Saturday, May 24, 2008

Business Trip and Karoshi

"The Tokyo High Court has acknowledged an appeal filed by a woman in Matsumoto, Nagano Prefecture, seeking workers compensation for the death of her husband who died of a subarachnoid hemorrhage after taking 10 overseas business trips, totaling 183 days, during a one-year period.

"The wife demanded that the Matsumoto Labor Standards Inspection Office should honor the insurance application for her husband's death. The high court overturned a lower court ruling that had rejected the request.

"Handing down the ruling Thursday, presiding Judge Kaoru Aoyagi said, "The number of hours worked as overtime or as overseas work was not that large per se, but the apparent accumulation of fatigue associated with these trips caused the death."

"According to the ruling, Toshihiko Inukai, an employee at Seiko Epson Corp. of Matsumoto, took the business trips in question to Asian and South American countries between November 2000 and September 2001, where he worked as a trainer, among other duties. Six days after returning from Indonesia, Inukai, 41, died in a hotel where he was staying during a domestic business trip.

"Inukai worked fewer than 30 hours of overtime per month in the six months prior to his death. The Health, Labor and Welfare Ministry says the relationship between work and the development of an illness is considered weak if fewer than 45 hours of overtime are worked a month. The Nagano District Court therefore decided the relationship between the amount of overtime worked by Inukai and his death was tenuous.

"However, the higher court pointed out that overseas business trips can cause irregular hours, and the pressure of dealing with different languages and customs might cause fatigue to accumulate, thus conceding a causal link between Inukai's work and his death.

""It's significant that the court acknowledged the burden caused by overseas business trips, and not the working hours or the amount of work," the plaintiff's lawyer said."

By Yomiuri Shimbun (5/24/2008), Link to article (last visited 5/24/2008)

*Click here for more information about "karoshi".

Thursday, May 22, 2008

Lawyer Shortage and the Lay Judge System

"At least five of the nation's 52 bar associations think it will be difficult to secure enough defense lawyers when the lay judge system is introduced on May 21 next year, according to a recent Yomiuri Shimbun survey.

"About 60 percent of the 52 bar associations said they had no additional lawyers available with the necessary legal skills to work when the planned lay judge system is introduced. Only three associations said they would have no difficulties securing enough lawyers.

"The system is likely to collapse if any of the nation's regions fails to secure enough defense lawyers. With only a year left until the introduction of the system, this issue will need to be addressed immediately to ensure there is a sufficient supply of defense lawyers when the system is launched.

"The Yomiuri Shimbun conducted the survey between late April and early May, and received answers from 40 out of 52 bar associations. There are bar associations in each prefecture, four bar associations in Hokkaido and three in Tokyo.

"Asked if they would be able to secure enough lawyers with the necessary defense skills to deal with cases to be tried under the lay judge system, the associations in Gifu, Wakayama, Shimane and Kagawa prefectures expressed pessimism, saying, "it will be difficult." The Aichi Bar Association said, "it'll be hard in the Mikawa region."

"Only three associations in Tokyo, Osaka and Oita prefectures expressed confidence in securing enough lawyers. Of the remaining associations, 30 said they would "barely manage to secure sufficient numbers." The remaining two organizations said they would "make preparations to ensure [a sufficient supply of lawyers]."

"Many of the associations expressing concern are already suffering a chronic shortage of lawyers. The Shimane Bar Association has only 39 members, the fewest in the nation.

"Referring to a new scheme to shorten the length of trials that will be introduced as part of the lay judge system, a member of the Shimane association told The Yomiuri Shimbun that attendance at consecutive daily court hearings could interfere with lawyers' existing work.

"Asked about the system's problems, many associations said the planned fee for a court-appointed lawyer representing a defendant of limited means would be too low as they would only get 100,000 yen for trials concluded in a day.

"Many also complained about the conventional management of the public defense system, which usually assigns only one defense lawyer to each case, despite the difficulties consecutive daily hearings will create for lawyers under the lay judge system.

"In February, the Niigata Bar Association adopted a resolution calling for the delay of the introduction of the lay judge system, saying there was a risk trials would be carried out in a rushed, slipshod manner.

"The Supreme Court has also expressed its concern about the possible shortage of defense lawyers.

"A Supreme Court judge said, "If many defendants are unable to secure suitable defense lawyers, this could shake public confidence in the lay judge system itself.""

By Yomiuri Shimbun (5/22/2008), Link to article (last visited 5/22/2008)

Law Schools Reduce the Number of Students

"At least 10 of the 74 law schools that began operating in April 2004 are planning to cut their quota of students, a Yomiuri Shimbun survey has found.

"Among them, Fukuoka University will tell the Education, Science and Technology Ministry on Thursday that it will cut its quota by 20 students, the first such reduction among the new law schools.

"The 74 graduate schools were launched in 2004 as part of reforms to legal education. However, with so many law schools opening, many found they were unable to fill their quotas.

