Monday, March 31, 2008

Supreme Court Misses a Chance to Right a 42-year-old Wrong

"IN 1966 Iwao Hakamada was accused of killing a family and setting fire to its house during a robbery. He denied it. But after 19 days of 12-hour interrogations by police and prosecutors, he confessed. He saw a lawyer just three times for a total of 37 minutes. At his trial he said the “confession” had been coerced: the police had beaten and threatened to kill him. Judges noticed discrepancies in the confession, and demanded he redo it—45 times—until they were satisfied.

"Mr Hakamada was found guilty in a 2-1 decision. The dissenting magistrate, Norimichi Kumamoto, quit the bench in silent protest. Last year he broke 39 years of silence to denounce the verdict. Requests for retrials and appeals had been denied from the 1970s onwards. But armed with the former magistrate's words, supporters of Mr Hakamada, who has come to symbolise the rot in Japan's criminal-justice system, felt their case was strong.

"Yet on March 24th the Supreme Court turned down a retrial plea, citing a lack of “reasonable doubt” about the verdict. His lawyers plan to appeal against the decision. As for Mr Hakamada, now 72, he is losing his mind as he languishes in solitary confinement on death row.

"Article 34 of the Japanese Constitution guarantees the right to counsel and habeas corpus, but is systematically ignored. Police and prosecutors can detain suspects for 23 days. Interrogations are relentless and sometimes abusive. Prosecutors are reluctant to bring cases to trial without a confession. Indeed, it is considered a first step in a criminal's rehabilitation. When asked about the country's 99% conviction rate, Japan's justice minister, Kunio Hatoyama, corrected your correspondent to state that it was actually 99.9%, because prosecutors only present cases that are watertight.

"Slow reform is coming. First, to tackle an acute shortage, the government is to let more people pass the bar exam and become lawyers: at present Japan has a mere 24,000, ten times fewer per head than Britain. Only 7% of students pass the bar exam. Second, a jury system will be brought in next year for serious cases. This will open the judiciary to greater public scrutiny. Third, the police are to introduce procedures for monitoring interrogations (though they rejected proposals to videotape them). All too late for Mr Hakamada."

By The Economist (3/27/2008), Link to article (last visited 3/31/2008)

*Click here and here for more information.
*Former Judge Norimichi Kumamoto's interview (in Japanese)

Sunday, March 30, 2008

WWII: History, Defamation, and Lawsuits

"The Osaka District Court on Friday rejected a damages lawsuit against Nobel Prize-winning writer Kenzaburo Oe and a publisher brought by a veteran of the Imperial Japanese Army and a brother of a deceased veteran, who claimed descriptions in two books on mass suicides during the Battle of Okinawa were defamatory.

"Presiding Judge Toshimasa Fukami denied the plaintiffs' claim, saying: "The army was deeply involved in the mass suicides, so it's possible to presume the veterans were involved. It's difficult to readily conclude that the veterans in question ordered [the civilians to commit] mass suicide, but the books' descriptions have reasonable grounds, and therefore, there is due reason to believe [the descriptions] are truthful."

"The plaintiffs demanded 20 million yen in compensation and a publication ban on Oe's "Okinawa Noto" (Okinawa Note) and "Taiheiyo Senso" (Pacific War) by historian Saburo Ienaga, both originally published by Iwanami Shoten Publishers, in 1970 and 1968, respectively, on the ground that the books' claims that military personnel ordered civilians to commit suicide were false.

"The plaintiffs plan to appeal to a higher court.

"The plaintiffs are 91-year-old Yutaka Umezawa, who was the garrison commander on Zamamijima island, and 75-year-old Hidekazu Akamatsu, the younger brother of Yoshitsugu Akamatsu, who was the garrison commander on Tokashikijima island.

"According to "Okinawa Noto," the mass suicides were ordered by Japanese troops. The book does not mention Umezawa and Akamatsu by name, but says, "Those in charge of the mass suicides have not atoned for Okinawa in the least."

""Taiheiyo Senso," however, does mention Umezawa directly, saying, "Umezawa ordered [the civilians to] commit mass suicide."

"Fukami recognized the army's role in the mass suicides, based on the recorded testimony of citizens who said they were given hand grenades by the army for that purpose, and the fact that mass suicides were only reported on islands where troops were based.

"As for Umezawa and Akamatsu, Fukami said: "Top-down organizations led by the plaintiffs and others were established on the islands. Therefore, it's possible to presume that [Umezawa and Akamatsu] were involved."

"However, Fukami refrained from judging whether the veterans had directly ordered mass suicides, saying it was unclear how the orders were passed down the chain of command.

"He also said, "The descriptions damaged the social standing of the two veterans and others, but it was reasonable [for the authors] to believe the incident was true, based on related documents and scholarship."

"From March 1945 to April 1945, toward the end of World War II, residents on Zamamijima and Tokashikijima islands and Okinawa's main island committed suicide after being cornered by U.S. troops."

By Yomiuri Shimbun (3/29/2008), Link to article (last visited 3/30/2008)

Thursday, March 27, 2008

Bar Passage Rate: Increasing the Number of Lawyers

"The government's goal of improving the quality of judicial services for the public by increasing the number of lawyers now stands at a crossroads.

"In June 2007, the Cabinet decided to move up the target date for increasing the number of people passing the National Bar Examination to about 3,000 annually before 2010. However, Tuesday's decision reverted the plan back to the original schedule of 2010.

"Justice Minister Kunio Hatoyama was beaming after the decision was reached.

""We no longer plan to move up [the target date for the increase] or to further increase the number of lawyers after reaching the goal. I'm really grateful that the Cabinet respected my opinion," Hatoyama said at a press conference after the Cabinet meeting.

