Wednesday, December 16, 2009

Tokyo Air Raid Lawsuit

"The Tokyo District Court on Monday dismissed a group damages lawsuit filed against the central government by civilian victims of a U.S. bombing raid that devastated the capital during World War II.

"The 131 plaintiffs either were injured or lost relatives in the Great Tokyo Air Raid of March 10, 1945, which left an estimated 100,000 people dead. They sought an apology and compensation for their suffering.

"It was the first group lawsuit filed by civilian victims of U.S. air raids on Japan.

"The outcome hinged on whether the court accepts the government's argument that suffering resulting from the war had to be "equally endured" by the population.

"In its ruling Monday, the court said the feelings of the plaintiffs, who had suffered immeasurably, were understandable, but that the government was not legally obliged to extend relief.

"The court said the issue must be resolved through legislation.

"The plaintiffs sought 1.44 billion yen in total compensation, or 11 million yen each, for suffering that they said continued long after the war.

"Of the 131 plaintiffs, 124 were survivors of the firebombings that blanketed densely populated areas in Koto Ward and elsewhere. Eighty-four were younger than 15 at the time; 55 were orphaned.

"They said while the government provided compensation and other relief to those who served in the military and their bereaved families, it did nothing to help civilian victims of the war.

"The group also demanded an apology on grounds the government failed to thoroughly investigate the casualties and those left missing, or to recognize their suffering by building a memorial.

"They said it should be made clear that the government bore responsibility for starting the war.

"In arguing for the case to be dismissed, the government cited a 1987 Supreme Court ruling that rejected similar claims by two women seriously injured in air raids on Nagoya in 1945.

"The top court's second petty bench at that time said war damage or sacrifice had to be equally endured by the people in an emergency situation where the state's survival was at stake.

"The Tokyo plaintiffs had countered that their compensation claims were for the government's failure to extend relief after the war, not for direct damage from the war.

"They also said the government had selectively assisted certain groups of civilians, including those who had been repatriated from abroad.

"The suit was filed first in March 2007 by 112 people, one of whom later withdrew. Twenty more joined the suit a year later.

"In December 2008, 18 people similarly sued the government in relation to the Osaka air raid of March 1945.

"The welfare ministry declined to comment. The Tokyo group said it will file an appeal."

By Asahi Shimbun (12/15/2009), Link to article (last visited 12/16/2009)

Friday, December 4, 2009

Double Standard on International Child Abduction?

"The Japanese consulate general in Shanghai renewed the passports of two girls without permission from their Japanese mother in violation of the Passport Law, after their Chinese father took them to China in the wake of a marriage breakup, it has been learned.

"The consulate general renewed the passports of the girls, now aged 18 and 17, in 2004, despite their mother's repeated requests to the Ministry of Foreign Affairs not to renew the passports.

"As a result of the consulate general's actions, the girls remained in China for five more years, and the situation was not resolved until the father came to Japan in September this year and was arrested on suspicion of child abduction.

""As a result of the government's mistake, I had to wait five years for the return of my daughters," the children's mother, who is in her 40s, said. "I want the government to move actively to protect the rights of children."

"Passports for minors are valid for five years. Passport Law regulations state that permission must be obtained from a person who has custody of the children for the passports to be issued.

"Representatives of the woman said that she and the Chinese man, 55-year-old Qin Weijie, married in 1988 and lived in Tokyo, but she left due to domestic violence by Qin. In June 1999, Qin met his daughters as they were traveling to school near the home to which his wife had moved, and he took them to China.

"Qin and his wife divorced in 2000, and she was granted custody of the children. However, as she didn't know where they were, she repeatedly asked the Foreign Ministry not to renew their passports. She also filed a criminal complaint against Qin accusing him of abducting the children and taking them overseas. However, the consulate general renewed the passports in January 2004.

"About five years later, when the deadline for renewing the passports of the children was again approaching, Qin contacted his former wife asking her to sign a consent form for renewal, but she said she wanted to meet them directly and confirm what they wanted to do, so the two came to Japan in January.

"Qin was arrested after entering Japan in September this year at Narita Airport, trying to take his elder daughter, who wanted to remain in Japan, back with him. His former wife said the eldest daughter was suffering from an eating disorder and panic attacks, due in part to violent behavior from Qin.

"On Thursday, Qin was sentenced to two years' imprisonment, suspended for three years, after going on trial facing international abduction and other charges. In handing down the ruling, Presiding Judge Manabu Kato criticized Qin's actions, saying, "His act of taking the children away without notice deserves criticism," but noted, "At the time Qin also held custody of the children." Commenting on the wife's position, the judge stated: "It is impossible to imagine the mental anguish of being separated for such a long time from the children she loved."

"The Ministry of Foreign Affairs' Japanese Nationals Overseas Safety Division admitted the mistake in renewing the passports without consent, but said it could not provide detailed background information on individual cases."

By Mainichi Shimbun (12/4/2009), Link to article (last visited 12/4/2009)

*Savoie case

Thursday, November 26, 2009

"Surrogate birth family allows 1st media photos

"A 53-year-old woman who became a surrogate mother for her daughter posed for media photographs with the daughter, 27, earlier this year as part of an interview with The Yomiuri Shimbun.

"It was the first time in the nation that participants in a surrogate birth had agreed to allow the media to photograph them.

"The daughter had her uterus surgically removed at the age of 1 after a large tumor was discovered there. After she married, her mother offered to carry her daughter's child.

"Doctors at Suwa Maternity Clinic in Nagano Prefecture carried out the in vitro fertilization and procedures for the birth.

"They fertilized one of the woman's ova with her husband's sperm and transplanted the fertilized egg into her mother's womb. The mother delivered a baby boy this spring by cesarean section.

""I've had the joy of having my own child, but my daughter is unable to give birth herself," the mother told the Yomiuri. "I wanted her to feel this joy and offered to give birth on her behalf."

"Questions were raised about the safety of a 53-year-old woman delivering a child, something the daughter was fully aware of.

""I wondered whether I needed a child so much I would go to the point of damaging my mother's health," the daughter said. "But I thought I would venture to take one step forward and consulted with hospital director [Yahiro] Netsu."