"A further problem has been the disappointing success rate among applicants for the new national bar examination, which last year stood at 40 percent, on average, for graduates from the new law schools. This compares with the government's initial forecast of 70 to 80 percent.

"The new law schools are now being forced to decide whether they should educate students in smaller numbers, risking a fall in income from tuition fees, in an effort to prevent a decline in standards.

"The survey was conducted between mid-April and early May. Of the 74 law schools, 72 responded. Himeji Dokkyo University and Aichi University did not respond.

"Fukuoka University plans to lower its quota for students per grade year from the current 50 to 30 in the next academic year, starting in April.

"Six of its graduate school students passed last year's bar examination, 12 percent of the school's yearly quota.

"In this year's entrance examination, 35 applicants were successful, 15 short of the quota, including applicants who were successful later on.

"In the survey, one law school in the Kanto region and another in the Kansai region said they were now deciding by how much to cut quotas, though they asked that their names remain anonymous.

"Seven other universities, including Gakushuin University, Kobe Gakuin University and Chukyo University, said they were looking at cutting quotas.

"Several officials of universities that include law schools said they would not be able to survive unless they gave priority to securing high-quality students, rather than seeking immediate gains from tuition fees by admitting more students.

"This year, five law schools reported having less than 70 percent of freshmen students allowed in their quota."

By Yomiuri Shimbun (5/22/2008), Link to article (last visited 5/22/2008)

Wednesday, May 21, 2008

"Ghost Citizen" and the Koseki System

"A 27-year-old woman who was left with no family register records because her birth registration was refused in connection with a law on children born within 300 days of a divorce is pregnant and expecting a child in June, it has been learned.

"By law, birth registrations must list the mother's permanent domicile. Authorities in Hyogo Prefecture, where the woman lives, say that without the woman's family register records, registration of her child's birth would not be possible.

"As a result, it is likely the woman's child will also be left without family register records, preventing the child from receiving various government services. It is the first reported case in which a person without family register records is due to give birth.

"The 27-year-old woman's mother, who is in her 50s, divorced her former husband due to violence and other reasons. Seventy-three days afterwards, she gave birth to her daughter in a relationship with her new husband. However, she was unable to register her child as the daughter of her new husband due to a law stating that children born within 300 days of a divorce are regarded as the offspring of the former husband.

"Due to the difficulty of having the legal stipulations overturned and because she didn't want her former husband to know where she lived, it was difficult for her to file a lawsuit involving her former husband to have her new husband recognized as the father. Her daughter was left without family register records as a result, and was only able to attend elementary school for four years. She was also unable to receive medical services and could not vote.

"In the summer of last year, the 27-year-old woman wed her husband in a ceremony, but was unable to register the marriage because she had no family register records. It emerged last autumn that she was pregnant and was due to give birth in mid-June.

"Worried about the future of her child, the woman visited local authorities this month and discussed her situation, but she was told that the birth could not be registered without her family register records.

""I don't want my child to endure the hardships I've gone through," the 27-year-old said.

"Justice Ministry officials said the situation was unheard of.

""We have never heard of a case of a person without family register records giving birth. We want to consider what to do in the future," a ministry official said."

By Mainichi Shimbun (5/20/2008), Link to article (last visited 5/21/2008)

Compensation for Convicted War Criminals

"A group of lawmakers plans to submit a bill to the Diet mandating government financial compensation for Korean and Taiwanese former Class B and Class C war criminals and their surviving families.

"The move, led by Kenta Izumi, a Minshuto (Democratic Party of Japan) Lower House member, could come as early as the current Diet session.

"At issue are those who worked as guards of POWs for the Imperial Japanese military during World War II. The non-Japanese were later denied the same pensions and other compensation paid to Japanese war criminals and their family members.

"At the Allied Forces war trials, 321 Koreans and Taiwanese were convicted as "Japanese" of war crimes. The group included 23 Koreans and 26 Taiwanese who were executed.

"The lawmakers' group will propose the government pay 3 million yen in compensation to each former Class-B and C war criminal, in "a humanitarian spirit."

"Because people from Japan's former colonies were stripped of Japanese citizenship after the war, the government excluded them all from military pensions and other assistance paid to former Japanese soldiers.

"Izumi said he was greatly moved by the story of Lee Hyok Nae, a Korean who worked at a POW camp run by Japan in Thailand and was later convicted.

"Lee, 83, is now chairman of Doshin-kai, a group representing former Korean war criminals that since 1955 has urged Japan to act on the issue.

"Hearing Lee's story, Izumi realized the Diet has never heard the views of these non-Japanese, the lawmaker said. He hopes the bill will receive cross-party support.

"Lee was taken from his home on the Korean Peninsula, which from 1910 to 1945 was under Japanese colonial rule, at the age of 17 in 1942. After the war, he was sentenced to death for abusing POWs.

