"Revising child porn law

"In Japan, people unfamiliar with child pornography may simply condense the issue into one concerning indecent images of boys and girls.

"But a brief search on the Internet can quickly reveal the abhorrent nature of the crime. Countless "crime scene photos" of children being sexually abused and stripped of their human dignity are available online. The children in those images may never heal from their emotional scars.

"One source of their anguish is not knowing if the images are still circulating and to what extent. Perhaps someone is viewing these photos right now--and maybe the viewer could recognize the victim.

"The Law Banning Child Prostitution and Child Pornography, which was enforced in 1999, prohibits the production or distribution of child porn images. In addition, the law criminalizes possession of such images for the purpose of distribution.

"But privacy concerns have prevented any legal action against simple possession of child porn or downloading images from the Internet for personal use.

"During the decade since the creation of the law, the environment surrounding child porn has changed drastically with advanced Internet technologies.

"File exchange software allows one to gain a huge number of pictures in an instant. And images uploaded onto the Net are nearly impossible to completely remove.

"Although the damage continues to expand, the current law is insufficient to effectively crack down on offenders.

"We cannot allow the victimized children to continue suffering. Simple possession of child porn must be restricted as soon as possible. Compared with other countries, Japan has been slow to act. Among the Group of Eight industrialized nations, the only other country apart from Japan that does not forbid simple possession is Russia.

"In the current ordinary Diet session, deliberation of revision bills tabled by both the ruling and opposition parties has begun.

"The ruling coalition's bill proposes to punish those who possess child porn images "for the purpose of fulfilling sexual curiosity."

"On the other hand, the bill of opposition Minshuto (Democratic Party of Japan) intends to punish those who actively obtain child porn images, either repeatedly or in exchange for money.

"Minshuto's bill requires more strict conditions than simple possession to establish a crime out of concerns over wanton abuse of the law by the authorities.

"Minshuto's concerns are well-founded. It would be going too far for authorities to crack down on those who just happened to have child porn images sent to them by e-mail without their consent or if they stumbled across such images on the Internet.

"We urge both the ruling and opposition parties to seriously debate how to prevent abuse of the law and reach an agreement to put effective legal restrictions in place.

"Minshuto's bill also includes stronger and more substantial measures to protect the victimized children. The importance of this cannot be stressed enough, particularly in cases of constant, repeated abuse. Investigative authorities must increase their efforts to identify and rescue the children who appear in pornographic images.

"At the same time, medical research of pedophile behavior is also necessary. A number of countries abroad restrict child pornographic expressions found in artworks, like animation and computer graphics. The move is based on the idea of halting the tendency to treat children as sex objects.

"This restriction risks violating freedom of expression. Because this issue should be debated carefully, it should be separated from the current revision process."

By Asahi Shimbun (Editorial, 6/29/2009), Link to article (last visited 7/1/2009)

"Controversial child organ transplant bill passes Lower House

"A controversial bill to enable organ transplants from children under 15 years old passed the House of Representatives Thursday.

"The plenary session of the Lower House approved a revision to the Law on Organ Transplantation aimed at paving the way for organ transplants among children by abolishing the age limit for organ donors.

"The vote showed a majority of lawmakers were in support of expanding the opportunities for organ donors, with 263 supporting the bill and 167 against. Japan has seen only 81 cases of organ transplants from brain-dead donors over the past 11 1/2 years since the enactment of the current law.

"However, since a separate bill is likely to be submitted to the House of Councillors, and with the dissolution of the Lower House looming, it remains uncertain if the bill will be passed into law during the current Diet session.

"Under the current law, organ transplants from brain-dead children under age 15 are forbidden, and children in need of organs appropriate to their size have to travel overseas to undergo transplant surgery.

"Since the World Health Organization (WHO) is poised to set out a policy calling on countries to perform more transplants domestically, it is likely that Japanese in need of organ transplants will have less opportunity to undergo the procedure abroad.

"The revision bill, which was submitted to the Diet in March 2006, recognizes brain death as legal death and allows organ donations with family consent regardless of age, unless the deceased had ruled out organ donation before passing away.

"A counter-bill, which was submitted in May this year by a lawmaker critical of the revision bill, limits organ donors to only those who had expressed their willingness to provide organs before their death and only recognizes brain death as legal death with such donors -- following in the footsteps of the current law.

"Either of the two bills was regarded as likely to pass the Lower House. There were also two other bills to revise the current law that were put to the vote on Thursday -- one to ease the age limit for organ donors from under 15 to under 12, and another to define brain death more strictly than the current law.

"Supporters of the bill that passed the Lower House on Thursday are critical of the May 2009 counter-bill, arguing that the latter "would not increase organ transplants nor lead to expanding transplants among children."

"However, some are concerned that recognizing brain death as legal death could be commonly applied in medical care if the bill that cleared the Lower House was passed into law.

"Tsutomu Tomioka, a Lower House member of the Liberal Democratic Party and supporter of the bill, said during a session of the Lower House Committee on Health, Welfare and Labor on June 5: "The bill is not intended to recognize brain death as legal death in situations other than organ transplants."

"Yutaka Fukushima, a Lower House member of Komeito and a supporter of the approved bill, said, "If the bill sparks questions, it would be natural to revise it."

"Opponents of the bill, meanwhile, question the provisions that allow organ donations with family consent even if the potential donors' intention before their death was unknown.

