expenditures, financial statements are not very detailed.

No major campaign-finance scandal surfaced during the period under review. Still, it is disappointing that no action has been taken to revise the existing laws despite the past recurrence of such issues.

Citations:
Philip Brasor, Fundraising loopholes, a political norm, The Japan Times, 15 July 2017, https://www.japantimes.co.jp/news/2017/07/15/national/media-national/fundraising-loopholes-political-norm/

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
3
Politically binding popular decision-making does not exist in Japan, at least in a strict sense. At the local and prefectural levels, referendums are regulated by the Local Autonomy Law. They can be called if 2% of the voting population demands them. However, referendum results are non-binding for local and prefectural assemblies.

A National Referendum Law took effect in 2010. It was revised in 2014 to lower the minimum age for voting on constitutional amendments from 20 to 18, taking effect in 2018. According to the law, any constitutional change has to be initiated by a significant number of parliamentarians (100 Lower House members or 50 Upper House members) and has to be approved by two-thirds of the Diet members in both chambers. If this happens, voters are given the opportunity to vote on the proposal.

The Abe government has indicated plans to call such a referendum for the first time in postwar history, supported by its retention of a two-thirds majority in the 2017 Lower House election. This means that practical questions are coming to the fore as the process is in fact somewhat under-regulated, for instance with respect to the allowable range of political commercials.

Despite the legal strictures, nonbinding referendums have played an increasingly important role in Japan’s regional politics in recent years, particularly with respect to the debate over nuclear energy.

Citations:
Gabriele Vogt, Alle Macht dem Volk? Das direktdemokratische Instrument als Chance für das politische System Japans, in: Japanstudien 13, Munich: Iudicium 2001, pp. 319-342

Tomoya Ishikawa, Critics seek level playing field in referendum on Constitution, The Asahi Shimbun, 22 June 2017, http://www.asahi.com/ajw/articles/AJ201706220001.html

Liberal Democratic Party won’t present Constitution revision plan to Diet this year, The Japan Times, 28 November 2018, https://www.japantimes.co.jp/news/2018/11/28/national/politics-diplomacy/ldp-not-present-constitution-revision-plan-diet-year/

Access to Information

#35

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
4
Japanese media are largely free to report the news without significant official interference. While the courts have ruled on a few cases dealing with perceived censorship, there is no formal government mechanism that infringes on the independence of the media. The NHK, the major public broadcasting service, has long enjoyed substantial freedom. However, the Abe-led government has pursued a more heavy-handed approach since 2013, highlighted by a number of controversial appointments of conservatives to senior management and supervisory positions.

In practice, many media actors are hesitant to take a strong stance against the government or expose political scandals. Membership in government-associated journalist clubs has long offered exclusive contacts. Fearful of losing this advantage, representatives of the established media have frequently avoided adversarial positions.

As a result of the passage of the State Secrets Act, which came into effect in 2014, journalists and others charged with leaking relevant information now face jail sentences of up to five years. What exactly constitutes “state secrets” is left very much up to the discretion of the government agencies in question.

In recent years, Japan’s ranking in the World Press Freedom Index has plummeted, from 22nd place in 2013 to 67th in 2018. This is the lowest rank among the G-7. During the reporting period, however, no major new scandal in this area emerged.

Citations:
Chisato Tanaka, Japan’s press freedom ranking risis in 2018 - due in part to deteriorating conditions elsewhere, The Japan Times, 25 April 2018, https://www.japantimes.co.jp/news/2018/04/25/national/japans-press-freedom-ranking-rises-2018-due-part-deteriorating-conditions-elsewhere/

Daisuke Nakai, The Japanese Media in flux: Watchdog or Fake News?, Forum Report 013, Suntory Foundation, April 2018, download from https://www.suntory.com/sfnd/jgc/forum/013/index.html

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
6
Japan has an oligopolistic media structure, with five conglomerates controlling the leading national newspapers and the major TV networks. These include Asahi, Fuji Sankei, Mainichi, Yomiuri and the Nihon Keizai Group. Another major force is NHK, the public broadcasting service, which rarely criticizes the status quo. The NHK director-general installed by the LDP-led government in 2013 has made it clear that he intends to follow the government’s viewpoint. The main media groups also tend to avoid anything beyond a mildly critical coverage of issues, although a variety of stances from left-center (Asahi) to conservative-nationalistic (Sankei) can be observed.