"His sentence was later reduced, and he was released 11 years after Japan's defeat. He could not return to Korea because all those who worked for the Japanese military were viewed as collaborators.

""There's nothing more absurd--we were convicted as Japanese and then excluded from compensation because we became non-Japanese,'' Lee said. He said some Korean war criminals chose to kill themselves in disgrace.

"In 1991, Lee, five other Koreans, and the bereaved families of other former war criminals filed a lawsuit seeking state redress and apology. The Supreme Court rejected that suit in 1999.

"However, the court acknowledged they had made "serious and grave sacrifices and (suffered) damage'' and said compensation should be discussed in the Diet.

"Only two of the plaintiffs who were war criminals are alive today.

"Lee is grateful the Diet may finally consider redress. In April, Lee filed a civil suit at the Tokyo District Court to demand the government fully disclose diplomatic documents leading up to the 1965 normalization of diplomatic ties between Japan and South Korea.

"Although Japan said the issue was settled by the 1965 treaty, South Korean diplomatic records recently released show that during the negotiations Tokyo promised to separately examine the war criminal issue."

By Akira Nakano, Asahi Shimbun (5/19/2008), Link to article (last visited 5/21/2008)

Thursday, May 15, 2008

Presumption of Paternity and Divorce

"FURUKAWA, Miyagi -- A woman has been arrested for forging divorce papers, possibly to avoid a new baby being recognized as the child of her ex-husband, police said.

"Maki Horiguchi, 36, of Kami, Miyagi Prefecture, was arrested for forgery and use of official documents.

"Police said that during December 2006, Horiguchi filed documents with the Osaki Municipal Government using a forged signature of her husband at the time. The husband had refused to formally end the marriage, but when he saw his family register marked him as divorced, he complained to the police.

"Horiguchi re-married and had a child with her current husband last year. She formally married her current spouse in January.

"Under Japanese law, the paternity of any child born within 300 days of a divorce is automatically recognized as the previous spouse's. Police believe Horiguchi may have forged the divorce papers to avoid having her former spouse being the legal father of her youngest child."

By Mainichi Shimbun (5/14/2008), Link to article (last visited 5/15/2008)

Tuesday, May 13, 2008

Legal Support Center

"On April 1, 2006, Nihon Shiho Shien Senta (Japan Legal Support Center) or Ho Terasu (Law Terrace) was established to offer people easy access to legal services. It began operation on Oct. 2 that year. Although two years have passed, only 22 percent of those recently polled know of Ho Terrace. More publicity is needed.

"The center was established with government money on the basis of the comprehensive legal support law. It has 50 local offices and additional smaller branches. It has 96 lawyers working at about 60 locations, and has contracts with about 13,000 lawyers nationwide. In fiscal 2007, the center provided about 220,000 pieces of information to people who sought help, and assigned lawyers to serve in about 6,700 cases involving criminal suspects, about 71,000 cases involving criminal defendants and about 200 cases involving juvenile delinquents.

"Anyone who has legal problems can dial the center's call center — 0570-078374 — although it charges ¥8.5 per three minutes. (English is OK.) Those who have become crime victims can call 0570-079714. The center's homepage has been updated recently. It has a question and answer section listing more than 100 types of basic legal problems. Unfortunately, the homepage appears only in Japanese.

"The center's services include providing free-of-charge legal advice by lawyers or judicial scriveners to those involved in civil lawsuits, having these law experts serve in civil lawsuits or negotiations, and lending money to low-income people to pay for lawyers or judicial scriveners.

"The center is not free of problems. When the scope of cases to which court-appointed lawyers can be assigned is expanded in May 2009, the center says it will need to more than triple the number of its own lawyers. To secure enough lawyers, the center will have to rethink contract conditions for hiring lawyers. At present, lawyers can work at the center for a maximum 10 years. A system to ensure a longer tenure is needed."

By Japan Times (Editorial, 5/12/2008), Link to article (last visited 5/13/2008)

Sunday, May 11, 2008

New Space Law and National Security

"It is a matter of course that space be developed and utilized from the perspective of helping protect national security. A basic law on space should be established during the current Diet session, and the nation's strategy on space should be reexamined at the initiative of political leaders.

"A basic space bill jointly submitted by the Liberal Democratic Party, the Democratic Party of Japan and New Komeito passed the House of Representatives Cabinet Committee on Friday.

"The bill allows the use of space for defense purposes. By creating a headquarters for space development strategy in the Cabinet Office, the bill aims to facilitate the comprehensive implementation of space policy for the nation's security and industrial development.

"Although the nation spends about 250 billion yen annually on space development, the scope of research and development projects in this field have been limited. The projects have therefore failed to significantly foster technological innovation for industrial applications.

"One of the reasons lies in the 1969 Diet resolution that limited the use of space to peaceful purposes.

