Japan

   

Quality of Democracy

#34
Key Findings
With a number of varied concerns, Japan’s democratic system scores relatively poorly in international comparison (rank 34). Its score on this measure has fallen by 0.5 points since 2014.

The party- and campaign-financing system lacks transparency, and funding scandals remain alarmingly common. Lower-house electoral districts have been redrawn to diminish size disparities. Disparities in upper-house district sizes have been ruled unconstitutional by courts.

The government has actively acted to block access to records, or in some cases deliberately failed to keep records of key meetings. The print and broadcast-media sectors are oligopolistically controlled. Government pressure has led to policy changes at some major media outlets. Citizens enjoy considerable predictability with regard to the rule of law.

Gender discrimination remains significant. While civil rights are generally protected, law enforcement has broad powers over suspects. 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

#30

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 or upper house of parliament have to pay a deposit of JPY 3 million (around €25,000, plus a deposit of JPY 6 million if also running on the party list). This deposit is returned if certain conditions are met in terms of vote shares received (individual candidates) or the number of seats won (party list). 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. Since 2013 the law has allowed the use of social media such as Twitter in electoral campaigning as well as more liberal use of banner advertisements. The use of such campaign-communications tools has varied among parties and candidates. Regulations are in place to prevent abuses such as the use of false online identities.

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

Narumi Ota, Abe using star power, social media to appeal to young voters, The Asahi Shimbun, 3 July 2019, http://www.asahi.com/ajw/articles/AJ201907030064.html

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. The voting age is 18. 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.

One long-standing issue concerns the relative size of electoral districts as rural districts contain far fewer voters than urban areas. In June 2017 the lower house electoral system was amended to reduce the maximum vote-weight disparity to 1.99 to 1, just under the 2:1 threshold set by the Supreme Court and confirmed in a December 2018 ruling.

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 party-list seats. The maximum vote-weight disparity in the July 2019 upper house elections was 3:1. In October 2019, the Takamatsu High Court ruled that this level of disparity was unconstitutional, but did not nullify the election results. Other rulings are still pending.

Citations:
Supreme Court rules vote-value disparity under 2 constitutional, The Asahi Shimbun, 19 December 2018, http://www.asahi.com/ajw/articles/AJ201812190057.html

Court rules July poll result was ‘unconstitutional’ due to vote disparity, The Japan Times, 16 October 2019, https://www.japantimes.co.jp/news/2019/10/16/national/politics-diplomacy/court-calls-july-poll-result-question-vote-disparity/

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/

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
5
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 electoral 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.

It is very disappointing that no action has been taken to revise existing laws despite the recurrence of problems. In late 2018, several cases of allegedly incorrect funding reports came to light, involving two cabinet ministers among others. In September 2019, Education Minister Koichi Hagiuda was accused of receiving illicit donations, and in August 2019, Vice Health Minister Hiroshi Ueno resigned due to a scandal relating to illicit payments.

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/

Vice health minister resigns, denies seeking illicit payments, The Asahi Shimbun, 29 August 2019, http://www.asahi.com/ajw/articles/AJ201908290052.html

Thisanka Siripala, Japan’s Latest Cabinet Reshuffle Plagued by Bribery Scandal, The Diplomat, 18 September 2019, https://thediplomat.com/2019/09/japans-latest-cabinet-reshuffle-plagued-by-bribery-scandal/

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. A referendum can be called if demanded by 2% of the voting population, but any such results are non-binding for local and prefectural assemblies. Despite the legal strictures, referendums have played an increasingly important role in Japan’s regional politics in recent years. In February 2019, citizens in Okinawa prefecture voted against the construction of a new U.S. base to replace an older one. However, the national government intends to proceed with its plans.

A National Referendum Law took effect in 2010. Since 2018, the minimum age for voting on constitutional amendments has been 18. 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. Practical issues have thus come to the fore. A revised referendum law was planned for 2019, but was delayed due to resistance by the opposition.

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

Okinawa: Tokyo to overrule referendum on US base, BBC News, 25 February 2019, https://www.bbc.com/news/world-asia-47353504

Referendum Law Revision Passage during Current Session Very Unlikely, Nippon.com, 20 November 2019, https://www.nippon.com/en/news/yjj2019112000995/referendum-law-revision-passage-during-current-session-very-unlikely.html

Access to Information

#36

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
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 6


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

Apparently bowing to government pressure, Japan’s largest English-language newspaper, The Japan Times, announced in November 2018 that it would no longer refer to “forced laborers,” but would instead use the term “wartime laborers.” It also said it would revise its definition of “comfort women,” no longer defining these as women “forced” to provide sex to the Japanese army during the war effort, but rather as “women who worked in brothels, including women who did so against their will.” Some major Japanese-language newspapers including the Asahi shimbun, the Mainichi shimbun and the Tokyo shimbun have to date withstood pressure to engage in this form of “language revisionism.” Japan’s ranking in the World Press Freedom Index has plummeted in recent years, from 22nd place in 2013 to 67th in 2019, the lowest rank among G-7 members.