"A public poll conducted by the Mainichi Shimbun earlier this month showed that 57 percent of respondents are in favor of organ transplants from brain-dead children under 15 if approval is received from the child's parents. However, the poll also showed that 52 percent of respondents believe brain death should be recognized as legal death only in cases where people had indicated that they would donate their organs, while only 28 percent said brain death should be generally recognized as legal death.

"On Thursday, 430 lawmakers participating in the vote were allowed to support or oppose the bill regardless of their party policies, since the bill deeply concerns each individual's view on life and death. Members of the Japanese Communist Party, however, abstained from voting."

By Mainichi Shimbun (6/18/2009), Link to article (last visited 6/18/2009)

DNA and the Criminal Justice System

"In an appalling situation, it looks like a new stain will be added to the history of criminal justice.

"In 1990, a 4-year-old girl was murdered in Ashikaga, Tochigi Prefecture, and police arrested Toshikazu Sugaya, a former kindergarten bus driver. On Thursday, Sugaya was released 17 and a half years after his arrest.

"What led to Sugaya's arrest were the results of a newly introduced DNA analysis that showed the DNA pattern on the victim's clothing matched that of Sugaya's bodily fluids.

"Using the test results as leverage, investigators extracted a confession from Sugaya. He later denied the allegations during his trial, saying, "I was forced to make a false confession after the DNA testing."

"However, the lower court, a high court and even the Supreme Court judged that the test results and Sugaya's "confession" were credible. His life sentence was finalized.

"While in prison, Sugaya and his lawyers demanded a retrial and called for a new test because the precision of DNA testing had improved drastically. When Sugaya was arrested, DNA tests could identify 1.2 people from among 1,000. Now, the precision is 1 in 4.7 trillion.

"The results of a new test ordered by the Tokyo High Court reversed the findings of the initial test and determined that the DNA types of the perpetrator and Sugaya did not match.

"The Tokyo High Public Prosecutors Office submitted a written opinion to the Tokyo High Court, stating that the results are "likely to serve as clear evidence to absolve (Sugaya)." The high court should promptly order a retrial.

"The revelation is shocking. DNA tests have been used as evidence in many cases, and doubts over the reliability of DNA tests in the early days will have an immeasurable impact.

"In the 1992 case of the murder of two young girls in Iizuka, Fukuoka Prefecture, a man was convicted based on results of a DNA analysis and was executed last year.

"It is quite unusual for experts to reanalyze DNA because of a petition for a retrial. At this juncture, we believe new DNA analyses should be conducted for convictions that were based on early DNA tests.

"Although the testing precision has improved, it is dangerous for police to rely solely on DNA analysis in their criminal investigations.

"The DNA of people other than the perpetrator could show up during the investigation process. In addition to properly collecting DNA samples, police should store enough DNA samples for a reanalysis if necessary.

"We also urge courts to do some serious soul-searching. Because they placed so much faith in a DNA analysis, they may have passed a guilty verdict against Sugaya without adequately studying the credibility of his confession, which the defendant had argued was made under duress.

"This point needs to be strictly examined in the retrial.

"To prevent forced confessions, it is important to make the questioning process transparent. Currently, videorecording is limited to some parts of the interrogation.

"But Sugaya's ordeal shows that the entire process should be recorded.

"Even professional judges make mistakes in their rulings. With the start of lay judge system, ordinary people will be taking part in court proceedings as citizen judges. They should use their common sense to check the validity of the confessions and evidence. Their responsibility is grave."

By Asahi Shimbun (Editorial, 6/5/2009), Link to article (last visited 6/6/2009)

"Citizen judges in court

"South Korea has started a system in which the public takes part in criminal court cases as a jury. In one case, reporters were able to talk to jury members during court recesses and interview them after the court closed. Likewise in Germany, where citizens try a case along with the judge, there are no limits to media access to the jurors.

"In both countries, participating citizens are all bound by confidentiality obligations. They are not allowed to disclose what went on in the deliberations that decided the verdict. However, they shared with reporters their thoughts and impressions of having participated in a trial.

"What is it like to pass judgment on someone charged with a crime? As we promote citizen participation in judicial proceedings, it is essential that the participants are allowed to convey these first-time experiences to people who might be chosen as the next lay judges.

"The key to the success of Japan's citizen judge system, due to begin on Thursday, is whether the public can share each other's experiences as lay judges.

"In an opinion poll conducted by The Asahi Shimbun, nearly 80 percent of the respondents said they would rather not take part as lay judges, or that they definitely do not want to take part. People are probably worried about whether they can try people. To alleviate their anxieties, sufficient disclosure of relevant information about citizen judges' experiences is crucial.

"Lay judges are bound by rigorous confidentiality duties. They face either imprisonment of up to six months or a maximum fine of 500,000 yen if they leak information about closed-door deliberations among the six citizen judges and three professional judges or confidential information learned outside the open court, including names and addresses of other lay judges.

"Understandably, if the content of the deliberations, such as what each judge or lay judge said, were to come out arbitrarily, then free discussion would become difficult.

"The new citizen judge system allows lay judges to comment on things like whether the judges, the prosecutors and defense lawyers were easy to understand and whether the presiding judge willfully moved the deliberations toward a certain conclusion.

"Lay judges are also allowed to say what they personally think after serving as a citizen judge.

"On the other hand, the comments they make during the deliberations on the verdict are regarded as confidential. But is it going too far to ban them from making those comments public after the trial, if they themselves wish to do so?

