Wednesday, October 22, 2008

"Influencing immigration

"Has it happened again? Did politicians try to exert their influence over government offices, asking them for favors?

"This time, the story is about issuing visas to Filipinas entering Japan.

"In 2006, Leyte Island in the Philippines was hit by a massive landslide. Some Filipino women who had entered Japan without acquiring entertainment visas were allowed in on grounds that they were to appear in charity concerts to aid Leyte Island residents. But it turned out that they were actually working as bar hostesses. The Shizuoka prefectural police arrested a bar owner and others on suspicion that they had violated the immigration control law and the Adult Entertainment Business Regulation Law, and searched some places including the office of the private group that acted as guarantor for the women.

"According to investigations, the nonprofit group was being run, for all intents and purposes, by a former state-funded secretary for Masatoshi Kurata, a Liberal Democratic Party lawmaker and senior vice minister for internal affairs and communications.

"Not only that, officials of both the Justice Ministry and Foreign Ministry have disclosed that Kurata and his former aide had approached the two ministries to expedite the issue of short-stay visas for the Filipinas.

"If Kurata and his aide did indeed try to exert influence, then this cannot be overlooked. Issuance of entertainment visas is strictly restricted. Their alleged actions are tantamount to assisting illegal activities.

"Kurata flatly denies the allegations, saying, "I have never tried to exert influence." But then, what about the charges that Kurata had said, "Please help out with the charity"?

"Kurata admits he knew that his former aide was involved in the organizing of the concerts. The former secretary had originally explained that the visas were issued because, "a supporter had asked Kurata for help, and Kurata had instructed me to look into it." However, this aide later backtracked and denied Kurata had given him any instructions.

"Where is the truth? We hope Kurata will provide a convincing explanation about his involvement with the private group, and how the visas were issued.

"Because Kurata is senior vice minister for internal affairs and communications, the government is required to look into the matter and determine the facts. Of course, law enforcement authorities also need to investigate the case.

"There is something else that has come to light.

"Japan has long been criticized here and abroad for "human trafficking," that is, for allowing foreign women to work as bar hostesses. This latest scandal has brought to light the reality that these things are still going on.

"Most of these women tended to come to Japan as dancers and singers, and enter with entertainment visas. That is why there has been a crackdown on such visas since 2005, with much stricter requirements. Since then, the number of women entering with these visas dropped drastically, but the latest incident shows that other types of visas are now being used as covers.

"If such loopholes are increasingly being used, then the matter is serious. If nothing is done, and such activities are allowed to continue, then it would seem as if the Japanese authorities are ignoring the problem. Japan's international credibility will plummet.

"Unless there is also something done about this situation, there will be no fundamental solution."

By Editorial (Asahi Shimbun, 10/20/2008), Link to article (last visited 10/22/2008)

"Law hinders press freedoms

"A revision of the Code of Criminal Procedure enacted in 2004 prohibits lawyers and defendants from showing or handing copies of evidence they have received from the prosecution to third parties. It also prohibits posting such copies on the Internet. When the revision bill was submitted to the Diet, the Japan Federation of Bar Associations opposed it, saying it would not only diminish the right of defendants to defend themselves but also run counter to the freedom of the press and the principle of a trial being open to the public. The Japan Newspaper Publishers and Editors Association also criticized the bill, saying it could lead to restriction of reporters' news gathering activities.

"What these organizations feared is now happening. In the past, reporters were able to view materials such as an investigator's record of a suspect's oral statements if they established a relationship of trust with lawyers. But these days it is impossible for reporters to do so, because lawyers fear falling victim to the harsh penalties contained in the revision. Violators, including former lawyers and former defendants, face imprisonment of up to one year or a fine of up to ¥500,000.

"Under the revision, public prosecutors can present evidence to lawyers before the start of a trial and both parties can narrow down the points of contention — a system designed to shorten the time needed to complete a trial process, which will be necessary when a lay judge system is introduced next year. Along with the introduction of the system, penalties were introduced to prevent the passing of copies of evidence to third parties.

"The government said the penalties were necessary to prevent disclosures over the Internet that infringe on privacy and to dissuade profiteering from online sales of copies of evidence. But these copies help prevent false charges, ensuring accurate news reporting and informing law experts. The government should consider revising the law so that lawyers and defendants who pass copies of evidence to third parties for legitimate purposes are not punished."