"In Diet deliberations at that time, "peaceful" purposes were interpreted as "nonmilitary" ones. This has prevented the nation from conducting certain space-related activities, such as launching satellites for defense purposes.

"Current law ties Japan's hands

"The bill sponsored by the three parties is meant to redefine the peaceful use of space by taking into account the positions of both the U.N. Outer Space Treaty, which upholds a nonaggression policy, and the pacifist Constitution, which touts an exclusively defense-oriented policy.

"It was significant that the DPJ joined the ruling parties to submit the bill, which would unshackle the nation from a situation that is unusual in terms of international perspectives.

"The capabilities of intelligence satellites that were introduced in 2003 in the wake of the test-firing of a Taepodong missile by North Korea are limited to the same level as those of private sector satellites. Meanwhile, the development of early-warning satellites that can detect missile launches also has been put on hold.

"Another problem is that even if Japan develops advanced rocket engines, it may not sell them to U.S. companies that might launch military satellites.

"If the bill is enacted, the nation could go ahead with space-utilization projects without such constraints.

"Cooperative approach needed

"Newly emerging economies such as China and India have started full-fledged work on the development and use of space in cooperation with the United States, Russia and some developing nations.

"To ensure it is not left behind, Japan must rectify slow decision-making processes that result from bureaucratic sectionalism and strengthen cooperation among industries, the government, academia and other nations by clearly demonstrating its long-term space strategy.

"The government has lacked a "control tower" for space development and use. At the envisaged headquarters for space development strategy headed by the prime minister, government officials should work together to rebuild the nation's space strategy.

"At the DPJ's request, the bill included a provision that a tentatively named space bureau be set up in the Cabinet Office a year or so after the legislation comes into force. We hope that a substantive system to rebuild the nation's space policy will be established."

By Yomiuri Shimbun (Editorial, 5/10/2008), Link to article (last visited 5/11/2008)

Child Abduction Convention

"Japan will sign a treaty obliging the government to return to the rightful parent children of broken international marriages who are wrongfully taken and kept in Japan, sources said Friday.

"The Justice Ministry will begin work to review current laws with an eye on meeting requirements under the 1980 Hague Convention on Civil Aspects of International Child Abduction, the sources said. The government plans to conclude the treaty as early as in 2010.

"The decision was reached amid criticism against Japan over unauthorized transfer and retention cases involving children. The governments of Canada and the United States have raised the issue with Japan and cited a number of incidents involving their nationals, blasting such acts as tantamount to abductions.

"In one case, a Japanese woman who divorced her Canadian husband took their children to Japan for what she said would be a short visit to let the kids see an ailing grandparent. But the woman and her children never returned to Canada.

"Once parents return to their home countries with their children, their former spouses are often unable to find their children. In Japan, court rulings and custody orders issued in foreign countries are not recognized.

"Under the convention, signatory parties are obliged to set up a "central authority" within their government. The authority works two ways.

"It can demand other governments return children unlawfully transferred and retained. But it is also obliged to find the location within its own country of a child unlawfully taken and retained, take measures to prevent the child from being moved out of the country, and support legal procedures to return the child to the rightful parent.

"Sources said the Japanese government will likely set up a central authority within the Justice Ministry, which oversees immigration and family registry records. The ministry has decided to work on a new law that will detail the procedures for the children's return.

"In 2006, there were about 44,700 marriages between Japanese and foreign nationals in Japan, about 1.5 times the number in 1996. Divorces involving such couples more than doubled from about 8,000 in 1996 to 17,000 in 2006."

By Miako Ichikawa (5/10/2008), Asahi Shimbun, Link to article (last visited 5/11/2008)

Thursday, May 8, 2008

Execution Broadcast: Part 2

"The audio is scratchy and the voice of the protagonist has been altered to hide his identity. Those minor failings aside, the broadcast today of the execution of a man more than 50 years ago is the first time most Japanese have been confronted by the grim reality of their country's use of the death penalty.

"Campaigners hope the documentary, aired by Nippon Cultural Broadcasting, will strengthen calls for Japan to fall into line with every other developed country except the US and abolish capital punishment.

"The station defended its decision to air the execution amid accusations that it had invaded the man's privacy in his final, desperate moments alive.

""We aren't trying to make a statement for or against the death penalty," a spokesman told the Asahi Shimbun newspaper. "Our only intention is to present the reality of executions and let our listeners decide for themselves."

"Others welcomed the broadcast for giving an unprecedented insight into Japan's secretive and, critics say, peculiarly inhumane use of capital punishment.

""If the justice ministry masks the reality, then it is up to the media to expose it," the filmmaker Tatsuya Mori told the paper. "There is great significance in letting the public know the truth."

"The recording, made at Osaka detention centre in 1955 to educate prison service workers, opens with a shaky rendition of Auld Lang Syne as the condemned man's fellow inmates watch him being taken from the cells.

