Thursday, June 26, 2008

U.S. Base Noise and Class Action Lawsuit

"OKINAWA -- The Okinawa branch of the Naha District Court on Thursday ordered the government to pay 392 plaintiffs roughly 146 million yen in compensation in a lawsuit over noise from the U.S. Marine Corps Futenma Air Station.

"It was the first ruling over noise coming from mainly helicopters. The ruling granted compensation for damage that residents had suffered in the past, but rejected the plaintiffs demand for flights to be halted.

"The plaintiffs live in regions with high noise levels. In past lawsuits, judicial rulings granted damages on the basis that noise from military bases damages daily life. The focus in the latest case was the extent of relief for damage caused by helicopters though low-frequency and continuous noise.

"In the case, the plaintiffs said that the low-frequency range of noise from helicopters was larger than that from jet aircraft. They said that low-frequency sounds, which are harder to hear, caused loss of hearing and ringing in their ears.

"The government had argued against the claims, saying the causal relationship between low-frequency noise and damage to people's health and bodies had not been made clear.

"In response to the demand to halt flights, the government had stated that under the Japan-U.S. Status of Forces Agreement, the operation and management of airfields was entrusted to the U.S. military, and it would therefore not place any restrictions on take-offs and landings.

"A total of 396 residents filed a lawsuit in October 2002 against the government and the commander of the air station. The deliberations were divided up and in the lawsuit against the commander, the court rejected claims, saying there was no need to accept claims against the U.S. military. In February 2006, the resident's Supreme Court appeal against earlier decisions was dismissed."

By Mainichi Shimbun (6/26/2008), Link to article (last visited 6/26/2008)

Sunday, June 22, 2008

Suicide Increase and the Prevention Law

"The tendency for people to choose to take their own lives shows no sign of abating.

"According to statistics released by the National Police Agency, 33,093 people committed suicide last year, marking the 10th consecutive year that the number exceeded 30,000. It is the second-largest such figure since the NPA began tabulating data on suicides 30 years ago, after the 34,427 recorded in 2003.

"Last year's suicide rate--the number of those who kill themselves per 100,000 of the population--was 25.9, an increase of 0.7 from 2006.

"A correlation has long been evident between suicide and unemployment rates. But last year, the suicide rate increased though the unemployment rate dipped below the 4 percent mark for the first time in 10 years, to 3.9 percent.

"Notable in last year's suicide statistics was an increase in suicides among people in their 30s and 40s, which accounted for 30 percent of the total number. Why are those who are supposed to be working as core members of society throwing their lives away?

"Central, local govts must act

"Some studies have found that many people feel their workplace burdens have increased and are less satisfied with their bosses' evaluations of their work than before. We wonder if the working environment is getting more severe for many.

"The government had the basic law on suicide prevention enforced in 2006 to "implement measures that society must tackle because various social factors are behind suicides."

"The law's enforcement prompted the government to set outlines for comprehensive measures to prevent suicide as well as a target of reducing the suicide rate by more than 20 percent by 2016.

"Japan's suicide rate is far higher than those of the United States and other developed nations in Europe.

"The basic law calls on the central and local governments and employers to act to prevent people from taking their own lives. First of all, all parties should cooperate in realizing the target of a 20 percent reduction in the suicide rate.

"The outlines call for improving psychiatric care at clinics and hospitals, counseling services in communities for those in need and taking care of employees' mental health at the workplace, in addition to providing support for those burdened with multiple debts and people who have to provide nursing care for their family members. The need to provide psychological care for those with a history of suicide attempts is also stipulated in the outlines.

"To rectify this serious situation, the central and local governments as well as employers must steadily implement necessary measures.

"Suicide data more detailed

"Since the beginning of this year, the number of people committing suicide with hydrogen sulfide has risen steeply. It is a pressing task to come up with effective measures to counter the spread on the Internet of information about how to commit suicide, which partly contributed to the spike in hydrogen sulfide suicides.

"The NPA overhauled its method of publishing suicide statistics from this year. It now puts reasons why people committed suicide into 52 categories in comparison with the previous eight. "Work-related reasons" was broken into five, including "human relations at the workplace" and "failure at work." Statistics on the occupations of those who killed themselves were split into more than 50 categories, while the previous data classified them into only seven.

"When police officers handle suicide cases, they are now allowed to select up to three motives for suicide so the NPA can examine complex suicidal factors. In the past, police officers were required to narrow down suicide reasons to one.

"The NPA plans to provide data for each prefecture upon request. We hope such data will be utilized to determine what specific problems each prefecture has and for devising countermeasures for the problems."

By Yomiuri Shimbun (Editorial, 6/22/2008), Link to article (last visited 6/22/2008)

*Click here for more information about suicide in Japan.

Saturday, June 21, 2008

"Judges urged to take active role in lay judge system

"In a model plan drawn up for the new lay judge system to be introduced next May, the Supreme Court stressed the need for judges to take a leading role in the system, it has been learned.

"The top court came up with the plan after examining national simulated trials in preparation for the new lay judge system, according to sources close to the top court.

"The plan stressed the need for judges to take proactive roles in the lay judge system, requesting that they lead court proceedings so that the questioning of witnesses is focused on disputed points and is carried out in an understandable manner.