"After the birth of her son, the daughter said she did not really feel as if she had become a mother. But she gradually developed maternal feelings after changing his diapers every day and feeding him milk at night.

"Asked why they allowed the Yomiuri to photograph them, the daughter said: "Some women are born without a uterus and some women lose them through illness. By talking about my own concerns, I hope I can help ease the concerns of these women. I don't want them to give up."

"Her mother added: "Giving birth to new life is a wonderful thing. I hope no ban is imposed on surrogate births, and this path to having children is not closed.""

By Yomiuri Shimbun (11/25/2009), Link to article (last visited 11/26/2009)

"Foreigners' suffrage

"Prime Minister Yukio Hatoyama and Democratic Party of Japan Secretary-General Ichiro Ozawa both support giving permanent foreign residents the right to vote in elections that choose local government chiefs and assembly members. The bill is due to be submitted to the ordinary Diet session next year.

"Since 1998, the DPJ, New Komeito and other parties had submitted similar bills. However, due to deep-rooted opposition, Diet debate over this issue has made little progress. Meanwhile, local communities are becoming increasingly multicultural.

"The Hatoyama government advocates the creation of a "society where multiple cultures coexist." Then surely it is time to move forward to realize such a society.

"The number of non-Japanese with permanent residency in the nation has increased by 50 percent in the past decade to 910,000. Among them, 420,000 are ethnic Koreans with special permanent residence status due to their historical background.

"The figure has increased because a growing number of foreigners have obtained ordinary permanent residence status. Many decided to live in Japan in and after the 1980s for such reasons as business and marriage. They are from various countries, including China, Brazil and the Philippines.

"Those permanent residents have put down roots as good neighbors in their communities. It is appropriate that they should be given the right to participate in local elections and share the responsibility for improving their communities.

"The nation needs human resources from abroad to maintain vitality in society. Granting the right to vote in local elections to permanent foreign residents will help to create an environment comfortable for foreigners to live in. It will also strengthen local autonomy in line with the trend for decentralization.

"Some opponents insist that foreign residents should acquire Japanese nationality if they want to vote. But it is only natural for them to wish to maintain connections with their native countries while having affectionate ties with the communities they currently live in. The answer is not to exclude those people but to create a society that honors diverse lifestyles.

"More than 200 local governments have come up with ordinances that enable foreign residents to vote in local referendums on issues like municipal mergers. In 1995, the Supreme Court ruled that the Constitution does not forbid new legislation to grant voting rights in local elections to non-Japanese residents with close interests in their communities.

"More than 40 countries, such as European nations and South Korea, have given suffrage to foreign residents who meet certain requirements and conditions.

"In recent years, opponents have increasingly expressed concerns that a large number of foreigners could use their voting rights for purposes that might put national security at risk. We cannot accept such inflammatory arguments that seek to agitate, cause anxiety and stir up exclusive intolerance. It is far more dangerous to isolate and exclude foreign residents as "those who might cause harm." We should include them into the community to create a stable society.

"The DPJ is considering a bill that would limit voting rights to people from countries that have diplomatic relations with Japan. The ruling party is apparently trying to allay anti-North Korean sentiment by excluding ethnic Koreans registered under Joseon (old undivided Korea) nationality, instead of South Korea.

"However, all people with Joseon nationality do not necessarily support North Korea. We are now trying to create an inclusive system to allow foreign residents to participate as good neighbors in local communities.

"Is it really appropriate to exclude a certain group of people based on different political concerns? Further debate is necessary."

By Asahi Shimbun (Editorial, 11/23/2009), Link to article (last visited 11/26/2009)

Saturday, November 21, 2009

Selection of Supreme Court Justices

"Hoping to dispel criticism of exclusionary practices in its process of selecting candidates for Supreme Court justices, the Japan Federation of Bar Associations is revising its rules to include more lawyers from rural areas.

"Starting next spring, the federation will allow individual lawyers to make recommendations for prospective Supreme Court justices, provided they gather nominations from 50 other lawyers.

"Currently, lawyers must be recommended by one of the nation's 52 bar associations. Most lawyers on the top court bench were selected from bar associations in Tokyo and Osaka."

By Asahi Shimbun (11/19/2009), Link to article (last visited 11/21/2009)

"Ex-businessmen doing poorly on bar exam

"Law schools that have emphasized the training of adults with experience working in society--in order to produce legal professionals with broad points of view--are now finding themselves in great difficulty.

"In this year's national bar examination, the fourth to be conducted under the new exam system, less than 20 percent of those with experience working in society passed the exam.

"Some law schools have changed their educational policies and plan to expand their quotas for students who already have majored in law at universities.

"Law schools were introduced in 2004 as a key pillar of judicial system reform, but many law school teachers say three years of study is not enough time for people who did not major in law at universities to catch up with those who did.

"This year's average pass rate for the new bar exam was 28 percent--39 percent for students who majored in law at universities and 19 percent for those who did not.

"Tsukuba University Law School offers only a three-year night course for students who did not major in law at universities, targeting such people as those who have university degrees in fields other than law and those with experience of working in society.

""I have a family and I also have to make money to pay my tuition," said a company employee in his 30s who takes classes on weekday evenings after work and all day on Saturdays.

"The Tsukuba law school's students have less study time than those at other schools, who also can study in the daytime. Thirty-four of its students took the exam this year, but only three passed.

""I believe our school has met the ideal of the judicial system reforms, which aim to nurture legal professionals with rich experience, but the reality is harsh," said Makoto Arai, a professor at Tsukuba University and the head of the law school.

"Waseda University Law School also has concentrated on nurturing students with experience working in society. Ten percent of its students are in a two-year course for those who majored in law at universities, and the remaining 90 percent are taking a course for students who did not.

"But the percentage of its students who passed this year's bar exam was lower than those of rival schools whose students are largely graduates from different universities' law faculties. Waseda University saw 33 percent of its students pass the exam, while the figure was 56 percent for Tokyo University and 46 percent for Keio University.

"To improve the pass rate, Waseda University has decided, beginning in the 2011 academic year, to expand considerably its quota for students who have graduated from law faculties. Of its total quota of 270 students, 150 would be graduates from law faculties.

"Waseda University Prof. Shuichi Furuya, who is in charge of educational affairs, said with a sigh that the university had to change its policy "for its students to pass the bar exam."

