Friday, March 27, 2009

"A-bomb disease ruling

"Why does the government refuse to recognize people suffering from the aftereffects of radiation exposure following the 1945 U.S. atomic bombings of Hiroshima and Nagasaki as victims eligible for special benefits for their diseases?

"More than 300 survivors of the atomic bombings filed group lawsuits across the country, demanding the government recognize that their respective illnesses were caused by the atomic bombings.

"On March 18, in the 15th ruling in the series of lawsuits, the Hiroshima District Court recognized the plaintiffs' claim and annulled a decision by the minister of health, labor and welfare that rejected their applications for certification as atomic-bomb disease sufferers. It was the 15th straight loss for the government. All of the rulings criticized the way screening for certification is carried out.

"Under the certification system for diseases caused by the atomic bombings, if patients are recognized as having developed an illness such as cancer as a result of radiation exposure, they will be paid monthly benefits of about 137,000 yen in addition to having their medical expenses covered while they are undergoing treatment. The health minister decides each case based on opinions of the medical subcommittee of the certification panel of experts.

"What is noteworthy in the Hiroshima ruling is the fact that it recognized state indemnity for the first time in a series of lawsuits and ordered the government to pay a total of 990,000 yen to three plaintiffs. The ruling noted the following points:

"The Supreme Court criticized the method of assessment to estimate radiation exposure based on the distance of each person from ground zero as being "too mechanical." The health minister should have asked the medical subcommittee to re-examine cases it evaluated using the method in question. The minister failed to fulfill his obligation to exercise due care when he routinely rejected applications by following the opinions of the subcommittee.

"Based on that recognition, the court stated that the degree of illegality "deserves strong disapproval to the extent that it is irredeemable." It also harshly criticized the negligence of the minister for leaving the matter to the subcommittee.

"The government continues to fight in court as if to ignore repeated judicial decisions. The latest court ruling should be seen as a strong message to the government, urging it to accept its defeat with good grace.

"The average age of atomic bomb survivors has topped 75. Already 63 plaintiffs have died. We urge the government to stop its court battles and expedite the certification of more than 7,500 survivors who are waiting to have their applications processed.

"Last April, the health ministry revised its old standards of certification that were criticized as being "mechanical" but we find it questionable that the new standards aptly grasp the actual situation of health damage caused by the atomic bombings. This is because the new standards basically set a limit on the illnesses to be recognized to five specific diseases such as cancer.

"Even after last spring when the new standards were introduced, courts handed rulings to recognize patients suffering from conditions other than the five diseases as atomic-bomb disease sufferers. The plaintiffs are calling on the government to re-examine the standards once again but its response is slow. Another problem is that many members of the subcommittee who stick to the assessment method criticized by the Hiroshima District Court are still in the subcommittee and screening the applications under the new standards. It is natural that groups of atomic bomb survivors are demanding that the subcommittee accept members endorsed by them.

"The government should revise the certification standards so as to address the actual health problems of survivors and have applications screened by a subcommittee comprising new members. It is time for the government to sincerely listen to the voices of the survivors and implement broad relief measures without delay."

By Asahi Shimbun (Editorial, 3/26/2009), Link to article (last visited 3/27/2009)

"Japanese Court Rejects Teachers’ Suit Over Flag

"TOKYO — A court on Thursday rejected a lawsuit filed by teachers punished for refusing to sing the national anthem and salute Japan’s flag, considered by many a symbol of the country’s past militarism.

"Since 2003, the Tokyo Board of Education has required public school teachers to stand and face the rising-sun flag and sing the national anthem, which reveres the country’s emperor.

"A group of 172 teachers and staff members said the board breached the Japanese Constitution when it censured them for refusing to follow the directives, and they demanded damages of 550,000 yen, or nearly $5,600, each.

"Japan’s Constitution, drafted by American occupying forces after World War II, guarantees freedom of thought.

"One plaintiff was required to undergo “special retraining” and to write a self-examination.

"But Shigeru Nakanishi, the presiding judge of the Tokyo District Court, rejected the plaintiffs’ assertions, saying the board acted within constitutional boundaries.

"The board’s directive “does not constitute an act of forcing students to follow a certain philosophy,” and it is “necessary for schools to require uniformity at group-oriented ceremonies,” Mr. Nakanishi wrote in the ruling.

"Toru Kondo, a teacher who led the lawsuit, said, “The ruling is blatantly unjust,” and added that the plaintiffs would appeal the decision.

"“We are prepared to fight to the end to bring freedom and democracy back to education in Japan,” Mr. Kondo said.