"The model plan, which was presented to the Supreme Public Prosecutors Office and the Japan Federation of Bar Associations, is expected to serve as a guideline for trials under the lay judge system, the sources said.

"District courts across the country held about 350 simulated trials in which ordinary citizens took part as lay judges.

"The Supreme Court's Criminal Affairs Bureau analyzed problems from the mock trials and feedback from those who acted as lay judges. This data was reflected in the model plan, the sources said.

"Analysis showed that judges tended to refrain from making statements during court discussions with lay judges before agreeing on a ruling. Judges apparently were afraid of being criticized for leading lay judges to conclusions.

"When it became difficult to reach an agreement, however, judges occasionally jumped to conclusions, sometimes commenting that they had made a similar decisions on other cases.

"To avoid this type of situation, the model plan suggested that judges should better communicate with lay judges. The plan suggests that judges talk to lay judges outside the courtroom, so that they can carefully address lay judges' questions and concerns.

"The plan also referenced judges' roles when witnesses are questioned, suggesting that they focus on points of dispute.

"In the past, court proceedings often were prolonged because of unnecessary witness questioning. Because of this, the plan suggested that judges should exert leadership if questioning extends far longer than the scheduled time.

"The plan also presented an example of a ruling in four pages, including points of dispute and relevant conclusions as well as the determination of punishments."

By Yomiuri Shimbun(6/21/2008), Link to article (last visited 6/21/2008)

Saturday, June 14, 2008

"NHK Censorship Ruling Reversed

"The Supreme Court reversed a lower court ruling Thursday, dismissing a suit filed by a women's rights group that demanded NHK and two production companies pay compensation for altering the content of a documentary on Japan's wartime sexual slavery.

"The top court ruled the three media firms were not obliged to produce the TV program in accordance with the plaintiffs' expectations because broadcasters have the right to edit their productions freely, in this case deleting the verdict in a mock tribunal on the sex slaves that found the late Emperor Hirohito and the government guilty.

"It is generally recognized by the public that TV programs are altered from their original form as broadcasters edit them, the court said. Thus the trust and expectations the plaintiffs had for the program NHK aired are not subject to legal protection, it added.

"The nongovernmental organization, Violence Against Women in War-Network Japan (VAWW-NET Japan), filed the suit in July 2001, demanding that NHK, subsidiary NHK Enterprises 21 Inc. and subcontracted producer Documentary Japan Inc. pay a combined ¥20 million. The demand was later raised to ¥40 million.

"The program, aired in January 2001, concerned a citizens' tribunal held in December 2000 on Japan's responsibility for the ordeal of the "comfort women," who were forced into sexual slavery for the Imperial Japanese Army during the war. VAWW-NET Japan was one of seven NGOs that organized the mock trial.

"In the tribunal, Emperor Hirohito and the government were judged guilty of allowing the institutionalization of sexual slavery. But just before it was aired, the 44-minute program was shortened to 40 minutes after NHK cut crucial segments of the verdict that found the Emperor guilty and also deleted interview footage, including testimony by a Japanese veteran and a former comfort woman.

"The suit also drew attention because the NGO claimed NHK cut the segments after being pressured by rightist groups and Liberal Democratic Party heavyweights, particularly former Prime Minister Shinzo Abe and Shoichi Nakagawa .

""It was an unfair and disappointing ruling," Rumiko Nishino, a representative of VAWW-NET, told reporters in Tokyo. "I don't take the ruling as a defeat . . . because this lawsuit revealed what happened" at NHK.

"At issue was whether NHK and the two production companies were obliged to explain to VAWW-NET Japan about the changes they made before the program was broadcast.

"In Thursday's ruling, Justice Kazuko Yokoo, the presiding judge, said legally protecting the trust and expectations of people who become the subjects of broadcast productions will lead to the restriction of press freedoms.

"The court also said the trust and expectations of people covered by the media are legally protected when the media put "enormous burdens" on them to cooperate with the reportage.

"The court said VAWW-NET Japan gave NHK and the two other parties preferential treatment in producing the TV program, including allowing the NHK side to shoot meetings by the organizers and a rehearsal of the mock trial, but these activities do not constitute enormous burdens on the NGO.

"Yuka Midorikawa, a lawyer for the plaintiffs, said people may become reluctant to cooperate with the media if their trust and expectations are not legally protected in a case like this.

"According to a document drafted earlier by the Tokyo High Court, VAWW-NET cooperated because it expected the public to be shown an overall picture of the tribunal.

"The final version of the program, however, failed to show the responsibility that the late Emperor, posthumously named Showa, and the government bore for the sex slave policy, and the NGO claimed cutting this crucial part out of the mock trial constituted breach of trust.

"NHK and the two production companies argued they did not have to give prior explanation to the group when they altered the program because they have the freedom to edit their own programs.

"NHK also claimed it did not come under political pressure to alter the program, although the Tokyo High Court previously acknowledged it changed the content of the program after taking politicians' remarks into account.

"The daily Asahi Shimbun reported in January 2005 that Abe and Nakagawa put pressure on NHK before it aired the TV program.

"The Supreme Court acknowledged NHK executives met with Abe one day before the program was broadcast and that rightists demanded that NHK not air the show. The high court said there was no evidence Nakagawa met NHK officials before the airing.