Generally speaking, the small group of conglomerates and major organizations dominating the media does not capture the pluralism of opinions in Japan. Regional newspapers and TV stations are not serious competitors.

However, new competition has emerged from international media, and particularly from interactive digital-media sources such as blogs, bulletin boards, e-magazines and social networks. Their use is spreading rapidly, while the circulation of traditional newspapers is in decline. Currently, the biggest online news source is Yahoo! Japan, which is increasing the amount of original content it produces. The loss of public trust in the government and major media organizations may have intensified the move toward greater use of independent media channels, also opening some new potential for independent investigative journalism. A number of news sites have run into serious financial trouble, however. Such channels tend to cater to their specific audiences, however. So while there is more pluralism, there is also a tendency toward increasingly one-sided interpretations of events. Among Japanese youths, right-wing internet channels have gained a considerable following.

Citations:
Alessia Cerantola, Investigative Journalism in Japan: Tough Times But Signs of Hope, Global Investigative Journalism Network, 6 July 2017, https://gijn.org/2017/07/06/investigative-journalism-in-japan-tough-times-but-signs-of-hope/

Yasuomi Sawa, Japan Digital News Report 2018, Reuters Institute for the Study of Journalism, http://www.digitalnewsreport.org/survey/2018/japan-2018/

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
5
Japan’s Act on Access to Information held by Administrative Organs came into effect in 2001, followed in 2002 by the Act on Access to Information held by Independent Administrative Agencies. The 2011 Public Records Act provides the basis for information access in Japan. In legal terms, Japan is among the leaders with respect to open-government information policies, according to the OECD’s 2017 OURdata index.

However, a number of issues remain. Various exemptions apply, for instance with respect to information regarding specific individuals, national security issues or confidential business matters. Claims can be denied and the head of the agency involved has considerable discretion. Appeals are possible but only in court, which involves a very burdensome process.

In a case highly publicized in 2017, the process through which a right-wing private school in Osaka, Moritomo Gakuen, had received public land came under scrutiny. The Ministry of Finance had designated almost all relevant files as requiring preservation for less than one year, and had accordingly destroyed them.

During the reporting period, controversial cases emerged in a number of fields, underlining the inadequacy of existing rules. In the course of a panel discussion, representatives of the Ministry of Internal Affairs and Communications denied the existence of certain records requested by a newspaper, although they did in fact exist. The Defense Ministry had to concede the existence of a number of records relating to the engagement of the Self Defense Forces in Iraq, which had previously been deemed to be missing. Moreover, it became known that ministries had given some documents obscure names to make it more difficult for the public to obtain information.

The controversial 2014 State Secrets Law gives ministries and major agencies the power to designate government information as secret for up to 60 years. There are no independent oversight bodies controlling such designations. Whistleblowing can be punished by up to 10 years in prison, and even trying to obtain secrets can result in jail terms of up to five years. Critics argue that governments may be tempted to misuse this new law. Moreover, the rights and powers of two Diet committees tasked with overseeing the law’s implementation have been criticized as being too weak. A total of 444,000 public documents were destroyed in 2016 under a loophole in the Secrets Law applying to short-term measures lasting less than one year. While new, somewhat stricter rules were introduced in April 2018, their value is doubtful, as the process remains under government control.

Citations:
Lawrence Repeta, Backstory of Abe’s Snap Election – the Secrets of Moritomo, Kake and the “Missing” Japan SDF Activity Logs, The Asia-Pacific Journal/Japan Focus, Vol. 15, Issue 20, No. 6, 15 October 2017

State Secrets being shredded under legal loophole in divisive 2014 law, The Japan Times, 4 May 2017, https://www.japantimes.co.jp/news/2017/05/04/national/politics-diplomacy/state-secrets-shredded-legal-loophole-divisive-2014-law/

N.N., Ministry excluded panel discussion records from freedom of information request, The Mainichi 21 July 2018, https://mainichi.jp/english/articles/20180721/p2a/00m/0na/018000c