"The people with whom the sovereignty lies have a right to know what the citizen judge system is really like. That right must not be restricted as long as the fairness of a trial is preserved. Moreover, it can be said that the right of the lay judges to express their views is part of the constitutional right to freedom of expression.

"In terms of protecting the public's right to know, there is something we would like to ask of the judges, prosecutors and lawyers.

"We urge them to open to the public the pretrial proceedings where only the judges, the prosecution and defense counsel meet to identify the points of dispute and the relevant evidence. These pretrial proceedings are already in place to speed up the court process, but they are currently closed to the public.

"This gives the impression that the three parties of the justice system are cliquishly taking care of matters well before the citizens can come in. Pretrial proceedings are an important component of the trial that can well affect the outcome.

"There is also the principle that trials must be made public. The government must move toward making the pretrial proceedings public without delay."

By Asahi Shimbun (Editorial, 5/18/2009), Link to article (last visited 5/20/2009)

"Like lay judges, court interpreter system still in nascency

"OSAKA — With the new lay judge system set to debut May 21, legal professionals, law enforcement officials and the media are busy with final preparations.

"But Mamoru Tsuda, a professor at the Osaka University Global Collaboration Center, warns that one very important group has been largely absent from the official discussions and decisions.

""The amount of attention paid to the needs of court interpretation has been insufficient," said Tsuda, who is also one of Japan's most experienced court interpreters, having been involved in over 100 trials during the past two decades interpreting in Tagalog and in English.

"When the new system is in place, six lay judges and three professional judges will be seated on the bench. Should they serve in cases where foreign defendants with limited Japanese-language ability are involved, they will see at least one court interpreter sitting next to the clerk working on a translation of what is being said by all parties involved. But their role goes way beyond mere oral interpretation during the trial. Court interpreters must attend pretrial meetings with lawyers, and often with foreigners in question, and translate many pages of written legal documents into Japanese or a foreign language in advance of the trial as well as during it.

""In the case of trials involving foreigners that require interpretation, the courts must first secure an interpreter. But this can take three or four days, which leaves the interpreter little time to prepare before the first session," Tsuda said.

"The advent of the lay judge system has raised a number of practical concerns about how court interpreters will function in the new environment.

"Under the new system, trials will be based on oral questions and arguments, which should make it easier for the average person to understand what's going on. But this also means court interpreters will now have to interpret more verbal exchanges between all courtroom participants. Interpretation of dialogue and immediate responses to ad-libbed questions will become much more common.

"Attorneys, unused to arguing cases in plain language, may find they have to repeat themselves or rephrase their statements not just for the benefit of the lay judges but also for the interpreters, Tsuda noted.

"And this raises the possibility of increased errors and omissions if only a single interpreter is being used.

""Asking one interpreter to handle all interpretation and translation is a bad idea. Ideally, the court will secure three interpreters — one to translate from a foreign language into Japanese, one to translate Japanese into a foreign language, and one to keep track and make sure nothing is missed," Tsuda said.

"But while team interpretation may work for courts in cities with large numbers of people fluent in the necessary foreign language, finding three competent interpreters to serve throughout a trial in smaller cities or in cases involving a foreign language for which there are few interpreters in general, is likely to prove difficult.

"Then there are technical issues. "If the courts go with interpretation via wireless headsets, they should not use the kind of one-ear receivers common for simultaneous interpretation, but a headset covering both ears. If two languages are entering the ear at the same time, the interpreter will have a hard time concentrating and may either misinterpret something or not hear what's being said in the original language," Tsuda said.

"Finally, the issue of interpreter competence could prove especially problematic. Under the lay judge system, it's possible that one or more of the lay judges will be as, if not more, fluent in the foreign language than the interpreter.

"Will a lay judge be bold enough to interrupt court proceedings and ask for a correction if they think the interpreter has made a mistake either from the foreign language to Japanese or from Japanese to the foreign language? Or will judges be forced to intervene if a dispute arises between a bilingual lay judge and the court interpreter over what was said, or if the foreign plaintiff or defendant complains in open court to the bilingual lay judge about the interpreter's ability?

"Unlike the United States, for example, there are no precedents for these kinds of problems in Japan. "In America, lawyers for the prosecution and the defense would likely learn during juror selection if any of them are fluent in the language of the defendant or the plaintiff. Interpreters must be very careful, because misinterpretation of key statements opens up the possibility of a mistrial," said S. McIntire Allen, an Osaka-based American attorney who is licensed in California and New York.

"David Makman, a San Francisco-based attorney who has experience dealing with court interpreters, also noted that the Fifth Amendment in the U.S. Bill of Rights grants defendants the right not to take the stand and testify under oath and refuse to answer question on grounds that their answers could be incriminating.

""Often, criminal defendants take the Fifth and say nothing that will incriminate them. Therefore, they usually do not need an interpreter except to help prepare their defense and to understand the proceedings around them," he said in an e-mail interview with The Japan Times.

"One member of the Osaka Bar Association, who requested anonymity, said answers to the above questions will likely depend on how much control judges exercise in the courtroom over the lay judges, but admitted that decisions about what constitutes fair translation or interpretation may well be subjective.

""Many judges in Japan speak English, and if that's the language being used, they'll have a better ability to understand what kind of mistakes or omissions are being made. But that's not the language of most court cases in Japan. Even if they don't understand the language being spoken, judges may decide the interpreter is doing a good enough job and that, although there are mistakes, they aren't serious," the lawyer warned.