"In 2004, the Tokyo District Court ordered Documentary Japan to pay ¥1 million in damages to VAWW-NET Japan, claiming it "gave wrong expectations about the program to the NGO, when the subcontractor had no authority to determine its content." But the lower court did not find NHK or NHK Enterprises 21 guilty on the grounds that, as broadcasters, they were free to revise their programs.

"In January 2007, the Tokyo High Court ordered NHK and the two production firms to pay a combined ¥2 million because they failed to give VAWW-NET Japan prior explanation about the alterations.

"Although broadcasters have the right to edit their programs, the plaintiffs had firm grounds for believing the program would be in line with the organizers' intention to hold the mock trial, the court said.

"The high court also acknowledged NHK changed the content of the program after taking into account the remarks of politicians."

By Akemi Nakamura (6/13/2008), The Japan Times, Link to article (last visited 6/14/2008)

Wednesday, June 11, 2008

"Standing Up for Workers’ Rights in Japan

"TOKYO — Japan’s salarymen, famous for their work ethic and their corporate loyalty, fueled this nation’s industrial rise. But more recently, they have borne the brunt of its economic decline, enduring lower wages, job insecurity and long hours of unpaid overtime.

"Now, a few are fighting back, like Hiroshi Takano.

"For years, Mr. Takano regularly worked into the wee hours as a store manager at the McDonald’s Company Japan. With his health deteriorating and the company, a Japanese business that operates many local restaurants here, refusing to pay overtime, Mr. Takano sued three years ago, and won.

"In January, a Tokyo court ordered McDonald’s Japan to pay him $75,000 in back overtime wages. Last month, the company announced it would pay more overtime to store managers.

"Slowly and reluctantly, Japan’s salarymen are learning to stand up for their rights, and in the process rewriting the social contract that had once bound workers to companies with near feudal bonds of loyalty. While this renegotiation is still under way, a new generation of Japanese like Mr. Takano is seeking to limit the demands of employers with more American-style legal protections. These changing attitudes reflect a broader shift as Japan, Asia’s first high-growth success story, struggles to mature into a postindustrial economy.

"“Japanese are being forced to think more about their self-interest, which is something they are not used to doing,” said Yoichi Shimada, a law professor at Waseda University in Tokyo. “People are slowly realizing there are legal avenues to defend themselves if they feel wronged.”

"According to Japan’s Supreme Court, the number of lawsuits filed against employers rose 45 percent from 1997 to 2005, to 2,303 cases. In 2006, that number increased 21 percent, to 2,777 cases if lawsuits heard by a newly created labor arbitration court are included.

"Adding to the alienation between employee and company has been a growing sense of resentment that workers have not benefited from the nation’s economic rebound in the last half decade.

"While corporate profits have soared, wages have remained stagnant, feeding a perception that companies have failed to share the good times with employees. This has led some to seek a bigger piece of the pie, say legal and labor experts.

"There is also a feeling that as companies have cut costs to remain competitive with the cheaper China and South Korea, they passed too much of the burden onto employees. In particular, many of the recent lawsuits involve a practice known as “service overtime,” in which workers were silently pressured into logging long hours of unpaid overtime as a display of loyalty, say labor experts.

"“Japanese companies have used the silence of their loyal employees as a weapon in international competition,” said Kiyotsugu Shitara, head of the Tokyo Managers’ Union, a small white-collar union that helped with Mr. Takano’s lawsuit against McDonald’s. “Employees are tired of being used like that.”

"Mr. Shitara and other labor experts said the recent rise in lawsuits was also the latest step in a longer-term move toward a more American-style workplace — also apparent in the recent rise in midcareer job hopping, once a rarity here.

"Still, many employees involved in the lawsuits describe themselves as reluctant revolutionaries, dragged into a new, more legalistic era to which they have no choice but to adapt.

"Some, like Mr. Takano, blame the indifferent attitudes of companies for forcing them to fight back when they would just as soon return to the old, cozy relationship between employer and employee.

"“I didn’t want to do this,” said Mr. Takano, 46, who still manages a McDonald’s store in a Tokyo suburb. “The company was treating me too coldly, so I had to start protecting my own rights.”

"Another reluctant plaintiff was Hiroko Uchino, who filed a lawsuit against the government after her husband, Kenichi, 30, a quality control officer at Toyota, died at his office six years ago. Ms. Uchino wanted a government labor agency to legally recognize that he had died from overwork, something so common that there is a Japanese word for it, karoshi.

"She took legal action after the company said her husband’s death was not because of overwork, and that he had only worked about 38 hours of overtime in January 2002, the month before he died. She said the company ignored her when she tried to submit gas station receipts and other evidence to show he had worked much longer hours: 155 hours that January, by Mr. Uchino’s calculation. She said the company said he stayed after work voluntarily, and was not entitled to overtime pay.

"Despite her outrage, Ms. Uchino could not bring herself to legally challenge the auto giant, which dominates the central city of Nagoya, where she lives, and had employed not only her husband but his father and grandfather before him. She sued the labor agency instead to receive more of his overtime pay.

"Ms. Uchino’s case won wide sympathy, including a meeting with the labor minister, who gave her words of support. In March, a court in Nagoya ruled her husband’s death had been work-related, and that he had worked 93 hours of overtime in his final month, entitling his widow to additional overtime pay. Toyota had no comment on the case.

"“His father would never have turned to the courts, no matter what,” said Ms. Uchino, 38. “But Toyota never would have treated him this way, either. These days, all the company talks about is reducing expenses.”