"In February, Hatoyama launched a task force within the ministry charged with examining the ideal number of people to pass the bar exam. The group considered reducing the number of people who pass the exam from 2010, a move apparently taken over fears that a glut of lawyers could see Japan turn into a "litigious society."

"Bar associations across the country also bristled at the government's plan to increase the number of people passing the bar exam.

"In October, the Chubu Federation of Bar Associations adopted a resolution against the government plan, saying the drastic increase in the number of lawyers in recent years had saturated the market in major urban areas. Many lawyers apparently were struggling to find enough work.

"Resistance to the proposal also took shape in the Liberal Democratic Party, where a subcommittee on the education of legal professionals and the bar exam started discussing the appropriate number of legal professionals in November.

""It's fine to set the goal of increasing legal exam graduates to 3,000, but this should be on the premise that we ensure the quality of legal professionals," Hatoyama said.

"Opponents of the government's plan were particularly boisterous regarding the possible decline in the quality of lawyers.

"However, some legal experts question whether this argument holds any water.

""If the government tries to dramatically increase the number of people passing the bar exam, which has long been capped at a low figure, the question of [legal professionals'] quality will inevitably raise its head," a judicial expert said. "But I presume the government has been promoting judicial system reform while taking such matters into consideration."

"Lawyers are concentrated in major urban areas. According to the Justice Ministry, 24 district courts and their branches have either no lawyers or only one lawyer under their jurisdiction.

"Prof. Setsuo Miyazawa of Aoyama Gakuin University's Law School is adamant that the current system must be reviewed as quickly as possible.

""The government's decision is a step back from the proposal of the Justice System Reform Council," Miyazawa said, referring to the council that had called for raising the number of lawyers.

""Unless a sufficient number of people are guaranteed to pass the bar exam, talented individuals will not even try to enter law schools. This will eventually erode the quality of legal professionals," he said.

"Miyazawa also suggested that lawyers will remain reluctant to shift to areas with a dearth of lawyers unless the number of lawyers continues to rise. At the same time, if the number of judges and prosecutors does not increase, efficiently dealing with criminal cases will become increasingly difficult, he said.
===

"'Pains of childbirth'

"A series of discussions on judicial reform started after the Justice System Reform Council was founded by the administration led by former Prime Minister Keizo Obuchi in July 1999. The reforms aimed to make the judicial system--which was widely considered as being disconnected from the public--closer to the people and more trustworthy, according to Prof. Koji Sato of Kinki University's Graduate School of Law, who served as the council's chairman.

"In June 2001, the council's final report submitted to then Prime Minister Junichiro Koizumi centered on the following proposals:

"-- Introduce a lay judge system, under which citizens take part in criminal trial proceedings along with judges.

"-- Open law schools in fiscal 2004.

"-- Increase the number of people passing the bar exam to 3,000 in about 2010.

"Armed with these proposals, the government established the headquarters to promote judicial system reform in December 2001.

"The government has since passed several laws to promote the judicial system reform, including a law concerning the establishment of law schools and new bar exams in November 2002.

"Two more laws were passed in May 2004--a law on the introduction of the lay judge system, and another law designed to improve legal assistance for citizens, under which the Japan Legal Support Center was established.

"The lay judge system is scheduled to be introduced by May 2009, and the current bar exam is due to be abolished after being held in 2010.

"Put simply, judicial system reform is being carried out as a national strategy, and the planned increase in the number of people passing the bar exam constitutes the foundation of this strategy.

"Sato believes judicial system reform is steadily moving ahead, despite a few wobbles along the way.

""The Diet unanimously passed most of the 24 laws designed to give shape to the content of the council's final report. In this respect, judicial reform is the citizens' collective opinion," Sato said.

""The ongoing reforms have indeed faced problems, such as low pass rates in bar exams and a lack of understanding of the lay judge system. Nevertheless, these are like the pains of childbirth, and steps are steadily being taken toward reform," he said."

By Toshimitsu Miyai and Fumio Tanaka, Yomiuri Shimbun (3/27/2008), Link to article (last visited 3/27/2008)

Tuesday, March 25, 2008

Referendum Law and The Age of Majority

"In Japan, adulthood legally begins at age 20. This has been so since the Civil Law was created in 1896. The government has recently started debating whether to lower the ceiling to 18. What sparked this debate was the adoption of a law last year setting the rules for a national referendum required for constitutional change. It stipulates that those aged 18 or older could vote in such a referendum. It also takes note of the fact that it is common around the world for 18-year-olds to be allowed to vote.

"The national referendum law will come into effect in May 2010. The law also demands that lowering of the voting age for elections should be decided by then, as well as lowering the age of adulthood stipulated by the Civil Law. The Justice Ministry's Legislative Council has started discussing whether to revise the Civil Law and lower the age of adulthood.

"In the Civil Law alone, there are as many as 50 related articles. There are also 308 related laws or ordinances. Lowering the age of adulthood would, therefore, have widespread repercussions. Even before the national referendum law was adopted, we argued in our editorials that the voting age should be lowered to 18. Our reason for this is that Japanese people live in an aging society, where the younger generation has to bear a greater burden of taxes and social security fees. Thus, we believe the political establishment should be listening to the opinions of the younger generation. For local referendums, some municipalities already allow 18-year-olds to vote.

"If the right to vote is given to people as young as 18, it would seem to follow that the legal age of adulthood should be lowered, too. If the revision to the Civil Law is approved, those who are 18 or 19 would be able to enter into a legal contract or get married without parental approval. That would expand the rights of the young.

"On the other hand, many people strongly oppose the notion of treating 18- and 19-year-olds as adults. The key reason seems to be that those aged 18 and 19 are too young and immature to make appropriate judgments on their own.

