Context and Implications of Pluralism in Constitutional Reviews: Lessons from Comparative Studies of Japan, Italy, and South Korea

The Japanese Supreme Court frequently resorts to adjudication techniques, such as the reasonableness test, common to Western courts. Nevertheless, it has an extremely low rate of unconstitutionality decisions, proving to be deferent towards the two other branches of government. An explanation comes from the case law dealing with the principle of equality and the (un)reasonable discrimination, mainly in family-related issues. The JSC moulds the reasonableness test after the traditional Japanese values and traditional family system centred on the household, thus upholding the challenged provisions. The 2015 and 2021 decisions on Art 750 Civil Code (the spouses have to adopt one surname) are a good example of how the JSC employs reasonableness and of its deference towards a conservative Diet. By analysing the most relevant case law in family-related issues, the paper claims that a deferent court and an inactive Diet deepens the cleavage between the civil society and the institutions.

South Korea and Japan shows a stark difference regarding its operation of judicial review, the former much more active than the latter. The question posed by this research is to ask why such differences exist. The paper argues two possible answers. One is institutional design. In Korea, judicial review is conducted by a separate Constitutional Court, while the Supreme Court conducts judicial review in Japan among its other duties which is already overwhelming on its own. The other is historical context. The Korean Constitutional Court was established in 1988 following Korea‘s democratization after a long history of authoritarian regimes and has earned the trust of the Korean people through careful selection of cases and timely interventions. In Japan, the courts have retained a general low posture historically, and the administration established a supplementary institution, the Cabinet Legislation Bureau, that reduces the need for an extensive review.

The Japanese Supreme Court (JSC) is characterized as passive, conservative, and deferential. On the other hand, the degree of democracy and freedom in Japan is not necessarily low. For example, Freedom House ranks Japan as one of the most democratic and free countries with 96 points. What is the cause of this paradox? This paper explores this cause. The paper posits that the JSC, despite its visible passivity, has played an active role in the maintenance of democracy and freedom through the following unique approaches. First, it has not always been deferential in cases where free expression and the right to vote are concerned. Second, even though the conclusions were constitutional, the JSC has implied cases in which further infringement of rights would be unconstitutional. Because of the fragile constitutional status of the JSC, it has been able to maintain its autonomy only by narrowing the scope of its review and avoiding direct conflict with the political branches.

It is not unusual for the Italian Constitutional Court (ICC) to recognize fundamental rights Parliament failed to safeguard. A recent example is the 2019 judgment on assisted suicide. In the wake of a law regulating the right to a dignified death, the ICC was compelled to deliver a judgement limiting the application of the criminal provision punishing conducts that induce or help suicide, when those conducts are performed by doctors implementing the will of a seriously ill patient who would otherwise face unreversible and painful deterioration of physical conditions. The decision replaced legislation to avoid depriving citizens of important constitutional rights. It also exposed Parliament‘s indecisiveness. Against this backdrop, the paper discusses the consequences of constitutional activism vis à vis parliamentary inaction by suggesting that such dynamic pushes the ICC to be more responsive to civil society.