Who Defends Japan? Government Lawyers and Judicial System Reform in Japan and Australia

At the JSAA-ICJLE conference held at UNSW over 13-16 July 2009, I presented a pathbreaking comparative introduction into how the Japanese government delivers legal services, especially the central government in its high volume of litigated cases. (I also contributed to a panel discussion on “”Bridging the Gap between Japanese Language and Japanese Legal Studies” – click here for abstracts and Powerpoints.)
This presentation was based on a draft paper co-authored with Ritsumeikan University Associate Professor Stephen Green, a former lawyer for the Australian government and joint ANJeL-in-Japan Program Convenor, and Meiji University political scientist Professor Shinichi Nishikawa. We are bringing together a detailed manuscript for a law journal, as well as a shorter version for the next proposed book by Wolff, Nottage & Anderson (eds) Who Judges Japanese Law? Popular Participation in Japan’s Legal Process. Our analysis begins to fill a significant gap in the literature comparing Japan’s legal profession. This lacuna is all the more surprising, given Japan’s efforts at comprehensive reform of its judicial system underway since 2001.

Commentators outside Japan have shown inordinate interest in the profession, but tend to focus on certain issues such as foreign lawyers’ practice in Japan. Analysis of the legal profession is now complemented by much writing on Japan’s reforms to legal education. Those reforms are part of a (somewhat stalled) expansion of numbers permitted each year to pass the National Legal Education for qualification as a bengoshi lawyer, kenji prosecutor or (career) judge. The profession is also being liberalised by allowing quasi-lawyers, such as patent attorneys and shihoshoshi judicial scriveners, to represent clients in court to some extent as well as give legal advice out of court.
Such reforms form part of a broader deregulatory drive. This aims to shift Japan away from a system of socio-economic ordering through ex ante regulation primarily by public authorities, and towards a system based on private initiative, including more indirect ordering in the shadow of more credible claims for ex post relief if socio-economic actors deviate from the new rules. Access to the courts (and to Alternative Dispute Resolution) has therefore been strengthened for private law claims. And the Administrative Case Litigation Act was amended in 2004, loosening standing requirements and the like, to further constrain bureaucratic discretion.
Opinions diverge as to the short- and long-term impact of the judicial reform package. One way to test that, and also fill the gap in the literature, is to examine whether there have been any major changes in the way the Japanese government defends administrative and private law cases. In particular, our paper explore the evolving roles and activities of shomu kenji, based in the Ministry of Justice (MoJ).
We first find that there has not been any large aggregate increase in administrative law cases under the revised Act, nor indeed in other litigation involving the government. However, more litigation has emerged in certain categories, such as claims under official information disclosure law (leading also, for example, to more “taxpayers’ suits” claiming wasteful expenditures by officials). There also seems to be more variance, hence the risk of large losses, as in tax litigation. Secondly, following further reforms to civil and court procedure in recent years, the pace at which cases proceed through trial has accelerated somewhat. Thirdly, the government lost some major cases around 2006 (hepatitis, lung disease, and nuclear incident victims) and is now facing further large-scale claims (asbestos).
So far, however, the system centred on shomu kenji has not changed too much. Specialised litigation involving competition or patent law remains the province of the JFTC and JPO anyway, under separate litigation. Litigation involving local governments is left largely to them, and they outsource this work to local bengoshi. The MoJ shares tax litigation extensively with National Tax Agency officials, acting like solicitors but also given the power by the MoJ to appear in court with shomu kenji as (senior) barristers. The Minister also nominates shitei dairinin from other ministries, notably now the Health Ministry in regard to suits that must proceed through the courts regarding hepatitis C claims, but within a framework now set by legislation.
Within the MoJ itself, shomu kenji mostly are rotated for one 3-year term from other (mostly criminal) work as kenji within the Ministry, or comprise judges seconded for 2-3 years (despite some doubts about this practice, from the perspective of the separation of powers)). The number of jimukan, usually with some legal training (but who have not passed the Examination) and who often can deal with mundane cases, has been increased to help process cases faster. Two more senior posts were added in 2006. But, except for large-scale and therefore long-term litigation, it remains rare for the MoJ to outsource work to bengoshi. Instead, it has used a 2004 Law allowing government departments to bring bengoshi in-house on contracts up to 5 years. This is linked to a strong preference to trying to maintain consistency and predictability in litigation practices – a preference also found among kenji in criminal prosecution work.
Thus, as Takao Tanase suggests more generally, organisational and social structures are only adjusting slowly and in subtle ways. On the other hand, agency still matters. Longer-term pressure may mount, as citizens call for further access to justice and state accountability, and a new generation of bengoshi emerge with Law School training in administrative law.
Our paper concludes by outlining some possible lessons from Australia, where legal services to the government were liberalised in 1999. Outside lawyers were also bound to a “Model Litigant Policy”, self-regulation by the government to give citizens a “fair go” in their litigation, including for example a commitment to ADR. It seems perfectly consistent with Japan’s judicial reform project for Japan’s government lawyers to bind themselves already to such a Policy.
Yet Australia also presents a cautionary tale for Japan. Australia is struggling to maintain momentum in improving ADR and access to courts both for firms (eg through arbitration law reform) and consumers. Relatedly, federal government expenditures on legal services have kept ballooning, to $510 million in 2007-08. Australia should look carefully at the Japanese government’s approach both to managing legal expenses and disputes more broadly, as well as reforms to ADR.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.