"Moments later the prisoner, whose identity and crime are not revealed, says goodbye to his sister, who breaks down as he asks her to apologise to their mother and take care of his children.

"He is offered a final cigarette and even manages to share a joke with prison staff. In a dramatic finale, the chants of Buddhists priests are punctured by the opening of the trapdoor and the snap of the rope as it tightens around the condemned man's neck.

"Death does not come until 14 minutes later, when prison officers confirm that his heart has stopped beating.

"Aside from the introduction of stronger nylon rope, little about the way Japan executes its criminals has changed in the intervening years.

"Typically, death row inmates learn of their execution just minutes before they are led to the gallows; their families are informed later so they can collect the corpse for cremation.

"Though Japan's "secret executions" enjoy widespread public support, they have been denounced by Amnesty International, the EU and the UN, which has called for a global moratorium on the death penalty.

"Japan has hanged seven people already this year, including four in one day last month, compared with nine in 2007 and four in 2006, raising fears that it has embarked on a campaign of mass executions in defiance of international opinion.

"The justice minister, Kunio Hatoyama, has called for the introduction of a faster, more efficient system that would no longer require his signature on execution orders.

"The broadcast has rekindled the hanging debate ahead of the introduction next year of a lay judge system in which citizens, with the help of professional judges, will rule on murders and other serious offences for the first time since Japan's military leaders suspended the jury system in 1943.

"Overseas campaigners say Japan's widespread use of forced confessions risks sending innocent people to their deaths.

""Japanese authorities can learn much from America's experience with false confessions," said Steven A Drizin, legal director of the Centre on Wrongful Convictions at Northwestern University.

"The centre recently filed an amicus curiae - or "friend of the court" - brief on behalf of Masaru Okunishi, an 81-year-old Japanese death row convict who has been proclaiming his innocence since 1969.

""Japanese law enforcement authorities, who have a 99% conviction rate, rely on exceedingly long interrogations and physical coercion to obtain confessions," Drizin said in a statement.

"Of the 165 inmates on death row in Japan at least a dozen are in their 70s and 80s.

"They include Iwao Hakamada, a 72-year-old former professional boxer who has spent a record 40 years on death row for the murders of a company executive, his wife and two children in 1966.

"Pressure for his release mounted after the judge who convicted him said last year that he was now convinced of Hakamada's innocence. His supporters said detectives beat him into confessing during marathon interrogations sessions that went on daily for almost three weeks.

"Sakae Menda, whose 34 years on death row ended when his conviction was quashed at a retrial in 1983, said: "I saw dozens of my fellow inmates sent to their deaths while I was in prison. None of them was satisfied with their conviction.""

By Justin McCurry (5/6/2008), The Guardian, Link to article (last visited 5/8/2008)

*Click here to listen.

Tuesday, May 6, 2008

"Rule of law comes under fire

"PHILADELPHIA — The government's reactions to the Nagoya High Court's April 17 decision that Japanese operations in Iraq are unconstitutional, raise profoundly disturbing questions about the rule of law and the democratic separation of powers in Japan.

"Representatives of the government, and of the military, have made public statements contradicting the findings of the court, rejecting its conclusions, and dismissing the relevance and significance of its constitutional interpretation. The prime minister has stated that the judgment will have absolutely no impact on the government's continued use of the military in Iraq.

"This response by the executive branch of government to a judicial decision in a constitutional democracy is difficult to comprehend. It raises questions about the extent to which the rule of law is respected. It provokes concerns about the continued normative power of the Constitution. It creates serious doubts about the proper distribution of power among the three branches of government within the democratic structure of the state.

"The case arose when approximately 1,100 plaintiffs commenced the lawsuit in an attempt to prevent the continued operation of the Self-Defense Force (SDF) in Iraq. It was one of more than a dozen cases around the country challenging the deployment of the SDF in support of operations in both Afghanistan and Iraq. The Nagoya High Court, while dismissing the claims of the plaintiffs for token compensation (for mental distress) and an injunction prohibiting further deployment of the Air Self-Defense Force (ASDF) in Iraq, held that the activity of the ASDF was in violation of Article 9 of the Constitution.

"Specifically, the court held that ASDF activity was being conducted in a combat zone in violation of the Iraq Special Measures Law (Iraq SML), which authorized the deployment of the SDF. It also held that the ASDF activity was a necessary and integral component of the use of force by coalition forces in Iraq, and thus itself constituted the use of force in violation of Article 9 of the Constitution, which prohibits Japan from using force as a means of settling international disputes.

"The court dismissed the plaintiffs' claims because they lacked standing. While recognizing that the Constitution conferred upon the plaintiffs a personal right to live in peace, the court held that the ASDF operations did not directly infringe that right, or any other individual or direct legal interest of the plaintiffs, so as to give them a legal basis to advance their claims. But the determination that the plaintiffs did not have standing for their specific claims did not in any way prevent the court from also deciding that the government deployment of the ASDF in Iraq was in violation of Article 9(1) of the Constitution.