"Makman also noted that California has published a 65-page detailed set of professional standards and ethical guidelines for court interpreters that answer many questions Japanese court interpreters are likely to have about the new lay judge system.

"The manual covers everything from paraphrasing guidelines to nonverbal communication to relationships with the jurors to dealing with the press. Tsuda said the Supreme Court has promised to publish something similar, but has yet to do so.

"Last year, according to the Supreme Court, interpreters were used in 128 out of 2,208 trials involving offenses that will be tried under the new lay judge system.

"To help prepare court interpreters for the new system, graduate students at Osaka University, where Tsuda teaches a course in court interpretation, the only one of its kind in Japan, have just put together a Chinese-language instructional DVD of a mock lay judge trial involving Japanese-Chinese language interpretation.

"The DVD, which has been posted on YouTube, offers practical advice and points out potential problems interpreting under the lay judge system, such as not being able to see a PowerPoint presentation by the attorneys.

"Similar DVDs in English and Korean are now being prepared, and will hopefully be released soon, Tsuda said.

"According to the Supreme Court, as of April 2007, there were 3,903 people nationwide registered for courtroom interpretation into 55 foreign languages. That same year, 10 major languages were used in 91 percent of cases involving 5,767 foreigners. Chinese was used for nearly a third of the total, with the figure shooting to nearly 57 percent when including Korean and Tagalog. English-language interpretation was used 3.9 percent of the time."

By Eric Johnston (Japan Times, 5/16/2009), Link to article (last visited 5/16/2009)

"Organ transplant rules must be revised

"Under the current rules that place strict restrictions on organ transplants within Japan, often forcing Japanese to travel abroad to receive organ transplants, it is unavoidable that Japan's laws and the behavior they encourage are regarded as self-centered by other nations.

"The World Health Organization plans at a general meeting in May to incorporate a clause in its guiding principles on organ transplantation, requesting member states to carry out organ transplants entirely in their own countries. The motivation for this clause is the WHO's criticism of Japan's current situation.

"Faced with pressure from the international community, the Diet is to start full-scale deliberation on bills to revise the Organ Transplant Law soon after the Golden Week holiday period.

"At the time of voting, both the ruling and opposition camps are expected to allow their party members a free vote on the proposed revisions. Each of the Diet lawmakers has to face up to the serious question of what they consider brain death to be and when organ transplants should be permitted.

"The current Organ Transplant Law came into force in October 1997. But only 81 transplants have been carried out in the 11-1/2 years since, a fraction of the several thousand organ transplants conducted each year in the United States and several hundred every year in many European nations.

===

"Infants let down by system


"In Europe and the United States, when it is not clear whether a person declared brain-dead wanted to be a organ donor, donation is still possible if the family agrees to it on the brain-dead person's behalf.

"In Japan, however, it is an absolute requirement for the brain-dead person to have left in writing his or her intention to donate, such as in the form of an organ donor card. Even with this, however, an organ donation can still be stopped if the family of the brain-dead person opposes it.

"Under the Civil Code, the will to donate organs is legally recognized only when a donor is aged 15 or older.

"However, it is almost impossible to transplant organs removed from people aged 15 and older into infants due to the differences in organ size.

"This has resulted in a constant stream of Japanese infants being taken overseas to receive organ transplants, often after parents have made pleas for donations.

"Japanese adults also have headed abroad for operations, some seeking organ transplants in China, where it appears most organs are sourced from those given capital punishment.

"The WHO's guiding principles will urge people to refrain from overseas travel for the purpose of organ transplants.

===

"New bills proposed


"So far, three bills to revise the law have been submitted to the Diet.

"Bill A stipulates that if a person has not clearly given permission to be diagnosed as brain dead and to become an organ donor if declared brain dead, the decision will be entrusted to his or her family.

"In doing so, the bill relaxes the conditions on organ transplants, bringing them broadly into line with the United States and European countries.

"Bill B calls for no changes to the current rules except to lower the age at which one can make a legal decision to permit a transplant to 12.

"Bill C seeks to more strictly define brain death and increase the restrictions on organ transplants.

"In addition to the three bills, a fourth likely will be submitted to the Diet after the holidays, which will call for organ donation to be permitted from those aged under 15 if his or her parents give consent.

"Many points of contention remain to be discussed, including how to correctly categorize brain death and how to provide a structure that could be used to determine whether a child has become brain dead due to abuse.

"This is a difficult issue involving viewpoints on life and death. But one thing is certain, Japanese people can no longer keep heading overseas for organ transplants.

"We cannot procrastinate any longer in reaching a decision on how "the relay of life" that is organ transplantation should be conducted in Japan."

By Yomiuri Shimbun (Editorial, 5/6/2009), Link to article (last visited 5/6/2009)

"64% oppose revising Article 9

"Almost two in three people are opposed to revising war-renouncing Article 9 of the Constitution, while slightly more than one in two thinks the Constitution needs amending, according to an Asahi Shimbun survey.

"The telephone survey, conducted prior to Constitution Day Sunday, showed entrenched public support for the pacifist clause.

"Of the 2,094 eligible voters who gave valid responses to the April 18-19 poll, 64 percent said it was better not to change Article 9, while 26 percent supported its amendment.

"Even among those who saw a need to revise the Constitution itself, accounting for 53 percent of all respondents, opponents to changing Article 9 surpassed supporters, 49 to 42 percent.

"Thirty-three percent said there was no need to change the Constitution.

