What are laws, cabinet orders, ministerial orders, public notifications, and circular notices? How they differ and relate?
For many people, even for Japanese people, it will probably be difficult to elaborate on the legal system in Japan. You all may know that the Constitution is at the top of the legal hierarchy, and that there are laws, cabinet orders, and ministerial orders public notifications. However, it may be confusing for many people: which are higher in the hierarchy, cabinet orders or ministerial orders? where do enforcement orders and enforcement regulations stand in the legal system? Such a complicated hierarchical structure makes the Japanese legal system difficult to understand.
Given such a context, this column will provide an overview of the Japanese legal system, with a focus on matters related to environmental regulations. This column will not include information at the constitutional level because many business personnel do not need such information and it is rarely revised.
What does the term “laws and regulations” (“法令”[ho-rei]) refer to?
Let’s start with the interpretation of the term “laws and regulations” (“法令”[ho-rei]) as used in the Japanese legal system.
According to an explanation provided by the National Diet Library (in Japanese), “the term ‘laws and regulations’ includes the constitution, treaties, laws, cabinet orders, ministerial orders, public notifications, regulations, agency orders, directives, and notices, etc. In general, “laws and regulations” refers to laws and orders issued by administrative organs collectively.
On the other hand, a website e-GOV, which is operated by Japanese government, states that the website provides “laws and regulations,” which mean “the constitution, laws, cabinet orders, imperial orders, cabinet office orders, ministerial orders, and regulations,” while “instructions, circular notices and prescribed forms” are provided by each ministry or agency on their websites.
You can also understand the term “laws and regulations” by dividing them into 1) laws that are set by the Diet; and 2) regulations that are issued as administrative orders by administrative organs. The term “administrative orders” includes “cabinet orders, ministerial orders, and public notifications, as defined in Article 2 of the Administrative Procedure Act.
As seen above, the scope of the term “laws and regulations” is differently interpreted and is not stipulated in the Constitution. However, for the purpose of ensuring the legal compliance at business entities, you should distinguish the following legal documents:
Laws (法律 [ho-ritsu])
- Laws are made upon passage of bills 1) by both of House of Representatives and House of Councilors at the Diet; or 2) by the House of Representatives under its legislative supremacy over the House of Councilors. From the perspective of performing business activities, laws have the highest priority among the entire laws and regulations, as seen in the fact that number of provisions of the constitution say: “…shall be determined by law” or “…as provided by law.”
Cabinet orders (政令[sei-rei])
- The constitution stipulates the administrative functions of the Cabinet in Article 73. In particular, Article 73, section 6 mandates the Cabinet to “enact cabinet orders in order to execute the provisions of this Constitution and of the law.” The section 6 also stipulates that: “however, it cannot include penal provisions in such cabinet orders unless authorized by such law.”
- It should be noted that enforcement orders, which are orders with the purpose of enforcing a relevant law, are issued as cabinet orders.
- The Cabinet consists of the Prime Minister and State Ministers appointed by the Prime Minister (Minister of Economy, Trade and Industry, Minister of the Environment, and others) and “orders” generally refers to administrative orders that are issued by administrative organs under their responsibilities.
Ministerial orders (省令 [sho-rei])
- National Government Organization Act, Article 12 stipulates that “a minister may, in order to enforce an Act or a Cabinet Order in respect of administrative matters under his/her charge, or on the basis of a special delegation under an Act or a Cabinet Order, issue a Ministerial Ordinance as an order from the ministry.”
- Ministerial orders may not include penal provisions unless authorized by such law, as is the case for cabinet orders.
- Enforcement regulations are issued as ministerial orders.
Public notifications (告示 [koku-ji])
- National Government Organization Act, Article 14, section 1 stipulates that “a minister, a commission or the director-general of an agency may, in respect of the affairs under the jurisdiction of the ministry, the commission or the agency, issue a public notification in the case where it is necessary to issue a public notice.”
Circular notices (通達 [tsu-tatsu])
- National Government Organization Act, Article 14, section 2 stipulates that “a minister, a commission or the director-general of an agency may, for the purpose of giving an order or direction in respect of the affairs under the jurisdiction of the ministry, the commission or the agency, issue an instruction or a circular notice to the competent organs and officials.”
“In addition to legal documents listed above, there are also “通知 [tsu-chi”] (communications), which are generally issued by heads of subordinate organizations (e.g. director-general of a Bureau), not by heads of ministries or other equivalent agencies. However, based on my experience of reviewing various documents related to environmental laws and regulations, the term “通知 (communications)” is used not by heads of ministries or other equivalent agencies, but by heads of a subordinate organizations such as director general of a Bureau, etc., to publicly inform something.
For example, communications published to date include “Communication by the Director-General of the Manufacturing Industries Bureau, Ministry of Economy, Trade and Industry” and “Joint Notification of the Director-General of the Pharmaceutical Safety and Environmental Health Bureau, Ministry of Health, Labour and Welfare, and the Director-General of the Manufacturing Industries Bureau, Ministry of Economy, Trade and Industry, and the Director-General of the Environmental Health Department, Minister’s Secretariat, Ministry of the Environment. Therefore, “通知 (communications)” may be similar to a “告示 (public notifications)” as they requires public notification.