"The Constitution provides that the Supreme Court, and such other inferior courts as are established by law, are the sole repository of judicial power in Japan (Art. 74). It further provides that the Constitution is the supreme law of the land, and that no law or other act of the government that is inconsistent with it is to have any force and effect (Article 98). Finally, the judiciary, ultimately the Supreme Court as the court of last resort, has the sole power to determine the constitutionality of any law or other act of government (Article 81).

"It is very clear, therefore, that the Nagoya High Court had every authority, and indeed a responsibility, to interpret the constitutionality of the operations of the ASDF and the Iraq SML. It was also acting within its jurisdiction in determining whether the operations violated the limits prescribed by the Iraq SML itself. One of those limits restricted all SDF activity to noncombat zones.

"The question of whether Baghdad constituted a combat zone as defined in the Iraq SML, and whether the ASDF transportation of armed coalition forces to the combat zone in Iraq itself constituted the use of force, were therefore proper questions for the high court to consider.

"Its judgment with respect to those questions, on the basis of evidence before it, and its application of the law and interpretation of the Constitution for that purpose, was a fulfillment of its constitutional role.

"Yet Chief Cabinet Secretary Machimura stated publicly that the government "could not accept such a court ruling" because it was inconsistent with the government's own determination that Baghdad airport was not a combat zone.

"Such comments suggest that the executive is spurning a proper legal determination by the judiciary, and substituting its own judgment on a legal question, for which the executive has no constitutional authority (ironically, there was actually evidence given in the trial, by a representative of the Defense Ministry, that the Baghdad airport was susceptible to attack and had occasionally come under attack).

"Similarly, the prime minister stated that the decision of the court, which held that his government's policy was in violation of one of the three fundamental principles of the Constitution, would have no impact on the continued deployment of the ASDF to Iraq. This tends to reflect contempt for the judiciary's sole authority in interpreting the Constitution and the constitutionality of the laws and acts of government. In the context of the careful separation of powers in a constitutional democracy, the executive is thereby emasculating the judicial branch and trying to usurp its authority.

"Most egregiously, Adm. Takashi Saito, the chief of staff of the SDF, publicly stated that the ASDF mission in Iraq does not play an integral part in the use of force, directly contradicting the judicial determination by the Nagoya High Court. Whether it constitutes a use of force or not is a question of law, which the courts have the sole authority to decide.

"Given Japan's history of militarism in the 1930s, during which the military disdained and then usurped the fundamental democratic institutions of the state, such a flagrant demonstration of disrespect for a judicial decision by the most senior military officer ought to be viewed as being entirely unacceptable and the cause for serious concern.

"Because the high court held that the plaintiffs lacked standing to claim the remedy they sought, the requested injunction was not issued, and so the government's response is not formally in contempt of a court order. But that does not mean that the high court's judgment that a government policy is unconstitutional can be simply ignored and dismissed as irrelevant. To ignore judicial determinations of unconstitutionality is to weaken the institutional power and authority of the judiciary and thus unbalances the separation of powers, and undermine the integrity of the Constitution itself. Ultimately, such practice may threaten the democratic structure of the state.

"As the government continues to work toward Japan taking a more active role in the international collective security system, it will need to convince both the Japanese people and the other countries in the region that the rule of law and other institutions of constitutional democracy are secure and respected in the Japanese political system.

"Such high-handed flouting of the Constitution, the law and the judiciary as was reflected in this case does not help."

By Craig Martin (5/3/2008), The Japan Times, Link to article (last visited 5/6/2008)

66% Against Article 9 Revision

"Article 9 of the Constitution, which renounces war and bans Japan from maintaining military forces, should not be revised, said 66 percent of voters in a recent Asahi Shimbun survey. That figure is a sharp increase from 49 percent in a similar survey last year.

"In the nationwide poll to mark Constitution Day, only 23 percent of respondents said they believed the article should be revised, down from 33 percent a year ago.

"While 56 percent of voters said the Constitution should be amended, 54 percent of those in favor of amendment said Article 9 should remain intact, compared with 37 percent who said the article should be revised.

"The telephone survey was conducted April 19 and 20, prior to Saturday's 61st anniversary of the Constitution's introduction. Of the 3,600 people surveyed, 2,084, or 58 percent, gave valid responses.

"The survey showed that voters are less concerned about the issue of revising the pacifist article than during last year's survey. A year ago, the government of former Prime Minister Shinzo Abe pushed much public debate over the amendment, a long-time goal of his Liberal Democratic Party.

"Abe also fueled debate over Japan's collective self-defense, long interpreted by the government as unconstitutional.