"In similar surveys in 2007 and 2008, 58 percent and 56 percent were in favor of constitutional revisions, respectively, compared with 27 percent and 31 percent against.

"As for Article 9, the gap between those who opposed amendment and those in favor was smaller in April 2007 than this year, at 49 to 33 percent. Shinzo Abe, an advocate of constitutional amendment, was prime minister at that time.

"The gap widened to 66 to 23 percent in the April 2008 survey when Yasuo Fukuda was prime minister, almost the same as this year.

"Respondents in favor of change were asked what changes they would like made.

"Given two alternatives, 50 percent chose an answer that said the change should only go as far as the incorporation of the current Self-Defense Forces into the article.

"Forty-four percent said the article should clearly stipulate that the SDF is a military force, as in other countries.

"Of those who saw a need to revise the Constitution, 74 percent said new rights and systems should be incorporated. Fifteen percent said it was because of problems with Article 9, while 9 percent said they wanted to have a Constitution drawn up by Japanese.

"Of those against constitutional amendment, the largest group, 44 percent, said they were afraid Article 9 could be changed. Thirty-six percent said the Constitution was well accepted by the nation, with no problems that required changes, and 14 percent said it helps guarantee freedom and rights.

"In part due apparently to an anti-piracy mission off Somalia, the latest survey showed a marked increase in the ratio of those who approve of the SDF's use of force if the need arises during overseas missions, at 32 percent, from 17 percent a year ago.

"This year, 56 percent approved of SDF troops' overseas missions if they did not use force, while 9 percent oppose any overseas missions, against 64 and 15 percent, respectively, in 2008."

By Asahi Shimbun (5/4/2009), Link to article (last visited 5/4/2009)

"63% support death penalty as lay judges

"Sixty-three percent of people who may be called to serve as lay judges would choose the death penalty for a criminal suspect if they thought the offense merited such punishment, a Yomiuri Shimbun survey shows.

"Twenty-three percent would not seek the death penalty, the survey showed.

"Forty-eight percent of respondents said criminal trials would improve by introducing the lay judge system, which will take effect on May 21, less than the 53 percent figure reflected in the previous survey conducted in December 2006.

"However, the figure indicates many respondents held a favorable view ahead of the introduction of the system, compared with 27 percent who said they believed it would worsen the nation's criminal trial system.

"In the previous survey, 23 percent of respondents expressed a negative view.

"The latest survey was conducted on April 25 and 26, with 3,000 eligible voters randomly selected from 250 locations nationwide, with 1,810, or 60.3 percent, giving valid answers. The survey was carried out in a face-to-face interview format. Of the respondents, 49 percent were male and 51 percent were female.

"Regarding rulings handed down in past criminal trials, 34 percent said they thought that in many cases judges handed down appropriate sentences to defendants, 50 percent thought judges were too soft and 4 percent said they were too strict.

"The survey reflects expectations that the disparity between judges' rulings and the public's desire for punishment will narrow when citizens join criminal trials as lay judges.

"When asked about the new system, 4 percent responded they knew a great deal about it, and 45 percent said they had a certain knowledge level--meaning 49 percent were acquainted with the scheme, a big jump from the 30 percent indicated in the previous survey.

"However, the rate of those who wanted to serve as lay judges in a trial stood at 18 percent, down two points from the previous survey, while 79 percent said they did not want to participate, up four points from the previous poll.

"In a multiple-response questionnaire seeking reasons for not wanting to serve as a lay judge, 53 percent--the greatest number among the answers given--said they had no confidence in their ability to appropriately assess criminal cases.

"Regarding the introduction of the system, 34 percent said they agreed with it, while 62 percent were opposed.

"Citizens' weighing of the pros and cons of the lay judge system clearly has changed, as in the previous survey 50 percent said they agreed with the system's introduction, while 40 percent were against it when they were asked the same question in May 2004.

"Now that the system has gained greater recognition, people may feel the increased burden of responsibility they will have as lay judges and consequently may be very worried, analysts said."

By Yomiuri Shimbun (5/4/2009), Link to article (last visited 5/4/2009)

"New organ donation bill seeks to abolish age limit

"A blueprint for a new bill to revise the Organ Transplant Law being drawn up by lawmakers of the Liberal Democratic Party and the main opposition Democratic Party of Japan combines elements from older bills by abolishing the age limit on organ donors and would have brain death declared only if organ donation were at stake, The Yomiuri Shimbun learned Friday.

"Three bills related to organ donation have been submitted to the Diet so far. The new blueprint incorporates parts of two of these bills in an effort to expand the potential for transplants.

"The lawmakers, along with concerned lawmakers from ruling coalition partner New Komeito, aim to submit the new bill in mid-May.

"Former Environment Minister Ichiro Kamoshita, an LDP lawmaker and top board member on the House of Representatives Committee on Health, Labor and Welfare, and DPJ lower house member Osamu Fujimura, aim to revise the law during the current Diet session.

"Among the three bills submitted to the Diet, the first one stipulates that brain- dead people would be declared legally dead without exception, and that age limits for organ donors would be abolished. The second bill seeks to change the age limit from "15 years old and older" to "12 years old and older." The third bill seeks to more strictly define brain death.

"The new bill adopts parts from the first bill in terms of the age limit and elements found in the second bill that address the definition of brain death. The lawmakers aim to win over more lawmakers to the revision of the law with their goal of allowing organ transplants from children.