"The teachers say that the national anthem — “Kimigayo,” or “His Majesty’s Reign” — harks back to the emperor worship that was a rallying point for Japanese imperialism. Japanese troops fought under the Hinomaru flag, which depicts a red sun on a white background, during Tokyo’s invasion of the Asian mainland in the first half of the 20th century.

"Postwar Japan was long ambivalent toward its flag and anthem, and they were made legal national symbols only in 1999. But a recent swing to the right in Japanese politics has spurred regulations making respect for the flag and anthem mandatory.

"The Tokyo government, led by Shintaro Ishihara, a nationalist governor, has been especially zealous in enforcing respect for the national symbols at its public schools.

"Supporters say the move is a step toward remaking Japan as a normal, patriotic country.

"But Japan’s Asian neighbors, especially China and the Koreas, remain suspicious of any resurgence of Japanese nationalism.

"The regulations introduced by Tokyo in 2003 require that the national flag be raised at graduation and enrollment ceremonies. Teachers and students must rise, face the flag and sing the anthem.

"Board or school officials instruct teachers to stand and sing — and take down the names of those who refuse."

By Hiroko Tabuchi (NYT, 3/26/2009), Link to article (last visited 3/27/2009)

Friday, March 20, 2009

"Death sentence rulings pose problem for lay judges

"It won't be easy for citizen judges called to recommend punishment in serious criminal cases under the new trial system starting in May.

"Given varied court verdicts in recent murder cases, there is no clearly defined standard on when to impose the death sentence.

"In the past, the number of victims in a murder case had been a crucial factor in determining whether an offender deserved the death sentence.

"Veteran judges point to an unwritten rule after a 1983 Supreme Court decision that if a murder case involves just a single victim, the defendant is given a life prison term, while a death sentence is imposed when there are three or more victims. Verdicts may go either way in the case of two victims.

"This week, the Takamatsu District Court on Monday and the Himeji branch of the Kobe District Court on Tuesday handed down death sentences in cases where there was more than one victim.

"But on Wednesday, the Nagoya District Court, ruling in the murder of a woman by three men who had met online, handed down death sentences to two of the defendants despite the fact there was just one victim.

"A former judge said of the verdict: "I wasn't that surprised by the death sentence. It was a horrific crime and there were no extenuating circumstances for the motive."

"The sentiment reflects a trend over the past decade toward verdicts designed to meet the savagery of the crime.

"But among people already chosen as candidates to serve as lay judges, there was confusion at Wednesday's ruling.

"A 68-year-old self-employed man said he had expected only one defendant to get the death sentence. His impression was based on media reports that focused on the cruelty with which the defendant had struck the victim in the head with a hammer a number of times.

"To complicate the issue further, on Jan. 13 the Gifu District Court handed down a life sentence to a defendant who murdered five family members before trying to kill himself.

"Attention will turn next week to how the Akita branch of the Sendai High Court will treat an appeal by prosecutors against a life sentence given to a woman convicted in the district court of killing two children.

"For many years, judges have relied on the 1983 Supreme Court ruling when deciding whether to hand down a death sentence.

"However, the ruling only includes factors for consideration and is far from an exhaustive guide. Ultimately, judges must decide, based on the facts before them, on whether to reach the conclusion that a death sentence is unavoidable.

"In 1999, the Supreme Court handed down a ruling that said a death sentence could be given even in a case with one victim.

"Legal experts said the ruling was intended to put a stop to the almost automatic practice among lower courts of avoiding giving the death sentence in single victim cases, regardless of the brutality of the crime.

"The same court went further in a 2006 verdict for a case in which an offender murdered a mother and her young child. The court overturned lower court verdicts of life sentences and said a death sentence could be handed down depending on the cruelty of the crime and the feelings of bereaved family members."

By Asahi Shimbun (3/20/2009), Link to article (last visited 3/20/2009)

"McDonald's Japan settles overtime wages suit for 10 million yen

"A McDonald's Japan employee has been awarded 10 million yen in unpaid overtime wages in a settlement reached with the company Wednesday.

"Restaurant supervisor Hiroshi Takano, 47, claimed that McDonald's had improperly designated him a "manager" in 1999 and thereby ceased to pay him for overtime work, leading Takano to file suit against the company for unpaid wages totaling some 10 million yen. The settlement reached Wednesday at the Tokyo High Court fulfilled all of Takano's demands.

"The settlement surpassed the 7.55 million yen awarded to Takano in a Tokyo District Court ruling handed down in January 2008. That lower court judgment stated that "considering the plaintiff's level of authority and compensation he cannot be defined as a manager." McDonald's Japan appealed the ruling, but also began paying overtime to its restaurant supervisors starting in August of the same year.