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.

The Ministry of Internal Affairs and Communications (MIC) formed a Platform Services Study Group in 2018 to discuss measures combating misinformation (“fake news”) on social and possibly other forms of media.

Citations:
Arielle Busetto, Press Freedom in Japan: When A Discussion Isn’t A Discussion, Japan Forward, 10 January 2019, https://japan-forward.com/press-freedom-in-japan-when-a-discussion-isnt-a-discussion/

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

Umeda, Sayuri, Initiatives to Counter Fake News: Japan, Library of Congress (United States) Legal Reports, April 2019, https://www.loc.gov/law/help/fake-news/japan.php

Human Rights Now, HRN gives an Oral Statement at the 41st Human Rights Council Session on Freedom of the Press in Japan, 1 July 2019, http://hrn.or.jp/eng/news/2019/07/01/press-freedom-japan-hrc41-oral-statement/

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 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, 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, and the traditional media have begun using digital channels more actively as well. 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 in major media organizations may have intensified the move toward greater use of independent media channels, also opening some new potential for independent investigative journalism. However, such channels tend to cater to their specific audiences. 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 significant 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/

Yasuomi Sawa, Digital News Report 2019 Japan, Reuters Institute for the Study of Journalism, http://www.digitalnewsreport.org/survey/2019/japan-2019/

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
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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
4
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 worldwide with respect to open-government information policies, according to the OECD’s 2017 OURdata index.

However, there are a number of issues. For example, various exemptions apply with respect to information concerning specific individuals, national security issues and 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 2019, it came to light that no records had been kept of the prime minister’s meetings with senior bureaucrats in the year ending that January, despite earlier record-keeping scandals. It also became known that documentation regarding who had been invited to a huge publicly funded cherry-blossom viewing reception had been shredded shortly after opposition members of parliament demanded to see the list of invitees, leading to a major political scandal engulfing the prime minister. It was also revealed that about half of the prefectural governments had deleted campaign bulletins, including pledges, after the last round of local elections.

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:
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

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/

Eric Johnston, Cherry blossom-viewing party: Breaking down Abe’s latest cronyism scandal, The Japan Times, 27 November 2019, https://www.japantimes.co.jp/news/2019/11/27/reference/cherry-blossom-viewing-party-shinzo-abe-cronyism-scandal/#.Xejq2flKiUk

Hiroyuki Oba et al., No records remain of PM’s meetings with top gov’t officials over 1-yr period, The Mainichi, 15 April 2019, https://mainichi.jp/english/articles/20190415/p2a/00m/0na/001000c

Shotaro Asano and Shinya Oba, Half of Japan’s prefectural gov’ts delted online campaign pledge info after elections, The Mainichi, 6 June 2019, https://mainichi.jp/english/articles/20190606/p2a/00m/0fp/016000c

Civil Rights and Political Liberties

#27

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. Arrested suspects can be kept in prison for 23 days without a formal charge being lodged, with a further 10 days of detention possible with a routine court request. Assistance by lawyers during interrogation can be denied. Interrogations can last for up to eight hours per day. Supporters of Japan’s justice system point to its high confession rate, which has produced a record number of convictions. However, there is clearly a dark side to this. In a recent extreme case, Japanese financier Nobumasa Yokoo spent 966 days in pre-trial detention, while former Nissan chairman Carlos Ghoshn spent 108 days in pre-trial detention. Neither confessed to the crimes that they were alleged to have committed.

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.

In response to the ILO international harassment guidelines of 2018, Japan revised its legislation on the issue of workplace harassment in 2019.

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.

The controversial anti-conspiracy/anti-terror legislation of 2017, passed in preparation for the 2020 Tokyo Olympics, 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

Kana Inagaki and Robert Harding, Fate of Olympus financier shines light on Japanese legal system, Financial Times,
9 June 2019, https://www.ft.com/content/382998a4-81f4-11e9-b592-5fe435b57a3b

Motoko Rich and Jack Ewing, Japanese Justice Faces Scrutiny in Case of Nissan Chief and U.S. Board Member, 19 December 2018, New York Times, https://www.nytimes.com/2018/12/19/business/carlos-ghosn-jail.html

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

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/

Japan bolsters fight against workplace harassment, but laws lack punitive measures, The Japan Times, 29 May 2019, https://www.japantimes.co.jp/news/2019/05/29/national/japan-bolsters-fight-workplace-harassment-punitive-measures-elusive/

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.

