ANSWER 4

INTRODUCTION
The Constitution of Japan acts as the fundamental law of the country. Enacted on the 3rd of May
in the year 1947, the Constitution of Japan was created as the constitution of the country after the
Second World War. The Constitution of Japan consists of approximately 5,000 words

Before the World War, there was a different type of judicial system which has now been
completely transformed into a new and healthy one. Hence, the judicial system in Japan can be
divided into two periods:

(i) Pre-War Judicial System, (ii) Post-War Judicial System.

Chitoshi Yagana has divided constitution of Japan into three periods pre feudal age, feudal age ,
post feudal age The Meiji Constitution had been promulgated in 1889 and come into effect in
1890. It was an imperial constitution in which the Emperor was declared to be sacred, inviolate
and the sole sovereign ruler of Japan. The people of Japan were defined as merely the subjects of
the Emperor, as opposed to free citizens, and had very limited rights.

Article 76 of Japan constitution states “The whole judicial power is vested in a Supreme Court
and in such inferior courts as are established by law.
No extraordinary tribunal shall be established, nor shall any organ or agency of the Executive be
given final judicial power.
All judges shall be independent in the exercise of their conscience and shall be bound only by
this Constitution and the laws”.

FEATURES OF JAPANESE JUDICIARY

The whole judicial power is vested in a Supreme Court and in such inferior courts as are
established by law. The Supreme Court is independent of both the executive and legislature. The
Constitution stipulates that the executive cannot remove the judges they can be removed only by
impeachment. The main feature is Independence of judiciary. According to Article 76 of
Japanese constitution.

The following are the main features of the new judicial system:

The Constitution has made the judiciary independent.

❖ The Supreme Court now directs the judicial system. Now the courts are not under the
control of the Ministry of Law, hence, they are free from the control of the executive.
Their salaries and allowances cannot be reduced during their tenure.
 ❖ Appointment of the judges of the Supreme Court The judges of the inferior courts are
appointed by the Cabinet from a list of persons nominated by the Supreme Court for a
period of ten years subject to re-appointment, who are invariably re-appointed. Thus,
under the Constitution of Japan (Article 79), the appointment of judges is subject to
review.
❖ The work of investigation is now under the control of the Ministry of Law.
❖ A judicial retention election (or retention referendum) is a periodic process in some
jurisdictions whereby a judge is subject to a referendum held at the same time as a
general election.
❖ A judicial retention vote differs from a regular election in that voters are not asked to
choose from a list of candidates — the judges on the ballot do not have opponents.
❖ The death penalty is constitutional in Japan, but generally verdicts in murder cases have
been reversed on retrial.
❖ A judicial retention election (or retention referendum) is a periodic process in some
jurisdictions whereby a judge is subject to a referendum held at the same time as a
general election. The judge is removed from office if a majority of votes are cast against
retention.
❖ Formerly, the police officers and the procurators could issue warrants of arrest and
detention, but now such warrants can be issued by the judges only. Formerly, the people
were subjected to make forced confessions, but it has now been abolished.
❖ Another feature of the judicial system in Japan is the system of Courts of Domestic
Relations These courts are half arbitral and half judicial tribunals composed of judges and
laymen and they decide cases involving domestic relations and juvenile delinquency.

ORGANISATION AND JURISDICTION OF THE JAPANESE JUDICIAL SYSTEM.

There are 5 types of courts in Japan:

The Supreme Court, High Courts, District Courts, Family Courts and Summary Courts.

Judges are appointed by the Cabinet initially as assistant judges.

SUPREME COURT
Article 78 makes provision for the independence of the judiciary. It provides that the judges shall
not be removed except by public impeachment or unless declared mentally or physically
incompetent to perform official duties. The Constitution vests the whole judicial power in
Supreme Court and in such inferior courts as are established by law. No administrative tribunal
can now be established. At the apex of the judicial structure is the Supreme Court located at
Tokyo. It consists of 1 chief judge and 15 other judges.

HIGH COURTS
There are 8 High Courts below the Supreme Court. The High Courts are situated in 8 locations,
namely, Tokyo, Osaka, Nagoya, Hiroshima, Fukuoka, Sendai, Sapporo and Takamatsu with
branch offices are situated in 6 locations. The High Courts have both the original as well as the
appellate jurisdiction. The original jurisdiction is confined to crimes to overthrow the
Government. The High Court of Tokyo contains 64 judges whereas the High Court of Sapporo
consists of 7 judges. They are appointed for 10 years, but may be reappointed. They retire at the
age of 65 years and are nominated by the Supreme Court. Judges must have at least 10 years’
experience in a judicial capacity, or as a prosecutor, or as a lawyer.

