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February 25, 2021

Court involvement in local council punishment

Court involvement in local council punishment

                                                                                                        Professor of Takushoku University   Sadaki Manabe

At the end of 2020, the Supreme Court presented a modest but important case. It is a judgment that a member of the local council can sue the court for revocation of the punishment of the member. It seems obvious, but until recent years, the punishment in the local council was completed within  there, and the court was not involved in the case law of 1961 (Showa era 35). The case was changed for the first time in 60 years.

The reason for the change in case law

The origin of this is that a city council member in Iwanuma City, Miyagi Prefecture, was punished by the council in September 2016 to suspend attendance for a few days over remarks at the city council. The member of the city council appealed for the punishment for cancellation of the disposition and payment of a reduced remuneration of 270,000 yen. In the first instance, the plaintiff lost the case after being judged according to the conventional case. In the second instance, the case law was changed from the conventional case, and it was decided that "even a disposition inside the parliament would be subject to trial" and ordered the trial to be remanded. For that reason, the city side, which is the defendant, appealed, but the Supreme Court approved the judgment of the second instance and the decision was finalized.

The city council member in question repeatedly criticized his colleagues on blogs, etc., and was repeatedly punished several times. Apparently, there was an emotional trouble between the members of the city council. Therefore, it is not possible to judge the pros and cons of the process leading to the punishment, but the important point is that the court changed the conventional judgment. Local council members need to understand the intent of this change.

The rationale that the court did not consider

Then, why did the court continue to judge that the disposition within the local council was not subject to trial in the first place? The reason for this is the political turmoil and social background of Japan at that time, more than 60 years ago.

Sixty years ago, from 1950 to the 1960s, the whole of Japan was running from the postwar turmoil to the reconstruction period. At that time, there was a problem that was annoying the Supreme Court. That was the rapid increase in court proceedings and appeals against the backdrop of social turmoil. The courts were under pressure to reform their organization in response to the increase in trials. It was Mr.Kotaro Tanaka, Chief Justice of the Supreme Court, who was a professor at the Faculty of Law at the University of Tokyo, who strongly promoted the structural reform of the court.

One of the trials Tanaka was in charge was a punishment case against a member of the local council in 1961. Tanaka, along with the structural reform of the court, provided a rationale for the issue of punishment within the local council. That is "autonomy of groups based on the doctrine of sub-society".

The Tanaka theory can be summarized as follows. Nation is composed of a general society and  special autonomous sub-society. As long as it is an internal issue of a special autonomous sub-society, it is not subject to the judicial decision of the court, which is a state institution. This was the theory Tanaka showed at that time. This alone seems to be a strong advocate of autonomous decision-making in the local council, but it seems that it was not.

The aim of excluding is to reduce the burden on the court

Tanaka's "The Law of Partial Society" sprouted in the "Hiraga shukugaku Incident" that occurred in 1939 when Hiraga was the Dean of the Faculty of Law at the University of Tokyo. Prof. Eijiro Kawai resigned from university due to a conflict. In this case, Tanaka tried to protect the autonomy of the sub-society of the university even at the expense of Kawai. Even after the war, Tanaka indicated that the local council also had the autonomy as a group in accordance with the "subsocial doctrine" and that the court, which is a national institution, could not intervene in the internal disposition. It was.

Tanaka's decision brought up the lofty idea of ​​State's non-intervention in group autonomy, but the aim was to reduce the burden on the Supreme Court in response to the increase in trials. In fact, in the judgment in the "Yoneuchiyama case" in 1945, Tanaka said, "If the court intervenes in each particular issue regarding legal order, (...) it will lead to the collapse of the court's administrative capacity. It cannot be kept dangerous, "he said, frankly saying that the purpose was to reduce the burden on the court.

It is surprising that Tanaka made a decision to reduce the burden of court affairs, beside the fact that the court is the arbitrator of law and order. He said, "The court is busy, so it's up to the group to decide what's inside the group. The court doesn't care." Even more surprising is the fact that, as a precedent, the court has paid in advance for allegations of disposition within the local council to this day. Some judges criticized the case, but did not overturn the majority. This may be because the judges took into consideration that Tanaka was also a minister of education and a member of the House of Councilors, and was an authority in the legal profession and academia.

Points to keep in mind in future local councils

Based on the above process, I would like to show some points to be noted in the local council.

Needless to say, be cautious about exercising disciplinary powers within council. Outbursts of punishment for the exclusion of minorities are out of the question. On the other hand, there are also local councilors called "Monster members". They can be on the side of the court because the court has stopped paying the proceedings in advance. Therefore, it is possible that the proceedings will be provoked. The accused side tends to take an attitude of "haunting the untouched god" because of the troublesomeness of the trial. As a result, it may forgive the monster councilor's jumping sword.

In any case, the punishment that had been completed within the local council will now be heard in a wider open space than in court. That would be good or bad. However, the local council is still "free speech place". Therefore, the local councilors will be required to make more modest, dignified and constant efforts to prevent punishment and proceedings against the members.

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