"At what age does one mature mentally and gain good judgment? That is a very difficult question, since so much depends on the individual. The Justice Ministry says it is unclear why 20 was deemed to be the age of adulthood in the first place. Until the Edo Period (1603-1867), children usually came of age at 15. This was raised to 20 in the Meiji Era (1868-1912), but the decision was apparently made without any national discussion on the merits of doing so. In the end, there is nothing else to do but to decide the age of adulthood based on the maturity of youth and current trends around the world.

"Those who oppose lowering the age of adulthood are also worried about taking away various legal safeguards given to 18- and 19-year-olds as they fall under the category of minors. It is true that rights come hand in hand with obligations. That a youngster can enter into a contract without parental consent means he or she cannot void the contract even if it is disadvantageous to him or herself. However, measures against fraudulent contracts should be dealt with individually regardless of age.

"The biggest anxiety may concern the removal of legal protection based on the Juvenile Law that are currently granted to 18- and 19-year-olds. Yet even now, 18- and 19-year-olds are treated differently from those aged 17 or younger, for they can be handed the death sentence. A multifaceted debate is necessary, taking these issues into account.

"Another immediate problem is what to do about laws that prohibit those under 20 from drinking alcohol or smoking. The negative effects of smoking remain a serious issue no matter what age. This issue could serve as a starting point for fresh discussions. The Legislative Council has set up an expert panel. We expect to see forward-looking discussions that reflect a wide range of views from the public."

By Asahi Shimbun (Editorial, 03/25/2008), Link to article (last visited 03/25/2008)

Sunday, March 23, 2008

Tie-Wearing Defendants and The Influence of Appearance

"The Justice Ministry will allow defendants held in custody to wear a tie and shoes when appearing in court under the lay judge system to be introduced in May 2009, according to sources.

"Currently, people not on bail appearing in court are barred from wearing a tie and have to wear slip-on sandals, in an effort to discourage them from fleeing detention houses or attempting to commit suicide.

"However, some people argue that having defendants dress this way could make them look like criminals to lay judges and hurt their chances of a fair trial.

"The sources said the ministry also has decided to permit defendants to sit next to their attorney during trials."

By Yomiuri Shimbun (3/22/2008), Link to article (last visited 3/23/2008)

Friday, March 21, 2008

Concerns About The Upcoming Japanese Jury System

"Wednesday's ruling on a 35-year-old woman charged with murdering her daughter and a boy living in her neighborhood in Akita Prefecture shows that the judges were close in their decision between a sentence of death or life in prison. In spring next year the lay judge system will begin, and the onus of making such tough decisions will be on lay judges.

"The Akita District Court sentenced Suzuka Hatakeyama to life in prison, instead of the death penalty demanded by the prosecution, for the two murders in Fujisatomachi in the prefecture. The defense council appealed the decision on the same day to a higher court.

"Hatakeyama had admitted to killing the boy, but denied her intention to kill her daughter, Ayaka, who according to the charges drowned after Hatakeyama pushed her over a bridge railing into a river. The defense maintained that Ayaka's death was caused by negligence resulting in death as Hatakeyama only brushed Ayaka off while Ayaka was sitting on the railing and trying to hold on to her mother.
===

"Pressure on judges great

"The prosecutors had no physical evidence and had to argue the murder charges using testimonies of people who knew Hatakeyama. The testimonies included accounts that Hatakeyama saw her daughter as bothersome.

"The ruling sided with the prosecution's argument and ruled that Hatakeyama intended to kill her daughter and the boy. However, the ruling added that Hatakeyama committed the crimes on impulse without premeditation and in a mentally unstable state.

"This may be the key factor that made the court hand down a life sentence instead of execution. The ruling appeared to be a close decision, as one of the reasons mentioned for rejecting the death penalty was that a life sentence would allow Hatakeyama to dedicate the rest of her life to making amends for her crimes.

"The lay judge system will have to deal with serious cases like this. Lay judges will have to make decisions based on presented evidence and decide if a defendant had an intention to kill, and if it was premeditated or done on impulse.

"The psychological pressure on lay judges will be immeasurable.
===

"Faster trials not so easy

"In the Akita case, judges, prosecutors and lawyers met before the first trial to narrow down points of contention. This procedure is meant to shorten the length of trials and is usually completed in several meetings. But in this case, 12 meetings were held, a sign that it was a difficult case.

"Court procedures in the case ended up lasting six months. From September until Wednesday's ruling, 14 court sessions were held, with a maximum of four sessions in one month being held.

"The Supreme Court expects most trials under the lay judge system to wrap up in five sessions or fewer. However, if defendants deny charges against them, some trials will probably not go so smoothly even if judges, prosecutors and lawyers continue to hold pretrial meetings to narrow down points of contention. The Akita trial is an example of this type of case.

"Lay judges working on difficult trials also will be burdened with managing their own lives while making time for the trials.

"In the lay judge system, it may become difficult to make sure cases are thoroughly examined while at the same time ensuring the burden placed on the lay judges is not unreasonable."

By Yomiuri Shimbun (Editorial, 3/21/2008), Link to article (last visited 3/21/2008)

*Click here for more information.

Wednesday, March 19, 2008

Kyoto Protocol: Japan and Greenhouse Gas Reductions

"TOKYO, March 19 (Reuters) - Japan can cut greenhouse gas emissions by 11 percent by 2020 below 2005 levels, a trade ministry study said on Wednesday, far below efforts proposed by U.N. officials and the European Union.

"Japan could achieve the cuts through an overhaul of energy supply including installing solar panels on 70 percent of new homes and a jump in nuclear power-generated electricity to 45 percent of supply from 30 percent currently, as well as a 15 percent improvement in auto fuel efficiency.