Daisuke Kikuchi, Defense Minister Itsunori Onodera announces a fresh set of SDF logs from Iraq have been found in growing scandal, The Japan Times, 6 April 2018, https://www.japantimes.co.jp/news/2018/04/06/national/politics-diplomacy/defense-minister-itsunori-onodera-announces-fresh-set-sdf-logs-iraq-found-growing-scandal/

N.N., Deliberately obscure gov’t file names leave Japan’s National Archives at a loss, The Mainichi, 6 August 2018, https://mainichi.jp/english/articles/20180806/p2a/00m/0na/030000c

Jiji, New rules on managing public documents take effect amid Moritomo scandal but critics demand more safeguards, The Japan Times, 1 April 2018, https://www.japantimes.co.jp/news/2018/04/01/national/politics-diplomacy/new-rules-managing-public-documents-take-effect-amid-moritomo-scandal-critics-demand-safeguards/

Civil Rights and Political Liberties

#28

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
6
Civil and human rights are guaranteed under the Japanese constitution. However, courts are often considered overly tolerant of alleged maltreatment by police, prosecutors or prison officials. Moreover, existing laws give prosecutors and the police substantial leeway in this area. Arrested suspects can be kept in prison for 23 days without a formal charge being lodged, with a further 10 days of detention possible upon request. LDP-led governments have made little effort to address such issues. Critics have demanded – to date unsuccessfully – the creation of independent agencies empowered to investigate claims of human rights abuses. There is no national or Diet-level ombudsperson or committee tasked with reviewing complaints. Citizens have no legal ability to take their complaints to a supra- or international level. Unlike 35 other UN member states, Japan has not signed the so-called Optional Protocols to the International Covenant on Civil and Political Rights.

As the ILO noted when introducing international harassment guidelines in 2018, Japan has no adequate rules in place relating to issues of sexual or job-related harassment.

Japan has been widely criticized for its harsh prison conditions, and for being one of the few advanced countries still to apply the death penalty. Prisoners are given only a few hours’ notice before executions, and families are usually informed afterward. In 2018, 13 members of the Aum Shinrikyo movement, which was responsible for the 1995 Sarin attack in Tokyo’s subway, were executed by hanging. For 10 of them, appeals for retrial were still pending.

The controversial anti-conspiracy/anti-terror legislation of 2017, passed in preparation for the Tokyo Olympics in 2020, threatens to undermine civil liberties. Police powers have been expanded under the law, and courts are traditionally reluctant to interfere.

Citations:
United Nations Human Rights, Japan Webpage, http://www.ohchr.org/EN/countries/AsiaRegion/Pages/JPIndex.aspx

Justin McCurry, Japan passes ‘brutal’ counter-terror law despite fears over civil liberties, The Guardian, 15 June 2017, https://www.theguardian.com/world/2017/jun/15/japan-passes-brutal-new-terror-law-which-opponents-fear-will-quash-freedoms

N.N., Aum cultists swiftly executed to avoid marring Tokyo Olympics, The Asahi Shimbun, 27 July 2018, http://www.asahi.com/ajw/articles/AJ201807270051.html

Jake Adelstein, 23 days later: Getting arrested in Japan, The Japan Times, 28 November 2018, https://www.japantimes.co.jp/news/2018/12/01/national/media-national/23-days-later-getting-arrested-japan/

N.N., Japan lagging behind in attitude toward punishment for power, sexual harrassment, The Mainichi, 23 September 2018, https://mainichi.jp/english/articles/20180923/p2a/00m/0na/005000c

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
9
The freedoms of speech, the press, assembly and association are guaranteed under Article 21 of the constitution. Reported infringements have been quite rare, though it has often been claimed that the police and prosecutors are more lenient toward vocal right-wing groups than toward left-wing activists.

That are concerns that the new 2017 anti-conspiracy laws, passed in preparation for the 2020 Tokyo Olympics, could undermine political liberties. Under these rules, “words” rather than simply “deeds” can be grounds for prosecution.

There is also concern that right-wing activism, including so-called hate speech, is on the rise, and that this might actually be supported by ruling politicians. Some senior LDP politicians have been linked to ultra-right-wing groups.