"Kagoshima University Law School has a policy of nurturing legal professionals who offer judicial services in local communities. Its students have practical training in legal consultation, staying on an isolated island for three nights and four days with lawyers, during which time they give advice on such legal troubles as boundary disputes.

"However, only two of its students passed the bar exam this year. Concerned about the situation, the university reportedly plans to start a student exchange program with Kyushu University from the next academic year.

""The time has come to reconsider the new bar exam, including the way questions are asked," lawyer Kazuhiro Nakanishi of the Japan Federation of Bar Associations' Law School Center said."

By Yomiuri Shimbun (11/10/2009), Link to article (last visited 11/21/2009)

Wednesday, November 11, 2009

Asahi editorial: discrimination against illegitimate children

"Under Japan's Civil Code, children born out of wedlock are entitled to only half the inheritance of their legitimate counterparts if their parents die without making a will.

"Whether one is born legitimate or illegitimate is not one's choice. From the moment of birth, every child should be respected as a human being and treated fairly under the law.

"Yet, the Civil Code continues to discriminate against children born out of wedlock.

"The United Nations has repeatedly urged Japan to end this unfair practice, but Japan has yet to comply. This is hardly the way to go for any civilized, law-abiding nation, and it is only natural that some people have been battling this discrimination.

"But public opinion remains guarded on the issue. A survey conducted by the Cabinet Office in 2006 found that 41 percent of the respondents favored maintaining the status quo, 25 percent believed the discrimination should end, and 31 percent said they weren't sure.

"According to the Ministry of Health, Labor and Welfare, children born out of wedlock account for more than 40 percent of all children in Britain and France, with the United States following close behind. In these countries, the concept of family is defined broadly, and common-law marriages are fairly standard.

"In Japan, on the other hand, illegitimate children account for a mere 2 percent of all children. A simple comparison with the above three countries cannot be made because of differences in how society perceives marriage and family. But this still does not mean Japan is justified in continuing to discriminate against out-of-wedlock children under the law.

"In 1996, the Justice Ministry's Legislative Council recommended revising the Civil Code to end the discrimination. The Democratic Party of Japan sponsored a bill to that effect when it was in the opposition camp.

"Although public opinion was not yet ready for the revision at the time, the powers that be bear a heavy responsibility for failing to act.

"We should also challenge the Supreme Court's repeated decisions to uphold the constitutionality of the treatment of out-of-wedlock children regarding inheritance.

"In 1995, the top court's Grand Bench ruled that since the Civil Code protects out-of-wedlock children by recognizing their right to a share of inheritance while respecting the rights of legitimate children, the treatment of out-of-wedlock children cannot be deemed unreasonably unfair.

"This was the majority opinion of 10 of the 15 Supreme Court justices. The remaining five justices argued that the treatment was grossly unconstitutional, noting that it violated Article 14 of the Constitution that provides for equality under the law.

"We find this minority opinion more persuasive. The Supreme Court has not changed its position since, but dissenting opinions continue to be voiced in inheritance-related cases involving out-of-wedlock children.

"The Civil Code has in effect been encouraging society to discriminate against children born out of wedlock. Surely it is the responsibility of the judiciary to rectify this and apply the law equally and fairly to all citizens.

"The Supreme Court must adjust to the present times and depart from its precedents.

"Justice Minister Keiko Chiba of the Yukio Hatoyama administration is willing to revise the Civil Code's discriminatory provision. We hope she will act without delay."

By Asahi Shimbun (Editorial, 11/10/2009), Link to article (last visited 11/11/2009)

Thursday, October 29, 2009

"Law schools troubled by bar exam failure rate

"When the results of this year's national bar examination were announced in September, officials of law schools nationwide were stunned: Only 2,043 people, even fewer than last year, were successful.

"The success rate among applicants was 27.6 percent, the lowest since the new bar exam was introduced in 2006 with the stated aim of sharply increasing the number of legal professionals in Japan. Last year, the success rate was 33 percent.

"The gap in the success rate between top schools and lower-ranking ones remained huge, with those from the 16 top schools accounting for 75 percent of new graduates who passed this year.

"To achieve the government goal set in 2002 to gradually raise the annual number of successful applicants to 3,000 by around 2010, this year's figure was supposed to hit between 2,500 and 2,900.

"The 2010 target now appears hard to meet, and the results posed a serious question to law schools: Are they fulfilling their expected role as a pillar of the nation's judiciary system reform, along with a citizen judge system?

"Some officials and legal professionals call for a drastic reform of graduate-level law schools, opened in 2004 or later under a new judicial education system.

""It may be inevitable for those which cannot fulfill their role to withdraw," said an official of the education ministry, who suggested some law schools with low success rates may have to be merged with others or closed.

"The system of graduate-level law schools was established in April 2004 to nurture legal professionals with varied backgrounds and bolster their number while maintaining quality.

"The new law exam for their graduates started in 2006, with an expected success rate eventually reaching 70 to 80 percent of test takers, who have graduated from law schools.

"Under the old system, the bar exam was taken mainly by those who majored in law at undergraduate level. The rate of success was only about 3 percent, or about 1,000 applicants.

"Following the grim results of the new exam, the education ministry is requesting law schools to slim down and shape up so the rate of success will be higher.

"Behind the move is the idea there are too many schools accepting too many students, leading to a drop in quality of bar exam takers.

"According to a survey this year by the Japan Association of Law Schools, 65 of the nation's 74 law schools are planning to reduce enrollment by the 2011 school year.

"The total number of students admitted each year will be slashed by about 1,000 from the current 5,765.

"The new graduate law schools accept those who did not major in law as undergraduates for their three-year courses and those who studied law at two-year courses.

"The former was supposed to attract "high-level students with varied backgrounds," including mid-career people. But in fact the success rate for those from the three-year course was a low 18.9 percent, compared with 38.7 percent for the two-year course.

"The gap has discouraged those who already have jobs to go back to school to pursue a new career in the judiciary.

"It has also prompted some schools to shift their focus to two-year courses since they are rated for their graduates' success in the bar exam.

"Tokyo's Waseda University has put emphasis on non-law majors. More than 90 percent of its law school students did not major in law as undergraduates.