In 2019, the organizers of the Aichi (Art) Triennale in Nagoya were strongly criticized by the authorities for some of the artwork presented, including the statue of a “comfort woman.” Public funds for the exhibition were recalled.

There are concerns that the anti-conspiracy laws, passed in 2017 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 be supported by politicians associated with the government. Indeed, 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.

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/

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/

Jeff Kingston, The Politics of Hate and Artistic Expression in Japan, The Diplomat, 14 September 2019, https://thediplomat.com/2019/09/the-politics-of-hate-and-artistic-expression-in-japan/

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 considerable discrimination, particularly in the labor market. Women’s average salaries remain 27% below those of their male colleagues (2016 data). Only slightly more than 10% of the lower house’s lawmakers were women as of early 2019, placing Japan among the 30 worst-performing countries worldwide in this regard. Prime Minister Abe has called women “Japan’s most underused resource,” but there were only two women in his cabinet formed in September 2019.

The government has designated “womenomics” as a key pillar of its reform program. Programs being implemented under this rubric include childcare support and similar measures. Still, given the persistent undercurrent of sexism in Japanese society, de facto workplace discrimination will be hard to overcome.

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 abuse.

Japan ranks below the OECD average with regard to discrimination against LBGT individuals.

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

The treatment of refugees and asylum-seekers is frequently criticized. Asylum is still rarely granted – only 42 asylum-seekers saw their applications approved in 2018, out of 10,493 total applications. In 2019, a hunger strike protesting harsh conditions occurred in one of the country’s immigrant detainee centers.

Citations:
Inter-Parliamentary Union, Statistical Archive: Women in National Parliaments, http://archive.ipu.org/wmn-e/arc/classif010219.htm (accessed 6 December 2019)

Kathy Matsui et al., Womenomics 5.0, Goldman Sachs, Portfolio Strategy Reserach, April 2019

OECD, Society at a Glance 2019. A spotlight on LGBT people. How does Japan compare?, March 2019

Sakari Mesimaki, The Quiet Desperation of Refugees in Japan, The Diplomat, 23 August 2019, https://thediplomat.com/2019/08/the-quiet-desperation-of-refugees-in-japan/

Rule of Law

#36

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.

In a more abstract sense, the idea of the rule of law per se does not command much of a following in Japan. 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 meant to serve the common good, and are not regarded 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 and administrative 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 its 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.

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). However, in all of postwar history, no justice has ever been removed based on this procedure. In response to calls for more transparency, the Supreme Court has put more information on justices and their track record of decisions on its website. The Tokyo District Court ruled in 2019 that voters living overseas cannot be denied the right to review Supreme Court justices, strengthening the role of the constitution.

Citations:
Indictment of Diet inaction over rights to review justices, Editorial, The Asahi Shimbun, 4 June 2019, http://www.asahi.com/ajw/articles/AJ201906040042.html

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 those with genuine membership-based organizations (i.e., the Japanese Communist Party and the Komeito).

Financial and office-abuse scandals involving bureaucrats have been rare in recent years. This may be a consequence of stricter accountability rules devised after a string of ethics-related scandals 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 so-called Moritomo Gakuen scandal of 2017, a private school close to the prime minister and his wife was able to buy a plot of land at a reduced price. The Finance Ministry was later found to have manipulated documentation about the proceedings. No officials were charged by prosecutors despite an independent judicial panel’s request to review the case. This high-profile case sends a worrying message.

In 2017, Japan joined the UN Convention against Transnational Crime and the UN Convention against Corruption, which have respectively existed since 2000 and 2005. Still, a 2019 OECD report found the enforcement of Japan’s foreign bribery law to be lacking.

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

OECD, Japan must urgently address long-standing concerns over forein bribery enforcement, 3 July 2019, https://www.oecd.org/newsroom/japan-must-urgently-address-long-standing-concerns-over-foreign-bribery-enforcement.htm

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/

Osaka prosecutors close Moritomo Gakuen case after reconfirming no bureaucrats will be indicted over scandal, The Japan times, 10 August 2019, https://www.japantimes.co.jp/news/2019/08/10/national/crime-legal/osaka-prosecutors-close-moritomo-gakuen-case-reconfirming-no-bureaucrats-will-indicted-scandal/
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