Itsuo Sonobe

1.1. Childhood and Education

Born on April 1, 1929, in Japanese-ruled Korea, Itsuo Sonobe came from a family with legal connections; his paternal grandfather had moved to Korea as a court clerk. His registered domicile was in Motosu City, Gifu Prefecture. The origin of his given name, Itsuo, is said to be related to his birth while his father was studying in Germany. In 1936, his father, Sonobe Satoshi, an administrative law scholar, became a professor at Taihoku Imperial University after studying at Gyeongseong Law School, leading the family to relocate to Taipei. Itsuo Sonobe attended Old System Taipei First Junior High School and Old System Taipei High School (old system) there. After the end of World War II, he was repatriated to mainland Japan. He then attended Old System Fourth Higher School in Kanazawa before graduating from the Faculty of Law at Kyoto University.

Just prior to his enrollment at Taipei High School, on March 20, 1945, Sonobe was conscripted as a private into the Imperial Japanese Army's 10th Area Army for security duties. He experienced the Taipei Air Raid on May 31, 1945, but was demobilized at the end of the war without engaging in significant combat operations. Years later, as a judge, he attempted to investigate the legal basis for his "security conscription," noting that he was under 17 at the time and had no memory of volunteering, but ultimately found no clear explanation.

1.2. Academic and Early Legal Career

Following his graduation from Kyoto University, Itsuo Sonobe embarked on a distinguished academic and legal career, specializing in administrative law, a field shared with his father. He began as a research assistant at Kyoto University's Faculty of Law in 1954, and was promoted to associate professor in 1956. In 1959, he pursued further studies at Columbia University Law School in the United States. Upon his return to Japan in 1967, he earned his Doctor of Law degree from Kyoto University with his thesis, "The Legal Principles of Administrative Procedure" (行政手続の法理_{Gyōsei Tetsuzuki no Hōri}^Japanese).

In 1970, Sonobe was appointed as a judge to the Tokyo District Court, a notable appointment as he was one of the few judges to be appointed without first passing the Judicial Examination or undergoing judicial training. His judicial career continued with appointments as a judge to the Tokyo High Court in 1975, and subsequently to the Maebashi District Court. In 1978, he became a Supreme Court Research Officer, advancing to Senior Supreme Court Research Officer (Administrative) in 1981. From 1983, he served as the chief judge of a division at the Tokyo District Court.

1.3. University Professor Career

In 1985, Sonobe transitioned back to academia, becoming a professor in the Faculty of Social Sciences at Tsukuba University. The following year, he was appointed Dean of the First College of Social Sciences at the same university. In 1987, he accepted a professorship in the Faculty of Law at Seikei University, where he continued to contribute to legal education before his appointment to the Supreme Court.

2.1. Appointment and Term

Itsuo Sonobe was appointed as a Justice of the Supreme Court of Japan on September 21, 1989. His appointment carried symbolic significance as he was the first Supreme Court Justice to be appointed in the Heisei era (which began in January 1989) and also the first Justice born in the Showa era. During the national review of Supreme Court justices held on February 18, 1990, Sonobe was affirmed, with only 11.48% of votes cast indicating a desire for his dismissal. He served on the Supreme Court for nearly ten years, retiring on March 31, 1999, upon reaching the mandatory retirement age.

3.1. Legal Practice and Advisory Roles

Immediately after his retirement as a Supreme Court Justice in March 1999, Itsuo Sonobe registered as a lawyer in April of the same year. In June 1999, he was appointed as an auditor for Sumitomo Corporation. His expertise was also sought by the government, leading to his appointment as an advisor (responsible for inspection and audit) to the Ministry of Foreign Affairs in September 2001. From 2009, he served as a guest lawyer at Toranomon Law and Economic Office. In July 2014, he joined the Nagoya Sogo Law Office as an advisor, continuing his engagement in legal practice and consultation.

3.2. Involvement in Imperial Household Law Discussions

Itsuo Sonobe played a pivotal role in the significant discussions surrounding the Imperial Household Law in Japan. In December 2004, under the Koizumi Cabinet, he was appointed as the acting chairman of the Council of Experts on the Imperial Household Law. This council was tasked with deliberating on issues related to imperial succession. In November 2005, the council submitted a report that advocated for the acceptance of female emperors and emperors from female imperial lineages, a progressive stance aimed at adapting the imperial succession rules to contemporary societal norms.