An anti-hate-speech law has been in place since 2016, but has run into problems in terms of implementation. In particular, conflicts exist between efforts to guarantee free speech and to allow the operation of open public services such as websites that enable public comments. The Tokyo High Court ruled in 2018 that Saitama Prefecture had to financially compensate a woman whose nationalistic haiku, a type of poem, was refused by a community-center newsletter.

Citations:
Michael Hoffman, Is Japan slipping into prewar politics?, The Japan Times, 3 June 2017, https://www.japantimes.co.jp/news/2017/06/03/national/media-national/japan-slipping-prewar-politics/

N.N., High court’s haiku ruling upholds freedom of speech (Editorial), The Asahi Shimbun, 21 May 2018, http://www.asahi.com/ajw/articles/AJ201805210028.html

Kyodo, Lacking direction from Tokyo, Japan’s municipalities struggle to implement anti-hate speech law, The Japan Times, 24 May 2018, https://www.japantimes.co.jp/news/2018/05/24/national/lacking-direction-tokyo-japans-municipalities-struggle-implement-anti-hate-speech-law/

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
5
Women still face some discrimination, particularly in the labor market. Women’s average salaries remain 27% below those of their male colleagues (based on 2016 data). The country’s share of female parliamentarians – 9% according to World Bank data for 2017 – is low by the standards of other advanced countries. Prime Minister Abe has called women “Japan’s most underused resource,” and the government has designated “womenomics” as a key pillar of its reform program. Programs being implemented under this rubric include child care support and similar measures. Still, given the persistent undercurrent of sexism in Japanese society, de facto workplace discrimination will be hard to overcome. In 2018, a scandal emerged in which Tokyo Medical University was shown to have given female applicants artificially low scores in order to ensure the enrollment of more male students, a practice the government called “extremely disturbing.”

The 3 million descendants of the so-called burakumin, an outcast group during the feudal period, still face social discrimination, though it is difficult for the government to counter this. Korean and Chinese minorities with permanent resident status also face some social discrimination. Naturalization rules have been eased somewhat in recent years. Workers from the Philippines, the Middle East and elsewhere frequently complain of mistreatment and abuses. According to a 2016 – 2017 Ministry of Justice survey, one in three foreigners have experienced discrimination in the form of derogatory remarks, housing discrimination or similar such behavior.

Japan continues to have a rather serious human-trafficking problem with respect to menial labor and the sex trade, in some cases affecting underage individuals.

The treatment of refugees and asylum-seekers is frequently the subject of criticism. Asylum status is still rarely granted – only 20 asylum-seekers saw their applications approved in 2017, down from 28 a year before – despite the rising number of applications (19,629 in 2017).

Citations:
Akiko Fujita and Afifah Darke, As Abe injects fresh fiscal stimulus, how is Japan’s ‘womenomics’ faring?, CNBC News, 3 August 2016, http://www.cnbc.com/2016/08/03/as-abe-injects-fresh-fiscal-stimulus-how-is-japans-womenomics-faring.html

Daniel Hirst, Japan racism survey reveals one in three foreigners experience discrimination, The Guardian, 31 March 2917, https://www.theguardian.com/world/2017/mar/31/japan-racism-survey-reveals-one-in-three-foreigners-experience-discrimination

Murakami, Yumiko, Gender discrimination: Nation’s dignity is being questioned (Opinion), The Japan Times, 13 August 2018, https://www.japantimes.co.jp/opinion/2018/08/13/commentary/japan-commentary/gender-discrimination-nations-dignity-questioned/

Chisato Tanaka, Japan’s refugee-screening system sets high bar, The Japan Times, 21 May 2018, https://www.japantimes.co.jp/news/2018/05/21/reference/japans-refugee-screening-system-sets-high-bar/

Rule of Law

#35

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
6
In their daily lives, citizens enjoy considerable predictability with respect to the rule of law. Bureaucratic formalities can sometimes be burdensome but also offer relative certainty. Nevertheless, regulations are often formulated in a way that gives considerable latitude to bureaucrats. For instance, needy citizens have often found it difficult to obtain welfare aid from local-government authorities. Such discretionary scope is deeply entrenched in the Japanese administrative system, and offers both advantages and disadvantages associated with pragmatism. The judiciary has usually upheld discretionary decisions by the executive. However, the events of 3/11 exposed the judicial system’s inability to protect the public from irresponsible regulation related to nuclear-power generation. Some observers fear that similar problems may emerge in other areas as well.