"After falling behind its rivals with more former law majors, Waseda Law School has decided to admit about 100 law majors for its 300 places next year.

"In 2011, the school will reduce the quota to 270, of which 150 are set aside for law majors.

""We take pride in the fact our system better served the new system's ideals, but the reality was fast deviating from the ideals," said Shuichi Furuya, a professor of international law who is in charge of the school's curriculum. "We cannot just sit and be left behind others."

"Many law school officials voiced doubts about the new bar exam at a meeting on Sept. 14 of a special panel on law schools of the Central Council for Education.

"Some asked if the new exam fails to meet the ideals of the judiciary reform that puts emphasis on law school education, after the old exam was under fire for requiring special test-taking skills to pass.

"Others asked if the pass mark may have been set too high, or if the Justice Ministry still values paper exam results more highly.

"Masahito Inouye, dean of the Graduate School of Law and Politics at the University of Tokyo, asked Justice Ministry officials if the government was really going to stick to its goal of 3,000 passers.

"There is a wide gap in views of where problems lie between the education ministry, law schools and the legal community.

"The Justice Ministry appears to put the blame on law schools; officials say the low quality of their graduates has led to low success rates.

"A case in point, they say, is a rising rate of failure in the final exam for a training course for those who passed the bar exam at the Legal Training and Research Institute of Japan.

"Last fall, 113 apprentices, about 6 percent, failed.

"The Supreme Court, which examined test papers of 2007, said those who failed were far from having the capability required to serve as legal professionals.

""The 3,000-people plan means nothing if they don't have the ability required," a senior court official said.

"Some top court officials say the education ministry is to blame for approving too many law schools.

"A lawyer who teaches at a law school in the Kanto region laments that some students have problems even in reading and writing.

""I am teaching while well aware they will never pass (the bar exam)," the lawyer said. "Whatever reform is done, the maximum for the annual successes will be about 2,000."

"While admitting the need for drastic reform of schools with low success rates, law school officials are wary the past emphasis on the rigorous bar exam may be revived. "The quality now required of legal professionals should be different from the past," said a member of the special panel.

"The basis for the government's goal of 3,000 successful bar exam takers a year, set in 2002, is to double the nation's legal professionals to 50,000 by around 2018. But critics say the basis for the figure is vague.

"The Japan Federation of Bar Associations in March proposed keeping the annual number at 2,100 to 2,200 for a few years because a sharp increase in lawyers has led to difficulty finding jobs.

"The new Democratic Party of Japan administration may review the plan as indicated by Justice Minister Keiko Chiba, who said on Sept. 18 the 3,000-target is difficult to meet by 2010.

""Legal circles, the education ministry and law schools are blaming each other," said a Central Council for Education member. "It is important to get back to the original ideals of the nation's judiciary reform and enhance cooperation between education and training of legal professionals and the bar examination.""

By Tomoya Ishikawa, Mitsusada Enyo, and Daisuke Nakai (Asahi Shimbun, 10/27/2009), Link to article (last visited 10/29/2009)

Saturday, October 17, 2009

Separate Surnames

"When couples register their marriage, they are required to choose only one of their family names under the current Civil Law.

"Wives or husbands who change their surnames upon marriage are forced to make adjustments in work-related and personal relations accumulated under their original surnames.

"In most cases, it is the wife who changes her surname to that of her husband. Many working women must feel disinclined to change their names. But if they opt for a common-law marriage because they don't want to change their names, those people could face disadvantages in inheritance and other matters.

"Forcing people to change their names--symbols of their personalities--also runs counter to the constitutional principle that says, "All of the people shall be respected as individuals."

"Under the proposed optional dual-surname system, married couples would be allowed to keep their original surnames if they want.

"The Democratic Party of Japan and others had submitted bills to revise the Civil Law to that effect. After the start of the DPJ-led government, Justice Minister Keiko Chiba stated that she plans to submit a revision bill to the ordinary Diet session as early as next year.

"Few countries force married couples to have the same surnames. It has been a quarter of a century since Japan ratified the Convention on the Elimination of All Forms of Discrimination against Women, which effectively calls for a two-name system. Among industrialized countries, Japan is about the only one that has not adopted the system.

"During the Edo Period (1603-1867), farmers and commoners were not allowed to have surnames. Married couples were legally obliged to have the same surnames under the old civil law enacted a little more than a century ago during the Meiji Era (1868-1912).

"With women's advancement in society, married couples and families have taken diversified forms. According to an opinion poll conducted by the Cabinet Office three years ago, a record high 46 percent of the respondents said they find it inconvenient to change their surnames at marriage.

"Thirteen years ago, the Justice Ministry's Legislative Council recommended a legal revision to introduce the optional dual-surname system for married couples.

"Since then, critics have cited the following reasons for their opposition: It is Japanese tradition and culture for married couples to have the same surnames; if couples are allowed to have separate surnames, familial ties would be broken; and it would confuse children and be detrimental from an educational perspective.

"In a survey conducted this week by The Asahi Shimbun, opinions were divided, with 48 percent for the revision and 41 percent against it.

"Changing a long-standing system will inevitably bring about concerns and resistance. We also understand that a sense of unity in a family is so important in providing a good environment for nurturing children.

"Still, there are more important elements in maintaining familial ties--such as everyday love and care--than simply sharing the same surname.

"Obviously, families in which all members have the same surname can experience problems, just as couples in common-law marriages are capable of loving each other and caring for their children.

"The idea is not to force all couples to take separate surnames, but to give them a choice. We should part with the vestiges of the old "family" system.

"Accepting diversified ways of life can also be useful in breaking the sense of stagnation that society faces today. Recognizing married couples with different surnames can be a major step in that direction.

"The government should submit the revision bill without hesitation. It is time for the Diet to settle the matter."

By Asahi Shimbun (Editorial, 10/16/2009), Link to article (last visited 10/17/2009)

Sunday, October 4, 2009

Supreme Court: Illegitimate Children and Discrimination

"The Supreme Court has ruled a controversial Civil Code provision that grants only half the inheritance from a deceased person's estate to children born out of wedlock constitutional.

"The ruling came as the top court's Second Petty Bench dismissed a special appeal filed by four illegitimate children. Three out of the four justices ruled that the Civil Code provision does not violate Article 14 of the Constitution that provides for equality under the law.