"She added, “If my husband had known how the company would react, he never would have shown all this fruitless loyalty.”

"Mr. Takano, the McDonald’s manager, said he had been working from 6 a.m. to 1 a.m. managing two stores before his lawsuit, in some cases seven days a week. McDonald’s Japan said that as a white-collar manager he was not entitled to overtime pay. After a doctor warned him he was at risk of a stroke, Mr. Takano said he had wavered on whether to file a lawsuit — he liked McDonald’s and wanted to keep his job. Now, he hoped the case would improve working conditions for all managers.

"The company had no comment on the case.

"After the court victory, four other former McDonald’s store managers filed a similar suit demanding pay for overtime pay. Legal experts say more could come throughout the fast-food industry.

"“I want Japan to become a society where employees can sue their own company,” Mr. Takano said. “That’s why I’m doing this.”"

By Martin Fackler (6/11/2008), The New York Times, Link to article (last visited 6/11/2008)

Juvenile Law Reform

"A bill to allow victims of juvenile crimes to sit in court galleries to watch the trials of the young perpetrators became law on Wednesday.

"The House of Councillors approved the bill to amend the Juvenile Law at a plenary session on Wednesday. The ruling coalition, comprising of the Liberal Democratic Party and Komeito, as well as the largest opposition Democratic Party of Japan (DPJ) voted for the bill.

"Serious offenses that lead to the death or serious injury of victims are subject to the new provision in the law.

"Family courts are required to decide whether to allow victims or bereaved families to sit in court galleries judging from the mental state and other conditions of the perpetrators.

"The Japan Federation of Bar Associations and other organizations voiced opposition to the amendment saying it would run counter to the purpose of juvenile trials in helping teenage offenders rehabilitate themselves.

"In response, the DPJ requested that the bill be modified to disallow victims and bereaved families from sitting in court galleries if the perpetrators are aged below 12 and to require family courts to interview defense lawyers for teenage perpetrators before deciding whether to allow victims to attend juvenile trials.

"The ruling coalition complied with the requests."

By Mainichi Shimbun (6/11/2008), Link to article (last visited 6/11/2008)

Loan Sharks and the Civil Code

"The Supreme Court overturned a high court ruling and ordered a convicted former gangster and illegal moneylending group boss Tuesday to compensate plaintiffs not only for extortionate interest charged, but also the principal of the loans.

"The top court's No. 3 Petty Bench sent the case against the former head of the loan shark group, Susumu Kajiyama, a former senior member of Goryo-kai, a criminal gang affiliated with Japan's largest crime syndicate, the Yamaguchi-gumi, back to the Takamatsu High Court to recalculate the amount of compensation.

"The high court had previously ruled that the plaintiffs only be compensated for the amount of interest they paid.

"Kajiyama's loan shark group had forced the plaintiffs to pay off their loans at extortionate rates of interest--reaching several thousand percent on some occasions.

"The 11 plaintiffs from Ehime Prefecture have sought a total of about 35 million yen in the damages suit.

""I cannot permit the principal amount to be deducted from the compensation," Justice Kohei Nasu said in handing down the ruling.

"This judicial ruling that people do not have to return money they borrowed from shady consumer loans operations likely will deal a large blow to such outfits and may lead to financial relief for their victims.

"According to the ruling, the plaintiffs borrowed money from illegal loan outlets controlled by Kajiyama between November 2000 and May 2003. They were made to pay back the loans at exorbitant annual interest rates of between several hundred and several thousand percent--far higher than the maximum rate of 29.2 percent permitted under the Investment Deposit and Interest Rate Law.

"The focus of the trial was on whether the plaintiffs would be able to have their initial principals returned, as well as the illegal high interest payments they made.

"The top court ruling applied a provision in the Civil Code that "the return of payments made for things contrary to public order and decency cannot be demanded" to the business of loan-sharking.

"The ruling indicated that loan sharks should not be able to demand victims who borrowed money from them pay back their loans, and that the victims should be compensated for the entire amount they have already paid back, including the principal.

"The top court termed the huge profits made by Kajiyama, 58, from the illegally high interest rates "an unethical act."

"He negated the high court's ruling that the principal received by the plaintiffs should be deducted from the compensation.

"Lawsuits demanding compensation are being brought against loan shark outfits across the country, but rulings have differed over the extent of the compensation."

By Yomiuri Shimbun(6/11/2008), Link to article (last visited 6/11/2008)

Monday, June 9, 2008

Civil Service Reform Law

"A basic bill on civil service reform was passed into law Friday after the ruling coalition parties and the Democratic Party of Japan approved it during the plenary session of the opposition-controlled House of Councillors.

"In response to the enactment of the law, the government will within a month set up a task force to promote and implement civil service reform, to be headed by Prime Minister Yasuo Fukuda.

"The basic law is aimed at improving coordination among ministries and agencies in implementing government policies and reducing the influence of bureaucrats.

"Following the enactment of a set of laws aimed at restricting the practice of amakudari during an ordinary Diet session last year, the basic law lays down a comprehensive policy to reform recruitment and personnel management systems over the next five years.

"Amakudari is a practice in which high-ranking bureaucrats land cushy jobs at public corporations or private companies that they previously oversaw.