"The measures would put Japan's emissions at 1.214 billion tonnes in carbon dioxide (CO2) equivalent in 2020, nearly 11 percent down from 1.359 billion tonnes in 2005, said the study, which estimated the cost of such cuts at more than $500 billion.

"Japan's estimated total emissions by 2020 would be at 4 percent below the levels in 1990, the base year under the Kyoto Protocol.

"But that is only a minor reduction when compared with EU plans to cut greenhouse gas emissions by a fifth by 2020 compared to 1990 levels.

"The U.N.'s climate change chief Yvo de Boer is currently steering talks to extend or replace the Kyoto Protocol after 2012 and wants developed nations to adopt a target range of 2020 emissions 25-40 percent below 1990 levels at a meeting of leaders from Group of Eight nations in Japan in July.

"The next U.N.-led climate meeting is set to be held in Bangkok from March 31-April 4 in talks due to end in 2009 on forging a global pact that involves all nations in taking action to combat climate change.

"NATIONAL TARGETS

"The 25-40 percent reduction range by 2020 has been floated since a U.N. meeting in Vienna last August as a non-binding starting point for rich countries to work on the global pact, but Japan has not commented on a numerical target.

"Japan's Ministry of Economy, Trade and Industry (METI) submitted its study to an advisory panel on Wednesday, and it is expected to provide a basis for discussions within the country on how to share the costs of shifting Japan toward what Prime Minister Yasuo Fukuda called earlier this year "a low carbon society."

"The study estimated households would shoulder a 51 percent share of the estimated total cost of 52.3 trillion yen ($522 billion), with the remaining 49 percent shared by corporate offices, factories and electric power companies.

"The study is expected to emphasize Japan's recent proposals on how to reduce global emissions in the medium to long term.

"While Japan, the world's fifth-biggest emitter of greenhouse gases, has backed a 50 percent reduction by 2050 together with other nations, it has also proposed setting a global target of 30 percent improvement in energy efficiency by 2020.

"Japan has rejected using 1990 as a base year for emissions cuts, saying it was unfair to their industry which had already made energy efficiency investments in previous decades.

"The way emissions are calculated in the study was similar to Japan's proposal for post-Kyoto pact that top emitting nations assign near-term emissions targets for each industrial sector which, added up, would then form a national target.($1=99.63 Yen)"

By Risa Maeda, Reuters (3/19/2008), Link to article (last visited 3/19/2008)

Monday, March 17, 2008

Yokohama Incident: The Supreme Court During Wartime

"The Supreme Court on Friday rejected an appeal against a lower court decision to terminate a retrial of five men convicted in the so-called Yokohama Incident, the worst case of free-speech suppression in wartime Japan. Between 1942 and 1945, a special division of the Kanagawa prefectural police arrested dozens of people including magazine editors on suspicion of promoting communism in violation of the Peace Preservation Law.

"All those arrested were tortured to obtain "confessions" and four died in prison. It has long been clear the charges were groundless and the victims were framed by the authorities. After the war, five of the people found guilty spoke up and demanded a retrial.

"Finally, in 2005, the Tokyo High Court agreed to a retrial, recognizing their confessions were made under torture. By then, the five original plaintiffs had died. Their bereaved family members took over the case and continued to seek a not-guilty judgment, hoping to clear the names of the five.

"In its ruling Friday, the Supreme Court did not say the five were innocent. It merely upheld the previous lower court rulings by saying the five were "dismissed from trials."

"Usually, a court terminates proceedings in ongoing cases if the law prohibiting the crime is abolished, or when an amnesty is passed. But when a defendant's case is thus dismissed, the question of the defendant's guilt or innocence is left undecided.

"After the war, the Peace Preservation Law was abolished and the former convicts received amnesties. This fulfilled the legal requirements, and that condition has not changed, according to the Supreme Court.

"But is this logic really appropriate?

"In an ordinary trial, when the applicable law is abolished, the court can terminate the proceedings. But in a case of guilty sentence, unless the court passes a not-guilty verdict in the retrial, the former convicts can never restore their honor.

"It is extremely disappointing that the Supreme Court focused on the narrow legal point and let the retrial termination stand.

"The Yokohama Incident retrial gained wide notice because the public wanted to see how modern Japan's courts would view its past judicial actions--actions that led to suppression of free speech in order to wage war.

"But the Supreme Court has turned a blind eye to the mistakes.

"The tortures conducted by the Kanagawa prefectural special police, which continued until the very end of the war, were abominable. However, the court is not blameless. It issued guilty verdicts based on confessions obtained through torture.

"Moreover, the rulings on the five retrial plaintiffs were handed down by courts after the war ended in 1945. The courts were doubly wrong.

"Apparently, many judges who handed down guilty sentences based on the Peace Preservation Law kept their jobs after the war. Lawyer Eigoro Aoki, who was a judge before and after the war, has written, "Is it acceptable for judges to say that they had no other choice but to hand down guilty rulings? For those who would be judges under the new Constitution, it is their duty to reflect upon their own past actions."

"However, the judiciary community has done little soul-searching about their wartime conduct.

"Today, Japan has its Constitution, legal system and support for free speech--it is much different from the wartime era.

"It is hard to believe something like the Yokohama Incident could happen again. But the Supreme Court's stance of ignoring past judicial mistakes is disturbing.

"The Supreme Court has lost the chance to gain the public's trust."

By Asahi Shimbun (Editorial, 3/17/2008), Link to article (last visited 3/17/2008)

Friday, March 14, 2008

The Death Penalty in Japan

"IT WAS a rarity for Japan: two notable acquittals within a month. On March 5th Mitsuko Katagishi, a 60-year-old from southern Kyushu island, was acquitted of charges that she had killed her brother and set fire to his house. The case against her rested on prosecution claims that she had confessed her crime to a cellmate during months in police detention. The presiding judge chided the police for planting the cellmate and dismissed the evidence as not credible. In a country with a conviction rate of over 99%—and where even defence lawyers urge clients to plead guilty—this was a deep embarrassment.