"The four plaintiffs, from Okinawa Prefecture, had sought equal shares of their father's estate after he died in 2000, while their legitimate counterpart demanded a split based on Civil Code provisions. The Nago branch of the Naha Family Court and the Naha branch of the Fukuoka High Court both ruled in favor of the latter party.

"On Wednesday, Isao Imai was the only justice to uphold the plaintiffs' claim. "It is the source of the inheritance who is responsible for the birth of his children, and his out-of-wedlock children are not to blame. The (Civil Code) provision is unconstitutional," he said.

"Justice Yukio Takeuchi, who ruled the provision constitutional, added a supporting opinion. "It was constitutional when the legacy was inherited, but the social circumstances have changed and there are now extremely strong suspicions that the provision is unconstitutional," he said.

"Discrimination against out-of-wedlock children over inheritances has long been a controversial issue in Japan. In 1995, the Supreme Court's Grand Bench ruled the Civil Code provision constitutional for the first time, with five out of the 15 judges ruling against. Three other rulings handed down by the top court's petty bench between 2003 and 2004 showed a narrow margin between the pros and cons of the provision, with three out of the five judges ruling it constitutional in each case.

"In 1996, the Justice Ministry's Legislative Council endorsed a bill to revise the Civil Code with the aim of eradicating discrimination over inheritances. However, the bill met strong opposition from some lawmakers and has yet to make its way into the Diet.

"The birth ratio of children born out of wedlock in Japan jumped from 1.63 percent in 2000 to 2.11 percent in 2006, while many countries abroad allow equal shares of estates among legitimate and illegitimate children.

"With these trends in mind, Justice Takeuchi urged the Diet revise the Civil Code provision, while Justice Imai said, "We have come to a point where we are not allowed to just wait for a law to be enacted."

"Newly appointed Justice Minister Keiko Chiba, meanwhile, has shown her willingness to submit a bill to revise the Civil Code provision to the Diet at an early date."

By Mainichi Shimbun (10/3/2009), Link to article (last visited 10/4/2009)

Sunday, September 27, 2009

"Law schools fail to fulfill role

"Why has the success rate for the new bar examination been lower than expected since it was introduced in 2006?

"One reason cited is the excessive number of law schools. Only graduates of these schools are entitled to take the new bar exam held in May every year. The bar exam is designed for students who have completed two-year or three-year courses at law schools established since 2004.

"The new exam for graduates of a two-year course after completing an undergraduate law course started in 2006, while the exam for those who complete three-year courses at law schools after earning a non-law undergraduate degree or accumulating significant work experience started in 2007.

"The conventional bar exam, for which the success rate is as low as 3 percent, will continue until 2010.

"Successful candidates in this year's exam totaled 2,043, marking the first year-on-year decrease. The success rate stood at 27.64 percent.

"The results disappointed the Justice Ministry, which hoped 70 percent to 80 percent of law school graduates would pass the exam every year after receiving enriched education at law schools.

"Some examinees have decried the new bar exam system linked to law schools as "fraud by the state."

""What has become of the ideal of bringing a wide spectrum of people into the judicial world?" asked a 26-year-old man from Aichi Prefecture on Sept. 10 when exam results were announced. He was shocked by the low success rate.

"It was his second unsuccessful attempt to pass the test. Those who fail three times in five years are disqualified from further attempts to pass the exam, so he has only one chance left.

"He studied art at university. Knowing that the judicial world was seeking to recruit a wide variety of people, he studied for an entrance exam to enter the three-year course of a law school that accepts graduates of departments other than that of law. He could not spare the time to do part-time jobs to help cover school fees because he had to study hard, so he took out a student loan on which he still owes about 7 million yen.

""If I fail the exam next time, I'm not sure whether I can find another career to pursue," he said.

"A professor of a law school in the Chugoku region, whose student in his 30s failed the bar exam for the third time this year, said: "Due to the recession and his age, it's very difficult for him to find a job. We'll help him, but if the number of students in similar situations increases we can't afford to support them."

"A senior Justice Ministry official attributed the low success rate "to an excessive number of law schools accepting too many students."

"The new bar exam was introduced as part of a judicial reform aimed at increasing the number of lawyers and other legal practitioners with a broader range of experience. The ministry set a goal of increasing the annual number of successful examinees to 3,000 by around 2010.

"Unlike the conventional bar exam that was said to require cramming, the new bar exam gives priority to thinking ability. The law schools are asked to educate their students to the point at which 70 percent to 80 percent of their graduates can pass the new bar exam.

"Initially, the ideal number of law schools was set at 20 to 30. However, as many as 74 law schools were established with the fixed number of students ballooning to about 5,800.

"The number of persons disqualified from sitting the new bar exam after failing this year was 571. "Producing a great number of people every year who cannot find jobs easily is a real social problem," one person said.

"The Central Council for Education, an advisory panel to the education minister, held a special committee meeting on law schools on Sept. 14 to discuss this year's bar exam results. With the success rate for examinees who attended law schools without an undergraduate law degree being about 20 percentage points lower than for those who attended law schools with an undergraduate law diploma, many panelists questioned whether the standards for passing the examinees sufficiently accommodate people who do not have undergraduate law degrees.

"But the Justice Ministry, which has jurisdiction over bar exams, said, "It's impossible to set different pass standards for examinees who have or don't have law degrees."

"Even in the case of exams for judicial apprentices to take before becoming legal practitioners, the number of unsuccessful examinees has been increasing. Answers by one unsuccessful examinee from a law school included one that indicated the examinee did not even understand the principle of the presumption of innocence. This calls into question the quality of education provided at law schools.

"Given the low success rates for the new bar exams, the number of people aspiring to become legal practitioners has already dropped. The ratio of the number of entrance examinees to the fixed number of students has fallen below 2:1.

"Due to the reduced rate, law schools eventually decided to reduce the fixed number of students. The number of students to be enrolled next year is expected to stand at about 4,900.

"Prof. Setsuo Miyazawa at the Graduate Law School of Aoyama Gakuin University said: "Cuts in the fixed number of students are still inadequate. If the situation is left as it is, the number of people aspiring to become legal practitioners is expected to decrease further. If more and more people who do not have law degrees shy away from the judicial world, it will be impossible to foster legal practitioners with a wide variety of backgrounds.""