"In addition to the monetary award, the settlement also admits that Takano cannot be considered a manager, and protects him against "demotion, reassignment or reduction of pay for reasons stemming from this suit."

""That the company admitted my client is not a manager means a great deal," said Takano's attorney Ichiro Natsume. "Further, the settlement clause that forbids McDonald's to demote my client in response to the suit is exceptional."

""This case will spur reform of Japan's oppressive long work hours," Natsume opined.

"Explaining the company's reasons for the settlement, McDonald's Japan stated that it was the best management decision, both for Takano and for all of the company's employees."

By Mainichi Shimbun (3/19/2009), Link to article (last visited 3/20/2009)

Sunday, March 15, 2009

"Plight of a Filipino family

"In all outward respects, there is nothing to tell this family apart from others in Warabi, Saitama Prefecture. The 36-year-old father is highly regarded by his employer. The company specializes in interior demolition work. He is now expected to teach younger colleagues the tricks of the trade. His 38-year-old wife is a full-time homemaker and their 13-year-old daughter is a first-year junior high school student. Her passion is music club activities.

"What makes this family unusual is that they are all Filipinos facing the prospect of being forced to leave this country.

"The Calderon family may be deported on March 17 because the parents of Noriko Calderon separately entered Japan on fake passports in the early 1990s.

"In 2006, Noriko's mother was arrested and convicted of residing in Japan illegally but let off with a suspended sentence. Last September, a Supreme Court ruling finalized the deportation of the entire family.

"The justice minister is authorized to grant special residence permits to foreign nationals facing deportation for reasons related to their family circumstances or on humanitarian considerations. The Filipino family's request for such permits has been turned down.

"The Justice Ministry argues that both parents unlawfully entered Japan through devious means. Although the family members have lived in Japan for more than 10 years, the ministry insists on taking a hard-line stance as a warning to other foreign nationals staying illegally in this country. The ministry also points out that the decision to deport the family is backed up by a court ruling.

"The ministry's argument is sound from a purely judicial point of view. But that doesn't offer justification for disregarding the well-being of a child.

"Noriko Calderon was born and raised in Japan. She understands only Japanese. "My homeland is Japan. I don't want to part from my parents or friends," she said. By any measure, she is an ordinary adolescent girl.

"In similar cases in the past, however, special residence permits were granted to families of illegal foreign residents with children of junior high school age or older.

"The Justice Ministry, however, insists the Calderon family doesn't fall under this category because Noriko was an elementary school student when the government decided on deportation. She entered junior high school while the family was fighting the deportation order in court. Under this line of thinking, granting special permits to the family would be unfair when considering other illegal foreign residents who returned to their home countries immediately after deportation decisions were handed down. But is this a convincing explanation?

"The ministry has offered to give a residence permit only to the daughter under the assumption that she would live with a relative living nearby. It plans to allow her parents to re-enter Japan to see her periodically. If the ministry is ready to take such steps for the welfare of the girl, is it impossible for Justice Minister Eisuke Mori to grant special permits to the entire family?

"It is hard to think of any reason to believe that doing so would be detrimental to Japanese society in any way.

"Some 20,000 people, including her school friends and neighbors, have signed a petition calling on the authorities to allow the family to remain in Japan. The Warabi municipal assembly has adopted a statement calling for special residence permits for the family to ensure the girl continues to grow and study in this country.

"The family has already been accepted by the local community. They have made a sufficient contribution to their workplace and the local community. The girl will grow to be an adult who supports Japanese society.

"An estimated 110,000 foreign nationals reside in Japan illegally. Many of them have already been integrated into Japanese society and would find it difficult to make a livelihood in their home countries. About 10,000 such people are granted special residence permits every year.

"Foreign nationals play various important roles in Japanese society. There will be many more cases similar to that of the Calderon family. The question is whether the current immigration control system is capable of dealing with such cases in an appropriate way. The government should consider creating a screening system that ensures swift relief for illegal foreign residents who deserve to be accepted as legitimate members of Japanese society."

By Editorial (Asahi Shimbun, 3/12/2009), Link to article (last visited 3/15/2009)

"Clear yardsticks needed for granting residency

"The controversy involving an undocumented Filipino family has shown that this nation badly needs yardsticks when determining whether to grant special residency permits to foreigners living in Japan without proper documentation.

"Arlan and Sarah Calderon, a Filipino couple who live in Saitama Prefecture, will be deported next month. They have made repeated requests to the justice minister to issue special residency permits since the order to deport them for staying in this country illegally was finalized.