"Under Abe's successor, Yasuo Fukuda, the Diet debated the constitutionality of dispatching Maritime Self-Defense Force troops to the Indian Ocean to provide logistic support for the United States-led war in Afghanistan.

"The recent survey also found that 56 percent of respondents believe it is necessary to amend the Constitution at some point, compared with 31 percent who said it should not be changed.

"In comparison, 58 percent a year ago said the Constitution needed revision, while 27 percent said it did not.

"In the latest survey, 74 percent of those in favor of amendment said they believe the Constitution should underscore civil rights and reflect social institutions that have become widely accepted in recent years.

"Of those who support revision, 13 percent said they think there is a problem with Article 9, while 9 percent said that the Japanese people should themselves write a new Constitution. Meanwhile, 52 percent of all respondents said constitutional amendment is a "realistic issue," while 35 percent said it will be a long time before it happens.

"Asked why amendment is not a pressing issue, 71 percent said that the public is not ready to see it happen, while 19 percent blamed political gridlock in the Diet and 5 percent said the issue lost its momentum with Abe's departure.

"Asked to rate the current state of the Diet, in which the opposition controls the Upper House, while the ruling coalition controls the Lower House, 62 percent said it is unfavorable. However, 58 percent said they opposed revising the Constitution to strengthen Lower House authority over the Upper House, compared with 23 percent that supported such a change."

By Asahi Shimbun (5/5/2008), Link to article (last visited 5/6/2008)

* Click here for more information about "Global Article 9 Campaign".

Sunday, May 4, 2008

Constitution Day and the Revision of War-Renouncing Article 9

"Marking the 61st anniversary of the enforcement of the postwar Constitution, hundreds of people gathered Saturday in Tokyo's Hibiya Park to call for keeping Article 9, which renounces war.

"Japan should keep Article 9 to avoid becoming an aggressive military force, said Ann Wright, a diplomat-turned-activist from the United States who participated in the gathering, which was organized by pacifist civic groups.

"Wright was formerly a colonel in the U.S. Army and served as a diplomat. She resigned in 2003 to protest the Iraq war.

""It's very important also to retain your Constitution of not selling weapons to other countries and to always be a nuclear free country," she said. "My country is totally opposite."

"She also said the Constitution, which was basically drafted by the U.S., is a model the rest of the world must emulate.

"In recent years, the ruling Liberal Democratic Party has been making steady progress toward amending the Constitution with an eye to changing Article 9, which prohibits Japan from possessing a military and renounces the use of force as a means of settling international disputes.

"In 2005, the LDP unveiled a draft of its proposal for a new Constitution. In it, Article 9 recognized the Self-Defense Forces as a legitimate military that would be allowed to take part in international missions to maintain peace.

"Two years later, under the hawkish stint of former Prime Minister Shinzo Abe, the LDP-led ruling coalition passed a law that spelled out the procedures for holding a referendum on amending the Constitution.

"Now Prime Minister Yasuo Fukuda is gearing up to propose a permanent bill that would allow Japan to dispatch the SDF overseas for humanitarian activities and take part in international peace keeping operations at any time.

""I sense a growing crisis over the move," said Mizuho Fukushima, leader of the Social Democratic Party. "The permanent law could directly connect war to the SDF, which is prohibited by the Constitution."

"Based on his experience during and right after World War II, Eiji Ishizawa, 80, from Fujisawa, Kanagawa Prefecture, said Japan must never again be involved in war.

""Whenever I recall the orphans left behind in the charred ruins of Tokyo (after the war), my heart aches," said Ishizawa, who was in the Imperial Japanese Navy. "I was responsible for the children having to face such a hardship. I don't want any children to go through that again.""

By Akemi Nakamura (5/4/2008), The Japan Times, Link to article (last visited 5/4/2008)

Thursday, May 1, 2008

Marbury v. Madison and Japanese Courts

"On April 17 the Nagoya High Court ruled that the dispatch of Air Self-Defense Force personnel to Iraq was unconstitutional. While the ruling made news, it will probably not make much difference to Japan's foreign policy. Its significance may be nothing more than academic — after all, despite the headlines the government won.

"In 1803 the U.S. Supreme Court ruled on Marbury v. Madison. The decision was of great significance because it established that the court had the power to find acts of Congress unconstitutional. What does this have to do with Japan? Bear with me.

"One of the lesser celebrated aspects of Marbury is that Chief Justice John Marshall was dealing with an exceptionally difficult political problem, one for which he was in part responsible. The case involved a petition by one William Marbury demanding that Secretary of State James Madison deliver to him the letter of appointment as a Justice of the Peace, an appointment that had been made by the prior administration of John Adams. Unfortunately, justice Marshall had been the secretary of state in that presidency, so he was in essence responsible for the failure to deliver the commissions before it ended. Furthermore, there was tremendous hostility between the new government led by Thomas Jefferson and the ousted Federalist Party of the Adams presidency.