"The Liberal Democratic Party, New Komeito and the DPJ jointly made some revisions to the law before Friday's upper house vote.

"The government will establish within a year a cabinet personnel affairs department under the Cabinet Secretariat."

By Yomiuri Shimbum (6/7/2008), Link to article (last visited 6/9/2008)

ASDF and the Constitution

"On April 17, the Nagoya High Court ruled that the dispatch of the Air Self-Defense Force (ASDF) to Iraq violates Article 9 of the Constitution. As far as cases on Article 9 are concerned, it was the first time in 35 years for a court to rule against the SDF's constitutionality.

"The last time was in 1973 when the Sapporo District Court, of which I was the presiding judge, handed down its ruling in the Naganuma Nike missile base case. It concerned a lawsuit filed by residents of Naganuma, Hokkaido, who were opposed to the construction of an ASDF missile base.

"When it comes to state affairs of a highly political nature, such as national defense, there is a theory known as tochi koi-ron (act of government theory) that the judiciary doesn't have the right to make judgments.

"But I did not adopt this thinking in passing judgment on the constitutionality of the SDF. This is because I firmly believe that the very idea violates the Constitution.

"Article 81 of the Constitution states: "The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act." Thus, under the Constitution, it can be said there is no room for "state affairs that are not subject to judicial review."

"To begin with, Japan stands by the separation of the three branches of government--legislative, administrative and judicial. Therefore, for the judiciary to avoid passing judgment on sensitive political problems would mean being subservient and conceding to politics. If that happens, Japan will cease to be a country ruled by law.

"Courts must fairly and squarely make judgments based on evidence. By accumulating such judgments, the judiciary is able to promote public debate on the constitutionality of various issues. This is how a law-governed nation ought to be. For this reason, I had no qualms whatsoever in reaching a decision about the constitutionality of the SDF.

"In the 35 years since then, there have been a number of lawsuits asserting that the provisions of Article 9 had been violated. But no court made judgments on the constitutionality issue during this time, apparently because the Supreme Court became more inclined to stand by the idea of the "act of government theory."

"It distresses me that courts had such a passive attitude and avoided making decisions on issues of constitutionality. This was one of the reasons behind the inactive public debate over the reality of the SDF's legality under the Constitution. Unless the public shows interest, judges tend to dodge controversial political questions, thinking there is no need to go to the trouble of making decisions on issues concerning the Constitution.

"As a result, such an unfavorable situation became prevalent. Under these circumstances, the Nagoya High Court's decision on Article 9 after a long interval may serve as an opportunity to change the status quo.

"Referring to the latest ruling, Prime Minister Yasuo Fukuda nonchalantly said: "It's an obiter dictum," meaning it was a court opinion that is not legally binding.

"While the court ruled in favor of the government in its decision, it also stated the unconstitutionality of the ASDF dispatch in citing the reason. Some critics say a judgment of unconstitutionality that does not affect the decision is superfluous.

"I disagree.

"The court first determined facts about whether there were unconstitutional acts as claimed by the plaintiffs. It then judged whether there were sufficient grounds and benefits for the plaintiffs to make the claim based on those facts. Its logic was flawless and perfectly acceptable.

"A top ASDF officer made a comment to the effect that such a decision makes no difference. Many other government officials also made similar comments in an apparent attempt to downplay the impact of the ruling. Properly speaking, when a judgment is handed down regarding the constitutionality of an issue, those concerned should accept the ruling no matter how unhappy they are with it.

"I urge officials in the government to re-examine the contents of its policy regarding the SDF and make an effort to advance public debate.

"If the government shows slights on court decisions, it will undermine public trust toward the judiciary. We must avoid a situation in which the public as a whole falls silent, thinking court decisions are irrelevant."

By Shigeo Fukushima (6/6/2008), Asahi Shimbum, Link to article (last visited 6/9/2008)

Wednesday, June 4, 2008

Japanese Supreme Court Strikes Down Nationality Law

"TOKYO (AP) — Japan's Supreme Court ruled Wednesday against a law that denied citizenship to children born out of wedlock to Japanese fathers and foreign mothers, a court official said.

"Japan's top court ruled in favor of 10 Japanese-Filipino children suing for citizenship in Japan. The children were split into two separate cases, one filed in 2003 and one filed in 2005.

"The suits were filed by Filipino mothers who had proved the fathers of their children were Japanese, the report said.

""The court rejected the previous rulings," a court spokesman said on condition of anonymity, citing department policy, referring to the Tokyo High Court's decisions in 2006 and 2007 that denied the children Japanese citizenship. He declined to give further details.

"But the Wednesday decisions backed up even earlier rulings by the Tokyo District Court that the marital status of the parents had no bearing on nationality, and that denying the children citizenship violated constitutional guarantees of equality for all.

"Nationality in Japan is determined by bloodline rather than place of birth, though foreigners may apply to become citizens. Many ethnic Koreans, for instance, have been born in Japan but retain the Korean nationality of their parents.

"Under current law, a child born in wedlock to a foreign mother and Japanese father is automatically granted Japanese nationality.

"But a child born outside marriage can only obtain nationality if the father acknowledges paternity while the mother is still pregnant.

"If the father recognizes the child as his only after the child's birth, the child is unable to receive citizenship unless the parents get married, according to Kyodo News agency.

