Statement Requesting Appointment of Foreign National Bar Members as Counselors
Upon its receipt of a request from the Okayama Family Court on October 17, 2011, the Okayama Bar Association nominated 15 member attorneys, including one with foreign nationality, on November 7, 2011, as candidates for counselors whose terms of office were due to start on January 1, 2012.
However, on December, 12, 2011, the Okayama Family Court informed the Okayama Bar Association that it would not appoint any person without Japanese nationality as a counselor. The reasons mentioned by the family court for coming to such decision can be summarized as saying that a counselor is a public officer who engages in acts involving the exercise of public power or public decision-making on the grounds that: they attend domestic relations trials and state their opinions to the judge (Paragraph 1, Article 3 of the Domestic Relations Trial Act); and they attend trials or settlement meetings in personal status litigation, and state their opinions thereat (Paragraph 1, Article 9 of the Personal Status Litigation Act).
The Japan Federation of Bar Associations (JFBA) adopted its “Opinion Paper Requesting Appointment of Foreign Nationals as Conciliation Commissioners and Judicial Commissioners,” on March 18, 2009, and clarified that:
(1) The scope of public positions for which assumption by foreign nationals may be restricted should be limited to those positions regarding which assumption by foreign nationals would essentially contradict the principle of popular sovereignty;
(2) Except for the above-mentioned public positions, it is not permissible to restrict the assumption of public positions by foreign nationals unless otherwise provided by law; and
(3) If the law imposes restrictions on such assumption by foreign nationals, the scope of public positions subject to such restrictions should be limited to those positions for which a truly compelling reason can be found.
Excluding bar members with foreign nationality, who have expertise as Japanese attorneys as well as having integrity and insight, from being appointed as conciliation or judicial commissioners is a violation of their rights to non-discrimination and freedom to choose their occupation. Therefore, the JFBA urged the Supreme Court to appoint such foreign national bar members. However, the Supreme Court has not yet modified its practice at all. In 2011, bar associations in Osaka, Hyogo, Kyoto, Sendai and Tokyo nominated some of their foreign national members as candidates to become conciliation or judicial commissioners, but the respective district or family courts responded that they would not submit recommendations to the Supreme Court regarding their appointments.
Regarding counselors, their duties are limited to purely auxiliary functions of assisting the court and judges and it is impossible to consider that allowing foreign nationals to become such counselors would substantially contradict with the principle of popular sovereignty. In addition, neither the law nor the rules of the Supreme Court require Japanese nationality as a requirement for becoming a counselor. Accordingly, the refusal by the Okayama Family Court is illegal discrimination based on nationality.
Therefore, the JFBA urges the Okayama Family Court to appoint the foreign national member nominated by the Okayama Bar Association as a counselor. The JFBA also reiterates its request for each court not to refuse the assumption by foreign national bar members of positions related to justice, including conciliation commissioners and judicial commissioners, without first taking into account the concrete duties of such positions.
February 15, 2012
Kenji Utsunomiya
President
Japan Federation of Bar Associations