By Aki Nakamura, Yomiuri Shimbun (9/26/2009), Link to article (last visited 9/27/2009)

Friday, September 11, 2009

"Bar exam pass rate hits record low

"The pass rate for this year's bar exam hit a new low of 27.6 percent, the Ministry of Justice has announced.

"The ministry's National Bar Examination Commission said on Thursday that the pass rate for the latest bar exam dropped for the third consecutive year, going below 30 percent for the first time.

"The number of successful examinees stood at 2,043, well shy of the target number set by the commission at 2,500 to 2,900. Among the successful applicants, 1,503 were men and 540 were women.

"While the government aims to raise the number of successful examinees to 3,000 by 2010, the nation has failed to achieve the increasing yearly target for the past two years in a row.

"This year's exam was the fourth one designed for those who completed the nation's law schools, which were first introduced in 2004. There are currently 74 law schools across the nation, from which a record high of 7,392 applicants sat for this year's bar exam.

"The average age of successful examinees was 28.8 years old, with the eldest examinee aged at 55.

"Hitotsubashi University had the highest pass rate at 62.9 percent, while the University of Tokyo had the largest number of successful candidates at 216, followed by Chuo University at 162, Keio University at 147, Kyoto University at 145 and Waseda University at 124.

"The pass rate of applicants who studied under the law schools' three-year curriculum aimed at those without an undergraduate law degree stood at 18.9 percent, falling far short of that of those who studied under the two-year curriculum aimed at those with such a degree, at 38.7 percent.

"There were 493 applicants who failed this year's bar exam at their third try, the maximum number for the newly designed exam."

By Mainichi Shimbun (9/11/2009), Link to article (last visited 9/11/2009)

Friday, August 28, 2009

Supreme Court Justices: popular review

"Nine of the 15 Supreme Court justices are up for a people's review when voters head to the polls for Sunday's Lower House election. The occasion provides voters with their only opportunity to directly express their approval or disapproval of the current state of the judiciary.

"Amid expectations for a regime change, debate is heating up over the government system. However, we should also think about the top court's personnel system.

"The Constitution stipulates that Supreme Court justices are to be "reviewed" by the public, but no one has been dismissed under this system so far. Justices are subject to a review at the time of the first Lower House election after their appointment. Their next review will be during the first Lower House election "after a lapse of 10 years."

"However, since many justices are older than 60 at the time of their appointment and their mandatory retirement age is 70, there is effectively no second review for anyone. Consequently, justices who come under the review are fairly new to the job.

"Of the nine justices up for review this time, five, including Chief Justice Hironobu Takesaki, have never made a decision related to the Constitution, nor have they participated in a Grand Bench ruling that can reverse established precedents.

"In short, these justices have too meager a track record, if any, on which the people can form their opinions.

"But perhaps the more fundamental problem than the people's review system, which serves no practical purpose, is that Supreme Court justices are appointed behind closed doors.

"The chief justice is named by the Cabinet and appointed by the emperor. The remaining 14 justices are appointed by the Cabinet. In reality, however, the sitting chief justice picks his successor and recommends his choice to the prime minister, and the Cabinet respects the choice.

"As for the other justices, the custom is that the Supreme Court picks candidates when a justice who is about to retire is a former judge, while the Cabinet puts together its shortlist of candidates when the retiring justice is a former bureaucrat. That is an accepted practice.

"The public is kept completely in the dark about the screening process, and the Cabinet merely announces the result.

"Including Takesaki, we have so far had nine consecutive chief justices who were former judges. The backgrounds of other members of the bench are rigidly predetermined, too, with fixed quotas in place for former judges, prosecutors, lawyers, bureaucrats and legal scholars. All these individuals are invariably preceded and succeeded by their peers in their respective professions.

"The public is not informed of the professional histories of Supreme Court justices, nor why they were chosen. This is the fundamental factor that renders the people's review system a mere formality.

"Bringing transparency to the selection process is of critical importance if the will of the people is to be reflected in the Supreme Court, which is supposed to protect the Constitution and keep the Diet and the administration in check.

"The Justice System Reform Council recommended in its 2001 report that studies be conducted to bring transparency and objectivity to the process of appointing Supreme Court justices.

"A reform plan was once presented to the Diet, proposing an advisory panel of jurists, members of both houses of the Diet and academics, who would recommend several candidates for the Cabinet to consider.

"Our elected representatives should be deeply committed to tangible reform. But political parties are apparently not particularly interested, which is most regrettable.

"The citizen judge system was introduced in May to make the judiciary more open to the people. If the judiciary is to be supported by the public, full disclosure of the process of nominating and appointing the chief and other justices at the top court is now needed. That would give the people enough information on which to form their opinions of justices up for review."

By Asahi Shimbun (Editorial, 8/26/2009), Link to article (last visited 8/28/2009)

Friday, July 31, 2009

Gender Equality in Japan

"The U.N. watchdog panel on gender equality is poised to issue recommendations to Japan in which it will address this nation's delay in implementing policies to bring about equality between men and women.

"The government should humbly accept the findings of the expert U.N. panel known as the Committee on the Elimination of Discrimination against Women, and lawmakers are urged to buckle down and begin implementing a wide range of gender equality measures.

"The pact that sets out the principles covering equality of the sexes--officially called the Convention on the Elimination of All Forms of Discrimination against Women--was adopted by a meeting of the U.N. General Assembly in 1979. Japan ratified the convention in 1985.

"Known as the women's rights version of the Bill of Rights, the convention stipulates the equality of women and men in political and public activities, calls for the prohibition of sexual exploitation of women and inequality in access to education and employment, as well as discrimination on the basis of sex in marital and family relations.

"Signatory countries to the convention, now numbering 186, are required to periodically undergo monitoring by CEDAW by submitting reports to the panel on measures taken to comply with their obligations under the treaty.

"CEDAW tracks the progress of parties to the treaty in rectifying inequalities and draws up recommendations to address shortcomings, prodding nations to take legislative and other remedial actions, including changing their social systems.

===
"Japan severely criticized

"Last Thursday, CEDAW screened a report presented by the Japanese government at the U.N. headquarters in New York.