"It follows a farcical trial in February of 11 mainly elderly defendants accused of vote-buying in Kagoshima, also on Kyushu. The trial collapsed when it became plain that the police had fabricated the evidence—though not before one defendant had died and another been subjected to over 700 hours of interrogation and 400 days in detention. All the accused had been ground down until they signed confessions of guilt.

"In response to these problems, the authorities have closed ranks. Japan's justice minister, Kunio Hatoyama, argues with casuistic skill that the vote-buying case cannot be described as a false prosecution: that would imply the real culprits are still at large when, happily for all, there are no culprits at all. But such complacency is wearing thin. Two changes are afoot in Japan's criminal-justice system. One is the introduction next year of trials in which a lay jury of six will join three judges to adjudicate in criminal cases, with convictions secured by majority vote. This may encourage more popular involvement in the criminal-justice system. The other is the emergence of establishment figures prepared to question the shortcomings of that system, and especially of the death penalty, which means victims pay an irreversible price for miscarriages of justice.

"Shizuka Kamei, a former chief in the National Police Agency and now a member of the Diet (parliament), describes Japan's high conviction rate as “abnormal”. The police, he says, are under more pressure to find any culprit for a crime than to find the real one. To save face, senior officers are reluctant to highlight mistakes made by subordinates. Worse, prosecutors are not bound to disclose material that they choose not to use in court. Many false prosecutions never come to light.

"The notion of being innocent until proven guilty is not strong in Japan. Mr Hatoyama calls it “an idea which I want to constrain”. But confessions are important and the courts rely heavily upon them. Apart from helping secure convictions, they are widely interpreted as expressions of remorse. A defendant not only risks a longer sentence if he insists he is innocent, he is also much less likely to be granted bail before trial—often remaining isolated in police custody, without access to counsel, for long enough to confess. Toshiko Terada, a private lawyer, calls this hitojichi shiho—hostage justice. Perversely, where little supporting evidence exists, the system helps hardened criminals, who know that if they do not confess they are unlikely to be indicted. Innocents, on the other hand, may crack—as in the Kagoshima case, or in a notorious 2002 rape case when the accused confessed under pressure but was released last October after the real culprit came forward.

"Growing concerns about such miscarriages have helped forge an unlikely parliamentary alliance between politicians of the left pushing to abolish the death penalty, Mr Kamei (who in other areas is an arch-conservative) and Koichi Kato, a former secretary-general of the ruling Liberal Democratic Party. Last year Japan executed nine people, compared with America's 42; it also has 106 people on death row. But its murder rate is only one-fifth that of America so its execution rate is roughly comparable. Some of Mr Hatoyama's predecessors have been unwilling to sign death warrants, but in the past 18 months executions have leapt (see chart), including several accused who were elderly and infirm.

"Executions take place in extreme secrecy under the auspices of the Justice Ministry. Prisoners are kept in near-isolation and are not usually informed that their time is up until less than an hour before the sentence is carried out—often after waiting for decades. The names of those executed were made public for the first time only in December. Not even Diet members may inspect a working gallows, and many people do not know that hanging is Japan's method of execution. Bureaucratic secrecy has served to suppress debate about the death penalty—and give ordinary people a sense that justice is something best left to the authorities."

By The Economist (3/13/2008), Link to article (last visited 3/14/2008)

Japanese Debate on Lowering the Legal Age to 18

"TOKYO (AFP) — Japan on Wednesday opened a debate on lowering the age of adulthood from 20 years old to 18 in what would be the country's first redefinition of coming of age in modern times.

"Japan's age of adulthood -- at which a person can legally vote, drink alcohol, smoke cigarettes and can no longer be spared the death penalty -- is high by world standards, with most developed countries designating 18 as the key age.

"But public opinion is divided on lowering the age, with some public health advocates arguing that Japan should instead make it more difficult for young people to drink to combat alcohol abuse.

"Justice Minister Kunio Hatoyama had instructed an advisory board to begin studying a legal change to the age of adulthood, ministry officials said.

"While officially the board is only looking into the issue, momentum for change has been mounting. Parliament in May last year revised a law to allow people aged 18 to cast votes in referenda on the constitution.

"The advisory board hopes to reach a conclusion by March next year. If it recommends a change, the government would start work on revising hundreds of laws that involve age.

"Japan first set 20 as the age of adulthood in 1876 as it launched a modern legal code following more than two centuries of seclusion. The 20-year-old cut-off was based on tax regulations dating back to the eighth century.

"Every January, Japanese turning 20 celebrate Coming of Age Day, in which the new adults dress in formal kimonos, pray at Shinto shrines and hear speeches from local officials on their new responsibilities."

By AFP (2/13/2008), Link to article (last visited 3/14/2008)

Subway Gropers, Compensatory Damages, and Lawsuit Industry in Japan

"A senior at Konan University was arrested Tuesday on suspicion of fabricating with his girlfriend a molestation that allegedly occurred on a subway in Osaka in early February.

"The arrested man, Fumiyuki Makita, 24, from Yamashina Ward, Kyoto, is a student of the university's law faculty. The police will send papers to prosecutors on his girlfriend, 31, who allegedly conspired with Makita to pretend she was touched by a man on the subway. The woman has turned herself in to the police and was quoted by the police as saying, "We made it up to get compensation from the man."

"According to the police, the woman pretended to be groped by a 58-year-old company employee while on a train running between the Osaka Municipal Subway Midosuji Line's Dobutsuen-mae Station and Tennoji Station at about 8:30 p.m. on Feb. 1.