His involvement in imperial succession debates continued into the Noda Cabinet era. In January 2012, he was appointed as a special advisor to the Cabinet Secretariat to discuss the establishment of "Female Imperial Branches" (女性宮家_{Josei miyake}^Japanese). While he contributed to the report supporting female and female-line emperors, his views evolved over time. In 2019, late in his life, he expressed that while an Aiko Emperor would be desirable, discussing a female emperor was not realistic at that moment. He also raised concerns about the potential issue of a male consort for a female emperor, indicating a pragmatic approach to the complex challenges of imperial succession.

4.1. Background and Content of the 1995 Supreme Court Ruling

The 1995 Supreme Court ruling, issued on February 28, rejected an appeal by the plaintiffs seeking local suffrage for foreign residents. However, within the judgment's reasoning, the Court provided a significant constitutional interpretation regarding foreign residents' rights. The second paragraph of the judgment's reasoning stated, "The Constitution does not prohibit the legislature from adopting measures to grant local suffrage to permanent foreign residents who have established a particularly close relationship with the local public entity in their area of residence by law."

This specific part of the judgment became highly controversial. Proponents of foreigner suffrage often cited it as an "obiter dictum" of the Supreme Court, interpreting it as a basis for granting such rights. This interpretation aligns with what is known as the "partial permissibility theory," suggesting that while the Constitution does not explicitly grant suffrage to foreign residents, it does not prohibit the legislature from doing so under certain conditions.

The legal significance of an "obiter dictum" differs from that of a "precedent" (判例_hanrei^Japanese). A precedent is a binding legal principle established by a higher court, guiding subsequent judgments. An obiter dictum, on the other hand, is a collateral or incidental opinion, not essential to the court's decision, and therefore does not hold the same binding authority as a precedent. The dispute centered on whether this crucial statement on foreigner local suffrage constituted a binding part of the ruling or merely a non-binding observation.

4.2. His View on the "Obiter Dictum" Interpretation

Itsuo Sonobe consistently argued against the common interpretation that the disputed second paragraph of the 1995 ruling was an "obiter dictum." In his 2001 paper, he stated that while the prevailing understanding might view certain parts as stare decisis (precedent) and others as obiter dictum, this was inaccurate. He asserted that only the third part of the judgment, which affirmed the constitutionality of existing laws limiting suffrage to Japanese nationals, constituted the precedent. The first and second parts, including the disputed statement, were merely explanations designed to derive the legal theory of the ruling itself.

Sonobe further explained that in Japanese court judgments, distinctions are often made between the summary of the judgment and other sections, but the clear division between "precedent" and "obiter dictum" as understood in some other legal systems is not typically applied. He noted that, in his experience on the Supreme Court, opinions considered to be obiter dictum are generally reserved for individual opinions of justices or commentaries by Supreme Court Research Officers. He emphasized that the introduction and study of court judgments should always reference these research officer commentaries, as they often contain points discussed during deliberations but not included in the main opinion. He criticized the tendency to extract parts of the judgment as "obiter dictum" and discuss them in isolation, calling such interpretations "common talk" (俗論_zokuron^Japanese) that deviates from the legal world's accurate evaluation of precedents.

In a 2007 paper, Sonobe further elaborated on the structure of the 1995 judgment, identifying three main points:

• First:** Article 93 of the Constitution does not guarantee voting rights for foreign residents.
• Second:** While the Constitution does not prohibit legislative measures to grant voting rights to permanent foreign residents who have established a particularly close relationship with their local public entity, this is a matter of national legislative policy, and not taking such measures does not raise issues of unconstitutionality.
• Third:** The provisions of Local Autonomy Law Articles 11 and 18, and Public Offices Election Act Article 9, Paragraph 2, which limit voting rights to residents who are Japanese nationals, are not unconstitutional.

Sonobe unequivocally stated that only the third point constituted the precedent. He maintained that the first and second points, though agreed upon by all judges, were merely the reasoning that led to the precedent. He reaffirmed that characterizing the first point as precedent, or the second point as obiter dictum or a minority opinion, or emphasizing the second point, was merely subjective criticism that lacked legal rigor.

4.3. Media Interviews and "Political Consideration" Remarks

Itsuo Sonobe's motivations for including the contested portion of the 1995 ruling, and his understanding of its implications, were further clarified in several media interviews, notably with the The Asahi Shimbun in 1999 and Sankei Shimbun in 2010.