FAMILY COURT

Family Courts primarily deal with juvenile cases and divorce, although they have a broad
jurisdiction that encompasses all forms of domestic disputes, including correcting koseki
registration data and partitioning estates. They are situated in 50 locations nationwide (the same
places as the district courts) with branch offices in 203 locations and local offices in 77 locations.

DISTRICT COURTS

District Courts have original jurisdiction in felony cases (serious crime) and in civil cases where
the disputed amount is over ¥1,400,000. The judges are appointed similarly as the High Court
judges and they must possess similar qualifications.

SUMMARY COURTS

They are situated in 438 locations nationwide. The cases are handled by a single summary court
judge. Civil cases in the Summary Court are appealed to the District Court, while criminal cases
are appealed to the High Court.

JURISDICTION OF THE SUPREME COURT

It has been given only appellate jurisdiction. It may entertain those appeals wherein the question
of the constitutionality of any law, order, regulation or official act is involved. The decisions may
be majority or unanimous decisions. A judge may write a dissenting judgment. It has also the
authority to make rules regarding its procedure and the discipline of the Court. It can delegate its
rule making power to the inferior courts. It nominates the candidates for the inferior courts and
sends the list to the Cabinet which appoints the judges of these courts from among this list. It is
composed of the 1 Chief Justice and 14 Justices with a Grand Bench made up of all 15 Justices
and three Petty Benches each made up of 5 Justices. An appeal to the Supreme Court is called
jōkoku (上告), and requires either an error in the interpretation of the Constitution, or an error in
the interpretation of case law from the Supreme Court or High Court. Judges

Judges consist of the following: the Chief Justice of the Supreme Court; Justices of the
Supreme Court, Presidents of High Courts, Judges , Assistant Judges and Summary Court
Judges. Assistant Judges are appointed from those who have completed their training at the
Legal Training and Research Institute. Judges are required to have been engaged in practical
affairs as an assistant judge, public prosecutor, or practising attorney, etc. for at least 10 years.

Court officials other than judges

Judicial Research Officials conduct research concerning the hearing or adjudication of a case
under the instruction of the justices and judges in charge.

Court Clerks are appointed from court secretaries after they pass the designated examination
and receive a designated period of training, consisting of lectures and practicals in law,

Judicial Proceedings

Civil Cases and Administrative Cases

• Civil cases are legal disputes between private individuals. The classic examples are
disputes over the lending of money or real property leases. Indeed, the vast majority of
legal disputes are civil cases. When these cases are disputed in court, they are referred to
as “civil lawsuits” in which an individual’s rights and obligations are ultimately
determined by a judgment.

• When an individual is not satisfied with a decision made by the central or local
government, she or he may also seek a judgment from a court as administrative litigation,
as well as file an appeal with the administrative agency. This category of cases is referred
to as “administrative cases.” Examples include demands for the cancelation of taxes
imposed by the tax authorities or nullification of an election.

• The court of first instance for civil lawsuits is a district court or summary court, while it
is a district court for administrative cases, with such courts judging the cases in
accordance with the Code of Civil Procedure or the Administrative Case Litigation Act.

CRIMINAL CASES

When a crime occurs, the police generally collect evidence by search, seizure and inspection, and
interview the suspects and witnesses. Then, in certain cases, they arrest a suspect, conduct
required investigation, and send the case to the public prosecutors.
The public prosecutors either instruct the police to conduct a supplementary investigation, or
conduct an investigation by themselves of the cases sent from the police. Since public
prosecutors have the authority to investigate all kinds of crimes, they often conduct their own
investigation before the police with regard to crimes such as tax evasions, special intellectual
crimes, and criminal cases involving civil or commercial affairs, when they deem it necessary.
CONCLUSION

In contrast to the prewar system, in which executive bodies had much control over the courts, the
postwar constitution guarantees that "all judges shall be independent in the exercise of their
conscience and shall be bound only by this constitution and the Laws" (Article 76). They cannot
be removed from the bench "unless judicially declared mentally or physically incompetent to
perform official duties," and they cannot be disciplined by executive agencies (Article 78). A
Supreme Court justice, however, may be removed by a majority of voters in a referendum that
occurs at the first general election following the justice's appointment and every ten years
thereafter. As of the early 1990s, however, the electorate had not used this unusual system to
dismiss a justice.

ANSWER 2
INTRODUCTION

• Direct Democracy can be defined as a form or system of democracy giving citizens an

extraordinary amount of participation in the legislation process and granting them
a maximum of political self-determination.

• The government, also called Federal Council, is the executive power. It is composed of
seven Federal Councillors from several Swiss political parties, which are elected by the
Federal Assembly every four years and share the duties of a head of state. Federal
Councillors rotate and every year one takes on the role of president.