"Justice Minister Eisuke Mori, however, decided to issue a residency permit only to the couple's 13-year-old daughter, Noriko.

"Noriko was born in Japan and speaks only Japanese. She is currently a first-year student at a public middle school.

"Mori's decision was a tough blow for the couple and their daughter, who wanted to stay together in this country so that Noriko could continue her studies while living with her parents.

"Last year, the Supreme Court ruled against the family when they requested nullification of the government's deportation order. This fact is of importance when considering this case.

"The family has relatives in Tokyo and elsewhere in Japan. They have integrated into the local community and Noriko has a place in school.

"Mori apparently decided to grant a special residency permit to Noriko because he decided she would be able to live in this country with the help of her relatives, friends and others.

"Mori also indicated his intention to grant short-term visiting permits to her parents.

===
"Entry regarded as malicious

"The couple have illegally stayed in Japan for more than 15 years. Taking that fact into consideration, we believe the justice minister acted in line with existing immigration policies, which should be strictly adhered to.

"The couple entered Japan with passports bearing other people's names. The justice minister apparently decided their cases were more malicious than those of illegal stayers who had entered this nation with legitimate passports. This is one of the factors that led the justice minister to refuse them special residency permits.

===
"Decisions made case by case

"Currently, there are no clear yardsticks the justice minister can use when deciding whether to issue special residency permits.

"The justice minister makes a decision on a case-by-case basis at his or her discretion, after studying an applicant's reasons for seeking a residency permit and family and living circumstances.

"Decisions will inevitably differ depending on how the justice minister weighs the illegal act of staying in this country without proper documentation against the applicant's actual living circumstances.

"In 2007, special residency permits were granted to about 7,400 foreigners, many of whom were married to a Japanese.

"Among families who had children of middle school age or older, some received special residency permits for all family members because they had established themselves in Japan.

"Another factor that is believed to have influenced Mori's decision was Noriko's age when the family was first ordered in 2006 to leave the country. Noriko was then a primary school student.

"Unsuccessful applicants would understand more clearly why their applications for special residency permits had been rejected if a yardstick had been laid down concerning the age of a child of undocumented foreigners.

"Britain's policy of granting residency permits to undocumented foreigners who have lived in the country for a certain period of time could serve as a good guide when considering Japan's policy in this regard.

"Japan's immigration control system will be regarded with greater respect only when it makes precise decisions based on clear yardsticks."

By Editorial (Yomiuri Shimbun, 3/15/2009), Link to article (last visited 3/15/2009)

"Filipinos in immigration row with Japan

"TOKYO (AFP) — A Filipino couple in Japan said Friday they would obey a deportation order but leave their 13-year-old daughter behind in an immigration row that has drawn wide public sympathy for the family.

"The couple is being forced to leave because they entered the country on false passports in the early 1990s, but they had pleaded to be allowed to stay so their Japan-born daughter could finish her schooling in the country.

"The government has allowed the daughter, who speaks only Japanese, to stay on humanitarian grounds but warned it would deport all three unless the parents agreed to leave voluntarily.

"On Friday the father, Arlan Cruz Calderon, 36, said he and his wife, Sarah, would leave Japan on April 13 but allow their daughter, Noriko, to a stay behind in Japan in the care of a relative of his wife.

""I have never lived away from my parents, so I feel anxious about it," Noriko told a press conference while choking back her tears.

"The case has drawn intense media coverage in Japan, and more than 20,000 people have signed a petition asking the government to allow all three to stay.

"The father, who was detained this week but temporarily released, said, "I hope some day all three of us can live together again in Japan -- quietly."

"The family's lawyer, Shogo Watanabe, said: "I regret this result.

""I regret that the immigration office could only present such a concession in exchange for the parents' decision to return."

"Watanabe said it was an agonising decision for the parents because "they had to avoid the possible detention of the daughter no matter what."

"Justice Minister Eisuke Mori, in charge of immigration matters, told reporters that the government had done its utmost to help the family.

""I am responsible for protecting Japan's public safety and social order," he said. "Despite my sympathetic feelings, I had to consider many elements. I have dealt with the case with ample consideration."

"The case has attracted the attention of Amnesty International as well as the UN Human Rights Council, which has asked Japan for information about it.

"Major newspapers have urged leniency for the family.

"An editorial in the Nikkei business daily called on Mori and Prime Minister Taro Aso "to make a decision so the family can stay here."

"The Mainichi Shimbun also backed the family, saying: "Japan should create a rule to start legally accepting foreign residents like the family, who have worked and studied at schools, with no links to criminal groups.""

By AFP (3/13/2009), Link to article (last visited 3/15/2009)