"The screening of Japan's records on elimination efforts of discrimination against women was the first in six years. Japan had previously been screened three times.

"CEDAW singled out various areas in which efforts by the Japanese government were considered to have fallen short of addressing problems linked to gender discrimination. Among them were a failure to conduct in-depth discussions on the need to revise the Civil Code--which leads to discriminatory treatment of children born outside of marriage in inheritance procedures--and a provision that stipulates married couples should have the same surname.

"The U.N. committee also took note of what it regards as Japan's retrogressive gender equality education and sex education, as well as a slow pace of improvement in women's social participation.

"The Japanese officials who replied to questioning at the CEDAW screening session were drawn from the Cabinet Office, the Justice Ministry and the Education, Science and Technology Ministry.

"Some of them were reportedly subject to such warnings from panel members as "not to repeat replies to the same effect" as those given by previous Japanese officials, or asked sternly to "provide explanations in more concrete terms."

"Yoko Osawa, a member of a Japanese nongovernmental body called mNet-Information Network for Amending the Civil Code, who sat in on the committee session, said, "Most members of the Japanese government delegation made a point of repeating prepared, boilerplate explanations of systems and laws in response to the various questions posed by the CEDAW members.

""Several CEDAW members pulled the translation headphones out of their ears, apparently because they were so disgusted," Osawa said.

"As lawyer Mikiko Otani, an expert in international human rights law, put it, "The way the Japanese officials responded to the panel members should be considered a reflection of their lack of knowledge of the U.N. treaty and also Japan's lack of a sense of responsibility as a signatory country to the treaty."

""I think Japan, a country that seeks to hold a permanent seat on the U.N. Security Council, should be ashamed of being subject to such criticism from the gender equality panel," she added.

"The pact for abolishing discrimination against women has led Japan to enact a number of laws, including the Equal Employment Opportunity Law in 1985 and laws requiring both boys and girls to take a homemaking course in middle school and high school, enacted in 1993 and 1994, respectively.

"Although CEDAW recommendations have no binding power, they nonetheless have been a catalyst for advancing gender equality, such as spurring this nation's legislation to bring about the Basic Law for a Gender-Equal Society in 1999 and the Domestic Violence Prevention Law in 2001.

"However, a mountain of issues remain unaddressed.

"Japan ranked 58th among 108 countries on the most recent U.N. index on women's social participation, one of the the lowest among industrially advanced nations.

"Highlighting the disparity between women and men in this nation, women account for less than 10 percent of the members of the House of Representatives, while women section chiefs in private sector companies stand at a mere 6.6 percent.

===
"Optional Protocol left unratified

"Every one of this nation's lawmakers should be held responsible for failing to pay due attention to the international gender equality treaty and related U.N. recommendations that have resulted in delays in ending the disparities that disadvantage women.

"A legislator-sponsored bill calling for a revision of the Civil Code in response to CEDAW recommendations has been repeatedly presented to the Diet. But the bill that would delete provisions that discriminate against women has been scrapped every time without in-depth deliberation.

"Japan's failure to ratify the Optional Protocol on the convention on the elimination of discrimination against women also is being questioned by the international community.

"The protocol stipulates that a mechanism should be put in place that would allow individual women who have exhausted legal and other avenues available within Japan to report directly to CEDAW to ask them to inquire into alleged human rights violations against them.

"As Japan has been repeatedly urged to ratify the protocol, government ministries and agencies concerned have been studying the wisdom of doing so.

"However, with many politicians expressing wariness about signing a protocol they say might come into conflict with the principle of independence of the nation's judiciary, no earnest discussions have yet to take place in the political arena.

"Following the latest screening by CEDAW, a new set of recommendations will be issued as early as late August, around the time new members of the lower house have been elected in the coming general election.

"Judging from the way CEDAW carried out the screening of the Japanese government-submitted report, its recommendations will most likely be pretty tough.

"This country should be humble in accepting the forthcoming recommendations and both the government and legislature should be ready to tackle the task of adopting and enforcing gender equality policies in a way considered worthy of a full member of the international community."

By Mihoko Tsukino (Yomiuri Shimbun, 7/30/2009), Link to article (last visited 7/31/2009)

Age of Majority in Japan

"A subcommittee of the Justice Ministry's Legislative Council has recommended that the legal age of adulthood in Japan be lowered from 20 to 18.

"The subcommittee concluded in a final recommendation on Wednesday that it was appropriate to lower the age to 18, adding that it was also desirable to lower the voting age to 18 through a revision to the Public Offices Election Law.

"It also recommended that the legal minimum age for marriage -- currently 18 for males and 16 for females -- should be aligned at 18 for both males and females.

"The advisory panel pointed out the need for considerations in line with the change, including enhancing measures to counter a feared rise in young people falling victim to consumer-related problems. It avoided proposing a date for the change, saying the issue should be left up to the Diet.

"If the Civil Code is revised to lower the age of adulthood, it will affect 191 other laws that make reference to age, including the Public Offices Election Law and the Juvenile Law, and a revision could greatly affect the lives of the public.

"The subcommittee's report said that lowering the legal age of adulthood would allow young people to participate in society at an earlier stage, and give them heightened awareness as adults. It added that such a revision would be significant in that it would legally enable 18- and 19-year-olds to make decisions about using money themselves, and expressed hope that treatment of such young people as adults would enliven them and society.

"At the same time, the subcommittee judged that it was necessary to introduce measures to encourage young people to become independent, as there remained fears of consumer damage sparked by expensive credit card contracts and pyramid sales, and concerns that young people who found it difficult to become independent would become impoverished. The panel made reference to the establishment of a consumer agency, the revision of school curriculum guidelines to include consumer education, and this month's passing of a law to support the upbringing of children and youths, which includes support measures for NEETs -- people not in employment, education or training -- and for youths who have withdrawn from society. It said that the Civil Code should be revised once such measures have filtered through society, and concluded, "It is the Diet that can make an appropriate decision" on the timing of the change.

"The national referendum law states that in principle the age for voting is 18 and above. Additional clauses of the law say lowering the age of adulthood in the Civil Code and Public Offices Election Law should be held in consideration until 2010, and that the voting age be kept at 20 until legal measures are in place."