"For Marshall to issue a decision rejecting Marbury's petition would have been a clear political defeat. On the other hand, were he to issue an order to Madison to deliver the commissions, it would almost certainly have been ignored, potentially fatally damaging the prestige of the Supreme Court as an institution. Thus, the court finding unconstitutional the statute giving it jurisdiction to hear Marbury's claim was an act of genius, as it was the only way the court could resolve the case without appearing to be either subservient or irrelevant as a branch of government.

"Two hundred years on, Japanese courts are grappling with that same dilemma — how to avoid appearing irrelevant or subservient — on a regular basis, particularly in cases involving other branches of the national government, such as the ASDF case. In actual fact, Japanese courts have extremely limited powers to directly bring about change in the real world. Nobody in Japan seems to get thrown in jail for violating a court order, and when Japan's Supreme Court has repeatedly hinted that something may be unconstitutional — the geographical imbalance in Diet representation, for example — nothing much happens.

"Federal courts in the United States, on the other hand, have evolved into highly independent institutions whose decisions are enforced as law. Compliance with such rulings has even been backed by military force: For example, three years after the Supreme Court ordered that racial segregation of schools was unconstitutional, the 101st Airborne was ordered into Little Rock, Ark., to ensure that African-American students could attend a white high school.

"As a result of its comparative weakness, the Japanese judiciary has developed a number of techniques for appearing relevant despite its lack of power to effect real change. One is to prevent controversial decisions from being made in the first place. This is accomplished through the personnel power exercised by the Supreme Court's administrative bureaucracy. Judges who issue controversial decisions (such as finding a governmental act unconstitutional or issuing an injunction against the government) may find their careers sidetracked to postings in the countryside. Harvard Law School professors Mark Ramseyer and Eric Rasmussen have gone so far as to assert a statistical correlation between the career path of Japanese judges and the degree to which they issue decisions unfavorable to the government.

"Individual judges have also developed techniques for issuing decisions which sound good but have no legal effect because the plaintiff is denied any substantive relief, usually on narrow procedural grounds. The ASDF ruling was of this type. While the unconstitutionality ruling got all the headlines, substantively the case was a victory for the government. The citizens group which brought the suit actually lost on the grounds that they had not suffered any actual damages. The finding of unconstitutionality was obiter dictum, an editorial aside by the judge that has no legal force.

"In Marbury too, Marshall used obiter dicta to state that Marbury was entitled to his commission and to criticize the Jefferson administration roundly for not delivering it. The end result, however, was that the commission was not delivered. Similarly, it is hard to imagine the Nagoya High Court decision resulting in the ASDF coming home sooner than planned.

"Unconstitutionality rulings such as the ASDF case have something for everyone, but first and foremost for the judges issuing them. The group bringing the case had only sought nominal damages in the first place and they are doubtless ecstatic to have gotten a ruling of constitutionality out of a high court. Having technically won the case the government cannot appeal the unconstitutionality dictum, but can continue sending ASDF personnel to Iraq since that part of the decision has no legal force. The judge responsible for the decision conveniently retired just before it was announced, so he has no worries about his future in the judiciary and can presumably start his new career as a law professor on a high note.

"The recent ASDF ruling is not an isolated one, but simply reflects a well-established pattern of judicial behavior. For example, a 2005 Osaka High Court ruling that Prime Minister Junichiro Koizumi's visits to Tokyo's Yasukuni Shrine represented an unconstitutional violation of the separation of state and religion were of the same character: The plaintiffs actually lost (again, because they suffered no actual damages), and Koizumi visited the shrine again two weeks after the ruling. Judge Kaoru Inoue wrote about cases such as these in his book "Shiho no Shaberisugi" ("Blabbermouth Judiciary"), criticizing Japanese courts' practice of issuing rulings that he says have "dasoku" ("snake legs," or something that's useless). He was subsequently driven out of the judiciary — ostensibly for the reason that his judicial rulings were too short, causing complaints from litigants!

"It seems to have become accepted practice for people to sue the national government expecting to lose (as you almost always do in Japan) but hoping the court will write something encouraging — but non-binding — in its judgment. The fact that Japanese people have come to have such low expectations of their courts could be taken either as a failure of the judicial system to provide true relief, or the result of highly successful expectation-management by judges who know they cannot do much more.

"The U.S. Supreme Court used its dilemma in Marbury v. Madison to create the power of judicial constitutional review, a power not actually provided for in the U.S. Constitution. Since Article 81 of the Japanese Constitution clearly gives the judiciary this power, it is ironic that Japanese judges go out of their way to avoid ever actually exercising it in a manner that is anything other than symbolic. While the preservation of institutional authority is at the heart of both Marbury and the Nagoya High Court's ASDF decision, what the two rulings mean for people outside the judiciary are quite different."

By Colin P. A. Jones (4/29/2008), The Japan Times, Link to article (last visited 5/1/2008)