HABEAS CORPUS AS A BELLWEATHER OF
COMPARATIVE LAW AND CONSTITUTIONAL DECLINE
Habeas corpus provides an excellent example of the pitfalls
of comparative law. After all, it would be factually correct to say that
Japan has a habeas corpus statute, the Habeas Corpus Act, which will
be discussed in greater detail in the pages that follow. It would also
be correct to describe this statute as providing for prompt judicial
relief from unlawful detentions in contravention of constitutional
principles. However, both of these technically correct statements
would be widely misleading as to how habeas corpus is actually used
in Japan and how one would go about obtaining judicial relief for
improper detentions in the country. As this article will show, habeas
corpus does play a role in the Japanese legal system, albeit an obscure,
largely unheroic one that is almost completely divorced from its
original intent and the text used to formulate the remedy it purports
to offer.
A case can also be made that the fate of habeas corpus is
indicative of the direction taken by Japan’s constitution as a whole.
In the Anglo-American system, habeas corpus is a remedy of
constitutional, indeed, proto-constitutional significance. It is the
“Great Writ” of common law jurisprudence—“the most stringent
curb the ever legislation imposed on tyranny.”18 As a form of relief
from arbitrary detention, habeas corpus predates not only the U.S.
Constitution (where it is one of the scant few “human rights”
provisions contained in the original charter prior to the addition of the
Bill of Rights), but also the 1679 Act of Parliament that codified it
into a more modern form out of the common law primordial ooze. As
this Article will show, in Japan it has become something very
different.
The Japanese constitution is a long, detailed document
containing some of the Anglo-American constitutional ideals
reflecting its unusual, partially American provenance. The direction
it has taken since its promulgation in 1947, however, is an
exceptionally complex thing to track, comprised of intertwining
strands of academic theory, executive branch interpretation, and
judicial precedents. As a result, whether its original ideals have been
given life is a difficult question to answer in general terms, seven
decades later. By contrast, habeas corpus represents a single
constitutional ideal whose arc in post-war Japan can be readily
tracked as a single strand, independent of the morass of constitutional
jurisprudence.
The English version of this provision is potentially misleading
in a way that is relevant to habeas corpus. 28 First, the Japanese
version has a full stop following “privilege of counsel.” In essence,
it can potentially be read as articulating two separate constitutional
protections: (1) the right to know the grounds for arrest and detention
and privilege of counsel and (2) freedom from detention without
adequate cause, such cause being subject to explanation in open court
upon demand.
Second, the Japanese does not say “upon demand of any
person,” but rather just “upon demand.” Thus, while the English
version suggests that the constitution itself provides grounds for any
person to petition a court for relief for a wrongfully detained person
(people in such straits typically being unable to do so themselves),29
the Japanese does not. In fact, the original GHQ draft of this
provision limited demands to “the accused or his counsel,” which was
subsequently revised to “upon demand of any person” in the English
draft that was then submitted to the Japanese government, the so-
called “MacArthur Draft.”30 In any case, a clear statement that “any
person” can petition on behalf of a wrongfully detained person was
set forth in the Habeas Corpus Act.31 As we shall see, though, the
Supreme Court subsequently used its rule-making authority and
decisions to render these words largely meaningless.
As suggested by Professor Halliday in his concluding remarks,
the key to the success of habeas corpus—where it actually was
successful—was “a powerful court.” 186 Even within the British
Empire, however, where powerful courts were lacking, “habeas
corpus operated as only a shadow of its theoretical self.”187
It is widely acknowledged that, with some exceptions, Japan
lacks powerful courts and Japanese people have low expectations of
the judiciary.188 Those courts it does have are part of a national
bureaucracy with a hierarchy that is both defined by law and subject
to a much more detailed, unwritten stratigraphy that is unofficial but
well-known by insiders. 189 Moreover, despite constitutional
separation of powers, on a working level the judiciary maintains
relations with executive branch agencies, particularly the Ministry of
Justice (which is run by prosecutors).190 A remedy like habeas corpus,
which could set individual courts at odds with each other outside of
the framework of the established hierarchy or upset institutionalized
working-level relationships with other government institutions, is a
remedy the judiciary probably doesn’t need—even if the people of
Japan might.
As noted at the outset, the author believes that what happened
to habeas corpus in Japan is likely symptomatic of what has happened
to other ideals reflected in the constitution. This includes the ideals
that the Habeas Corpus Act was supposed to realize. What happened
to habeas corpus may be an extreme example, but at the same time
one that is particularly easy to distinguish and track, given the discrete,
specific nature of the remedy, the constitutional principal to which it
relates, and its readily verifiable fate down a dirt road of judicial
desuetude.