By Mainichi Shimbun (7/30/2009), Link to article (last visited 7/31/2009)

Tuesday, July 28, 2009

"Law schools must put quality before quantity

"To ensure our judicial system functions in a manner that can retain the public's trust, capable judges, prosecutors and lawyers must be nurtured. With this in mind, we find it inevitable for some law schools to be closed if they cannot fulfill their duties as facilities for training in this profession.

"The number of applicants for the nation's 74 law schools for the 2009 academic year fell 25 percent from the previous year, marking the first time applications have fallen below 30,000.

"Out of the total, the ratio of total applicants to successful applicants fell below 2- to-1 at 42 schools. One law school saw only five applicants enrolled despite its initial intake quota set at 30.

"The entrance exam process for law schools for the 2010 academic year will soon go into full swing, but it seems the number of applicants will remain low. Law schools were introduced in 2004 as a key pillar of judicial system reform, but they likely have reached a turning point earlier than expected.

"All law school graduates are eligible to take the national bar examination, for which the pass rate was initially predicted to be about 70 to 80 percent. However, the actual pass rate has fallen far short of this mark, as indicated by last year's figure at a mere 33 percent.

"There is no doubt that the decline in the number of applicants can be attributed to the fact that entering law schools does not necessarily provide students with a passport to professional careers in law.

"Vicious circle

"Law schools are required to teach students the basics of the legal profession, giving them a good grounding in legal theory and practice, instead of placing undue weight on preparations for the bar exam.

"If law schools cannot attract high-quality applicants, they will have no choice but to accept less capable students. Under such circumstances, students with less-than-satisfactory aptitude would have to take the bar exam without acquiring sufficient legal skills and knowledge and end up failing the test in what amounts to a vicious circle.

"The Central Council for Education has asked law schools whose ratio of total applicants to successful applicants falls below 2-to-1 to cut the number of students allowed to enroll. So far, about 50 law schools have decided to cut their intake quotas. Given the need to ensure the quality of students, these schools had every reason to do so.

"The root cause of this vicious circle is that there are too many law schools in the nation. There will a further tendency among applicants to shun law schools that cannot produce good results. Therefore, some law schools will unavoidably go under and be forced out of this professional discipline. The government should actively promote the reorganization and integration of law schools.

"Quotas to be raised

"The government plans to increase the number of successful applicants for the bar exam from about 2,000 in 2008 to 3,000 in 2010. This plan should be firmly kept in place as a way of addressing the uneven distribution of lawyers across the nation, brought about largely by the concentration of lawyers in urban areas, as well as other problems.

"An important task to be tackled in doing so is to halt the declining quality of successful applicants.

"Every law school should be required to provide quality curriculums for the selected few. In the 2011 academic year, a preliminary examination system will be introduced that will ensure that even those who do not graduate from law school can still take the bar exam if they pass a preliminary exam. If a high number of students choose to take the preliminary test, the very reason for law schools existing will be called into question."

By Yomiuri Shimbun (Editorial, 7/26/2009), Link to article (last visited 7/28/2009)

Monday, July 13, 2009

"Controversial child organ transplant bill voted into law

"A controversial bill amending the Law on Organ Transplantation that defines brain death as the legal death of a person was passed into law Monday afternoon.

"The bill was one of three bills to be voted on by House of Councillors members, and was passed by a majority of 138 to 82. Under the amendments, provisions of the organ transplant law that forbid organ donations by children under 15 will be repealed, opening the way for organ transplants between children. The new law also marks the first time that brain death has been recognized as the legal death of a person in Japan.

"During deliberations on the successful bill, the bill's sponsor explained that the brain death provisions of the amendments would apply only to instances of organ donation, not to the definition of legal death generally.

"Under current organ transplantation laws, those under 15 cannot donate organs, and children in need of an organ transplant must have the procedure done overseas. However, the World Health Organization is encouraging nations to focus on domestic transplants. Since the current transplant law came into effect in 1997, there have been only 81 organ transplants from brain dead donors, and the amendment passed Monday -- allowing children to donate organs and defining brain death as legal death for organ donors -- aims to greatly expand organ donations.

"The successful transplant law amendments passed the House of Representatives on June 18 with some 60 percent of members in favor, and were sent to the Upper House for final approval. However, there were many Upper House members who took the position that, while it was certainly necessary to expand organ donations in Japan, broader social consent to redefine legal death was lacking, and members from both in and outside the government presented an amendment to the bill that would have retained the current definition of brain death.

"However, core supporters of the bill were adamant that to change the brain death provisions of the bill would render the legislation "meaningless," and, along with many other Upper House members who labeled the latest amended bill "insufficient," rejected it in favor of the original revision. Nevertheless, the bill's sponsor felt compelled to address opponents' concerns that the bill would lead to a widening tendency to withdraw treatment after brain death in all cases, emphasizing that the brain death provisions were "not to be applied beyond the scope of the Law on Organ Transplantation."

"Controversial sections of the legislation included provisions allowing a deceased person's family to approve of organ donations even in cases where it is unknown whether the deceased intended to do so, as if it is discovered that the deceased did not want to donate their organs after they have been removed. Furthermore, the difficulty of determining brain death in children versus adults was also an issue during the debate.

"An amendment to the original bill was rejected by a vote of 135 to 72. A move to keep the current law in place for now while creating a one year commission to study child brain death and the implementation of children's organ transplants was not put to a vote.

"Other than the Japanese Communist Party -- which supported the one year commission proposal -- all the parties allowed their members to vote freely according to their personal views on life and death."

By Mainichi Shimbun (7/13/2009), Link to article (last visited 7/13/2009)

Wednesday, July 1, 2009

"Revising child porn law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, June 18, 2009

"Controversial child organ transplant bill passes Lower House

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, June 6, 2009

DNA and the Criminal Justice System

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, May 20, 2009

"Citizen judges in court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, May 16, 2009

"Like lay judges, court interpreter system still in nascency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, May 6, 2009

"Organ transplant rules must be revised

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

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

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

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

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

===

"Infants let down by system


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

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

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

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

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

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

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

===

"New bills proposed


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

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

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

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

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

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

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

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

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

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

Monday, May 4, 2009

"64% oppose revising Article 9

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"63% support death penalty as lay judges

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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