"Children born to Japanese mothers are automatically granted Japanese nationality, no matter what the nationality of the father is or whether the parents are married."

By Shino Yuasa (6/4/2008), AP, Link to article (last visited 6/4/2008)

Tuesday, June 3, 2008

"Permanent SDF overseas deployment law endangers democracy

"PHILADELPHIA — The Japanese government wants permanent legal authority to send military forces overseas. Letting it have it would be a mistake for many reasons, but one seldom raised is the impact the move would have on the nature of Japan's democracy. A law conferring permanent authority to deploy troops would eliminate important institutional checks and balances on the government's use of the military, causing a further weakening of the separation of powers in Japan.

"It would also run counter to the recent trend in other democracies to increase accountability in the process of deciding to use armed force.

"As it stands now, the government (meaning the executive branch, the Cabinet) has to have specific legislation passed by the Diet, such as the Anti-Terrorism Special Measures Law (the ATSML), to obtain the required legal authority to deploy troops outside of Japan. A new law is required each and every time the government wants to dispatch the Self-Defense Forces (SDF), whether for the purpose of U.N. peacekeeping or to provide humanitarian support for collective security operations such as those in Afghanistan.

"Such legislation establishes the operating parameters, such as limiting the SDF to noncombat zones and defining the conditions under which it may use force in self-defense, and typically specifies clear time limits for the deployment. New legislation is also required to extend the time limits of such laws before they expire.

"The government was embarrassed last year by its inability to get Diet approval for an extension of the ATSML for another year, forcing it to withdraw the SDF from the Indian Ocean.

"The government, and many policy pundits, believe that the requirement to obtain legislative approval for each deployment is cumbersome, time-consuming, and when the opposition controls one chamber of the Diet, a real obstacle to the implementation of policy. So it now wants a permanent law that would provide blanket authorization for the deployment of the SDF for participation in what it calls "international cooperation activities."

"The term "international cooperation activities" (which also appears in the Liberal Democratic Party's proposed amendment to Article 9 of the Constitution) has no meaning under international law. It could be used to describe collective self-defense, or collective security operations authorized by the United Nations Security Council, both of which are understood to be prohibited by Article 9.

"It could even include such operations as the invasion of Iraq, which was not authorized by the U.N. and is widely interpreted as having been an act of aggression in violation of international law.

"Since the term is deliberately ambiguous, the law authorizing such "international cooperation" would have to provide broad and ambiguous criteria justifying the dispatch of the SDF. There would be no narrow parameters tailored to the specific circumstances for which the SDF were to be deployed, as have characterized the "special measures" laws authorizing each SDF deployment in the past. It would be tantamount to a blank check.

"Such a blank check would eliminate the role of the legislature in the process of deciding upon and approving Japan's involvement in military operations abroad. Nor would the legislature have any power to block or otherwise restrain government after it has decided to deploy Japanese troops. The Cabinet would have authority to make the determination, in its sole discretion, as to whether the operation for which it sought to deploy Japanese troops met the criteria in the permanent law. Moreover, without a specific law setting the limits within which the SDF is required to operate, there would be no restraints on "mission creep" in which operations could develop into actual combat activity and escalate over time.

"Advocates of the new law assert that the permanent law would not be for engaging in armed conflict, but only to authorize the dispatch of the SDF for humanitarian support efforts. But these assertions are both hollow and disingenuous. Given the language of "international cooperation," the SDF could be deployed for almost any purpose the government decides upon.

"In the recent past, when there have been special laws both authorizing and limiting SDF operations, the SDF has been found to have violated the limits of those laws (as with the ASDF operations in Iraq), the government has tried to dismiss legal findings to that effect (as in its response to the Nagoya High Court case on ASDF operations in Iraq), and the SDF itself has tried to deceive both Cabinet and the Diet regarding such violations (as in the MSDF misrepresentations regarding the fueling of U.S. naval assets in the Indian Ocean).

"Given this recent record, why should anyone think that eliminating such legal restraints and legislative oversight would not lead to even more unrestrained use of the military, in ways that may be utterly inconsistent with the Constitution?

"Nor could the courts be relied upon to review such decisions as a check on government action. The courts are considered to be the third branch of government in the traditional separation of powers that is at the foundation of the modern democratic structure. In Japan, however, they have abdicated all responsibility for reviewing the executive's decisions with respect to the development and deployment of troops. The Supreme Court long ago held that such issues are "too political" to be the subject of judicial review, even where the government action is inconsistent with Article 9 of the Constitution.

"The Supreme Court has also narrowed the test for standing, the legal basis upon which constitutional claims may be brought before the courts, to such a degree that using the courts to review government deployment of troops is all but impossible. There are virtually no circumstances in which anyone could demonstrate the "direct legal interest" necessary to advance a claim that would be accepted by the courts.

"Lower courts have recently followed precisely these standards in dismissing a number of challenges to the deployment of the SDF to support operations in Afghanistan and Iraq. As the recent Nagoya High Court decision demonstrated, the lower courts will continue to dismiss such claims even when they believe the government's action is unconstitutional. Notwithstanding the judiciary's constitutional authority and responsibility, it will thus be no check on executive acts in this regard.

"This elimination of checks on the executive power to engage in armed conflict runs counter to recent trends in other democracies around the world. Over the last 30 years there has been a movement toward greater transparency and democratic accountability in the process of deciding to use armed force.