By Editorial (Japan Times, 10/21/2008), Link to article (last visited 10/22/2008)

Wednesday, October 15, 2008

"Miura's baffling suicide

"An investigation into a 27-year-old murder has come to a shocking and abrupt end.

"Kazuyoshi Miura, a former trading company president and the key figure in the 1981 shooting of his wife, Kazumi, in Los Angeles, killed himself in a Los Angeles Police Department holding cell on Friday.

"Miura was visiting the U.S. territory of Saipan in February when he was arrested by U.S. police for his alleged involvement in the fatal shooting of his wife 27 years ago. She died in Japan in 1982.

"Just before his suicide, Miura had been flown into Los Angeles, having failed to have the February arrest warrant revoked.

"When guards reportedly checked on Miura 10 minutes before he was found unconscious, they found nothing out of the ordinary. However, it is apparent that Miura was not being monitored closely enough.

"There is also the question of how far the LAPD was aware of Miura's state of mind at the time.

"The LAPD must disclose the circumstances immediately before and after Miura's suicide, and explain exactly how the chain of command worked at the holding center. The Japanese government should certainly insist on this.

"This has been an unusual case indeed.

"When Miura's wife was fatally shot in Los Angeles, Miura was at her side, and he, too, was injured. After his return to Japan, he was arrested by Tokyo's Metropolitan Police Department on suspicion of murder. Miura protested his innocence, but the Tokyo District Court found him guilty in 1994.

"However, because the prosecution could not pinpoint Miura's "accomplice who actually pulled the trigger," the appellate court reversed the lower court decision and found him innocent in 1998. The Supreme Court acquitted him in 2003.

"Five years later, however, the LAPD reopened the case and arrested Miura for alleged conspiracy to murder. Miura protested in vain that the arrest did not stand up to the law, and he reportedly told his close acquaintances that he would "fight it out in Los Angeles."

"So why did he commit suicide? We are really baffled. Surely, he had the option of presenting his argument in a U.S. court of law. Did he suddenly lose his nerve after more than seven months in detention? Or was his suicide his ultimate act of protest against his arrest? We will never know, of course, but the outcome could not have been more shocking and distressing.

"At the time of his arrest in February, it was speculated that the LAPD had obtained some new, damning evidence against him. If that was true, what was this evidence? If not, on what grounds were the U.S. investigators going to make the prosecution stick?

"With Miura dead, there will be no trial in Los Angeles. But we truly hope U.S. authorities will reveal what they knew while ensuring that the rights of all surviving individuals involved in this case are protected.

"The case will always be remembered as a media circus rather than a criminal investigation proper. It became fodder for weekly gossip magazines and TV entertainment shows, where innuendoes and groundless rumors trumped hard facts. Miura himself fired away a string of libel suits, many of which he won.

"Actually, the whole sordid mess served to jolt the mass media into re-examining its brand of "journalism."

"We still do not know who pulled the trigger that killed Kazumi. At this point, all we can hope for is that U.S. investigators will get to the bottom of what really happened. And we certainly do not want the truth to remain buried forever."

By Editorial (Asahi Shimbun, 10/15/2008), Link to article (last visited 10/15/2008)

※Miura's acquittal:
Tokyo District Court, Decision of 31 March 1994, Hanrei Jihou 1502-48.
Tokyo High Court, Decision of 1 July 1998, Hanrei Jihou 1655-3.
Supreme Court, Third Petty Bench, Decision of 5 March 2003.

Tuesday, October 14, 2008

"Surrogate baby readies for Japan

"Ten week old Majhi, a surrogate baby born in Gujarat and living with her grandmother with a family friend in Jaipur, is expected to get her travel documents to fly to her native country Japan very soon.

"On Monday, her caretakers in Jaipur submitted request for travel documents and regional passport officer Sharavan Kumar indicated willingness to release these soon.

"Majhi was made victim of media hype as questions were raised on how she could travel to Japan when her surrogate mother was an Indian. Passport agents as also doctors, who helped in surrogacy, had however told India Today two months ago that even in the past such babies had travelled abroad on travel documents.

"However, speculations and suggestions made were as weird as that the baby be made to stay in India forever to her being first adopted in India and then being allowed to go.

"Those knowing the facts well and in trade were shocked by such suggestions as her father, a surgeon is Japan, was known and alive and her surrogate mother had given consent for her release signing documents surrendering her rights altogether.