"Aside from age restrictions, the new bill maintains the basic conditions for organ donations stipulated by the current law, which requires that donors have written documents stating their will to be organ donors and stipulating their families' consent.

"The new bill, however, would not require donors under 15 to present written intent to be a donor. However, the lawmakers also intend to include measures in the new bill to stipulate the establishment of an ethics committee or similar organization in hospitals to look into potential child abuse and others causes that could have caused donors' deaths."

By Yomiuri Shimbun (4/25/2009), Link to article (last visited 4/25/2009)

"Law school quotas set to be slashed

"Japan is churning out too many law students, fueling concern about low success rates in bar exams and the quality of those entering the legal profession.

"Against this background, the University of Tokyo and Kyoto University have decided to cut annual admission quotas to their law schools by 20 percent from the next school year beginning April 2010, sources said.

"With the aim of improving overall quality, the two prestigious national universities opted to reduce admissions in line with an education ministry policy to cut back on student quotas at all 74 law schools around the nation, the sources said.

"Other national universities are expected to follow suit.

"The planned reduction is expected to have a major impact on law schools, which were established in 2004 as a pillar of judicial system reforms, analysts said.

"In 2002, the government set a goal of raising the number of successful annual bar exam candidates to 3,000 by the 2010 school year. But it remains uncertain if the target can be achieved.

"A key reason for the deterioration in the quality of students is that law schools were set up one after another around the nation.

"Initially, total student enrollment at the law schools was expected to be about 4,000. With universities promoting their law schools to attract students, however, the total figure swelled to about 5,800.

"Despite the rush of applicants, only about 30 percent of the total number of graduates passed the annual bar exam under a new system in 2008, which was much lower than the initially anticipated success rate of 70 to 80 percent.

"Some law schools have yet to produce a single successful examinee.

"Experts say the quality of education and the aptitude of those studying at law schools have deteriorated.

"They also point to a decrease in the level of even judicial trainees who passed the bar exams and are undergoing training as law specialists.

"Judges and lawyers have cast doubt on the effectiveness of having such a large number of law school students. This issue has also come to the attention of the ruling Liberal Democratic Party.

"With 300 spots, the University of Tokyo has the largest annual law school quota among national universities. It plans to reduce the figure to 240 from the next school year.

""We made the decision, along with reviews of the curriculum, in an effort to improve the quality and effectiveness of our education," said Masahito Inoue, dean of the university's graduate school for law and politics.

"Kyoto University also plans to slash its admission quota from 200 to 160.

""We believe it has become necessary to raise the ratio of successful examinees for law schools as a whole," said Katsumi Yamamoto, a senior official of the law school.

"A special committee of the Central Council for Education, an advisory board to the education minister, issued a final report Friday with recommendations to improve the quality of the nation's law schools.

"The minister, Ryu Shionoya, plans to deliver the recommendations to law schools, urging them to abide by the proposals.

"The report said schools that don't have twice as many applicants as their quota should reduce their quota the following year.

"One-third of the nation's law schools fit this category in the 2008 school year.

"According to executives of the Japan Association of Law Schools, the majority of the 23 national universities will cut annual admission quotas for their law schools by 10 to 30 percent.

"Tokyo's Waseda University, which has a quota of 300, is considering reducing the number from the 2011 school year. Chuo University, which accepts the same number of students, has no plans to cut back."

By Tomoya Ishikawa, Fumiaki Onishi and Manabu Aoike (Asahi Shimbun, 4/18/2009), Link to article (last visited 4/18/2009)

"Supreme Court acquits professor of groping charges

"The Supreme Court on Tuesday acquitted a professor of charges he molested a female student on a packed train in Tokyo, overturning guilty verdicts that were based entirely on the teenager's testimony.

"It was the first time the top court has given an innocent verdict in a groping case.

"The Supreme Court's Third Petty Bench said the lower courts' rulings that sentenced Masahiro Nagura, 63, a professor at the National Defense Medical College, to 22 months in prison lacked necessary prudence.

"Three of the five justices supported the innocent ruling for Nagura, who is now on temporary leave from his college, while two said the guilty verdict should stand.

"The Supreme Court said that "especially prudent judgment is required" in cases of molestation on trains because it is difficult for police and prosecutors to gather objective evidence. In addition, the court said, the suspect will have a difficult time formulating a defense after being accused of groping.

"The ruling will likely force prosecutors to be more cautious on deciding whether to indict suspects based only on the testimonies of the accusers.

"Judges may also take a tougher approach to accepting prosecutors' arguments that are based on limited evidence. Police officers will be required to collect more scientific evidence, such as fibers and bodily fluids, in groping cases.

"Prosecutors indicted Nagura on charges he molested a 17-year-old senior high school student in a packed train on the Odakyu Line in Tokyo's Setagaya Ward on the morning of April 18, 2006. They said he inserted his hand inside the teenager's underwear and fondled her.

"The only evidence against Nagura was the girl's statement that she had been sexually assaulted.

"There were no witnesses. And police found no fibers from the girl's underwear on Nagura's hands.

"Nagura insisted he was innocent. But the Tokyo District Court and the Tokyo High Court both found him guilty, saying the girl's testimony was credible.

"However, the Third Petty Bench noted flaws in the lower courts' rulings.

""Reasonable doubt still remains on the claim that Nagura committed the crime," the ruling said.

"The top court said that Nagura's character does not fit the profile of a molester.