In a 1999 interview with the Asahi Shimbun, Sonobe revealed his personal motivations for advocating for the inclusion of the "obiter dictum" (as it was commonly called). He drew a parallel to a previous case concerning Taiwanese residents who, having been injured or killed as military personnel or civilians under Japanese command during the war, sought compensation from the Japanese government. Despite having been subjected to Japan's colonial rule and discrimination, the court in that case had ruled that denying compensation based on their lack of Japanese nationality did not violate constitutional equality, and that any measures would be a matter of legislative policy. Sonobe stated that this experience resonated deeply with him due to his own background and empathy. Therefore, in the 1995 Supreme Court ruling, he felt compelled to acknowledge that "it must be honestly admitted that the situation arising from the application of the nationality clause constitutes discrimination against the principle of equality under the law." He added that "a fundamental solution must await further efforts by those involved in national politics."

Sonobe further explained that his personal experiences, including memories from his youth and his feelings about the compensation case for Taiwanese residents, influenced his decision to include the statement that "the Constitution does not prohibit granting local suffrage to permanent foreign residents." He emphasized the plight of Zainichi Koreans, many of whom were forcibly brought to Japan during the war and faced difficulties returning to their ancestral lands, for whom the suggestion of "naturalization" was a harsh reality. He felt that the issue of local suffrage for Zainichi Koreans was finally gaining recognition, suggesting that the court, while limited in its ability to make active policy decisions that would overturn established governmental agreements, could still express an expectation for agile responses from the government and legislature through an obiter dictum.

In a February 19, 2010 interview with the Sankei Shimbun, Sonobe reiterated his view on the controversial part of the judgment. He stated that it was a judgment that "even for Koreans who have left their homeland, live with Japanese, learn the language, and pay taxes, it is not bad to grant suffrage very restrictively to permanent residents who have a very close relationship with a specific region. It is not entirely unconstitutional from the principle of local autonomy." He then controversially admitted that there was a "political consideration" (政治的配慮_{seijiteki hairyo}^Japanese) involved, citing the "intense bitterness" from the era of forced conscription of Koreans and the need to avoid accusations that the Japanese Supreme Court disregarded Korea's concerns.

This admission of "political consideration" drew criticism from then-Cabinet Minister Yukio Edano, who asserted that a Supreme Court Justice should base judgments solely on law, facts, and conscience, not political considerations. Sonobe clarified that while he did not explicitly mention "Zainichi Koreans" in the judgment, he aimed to "shed light on a very limited, historically resentment-filled part." He stressed that granting suffrage should remain highly restricted and not be broadly applied. He also clarified that the controversial part was not necessarily the main point of the judgment, acknowledging that "everyone had their own thoughts for attaching (that part)," even if it might not have been strictly necessary.

Regarding the possibility of the Supreme Court revisiting its judgment in the future, Sonobe noted that the Supreme Court Grand Bench could indeed review precedents as times change, considering the prevailing sentiment of the Japanese people. However, he expressed strong reservations about the Democratic Party's proposal to extend local suffrage to general permanent residents (not just special permanent residents) based on the 1995 ruling, calling it "impossible." He stated that the judgment "did not at all consider granting suffrage immediately" to those who had lived in Japan for 10 or 20 years, lamenting that "judgments are scary; they run wild and are manipulated by others." He warned that if the "obiter dictum" were to lead to a broad recognition of suffrage for permanent foreigners due to political circumstances, it would be detrimental, emphasizing that such a measure should only be considered "under very limited, historical circumstances." He also disagreed with the government presenting such a bill as a national policy, viewing it as a diplomatic and international issue.

6.1. Other Positions Held

Itsuo Sonobe served in a variety of public and private capacities that extended his influence beyond the judiciary and academia. These roles included:

• Director of the Public Interest Foundation for Gout.
• President of the Taiwan Association (a foundation focused on relations with Taiwan).
• Vice Chairman of the Senga Hoso Ikueikai (a public interest foundation supporting legal professionals).
• President of the Japan Ryoka Promotion Association (an organization dedicated to preserving and promoting traditional Japanese dormitory songs).

6.2. Honors and Awards

In recognition of his extensive service and contributions, Itsuo Sonobe was awarded the Grand Cordon of the Order of the Sacred Treasure (勲一等瑞宝章_{Kun'ittō Zuihōshō}^Japanese) in November 2001, one of Japan's highest honors.