"The United States has always had a constitutional provision granting Congress the power to declare war and to confer authority for other actions incidental to armed conflict, though the exact scope of that authority has been hotly debated for over a hundred years. But after presidents began more aggressively ignoring the congressional authority, beginning with the Korean war and culminating in secret operations in Laos and Cambodia during the Vietnam war, Congress passed the War Powers Act to try to reign in the executive power.

"While the war powers of the president and Congress continue to be controversial, it is worth noting that the president obtained specific congressional authority for the Gulf War in 1990, for the response to 9/11 that culminated in the invasion of Afghanistan, and for the invasion of Iraq.

"In Germany, the Constitutional Court was called upon to consider the issue in the context of Germany's participation in the North Atlantic Treaty Organization's operations in the former Yugoslavia in 1994. The court rather creatively interpreted the Basic Law as requiring the government to obtain specific legislative approval each and every time it sought to deploy armed forces in support of international operations. That continues to be the constitutional principle that governs German policy today.

"Similarly, Prime Minister Gordon Brown has recently suggested constitutional changes for Britain, introducing the concept of requiring parliamentary approval of decisions to engage in armed conflict. Under the British constitutional system the decision to go to war has traditionally been within the scope of the "Royal Prerogative," meaning the sole discretion of the executive. That broad discretion of course contributed to such historic policy blunders as the conspiracy with France and Israel for the orchestrated attack on Egypt in the Suez crisis of 1956, which was decided upon without any informed parliamentary debate.

"Canada, which has historically also operated under the Royal Prerogative, has more recently begun the practice of submitting decisions to participate in armed conflict to parliament for debate and approval. There was parliamentary debate before the final decision to participate in the first Gulf War in 1991, and there was legislative approval sought again this year for continued Canadian involvement in Afghanistan.

"There are other examples that together establish the clear trend in the world's democracies to broaden legislative participation in the decision to use armed forces. That seems only reasonable, since the decision to engage in armed conflict is one of the most important and potentially significant a nation can make.

"It may be cumbersome to obtain legislative approval for deploying military forces overseas, but that is as it should be. It is not a decision that should be made lightly. It should be made after well informed debate, with a clear understanding of objectives and limits.

"Japan, more than most countries, ought to have a deep understanding of the horrors that can unfold from granting one branch of government a blank check to make decisions about war and peace, and how international "incidents" can develop into full-blown wars.

"The government's recent high-handed dismissal of the Nagoya High Court judgment on the constitutionality of SDF operations in Iraq is just one more reminder of why it is essential to have meaningful and substantive democratic constraints on the executive power to use armed force in Japan.

"Providing the government a blank check for the dispatch of the SDF is going in the wrong direction, and swimming against the tide."

By Craig Martin (5/21/2008), The Japan Times, Link to article (last visited 6/3/2008)

Law School Curriculum

"In an effort to improve the quality of law schools, the government is considering setting minimum curriculum criteria for such institutions, sources said.

"While the government intends to significantly increase the number of people passing bar exams, it is concerned the increase may have a negative impact on the quality of newly qualified lawyers.

"To alleviate such concerns, the government plans to draw up a so-called minimum curriculum, under which most education programs at law schools will be made uniform with the aim of guaranteeing and improving the quality of education.

"The Central Council for Education, an advisory panel to the education minister, is expected to examine the issue for about two years before coming to a conclusion, according to the sources.

"Based on Education, Science and Technology Ministry ordinances and other regulations, law schools are currently required to set a minimum number of credits and courses for specific subjects, such as legal basics. However, details are left to individual schools.

"When the government decided to set up law schools as part of efforts to reform the country's judicial system, it was hoped that 70 percent to 80 percent of graduates would pass the new national bar exams, the first of which was held in 2006.

"In reality, however, only 40 percent of examinees passed the second bar exam held under the new system last year.

"By school, Chiba University's School of Law had the highest percentage of successful examinees, at about 65 percent. On the other hand, many schools saw pass rates of below 10 percent.

"The National Institution for Academic Degrees and University Evaluation, an independent administrative corporation that rates universities' education and research activities, concluded that five law schools failed to meet specified criteria and were not offering appropriate education. The number accounts for more than 20 percent of the 24 schools that have so far been evaluated by the institution.

"In light of this, members of the Japanese Federation of Bar Associations and other legal experts called for the establishment of core curriculums for law schools, according to the sources.

"In response, the Central Council for Education set up a working group in March to study ways to guarantee certain levels of education at law schools. The group comprises jurists, lawyers and judges, among others.

"In 2001, medical and dental schools around the country introduced core curriculums drawn up by the education ministry. At medical schools, the core curriculum accounts for about two-thirds of the entire curriculum.

"Taking into consideration the situation at medical and dental schools, the central council's working group is expected to work out the outline of law schools' core curriculums and examine whether to link them with areas to be covered by the bar exam, according to the sources.

"Observers believe that the government started considering the introduction of core curriculums for law schools due to concern over the bar exam system.

"Though the system was designed to boost the number of qualified legal experts, various concerns have been expressed over the quality of the law schools, the foundations of the system, with some people also calling for a review of the exam.

"The government aims to increase the number of people passing the bar exam to 3,000 per year by around 2010. However, the goal is expected to be difficult to achieve.