"The ruling also noted that after the alleged molestation began, the girl left the train but returned to the same car and stood near the professor.

"The ruling cast doubt on the testimony of the girl, saying that if the molestation had been persistent as she claimed, she would have made a more serious effort to avoid it.

"Recognizing that prosecutors had no new evidence to present, the top court did not return the case to the lower courts but ruled that Nagura is innocent.

"According to the Supreme Court, the top court has given innocent rulings to only 16 suspects since 1980. In rare cases like Nagura's, the top court did so because it deemed the lower courts' rulings were based on an erroneous recognition of the facts."

By Asahi Shimbun (4/15/2009), Link to article (last visited 4/15/2009)

Noriko Calderon’s Case

"Despite being Japan's most densely populated area, Warabi rarely causes a blip on the national media radar.

"Set in a rusting corner of Saitama Prefecture, the city has two minor recent claims to fame: a communist mayor and the 13-year-old daughter of illegal Filipino immigrants.

"An odd place perhaps for two groups with radically different visions of Japan to take to the streets, but this is where neo-nationalists and liberal opponents could be found slugging it out last weekend.

"On one side, a party of nationalists crammed into a small park and listened to ringleader Makoto Sakurai, a rising new-right star who turns out for protests in a three-piece suit and watch chain.

""People in other countries are looking at this case very carefully," Sakurai told the crowd to cheers of "Send illegal foreigners home!" "They see that we are a soft touch. If we allow this girl to stay, many more will come. It's totally unacceptable."

"Some of the nationalists handed out copies of an article from a Manila newspaper "proving" that the case had received a lot of publicity in the Philippines. "Filipinos now know that if they have a child illegally in Japan, the child will win special rights," said Takehiro Tanaka.

"Hemmed in behind police with riot shields, a group of counterdemonstrators were kept half a kilometer away near Warabi Station. "They're racists," spat Ryo Hagitani. "Please don't mistake their views for those of ordinary people. Japanese people don't support them. We want foreigners to come here."

"Noriko Calderon, the unwitting target of all this attention, would have heard Sakurai from the cramped Warabi apartment she shares with her Filipino parents. But she was miles away with her mother, thanking supporters who had backed their fight to stay in Japan.

"Last month, the family's six-month legal battle ended when Justice Minister Eisuke Mori gave Noriko a one-year special residence permit, allowing her to live with her aunt and continue school in this city. Her parents, Arlan and Sarah, who came to Japan in the early 1990s on false passports, were sent back to the Philippines on Monday.

(...)"

By David McNEILL (Japan Times, 4/14/2009), Link to article (last visited 4/15/2009)

"A-bomb disease ruling

"Why does the government refuse to recognize people suffering from the aftereffects of radiation exposure following the 1945 U.S. atomic bombings of Hiroshima and Nagasaki as victims eligible for special benefits for their diseases?

"More than 300 survivors of the atomic bombings filed group lawsuits across the country, demanding the government recognize that their respective illnesses were caused by the atomic bombings.

"On March 18, in the 15th ruling in the series of lawsuits, the Hiroshima District Court recognized the plaintiffs' claim and annulled a decision by the minister of health, labor and welfare that rejected their applications for certification as atomic-bomb disease sufferers. It was the 15th straight loss for the government. All of the rulings criticized the way screening for certification is carried out.

"Under the certification system for diseases caused by the atomic bombings, if patients are recognized as having developed an illness such as cancer as a result of radiation exposure, they will be paid monthly benefits of about 137,000 yen in addition to having their medical expenses covered while they are undergoing treatment. The health minister decides each case based on opinions of the medical subcommittee of the certification panel of experts.

"What is noteworthy in the Hiroshima ruling is the fact that it recognized state indemnity for the first time in a series of lawsuits and ordered the government to pay a total of 990,000 yen to three plaintiffs. The ruling noted the following points:

"The Supreme Court criticized the method of assessment to estimate radiation exposure based on the distance of each person from ground zero as being "too mechanical." The health minister should have asked the medical subcommittee to re-examine cases it evaluated using the method in question. The minister failed to fulfill his obligation to exercise due care when he routinely rejected applications by following the opinions of the subcommittee.

"Based on that recognition, the court stated that the degree of illegality "deserves strong disapproval to the extent that it is irredeemable." It also harshly criticized the negligence of the minister for leaving the matter to the subcommittee.

"The government continues to fight in court as if to ignore repeated judicial decisions. The latest court ruling should be seen as a strong message to the government, urging it to accept its defeat with good grace.

"The average age of atomic bomb survivors has topped 75. Already 63 plaintiffs have died. We urge the government to stop its court battles and expedite the certification of more than 7,500 survivors who are waiting to have their applications processed.

"Last April, the health ministry revised its old standards of certification that were criticized as being "mechanical" but we find it questionable that the new standards aptly grasp the actual situation of health damage caused by the atomic bombings. This is because the new standards basically set a limit on the illnesses to be recognized to five specific diseases such as cancer.

"Even after last spring when the new standards were introduced, courts handed rulings to recognize patients suffering from conditions other than the five diseases as atomic-bomb disease sufferers. The plaintiffs are calling on the government to re-examine the standards once again but its response is slow. Another problem is that many members of the subcommittee who stick to the assessment method criticized by the Hiroshima District Court are still in the subcommittee and screening the applications under the new standards. It is natural that groups of atomic bomb survivors are demanding that the subcommittee accept members endorsed by them.