"Given that it was an anonymous Indian donor donating the egg, even the role of the girl's father's wife, who lived separately, was of no consequence. Media hype was further fuelled by refusal of the local passport office to consider her application for travel documents.

"Making things worse, an NGO moved Rajasthan High Court and sought stay on the baby's travel abroad besides demanding its custody, a move which later did not find favour with Supreme Court, which made it clear that there was no law stopping the baby from going abroad. The Supreme Court did not go into details over the issue.

"While everyone hopes little Majhi travels to her father as early as possible, the entire episode brings into light how a wrong media hype based on ignorance does not even spare a baby."

By Rohit Parihar (10/14/2008), India Today, Link to article (last visited 10/14/2008)

Monday, October 13, 2008

"The fatal flaw in trying to impose a new interpretation on Article 9

"PHILADELPHIA — The report of the "Panel on the Reconstruction of the National Security Legal Foundation," commonly known as the Yanai Report, argues that a reinterpretation of Article 9 of the Constitution is necessary to permit Japan to participate in collective self-defense and collective security operations. Both activities are currently understood to be prohibited by Article 9, Section 1. The report reveals, however, a fundamental flaw that entirely undermines the legitimacy of the panel's analysis.

"The panel was created in April 2007 by then-Prime Minister Shinzo Abe to consider the need for a "reinterpretation" of the Constitution. The panel was composed of 13 prominent academics, former diplomats and government bureaucrats who were predominantly experts in international relations, politics and national security. It included only one constitutional scholar. The panel was criticized for being dominated by policy hawks who were on record as favoring constitutional revision. The chair, Yanai Shunji, a former ambassador to the U.S. and now a professor of Chuo University, submitted the panel's report to the Cabinet in June.

"Then Prime Minister Yasuo Fukuda showed little interest in the report or constitutional "reinterpretation." But Prime Minister Aso reiterated while at the United Nations that Article 9 should be "reinterpreted." Moreover, there is evidence that the Yanai Report has been well received within the bureaucracy, and is likely to exercise increasing influence within government. It should therefore be the subject of greater public scrutiny.

"The report argues that because the international security environment has changed since the end of the Cold War, with increased threats and more diverse threats to Japan and the international society, the established interpretation of the Constitution is no longer appropriate. Rather, Article 9 is preventing the fulfillment of important security objectives.

"Thus, it argues, the interpretation of Article 9 must be "revised" so as to permit the development of a more effective defense capability and more robust national security policies. This is necessary in order to implement the strategic imperatives of effectively defending Japan, supporting the U.S.-Japan alliance, which is key to Japanese security, and contributing to the international peace and security to which Japan's security is tied. Boiled down to its essence, the argument is this: Japan faces more threats; therefore, the meaning of Article 9 must be changed so that we can better meet those threats.

"The policy analysis is commendable, but as constitutional analysis, the argument is fallacious. The entire approach of beginning with an identification of the problems posed by current circumstances, moving to a determination of the policy responses necessary to resolve those problems, and then concluding with an interpretation of a constitutional provision so as to facilitate the adoption of such policies, is entirely illegitimate.

"Constitutional interpretation, under any accepted constitutional theory, cannot begin with the consequences and policy ramifications of a given provision and then proceed to reverse-engineer the meaning of the provision in a manner designed to enable the realization of the desired policy outcomes. Such result-oriented reasoning is simply invalid. And notwithstanding assertions within the report to the contrary, this is precisely what the panel has done.

"A constitution forms the fundamental legal framework of a democratic state. Its provisions commit future generations to operate within the confines of the system thus created, and according to the values and vision that it embodies. The meaning of a constitutional provision has to be determined by reference to the text of the provision itself, and an understanding of the purpose that it was designed to achieve. That process is assisted by reference to other parts of the constitution, and an examination of the history of the drafting and ratification of the constitution, informed by the legal principles that were drawn upon in the process.

"The subsequent interpretation of the provision by the courts and other government bodies with the requisite constitutional authority, and its operation over time, are also important guides to interpretation, as consistency, stability and predictability in the operation of fundamental legal principles are crucially important to the rule of law.