"Makita and the woman grabbed the man and turned him in to the police at Tennoji Station. The woman complained to the police that she was molested by the man, and Makita, pretending he had never met the woman before, said he saw the man touching the woman's hip in the train."

By Yomiuri Shimbun(3/13/2008), Link to article (last visited 3/13/2008)

*Groper = Chikan. Click here for more information.

Tuesday, March 11, 2008

World War II, Survivors, Pension, and the Constitution

"Survivors of the numerous U.S. air raids on Tokyo in 1945 sued the central government for compensation Monday, demanding an apology and a combined ¥220 million in reparations for its failure to assist the wounded.

"The 20 plaintiffs will join 112 people who filed a similar lawsuit with the Tokyo District Court last March.

"The combined group will demand a total of ¥1.4 billion in compensation on grounds that the government ignored its duty to help civilians, but rewarded former soldiers and their families with military pensions, thus violating Article 14 of the Constitution, which states that all people are equal under the law.

"The plaintiffs' demands cover damages incurred by all U.S. air raids on Tokyo, including the Great Tokyo Air Raid on March 10, 1945, in which 300 B-29 bombers dropped 2,000 tons of incendiary and other explosives, killing 100,000 people overnight. Monday marked the 63rd anniversary of the attack.

"One of the plaintiffs, Junzo Takenaka, 71, said the central government unjustly forced civilians to endure pain and suffering during the war.

""There were no differences between soldiers and civilians at the time. We were asked to fight for the country. I am enraged at the government" over the lack of compensation, said Takenaka, who lost his parents in the March 10 attack.

"Takenaka was spared because he had evacuated to Nagano Prefecture after previous, smaller air raids. But he said the experiences he lived through as an 8-year-old left him traumatized to this day.

""My parents' bodies were never recovered. All I've heard is that they tried desperately to escape the fire that night," Takenaka told reporters.

"Plaintiff Michiko Uchida, 75, explained that an incendiary shell from a U.S. air raid on Tokyo on May 25, 1945, wounded her in the hip and right leg.

""The pain was intolerable and I remember screaming and yelling at the doctors at the hospital. I begged them to take my life," Uchida said.

"The plaintiffs also alleged that Japan was facing imminent defeat by July 1944 and that the government is liable for prolonging the war, thus inviting the devastating air raids and the atomic bombings of Hiroshima and Nagasaki.

"Their criticism of the government also suggested the Imperial Japanese Army's indiscriminate bombings of Chongqin, China, set a precedent and led the U.S. to conduct similar raids on Tokyo.

"Lawyer Tetsuhiko Kuroiwa explained that in the original lawsuit, which is scheduled to enter its fourth session next month, the government demanded the plaintiffs withdraw their grievances because "civilians must bear with the loss of war.""

By Jun Hongo, The Japan Times (3/11/2008), Link to article (last visited 3/11/2008)

Monday, March 10, 2008

Surrogacy, ART, and the Science Council of Japan

"A Science Council of Japan panel, commissioned by the government to debate the status of assisted reproduction, called in its final report for a ban of surrogate births.

"The advisory panel, headed by Shigehiko Kamoshita, professor emeritus of medicine of the University of Tokyo, recommends passing a law to make it illegal, in principle, to arrange surrogate births for profit, perform such procedures or contract a surrogacy.

"On the other hand, the panel suggested that surrogacy could be allowed in clinical trials under the strict control of public entities. The panel's report was released Friday. Japan currently has no law covering such issues.

"The report is to be submitted to the Ministry of Health, Labor and Welfare and the Justice Ministry in April, after the council's executive board approves the recommendations.

"The debate on surrogate births will then move to the Diet, where some lawmakers support surrogate births. Opinions may prove divided on plans to introduce a legal ban.

"It is also unclear if lawmakers or the government will move to compile a bill on the issue at this time, analysts said.

"The panel's report said consideration should be given to allow surrogacy on a trial basis within strict legal limits, since there is no other way for a woman without a uterus to have a baby.

"The report said any surrogate who gives birth in a trial-basis surrogacy should be considered the baby's mother.

"Babies born in such circumstances, and those born through an overseas surrogate, can legally become the offspring of the couples who contracted the surrogacy through adoption, the report said.

"The panel did not touch on the right of children born to surrogates to know how they came into the world.

"It also did not give a conclusion on the pros and cons of having a surrogate give birth using sperm from the husband of the commissioning couple and eggs from a third woman fertilized in vitro.

"The advisory panel to the government on surrogacy was set up in late 2006, following the much-publicized case of TV personality Aki Mukai and her husband Nobuhiko Takada, a former professional wrestler. Their twin sons were born to a surrogate in the United States.

"Mukai and Takada sued the Shinagawa Ward office, which had rejected their request to register the twins as their own children. Mukai had a hysterectomy after a battle with uterine cancer. The twins were born to an American woman implanted with the couple's fertilized eggs.

"The Supreme Court ruled against the couple in March 2007.

"An opinion poll conducted by the health ministry in March 2007 showed that 54 percent of surveyed people said surrogate births "can be accepted by society," while 19 percent said such births were unacceptable.

"Health Minister Yoichi Masuzoe said: "It comes down to a vote by each individual lawmaker. And I want lawmakers to view (the panel's report) as one of the materials for debate on the issue."

"Many lawmakers, however, have remained reluctant to compile a bill on surrogacy.

"Although some noted the lack of consensus within their parties, others said most politicians are not even aware that the issue is something that should be debated in the Diet.

"While the Japan Society for Obstetrics and Gynecology has banned surrogacy, babies have been born to surrogates in Japan with the help of doctors who don't support the ban."