"The government should revise the certification standards so as to address the actual health problems of survivors and have applications screened by a subcommittee comprising new members. It is time for the government to sincerely listen to the voices of the survivors and implement broad relief measures without delay."

By Asahi Shimbun (Editorial, 3/26/2009), Link to article (last visited 3/27/2009)

"Japanese Court Rejects Teachers’ Suit Over Flag

"TOKYO — A court on Thursday rejected a lawsuit filed by teachers punished for refusing to sing the national anthem and salute Japan’s flag, considered by many a symbol of the country’s past militarism.

"Since 2003, the Tokyo Board of Education has required public school teachers to stand and face the rising-sun flag and sing the national anthem, which reveres the country’s emperor.

"A group of 172 teachers and staff members said the board breached the Japanese Constitution when it censured them for refusing to follow the directives, and they demanded damages of 550,000 yen, or nearly $5,600, each.

"Japan’s Constitution, drafted by American occupying forces after World War II, guarantees freedom of thought.

"One plaintiff was required to undergo “special retraining” and to write a self-examination.

"But Shigeru Nakanishi, the presiding judge of the Tokyo District Court, rejected the plaintiffs’ assertions, saying the board acted within constitutional boundaries.

"The board’s directive “does not constitute an act of forcing students to follow a certain philosophy,” and it is “necessary for schools to require uniformity at group-oriented ceremonies,” Mr. Nakanishi wrote in the ruling.

"Toru Kondo, a teacher who led the lawsuit, said, “The ruling is blatantly unjust,” and added that the plaintiffs would appeal the decision.

"“We are prepared to fight to the end to bring freedom and democracy back to education in Japan,” Mr. Kondo said.

"The teachers say that the national anthem — “Kimigayo,” or “His Majesty’s Reign” — harks back to the emperor worship that was a rallying point for Japanese imperialism. Japanese troops fought under the Hinomaru flag, which depicts a red sun on a white background, during Tokyo’s invasion of the Asian mainland in the first half of the 20th century.

"Postwar Japan was long ambivalent toward its flag and anthem, and they were made legal national symbols only in 1999. But a recent swing to the right in Japanese politics has spurred regulations making respect for the flag and anthem mandatory.

"The Tokyo government, led by Shintaro Ishihara, a nationalist governor, has been especially zealous in enforcing respect for the national symbols at its public schools.

"Supporters say the move is a step toward remaking Japan as a normal, patriotic country.

"But Japan’s Asian neighbors, especially China and the Koreas, remain suspicious of any resurgence of Japanese nationalism.

"The regulations introduced by Tokyo in 2003 require that the national flag be raised at graduation and enrollment ceremonies. Teachers and students must rise, face the flag and sing the anthem.

"Board or school officials instruct teachers to stand and sing — and take down the names of those who refuse."

By Hiroko Tabuchi (NYT, 3/26/2009), Link to article (last visited 3/27/2009)

"Death sentence rulings pose problem for lay judges

"It won't be easy for citizen judges called to recommend punishment in serious criminal cases under the new trial system starting in May.

"Given varied court verdicts in recent murder cases, there is no clearly defined standard on when to impose the death sentence.

"In the past, the number of victims in a murder case had been a crucial factor in determining whether an offender deserved the death sentence.

"Veteran judges point to an unwritten rule after a 1983 Supreme Court decision that if a murder case involves just a single victim, the defendant is given a life prison term, while a death sentence is imposed when there are three or more victims. Verdicts may go either way in the case of two victims.

"This week, the Takamatsu District Court on Monday and the Himeji branch of the Kobe District Court on Tuesday handed down death sentences in cases where there was more than one victim.

"But on Wednesday, the Nagoya District Court, ruling in the murder of a woman by three men who had met online, handed down death sentences to two of the defendants despite the fact there was just one victim.

"A former judge said of the verdict: "I wasn't that surprised by the death sentence. It was a horrific crime and there were no extenuating circumstances for the motive."

"The sentiment reflects a trend over the past decade toward verdicts designed to meet the savagery of the crime.

"But among people already chosen as candidates to serve as lay judges, there was confusion at Wednesday's ruling.

"A 68-year-old self-employed man said he had expected only one defendant to get the death sentence. His impression was based on media reports that focused on the cruelty with which the defendant had struck the victim in the head with a hammer a number of times.

"To complicate the issue further, on Jan. 13 the Gifu District Court handed down a life sentence to a defendant who murdered five family members before trying to kill himself.

"Attention will turn next week to how the Akita branch of the Sendai High Court will treat an appeal by prosecutors against a life sentence given to a woman convicted in the district court of killing two children.

"For many years, judges have relied on the 1983 Supreme Court ruling when deciding whether to hand down a death sentence.

"However, the ruling only includes factors for consideration and is far from an exhaustive guide. Ultimately, judges must decide, based on the facts before them, on whether to reach the conclusion that a death sentence is unavoidable.

"In 1999, the Supreme Court handed down a ruling that said a death sentence could be given even in a case with one victim.

"Legal experts said the ruling was intended to put a stop to the almost automatic practice among lower courts of avoiding giving the death sentence in single victim cases, regardless of the brutality of the crime.

"The same court went further in a 2006 verdict for a case in which an offender murdered a mother and her young child. The court overturned lower court verdicts of life sentences and said a death sentence could be handed down depending on the cruelty of the crime and the feelings of bereaved family members."

By Asahi Shimbun (3/20/2009), Link to article (last visited 3/20/2009)