"There are different theories of constitutional interpretation, some more wedded to the text and the original intent of the framers than others. Some approaches emphasize that the constitution is a living institution that will evolve gradually over time through incremental developments in court interpretations, in accordance with the shifting values and realities of the nation. But none of them contemplate ad hoc and radical government reinterpretation of provisions to fit perceived policy needs.

"If there is such significant change to the nation's circumstances that the continued legitimacy of a constitutional provision is thrown into question, then the appropriate avenue is constitutional amendment. Changing circumstances and even changing values are obviously anticipated, and amending procedures are typically part of the constitutional system. The Constitution of Japan is no exception, and it has an amendment process that is less onerous than those of Germany and the United States.

"Ad hoc "reinterpretation," particularly by the executive, is just an end run around the legitimate amendment procedures of the Constitution.

"If the view is that the majority of the nation would not support such an amendment, then that simply highlights the illegitimacy of trying to impose a new meaning on the Constitution that the majority of the people would disagree with. At root, the argument that "the situation has changed, so we must change the Constitution" is perfectly valid; the argument that "the situation has changed, so the meaning of the Constitution must have changed" is not.

"If the government can simply "reinterpret" Article 9 due to changing circumstances, why not other provisions? As the number of immigrants in Japan increases in response to the challenges of an aging population, could the government not also "reinterpret" Article 14 as no longer prohibiting discrimination against foreigners? A "reinterpretation" of any one provision puts the entire constitutional framework at risk. Of course, the courts have the ultimate authority to interpret the Constitution and could reject such "reinterpretations," but the Supreme Court of Japan has historically demonstrated such deference to the government that it cannot be relied upon in this context.

"Consider the issue of guns in the U.S. Many Americans, and probably most of the rest of the world, think it misguided to have a constitutional provision guaranteeing an individual right to possess firearms in a country that has the highest homicide and violent crime rates in the industrialized world. The provision itself, the Second Amendment, was ratified more than 200 years ago. It is considered by many to be anachronistic and a significant obstacle in efforts to reduce the modern scourge of gun violence in America.

"Yet it is utterly inconceivable that the president or Congress could announce that it was "reinterpreting" the Second Amendment so as to permit the legal prohibition of all firearms. And the Second Amendment is much more ambiguous and has a much more complex history than Article 9. It would be open to argue, as the District of Columbia did recently before the Supreme Court, that based on valid principles of constitutional construction, an alternate interpretation is more legitimate. But governments cannot simply claim that the Second Amendment now means something different because guns kill too many people in America.

"The Yanai Report provides an important analysis of the changing international security environment, and provides a concise articulation of Japan's strategic policy requirements. It asks important questions regarding whether it is possible for Japan to meet its national security objectives within the constraints of Article 9.

"It also offers significant arguments that could be legitimately advanced in favor of constitutional amendment. The report even provides fairly detailed and impressive recommendations on the legal limits that should be created to govern the exercise of military force that would be made possible by its recommended changes. The report has considerable value as a policy document.

"However, its conclusion that Article 9 must thus have a meaning different from the long-established interpretation is simply invalid. The panel makes errors in some of the details of its interpretive arguments, but these are dwarfed by the illegitimacy of the entire approach.

"As such, notwithstanding the potential value of its policy analysis, the report ought not to have any influence whatsoever on the meaning of the Constitution. And government attempts to follow it ought to be challenged."

By Craig Martin (10/5/2008), Japan Times, Link to article (last visited 10/13/2008)

Thursday, October 9, 2008

"Koizumi's misinterpretation of the Constitution leaves a sense of shame

"Former Prime Minister Junichiro Koizumi has announced his retirement from politics. I cannot quite figure out what his true intentions are -- does he want to have his son succeed him while his influence is still visible, or does he just sense that it is time to quit, or is it yet some other reason?

"In the upcoming general election, both ruling and opposition parties are expected to argue about the demerits of reforms led by Koizumi. Since he retained a long-term administration, it certainly had merits and demerits. But I want to talk about another disgraceful issue.

"As I was recently re-reading a book by journalist and Akutagawa Award laureate Yo Henmi titled "Ima Koko ni Arukoto no Haji" ("The Shame of Existing Here") published by the Mainichi Newspapers, it dawned on me that an offense against the Constitution had been committed.

"It was on Dec. 9, 2003. Koizumi, then prime minister, held a press conference to explain Japan's dispatch of the Self-Defense Forces to Iraq. He stressed that Japan is expected by the international community to perform activities that are in line with the principles of the Constitution.