By Asahi Shimbun (3/10/2008), Link to article (last visited 3/10/2008)

Friday, March 7, 2008

Supreme Court: Residents Registration Network and Right to Privacy

"The Supreme Court concluded Thursday that the Basic Residents Registration Network, or Juki Net, did not violate the registered residents' right to privacy, reversing an Osaka High Court decision that the network violated the Constitution.

"Three residents of Moriguchi and Suita cities in Osaka Prefecture had demanded their personal data be removed from the network because they claimed the network violated their constitutional right to privacy.

"Presiding Judge Norio Wakui said in his ruling Thursday, "There is no technical or legal risk of residents' personal information being leaked to third parties beyond local governments' administrative purposes. So their right to privacy is not being violated."

"About 60 similar lawsuits over the network have been brought in courts across the nation, and lower courts have handed down conflicting rulings over the issue.

"However, the first ruling given Thursday by the Supreme Court likely will bring an end to the disputes, while also sending a clear signal to three municipal governments--Suginami Ward and Kunitachi in Tokyo and Yamatsurimachi in Fukushima Prefecture--that have refrained from joining the network.

"The ruling concluded that information registered in the network to confirm residents' identities, such as names, birthdays and addresses, were not highly confidential.

"It also added that there was no specific threat to the safety of the network due to the following reasons:

-- The registered data are unlikely to be leaked outside the network as a result of illegal access.

-- Civil servants are to be disciplined and criminally punished if they use the data for purposes other than those legally allowed or leak them.

-- Various measures to protect the registered data, including the establishment of prefectural government panels to ensure protection, have been taken.

"The plaintiffs claimed they were retaining their constitutional right to decide how their personal information was handled.

"However, the top court ruled that the use and management of residents' personal identification data without their permission by an administrative body did not violate the Constitution.

"The Osaka District Court rejected the plaintiffs' demands, but the Osaka High Court reversed the decision, saying the network violated the constitutional right to privacy because an administrative body might use these registered data without limitation.

"On the same day, the Supreme Court also rejected three demands from residents of Aichi, Chiba and Ishikawa prefectures for the deletion of their respective data from the network. "

By Yomiuri Shimbun (3/7/2008), Link to article (last visited 3/7/2008)

Thursday, March 6, 2008

Kissing Hand and Sexual Harassment

"MIYAZAKI -- A professor at Miyazaki Municipal University was hit with a three-month suspension over allegations that he sexually harassed a female student by kissing her hand and sending her heart-shaped icons by e-mail, it has been learned.

"The 49-year-old professor has taken legal action in the Miyazaki District Court demanding that the punishment be cancelled. According to a lawsuit filed on Feb. 21, the professor, whose name has been withheld, sent the female student e-mails that contained heart icons between January and March 2006. In March that year, when the student and teacher went on a seminar trip, he reportedly kissed the student's hand inside a bus.

"The professor has admitted responsibility for his actions, but denies that they were of a sexual nature.

""They were actions done out of affection, as if I were treating my daughter, and were not sexual," the professor said. He is demanding that the suspension against him be annulled and is demanding about 4.4 million yen in compensation and his salary withheld during his suspension period.

"The professor's actions were uncovered in October last year when the female student approached a campus consultation service. The university's disciplinary committee ruled that the professor had caused the female student psychological and mental suffering, and damaged social trust in the university, and handed him a suspension from February to May this year.

"University officials defended the punishment.

""The facts will be made clear in the court case. The disciplinary action was carried out appropriately," said a representative of the university's planning and administration division. "

By Mainichi Shimbun (3/6/2008), Link to article (last visited 3/6/2008)

Wednesday, March 5, 2008

Kyoto Protocol and Law Revision

"TOKYO - Japan's Cabinet approved revisions to energy laws Tuesday that aim to cut carbon dioxide emissions by an additional 5 million tons (5.5 million short tons) in the coming year, as part of efforts to meet reduction targets under an international global warming pact.

"If approved by parliament, the revisions would raise emissions standards for offices, banks and convenience stores, said Toyokazu Nagamune, an official of the Ministry of Economy, Trade and Industry.

"Japan has been struggling to meet its obligations under the Kyoto Protocol to cut its emissions of carbon dioxide and other greenhouse gases to 6 percent below its 1990 level by 2012.

"The country's energy law has been revised several times since its enactment in 1979, most recently three years ago to boost emissions cuts by the transport sector.

"Under the current law, which governs energy use in most of the industrial sector, a single factory or an organization whose use of electricity and other forms of energy exceeds a statutory limit must report its energy consumption and spending plans to the government.

"The revision would expand that requirement to cover corporate head offices, banks, convenience store operators, hotel chains, schools and hospitals, and each of their outlets, Nagamune said. Officials have still to set the new level above which energy consumption and spending reports become compulsory, he added.

""A revised law would cover any large energy spender, regardless of their business sector," he said. "We also need to get more effort from ordinary consumers."

"The revision also aims to promote the construction of condominiums and houses with energy-saving features such as insulated walls, and would require construction companies to report their conservation plans to local governments, Nagamune said. A violator would face a penalties, including fines.

"He said schools, hospitals and companies would also be required to tell the government how they plan to cut their annual energy spending by 1 percent. Electronics appliances makers would be also encouraged to promote products with energy-saving and low emissions features, Nagamune said.

"The government hopes to pass the new measures by 2009."

By Mari Yamaguchi - AP (3/4/2008), CNBC, Link to article (last visited 3/5/2008)

Monday, March 3, 2008

Egg Donation and Lack of Governmental Regulation

"In a move likely to spark controversy, an association of fertility clinics announced it will use eggs donated by a patient's friend or sister for in vitro fertilization (IVF).

"The Japanese Institution for Standardizing Assisted Reproductive Technology (JISART), made up of 21 fertility clinics, will allow the eggs to be used for IVF with sperm donated by the husband of the patient.