""As long as education at law schools remains at current levels, it will be difficult to achieve the government's goal without making the exams significantly easier," a senior official of the Justice Ministry said.

"But law schools oppose any move to enforce a uniform curriculum. "It will deprive law schools of their independence and take away teachers' ability to innovate," said a university official. "The idea runs counter to the purpose of the law schools, which is to nurture legal experts with various backgrounds."

"According to a Yomiuri Shimbun survey in May, at least 10 of 74 law schools that opened in April 2004 are planning to cut their quotas of students.

"The 74 graduate schools were launched in 2004 as part of reforms to legal education. With so many schools opening, however, many found it difficult to fill their quotas.

"A further problem has been the disappointing pass rates for the new national bar exam.

"The new schools are now forced to decide whether they should educate students in smaller numbers in an effort to prevent a decline in standards."

By Yomiuri Shimbun (6/2/2008), Link to article (last visited 6/3/2008)

Death Penalty and Democracy

"In sentencing to death the killer of Nagasaki Mayor Itcho Ito, the Nagasaki District Court accepted the prosecution's argument that the murder constituted "terrorism against the democratic process," giving this more weight than the fact that only one person was killed.

"In response to the prosecutors' insistence that the crime was an act of terrorism, the court judged the killing was a challenge to democracy and an "extremely vicious crime involving unprecedented violence against administrative officials."

""It was the right verdict," Yuya Nitta, deputy head of the Nagasaki District Public Prosecutors Office, said to reporters after the ruling Monday. "Though the number of victims is an important factor, it's not everything."

"In past murder trials, the number of victims has been seen as key in determining whether to hand down a death penalty. Other important factors include the motive behind the crime, and its overall impact.

"The murder was a rare case of an incumbent mayor being shot dead during a reelection campaign and only a few days before polling.

"Registration of candidates to replace Ito was hurriedly conducted, and Nagasaki citizens were forced to choose their next mayor in very unusual circumstances.

"On polling day, there were about 15,000 invalid ballots, accounting for about 8 percent of all votes.

"Also in Nagasaki, then Mayor Hitoshi Motoshima was shot and injured in January 1990. In Ito's case, a senior prosecutor said: "It's unforgivable to challenge the legal order with violence. A majority of the prosecutors favored a death sentence."

"Disputed points in the trial include whether the murderer, Tetsuya Shiroo, was motivated by a desire to prevent Ito's reelection, and whether the crime was premeditated. The judges accepted most of the prosecutors' arguments, with the ruling repeatedly emphasizing that the crime was a threat to democracy.

"Shiroo's lawyers immediately appealed the ruling. At a press conference in the city Monday, Katsushige Kawabata, head of his defense lawyers, said, "Our arguments weren't given due weight."

"In the trial, the defendant did not dispute that he killed the mayor. But his lawyers sought to avoid a death sentence by emphasizing that his crime had only one victim. Their argument was based on statistics that show the death penalty has rarely been imposed in cases involving only one victim.

""The ruling did not clarify why a death sentence was chosen," Kawabata said. "I'm concerned about how punishments will be decided in the future. There may be a shift to excessively strict penalties."

"According to the Japan Federation of Bar Associations, since the Supreme Court set out the so-called Nagayama standard on when to impose death sentences in 1983, 25 of 166 cases in which death sentences were finalized, or about 15 percent, involved only one victim. The Nagayama standard, named after serial killer Norio Nagayama, who murdered four people in 1968, is a nine-point set of criteria for determining whether the death penalty should be imposed.

"Looking at 10 such cases since 2001, the crimes were all extremely vicious in nature. In five of them, the murderers committed the crimes while on parole after serving indefinite prison terms for other crimes including murder.

"Takeshi Tsuchimoto, head of the Law School of Hakuoh University, observed the sentencing. "The ruling took a strict attitude toward violence targeting administrative officials," he said.

"The expert in criminal justice said: "I think the Nagayama standard was really created to avoid death sentences. But the latest ruling indicated a move toward stricter punishments following a Supreme Court ruling in June 2006 on a case in Hikari, Yamaguchi Prefecture, in which a woman and her child were killed."

""The crime was motivated by one gang member's desire for recognition, not by any political motive," said Prof. Toyo Atsumi of Kyoto Sangyo University's Law School, an expert on the Penal Code.

""Considering that, and the fact that there was only one victim, a death sentence should have been avoided. I fear the range of cases in which death sentences will be chosen may be expanded," he added.

===

"Murder prompts law change

"The murder of the Nagasaki mayor prompted the Diet to revise the Antigang Law, with the change to take effect in August. The revised law covers violent action against administrative officials as part of gang activities.

"After the revision, police will be able to immediately order gangs to stop intimidation of administrative officials. But other issues remain to be addressed.

"The National Police Agency says prefectural police forces and prefectural centers for antigang activities across the nation have received more than 2,000 complaints every year since 2003.

"In 2007, they received 2,536--the highest figure since 1995, when such statistics were first collected.

""This is one piece of proof that gangs have earned money through public works projects," a senior NPA official said.

"Motoo Kakizoe, a lawyer who is an expert in gang crimes, said, "The government should consider legislation to directly control gang organizations as soon as possible.""

By Ichiro Komatsu, Shintaro Matsumoto and Manabu Kimura (5/28/2008), Yomiuri Shimbun, Link to article (last visited 6/3/2008)