• There are three instruments of direct democracy, all types of referendum: mandatory,
popular initiative and optional. A vote must be held on any amendment to the constitution
resulting in a mandatory referendum. A double majority, meaning the consent of a
majority of the people and of the cantons is required to amend the country’s constitution.

• The Federal Council and Parliament will recommend whether the proposal should be
accepted or rejected. For the proposal to be accepted a double majority is needed. If it is
accepted, new legislation or an amendment to existing legislation is normally required to
implement the new constitutional provision. This is a regular occurrence in Switzerland
where direct democracy is a key feature of the political landscape. But how does the
process work? Who can vote? And how are the issues to be voted on chosen?
DEVICES OF DIRECT DEMOCRACY IN SWITZERLAND

LANDSGEMEINDE
Professor Brooks describes the Landsgemeinde as “the most picturesque and fascinating of all
political institutions in Switzerland, and perhaps in the world”. It is a sort of town meeting or
Assembly, which consists of citizens of the area. In the words of Lloyd, “The Landsgemeinde
Cantons have the purest form of democracy as Rousseau and certain other political Philosophers
regard as the only democracy.” It holds its meetings annually under the President ship of an
annually elected Landsman.

The entire political authority of the community is vested with it. Attendance in the meeting of
this popular Assembly is compulsory at least theoretically. Even a fine is imposed in some of the
Cantons on the absentees who deliberately fail to attend its meetings. There is not much of
debate in this popular Assembly. After the debates , popular Assembly makes laws, passes
resolutions, decides current questions like those concerning finance and public works, elects
officials, revises Constitutions, levies taxes, creates new offices and determines their salaries.

Thus, it is obvious that the Landsgemeinde possesses all those powers which a sovereign
legislative body is supposed to possess. It may however, be pointed out that the Landsgemeinde
can exist only in small Cantons, and there also, their future is uncertain.

REFERENDUM
Referendum means “refer to the people.”It is an instrument of negative action. It rectifies the acts
of commission of the legislature by enabling the electorates to approve or reject a legislative
measure proposed or already passed by the legislature.

There are two kinds of Referendum—optional and obligatory(compulsory).

In the case of Obligatory Referendum, the laws passed by the legislature do not become laws
until and unless the same have been approved by people.

How it works in Switzerland?

According to the Constitution of 1848, all amendments to the federal and cantonal Constitutions
are subjected to Compulsory Referendum. The Constitution makes it specifically clear that a
constitutional amendment shall be effected only when it is accepted by a majority of the Cantons.
Each full Canton is entitled to one vote and each half Canton only half a vote. The vote of a
Canton is determined by a majority of the electors’ voting.
How Compulsory Constitutional Referendum is Practised?

If both the Houses of the Federal Assembly agree to revise the Constitution, either wholly or
partially, they draft the proposed new Constitution if it is a partial revision, and submit it to the
vote of people and Cantons.If the Houses differ on the proposed revision, it is deemed essential
to decide whether the proposed revision is needed or not.Hence, the proposal of revision is first
referred to the people to know

whether the revision is needed or not.

If the people approve of it by a majority vote, the Federal Assembly is dissolved and new
elections take place. After the elections, newly elected Houses proceed to consider the proposed
revision.

OPTIONAL REFERENDUM
Optional Referendum was introduced by the constitution of 1874.It is used for the passage of
Federal laws and general binding Federal decrees and since 1921 for ratification of international
treaties. The Federal laws which are not declared urgent by the Assembly are to be submitted to
the Referendum if 30,000 Swiss voters or 8 Cantons so demand it. If it is urgency than 50,000
voters or 8 Cantons can call for a Referendum even on a law certified by the Assembly as urgent
with a validity exceeding one year.

Referendum in the Cantons

As already stated, Constitutional Referendum is compulsory in all Cantons. Legislative

Referendum is also compulsory in 10 full and 1 half Canton. Optional Referendum is conducted
on the demand of a specific number of voters.

How the requisite Signatures are obtained?

Every Federal law or the international treaties are published in the Federal journal and sent to the
Cantons for circulation among the communes. Within ninety days of their circulation 50,000
Swiss citizens or eight Cantons may demand its submission to the Referendum.

INITIATIVE
It is a positive device to rectify the acts of the legislature. It was introduced in Switzerland in
1892. Initiative is of two types—formulative and unformulative, i.e., couched in general terms. A
Formulative Initiative proposes an amendment in the form of regularly drafted bill. An
Unformulative Initiative, on the other hand, makes only a general proposal of a desired
amendment.
How it works in Switzerland?

Initiative is provided for Constitutional amendments only.Complete revision of the constitution

or specific amendments in it, can be made by popular Initiative on the demand of 1, 00,000
Swiss citizens.The procedure for total revision differs from that of partial revision.