"The move is in opposition to a 2003 report by an advisory panel to the Ministry of Health, Labor and Welfare which stated that eggs should only be accepted from women not connected to the patient.

"According to the report, this is to avoid creating psychological problems for the child as a result of complicated relationships between the child and his or her biological parents.

"In the same year, the ethics panel of the Japan Society of Obstetrics and Gynecology issued a recommendation that ova should only be donated on condition of anonymity.

"JISART officials said the new procedure would involve two couples at two medical institutions in western Japan, although no date for the procedure was revealed.

"The association's ethics panel has already approved the procedure.

"Without the donated ova, the woman in each case would not be able to become pregnant, according to officials from the association.

"Last June, JISART announced that it was prepared to go ahead with the procedure but it decided to delay a final decision until after the publication of a report on assisted reproductive medicine from the Science Council of Japan.

"However, the report focused more on surrogate births and did not touch upon the issue of donated eggs.

""We cannot keep the patients and the donors waiting any longer," said Katsuhiko Takahashi, who heads JISART, in explaining why the organization decided to go ahead. "We will ask the health ministry to create legislation that would allow sisters to donate eggs."

"In addition to the possibility of complicated familial relationships, donating eggs also carries the risk of placing a physical burden on the donor."

By Asahi Shimbun (3/3/2008), Link to article (last visited 3/3/2008)

Sunday, March 2, 2008

Spam Law Revision

"The government is moving toward outlawing spam mails, and target their foreign-based senders.

"The Ministry of Internal Affairs and Communications has presented the Diet with revisions to the Spam Law that will fine offenders up to 30 million yen -- 30 times greater than the current maximum penalty of 1 million yen -- and also go after the overseas based spammers they say are sending the bulk of unwanted e-mail in Japan.

"Concerns remain about how these tough new laws could be policed, but the ministry is hoping to enlist the aid of foreign governments to crack down on the scourge of computer users.

"Ministry officials hope to have the Spam Law revisions passed during the current Diet session and the changes enacted within this year.

"Under the existing Spam Law, unless users specify that they do not want redirected e-mail, sending spam is not illegal and senders can basically continue flooding mailboxes.

"More than 90 percent of spam sent to computers and over half that forwarded to mobile phones comes from overseas. It has so far been unclear whether Japanese crimefighters could pursue illegal e-mail sent from outside of the country.

"Under the revisions, the government would track down spammers from overseas, present information on them to foreign governments and request assistance in bringing them to justice.

"Success of the proposals would depend greatly on the extent of cooperation foreign authorities are prepared to provide.

"Among the main points of the ministry's proposals are:

"OUTLAWING advertisement mail sent without prior approval from the recipient;

"RAISING fines for corporate offenders from their current maximum of 1 million yen to 30 million yen:

"EMPOWERING Internet service providers to block persistent spammers;

"MAKING the law apply to foreign-based spammers; and,

"SUBJECTING local companies that hire foreign spammers to send junk e-mails to administrative punishments."

By Mainichi Shimbun (1/3/2008) , Link to article (last visited 2/3/2008)

Suwa Maternity Clinic and Surrogacy in Japan

"A surrogate mother last month gave birth to a child using eggs removed from her daughter, marking the fourth such case in Japan.

"In an interview with The Yomiuri Shimbun, the daughter said, "I'm happy to be a mother and hold the baby that I thought I could never have."

"Also present at the interview were the woman's husband and her mother. It is rare for a married couple who have had a baby through surrogate birth in Japan to speak to the media.

"The couple, both in their late 20s, live in western Japan. The woman was born without a womb.

"One of the woman's eggs was fertilized with her husband's sperm and planted in her mother's womb by Yahiro Netsu of Suwa Maternity Clinic in Shimosuwamachi, Nagano Prefecture.

"The surrogate mother, who is in her late 50s, gave birth by cesarean section after a 36-week pregnancy. It was the eighth surrogate birth in Japan and the fourth in which the mother of a childless woman has served as a surrogate mother.

"The mother, the surrogate mother and baby are all healthy, according to the family. The baby, which weighs 2,200 grams, will be registered as the son of the surrogate mother and will then be adopted by the genetic parents.

"At the government's request in January, a panel studied the pros and cons of surrogate births and compiled a draft report suggesting a ban in principle. The panel said the risks involved in giving birth should not be borne by anyone other than the genetic mother, and that surrogacy may have psychological implications for the child in later life.

"But the draft report has not been without its critics. The final report will be compiled this month.

"Following are excerpts from the interview:

"The Yomiuri Shimbun: How does it feel to hold your son in your arms?

"Genetic mother: I learned that I didn't have a womb when I was a high school student. Since then, I never thought I'd be able to hold my own baby in my arms, and when he was born, I couldn't believe it. I feed him milk and cradle him, and feel he really needs me. I've gradually come to feel I'm his mother.

"(To surrogate mother.) Why did you offer to be the surrogate mother?

"Surrogate mother: I've always wondered why my daughter didn't have a womb, and I wished she could know the joy of having a baby. Two years ago, I heard the news that Dr. Netsu had helped conduct a surrogate birth [in which a woman carried her genetic grandchild]. That made me determined to become a surrogate mother, and I said so to my daughter and her husband.

"But having a baby at a later age is said to be risky.

"Husband: I was worried about her [his mother-in-law], and unsure about whether to accept the offer. But she was really determined.

"Surrogate mother: The morning sickness wasn't that bad, and the pregnancy was easier than I thought.

"The Science of Japan panel has compiled a draft report suggesting a ban on surrogacy.

"Genetic mother: There are a lot of women who suffer from the same affliction as me, as well as those who have their womb surgically removed. It's not right to put obstacles in the way of their happiness. "

By Yomiuri Shimbun (1/3/2008), Link to article (last visited 2/3/2008)