"What Henmi is furious about most -- calling it "the biggest stigma after the war" -- is that Koizumi skipped an important paragraph in the preface of the Constitution and instead only read out the latter part that said, "We desire to occupy an honored place in an international society."

""He dared to tell the world the spirit of the pacifist Constitution with an inaccurate interpretation," Henmi fumes in his book.

"The author also directs his criticism at the media. "Was there any reporter who questioned Koizumi over his remarks?"

"If I were there at the press conference, I also would have let his remarks pass.

"Looking back now, it really strikes me that rather than destroying the old Liberal Democratic Party as he pledged, Koizumi actually destroyed the Constitution. In fact, the Nagoya High Court acknowledged in April this year that the aerial transportation activities of the Air Self-Defense Force in Iraq violated Article 9 of the Constitution.

"Watching Junichiro Koizumi leaving Japan's political hub of Nagatacho makes me realize my own shame."

By Chikahiro Hiroiwa (10/8/2008), Mainichi Shimbun, Link to article (last visited 10/9/2008)

Sunday, October 5, 2008

Defamation Suit: Osaka Governor

"A Hiroshima court Thursday ordered Osaka Governor Toru Hashimoto, who is known for his sharp tongue, to pay 8 million yen in damages for a comment he made on television when he was a practicing lawyer and TV personality. The ruling basically said he was unfit to be a lawyer.

"In May 2007, Hashimoto commented on a 1999 murder case in Hikari, Yamaguchi Prefecture. Hashimoto criticized the defense lawyers for the accused, who was a minor when he killed a mother and her infant daughter, and called on viewers to file complaints for disciplinary action against the team if they agreed with him that the defense arguments were absurd fabrication.

"The remark triggered a barrage of requests for punitive measures against the defense lawyers, who, in turn, sued Hashimoto for damages. The Hiroshima District Court on Thursday ruled in favor of the lawyers. It stated that Hashimoto "does not have a proper understanding of the mission and responsibilities of lawyers who protect the basic human rights of minorities."

"He should be ashamed of his behavior.

"The accused in the Hikari murder case initially admitted to the charges against him in the district and high courts and was sentenced to life in prison. However, the Supreme Court decided that the life sentence was too lenient and referred the case back to the Hiroshima High Court, where the accused, then 27, reversed his testimony and denied he intended to kill the victims or attacked the woman to rape her.

"Referring to the reversed testimony of the accused during his appearance on the TV show produced by Osaka-based Yomiuri Telecasting Corp., Hashimoto blasted the lawyers.

"He called on the pubic to demand local bar associations to take disciplinary action against the defense lawyers, adding that "if many people filed complaints, bar associations would have no choice but to punish them."

"With regard to Hashimoto's remarks, the Hiroshima District Court noted that it is not uncommon in criminal cases for the accused to change his or her testimony. Given that Hashimoto is a lawyer, it said he should have avoided jumping to conclusions on whether the testimony was fabricated by the defense team. It added that his remarks were groundless and constituted libel.

"We doubt Hashimoto really understands that it is the job of lawyers to defend the interests and rights of their clients. Just because methods of defense teams do not meet generally accepted common sense or Hashimoto's personal views, it is not right for a lawyer to incite the public to file requests for punitive measures against them.

"In the Hikari case, TV reports that one-sidedly blasted the accused and his defense for reversing testimony and denying his intent to kill were aired one after another. The Committee for the Investigation of Broadcasting Ethics of the Broadcasting Ethics and Program Improvement Organization (BPO) harshly criticized the making of such programs, saying they deviate from the principle of fairness.

"It is a matter of course that broadcasters are to blame for airing such biased programs. But the responsibility of Hashimoto, who appeared on TV as a legal expert, is even more serious. His controversial remark set off a move on the Internet to seek punitive action against the lawyers and led to an unusual situation in which a total of more than 8,000 complaints were filed across the nation.

"After the ruling, Hashimoto apologized to the defense lawyers but at the same time, he said he intended to appeal. If he seriously accepts the ruling, he should not appeal. Moreover, he should voluntarily surrender his qualification as a lawyer. If the public sees his apology only as a token gesture, they could also question his qualities as a governor."

By Asahi Shimbun (Editorial, 10/3/2008), Link to article (last visited 10/5/2008)