In a more abstract sense, the idea of the rule of law per se does not command much of a following in Japan. Following strict principles without accounting for changing circumstances and conditions would be seen as naïve and nonsensical. Rather, a balancing of societal interests is seen as demanding a pragmatic interpretation of the law and regulations. Laws, in this generally held view, are supposed to serve the common good, and are not meant as immutable norms to which one blindly adheres.

Citations:
Carl F. Goodman: The Rule of Law in Japan: A Comparative Analysis, The Hague: Kluwer Law International, 2003

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
6
Courts are formally independent of governmental, administrative or legislative interference in their day-to-day business. The organization of the judicial system and the appointment of judges are responsibilities of the Supreme Court. Thus, the behavior of Supreme Court justices is of significant importance. Some critics have lamented a lack of transparency in Supreme Court actions. Moreover, the court has an incentive to avoid conflicts with the government, as these might endanger its independence in the long term. This implies that it tends to lean somewhat toward government positions so as to avoid unwanted political attention. Perhaps supporting this reasoning, the Supreme Court engages only in judicial review of specific cases, and does not perform a general review of laws or regulations. Some scholars say that a general judicial-review process could be justified by the constitution.

The conventional view is that courts tend to treat government decisions quite leniently, although recent evidence is more mixed. In early 2018, for example, the Supreme Court ruled that some information from documents related to the government’s secret funds had to be disclosed.

Citations:
Kyodo, Supreme Court orders partial disclosure of documents detailing Japanese government’s secret funds, The Japan Times, 19 January 2018, https://www.japantimes.co.jp/news/2018/01/19/national/crime-legal/supreme-court-orders-partial-disclosure-documents-detailing-japanese-governments-secret-funds/

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
2
According to the constitution, Supreme Court justices are appointed by the cabinet, or in the case of the chief justice, named by the cabinet and appointed by the emperor. However, the actual process lacks transparency. Supreme Court justices are subject to a public vote in the Lower House elections following their appointment, and to a second review after 10 years if they have not retired in the meantime. These votes are of questionable value, as voters have little information enabling them to decide whether or not to approve a given justice’s performance. In all of postwar history, no justice has ever been removed through public vote. In response to the call for more transparency, the Supreme Court has put more information on justices and their track record of decisions on its website.

Citations:
Supreme court justice national review looms on same day as Oct. 22 general election, The Mainichi, 16 October 2017, https://mainichi.jp/english/articles/20171016/p2a/00m/0na/002000c

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
5
Corruption and bribery scandals have emerged frequently in Japanese politics. These problems are deeply entrenched and are related to prevailing practices of representation and voter mobilization. Japanese politicians rely on local support networks to raise campaign funds and are expected to “deliver” to their constituencies and supporters in return. Scandals have involved politicians from most parties except for the few parties with genuine membership-based organizations (i.e., the Japanese Communist Party and the Komeito).

However, financial and office-abuse scandals involving bureaucrats have been quite rare in recent years. This may be a consequence of stricter accountability rules devised after a string of ethics-related scandals came to light in the late 1990s and early 2000s. A new criminal-justice plea-bargaining system implemented in June 2018 is expected to create additional pressure on companies to comply with anti-corruption laws.

In the past, the country has had a reputation for weak enforcement with respect to anti-bribery enforcement abroad – an issue relevant for Japan’s multinational companies. In response, Japan decided in 2017 to join the UN Convention against Transnational Crime and the UN Convention against Corruption, which have respectively existed since 2000 and 2005.

Citations:
UNODC Chief welcomes Japan’s decision to join crime and corruption conventions, United Nations Office on Drugs and Crime, 12 July 2017, https://www.unodc.org/unodc/en/press/releases/2017/July/unodc-chief-welcomes-japans-decision-to-join-crime-and-corruption-conventions.html

N.N., Build public trust in the plea bargaining system (Opinion), The Japan Times, 1 June 2018, https://www.japantimes.co.jp/opinion/2018/06/01/editorials/build-public-trust-plea-bargain-system/
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