Total Revision through Initiative

If the majority of Swiss voters favour a total revision, the Federal Assembly is dissolved. Fresh
elections are held. The new Federal Assembly then drafts a new constitution. It is submitted to
the people in a nationwide referendum. If the Federal Assembly does not approve of the
amendment, the question whether partial revision be made or not is referred to the people
for their decision. If majority of the people voting favour the revision, the existing Federal
Assembly which had formerly disapproved of the amendment, drafts the amendment conforming
to the popularly initiated proposal and then submits it to the people and the Cantons for their
verdict. If the majority of the people and the Cantons accord their approval, the said revision is
effected. It may not be out of place to point out that Initiative is confined only to amendments in
the Constitution and is not allowed in case of ordinary legislation.

A CRITICAL EXAMINE OF WORKING OF DEVICES OF DIRECT DEMOCRACY IN

SWITZERLAND.
Advantages and disadvantages of Swiss democracy.

ADVANTAGES

(i) It upholds the sovereignty of the people

It enables the people to express their opinions and ideas directly. In a representative
democracy, public opinion is coloured by the partisan influences of the press, the
platform and the propaganda.

(ii) Importance of political parties minimized

The importance of political parties will be considerably minimised when the
ultimate authority of passing and rejecting a measure rests with the people. A veto in
the hands of the people covers not only the political parties but also checks the
vagaries of the majority party in the legislature.

(iii) Safeguard against tyranny of majority party

In a representative democracy, majority party rules, minority parties
are often ignored or remain at the mercy of the majority party.
 (iv) Political education to the masses

It serves as a valuable method for political training to the Swiss citizens. There is no
time lag Through these methods, people remain in touch with the legislature
constantly. Bryce has correctly opined, that this instrument of direct legislation
Veto power must rest with somebody In order to check the vagaries of the legislature,
veto power must rest with somebody.

(v) In the USA the veto power is vested with the executive.

In Switzerland, since veto power has not been vested with the executive, people have
been given the privilege of giving verdict on a bill passed by the legislature.

Disadvantages of Referendum

(vi) Status and authority of legislature undermined

The status and authority of the legislature are apt to suffer when a bill
passed by the legislature is rejected by the people.

(vii) Legislation is complex but the man in the street is a layman

It places in the hands of the people a power which they are not
qualified to exercise.

(viii) Modern legislation is highly complex and fairly technical.

A common man is not competent enough to express his verdict on a
legislation which baffles even the parliamentarians. Hence, provided an opportunity
to give verdict on a thing he is not aware of, a man in the street would make a mess of
the legislation.

(ix) Social, economic and political progress retarded

Sir Henry Maine popularised this idea in 1885.It impressed Englishmen in particular
because they always regarded a common man conservative in character. Hence,
“Referendum appeared a harbour of refuge” for them. Small size of votes castThe
critics assert that due to electoral fatigue which the people are apt
to develop when they are frequently called to the poll, the number of
votes cast has generally been very small. In most cases, the opponents of the bills
who aim at defeating a particular bill go to the poll in larger number than their
supporters.
 (x) Unnecessary delay

It is contended by the critics that unnecessary, rather harmful, delay is

caused when, even, on matters of vital importance, verdict of the
people is to be obtained.

(xi) Obtaining of requisite number of signatures, fixing up a day for

polling, pamphleteering, propaganda, counting of votes—all this
causes delay in the passage of the bills which are urgently needed.

(xii) Its moral efficacy questioned

As already said above, lethargy or indifference on the part of the voters leads to
casting of small number of votes.Hence, a particular bill passed by the people may
represent only minority opinion.

(xiii) Mere negative participation of the people

It is said that the participation of the voters is purely negative.A voter has to indicate
merely ‘yes’ or ‘no’ against a bill placed before him. He is not allowed to agree with
a part of the bill if he so desires. He is to accept the bill as a whole or reject it in toto.

(xiv) Costly
Critics denounce this device of Referendum on the plea that it involves a great deal of
expense. A lot of money is wasted on pamphleteering and other means adopted for
electoral procedure. As such, it is more of a drain on the State exchequer.

CONCLUSION

The Swiss constitution defines in some detail all areas subject to federal legislation. Anything
not explicitly mentioned is left to the legislation of the cantons (federal states).
Therefore it is necessary to update the constitution from time to time to take account of changes
in society and technology that demand for standardised solutions throughout the country.
The Swiss constitution may be changed only if an overall majority of the electorate agrees in a
referendum and if the electorate of a majority of the cantons agrees, too. The latter is sometimes
just a little more difficult because it means that the rather conservative electorate of smaller rural
cantons must be convinced as well.
Nevertheless, minor changes to the Swiss constitution are quite frequent without affecting the
basic ideas nor the stability of Switzerland's Political System. To the contrary: Direct
Democracy is the key to Switzerland's famous political stability.