Thursday, January 21, 2010

"Drawing a clear line between government organizations and religion

"The Supreme Court has ruled that a municipal government breached the constitutional separation of religion and state when it permitted a shrine to use a city-owned land lot free of charge.

"Nine of 14 justices in the top court's Grand Bench ruled that the practice constitutes a violation of Article 20 of the Constitution. "It should be deemed that the municipal government has done a certain religion a special favor and extended assistance to it," the ruling said.

"Article 20 prohibits the state and its organs from being involved in religious activities and from providing taxpayers' money to any religious organizations.

"The tendency of courts to loosely interpret the clause -- when they tried lawsuits over official visits by prime ministers to Tokyo's Yasukuni Shrine, where Class A war criminals are enshrined along with the war dead, and other similar cases -- had previously appeared to have taken root.

"However, the Supreme Court put the brakes on this trend in 1997 when it declared that an Ehime governor violated the clause when he used prefectural funds to pay for a branch of a sacred tree dedicated to Yasukuni Shrine.

"The top court's latest decision should be lauded as appropriate in that it drew a clear line between government organizations and religion.

"The case involves Sorachibuto Shrine in Sunagawa, Hokkaido. A building that houses a neighborhood conference hall and the shrine was built in Sunagawa using a subsidy from the municipal government, and city authorities have allowed the shrine to use the facility free of charge. Shinto rites have been observed at the shrine during religious festivals.

"In the Ehime case, the focus of contention is the pros and cons of using taxpayers' money to buy a sacred branch dedicated to Yasukuni Shrine, the core of state-sanctioned Shinto in the pre-war era.

"On the other hand, the latest case involves the municipal government offering privileges to the local community-based shrine. Therefore, some members of the general public may raise questions about the ruling.

"In the past, Supreme Court petty benches had declared that allowing the installations of Shinto monuments and jizo, or statues of the Buddhist guardian of the Earth, on government land are constitutional.

"For these reasons, the top court explained that the maintenance of jizo and the installations of Shinto monuments are merely traditional custom rather than religious activities. However, it failed to show clear standards for what constitutes religious activities.

"In the latest ruling, the Grand Bench for the first time showed clear standards for whether providing government-owned land for religious facilities free of charge is constitutional. "It should be comprehensively judged in light of social norms, while taking into consideration the characteristics of the facilities concerned, how it was decided to provide land for the facilities, conditions for lending the land, the general public's views of the practice and various other circumstances." This should be highly appreciated.

"However, the ruling showed standards only for the provision of land for religious facilities, but stopped short of showing a universal yardstick for relations between the state and religion in general.

"Courts will continue to be required to make judgments on relations between the state and religion in various lawsuits. The Supreme Court is required to make constitutional judgments in such cases in response to the changes of the times without being bound by court precedence.

"The latest ruling ordered a high court to retry the case, and suggested that the mayor of Sunagawa can make a lease contract with the shrine or sell the facility to the shrine among other options besides ordering the shrine to move out.

"It is desirable for the local community to pursue the best possible solution through negotiations."

By Mainichi Shimbun (Editorial, 1/21/2010), Link to article (last visited 1/21/2010)

"Free land for shrine unconstitutional

"The Supreme Court ruled Wednesday that a Hokkaido city government's decision to offer land for free to a shrine contravened the constitutional separation of state and religion.

"The judgment, which could have repercussions for other religious facilities built on public land, upheld previous rulings by the Sapporo district and high courts that an arrangement under which the city of Sunagawa leased land free of charge to the Sorachibutojinja was unconstitutional.

"This is the second time the top court has handed down such a judgment in cases regarding the principle of separation of state and religion."

By Asahi Shimbun (1/21/2010), Link to article (last visited 1/21/2010)

Wednesday, January 13, 2010

"Surname bill would require children to share same name

"A bill to be submitted by the Justice Ministry to an upcoming Diet session to revise the Civil Code will require married couples who have chosen to use separate surnames to ensure their children use the names of either their mothers or fathers, according to a draft of the bill obtained by The Yomiuri Shimbun.

"The bill also will raise the legal age to consent to marriage for girls from 16 to 18.

"The ministry plans to submit the bill to an ordinary Diet session to be convened Monday. The ministry plans to begin negotiating with the ruling parties in an attempt to gain the Cabinet's approval of the bill in March.

"In past bills submitted by the Democratic Party of Japan in regard to surnames for children whose parents each have a different name, the then opposition party wanted to allow children to have different names.

"But the Legislative Council, an advisory panel for the justice minister, concluded in 1996 that siblings should have the same family names, even when their parents don't.

"Justice Minister Keiko Chiba has been an advocate of a system that would allow women to retain their maiden names after marriage and played a leading role in the submission of the DPJ's past bills.

"But political observers say she changed her stance due to criticism that separate names for children would dissolve family unity and because she placed priority on the passage of a bill.

"In addition to the use of separate surnames, the revision also proposes that:

-- The age of consent for girls for marriage be raised from 16 to 18, in line with the law for boys.

-- Inheritance rights be made universal for children. The current law guarantees children born out of wedlock only half of what they are entitled to if they are born to married parents.

-- Women be allowed to remarry 100 days after their divorce is finalized, down from the current 180 days.

"However, inside the ruling camp, Shizuka Kamei, minister of state for financial services and leader of the People's New Party, is vocally opposed to the separate surname system."

By Yomiuri Shimbun (1/12/2010), Link to article (last visited 1/13/2010)

"Sex-change man says boy his own

"The Justice Ministry has refused to let a man who was born female but legally became male to register as his son a baby his wife gave birth to through artificial insemination with donated semen.

"The man's 28-year-old wife was impregnated with sperm donated by his brother.

"The husband in Shiso, Hyogo Prefecture, was instructed (by the city office) to register the baby, who was born in November, as an out-of-wedlock birth for family registration purposes.

"The move has been criticized because other men (who were born male) can register children born through artificial insemination with donated semen as their own offspring.

"The 27-year-old man said he intends to file a petition of objection with the Kobe Family Court if the Shiso city office moves to register the baby as an illegitimate child.

""(The government) recognized my marriage as a man, but does not recognize my paternity," the self-employed husband said. "It doesn't make sense."

"The Justice Ministry said it is aware of five similar cases. Legal battles over such children's status are likely.

"As of last March, 1,468 men and women had legally changed their sex.

"The individual changed his sex to male in his family registration in March 2008 in accordance with a special measures law for those with gender identity disorder that took effect in 2004. He was married the following month.

"When the couple reported the birth to the Shiso city office, municipal officials, citing the husband's sex change, put the case on hold.

"Acting on the Justice Ministry's direction, city officials told the couple in late December to rewrite the birth notification and list the baby as hichakushutsushi (child born out of wedlock) by Tuesday.

"In response to an inquiry from The Asahi Shimbun, the ministry replied in writing: "The special measures law is not intended to go so far as to change the biological sex. Nor does it envision the formation of biological parent-child relationships."

"In cases like the one in Shiso, the family registration shows that the husband was previously a woman, so "it's obvious (when the couple registers a baby) that there is no genetic father-child relationship," the ministry said.

"Artificial insemination with donor semen has been widely used in Japan by couples whose husbands are infertile.

"More than 10,000 children are believed to have been born through this method. Even though there is no genetic father-child relationship, these children have been generally registered as chakushutsushi (child born in wedlock).

"The reason is that family registration officials have no way to determine if the baby was born through artificial insemination with donor semen, a Shiso official said.

"Toshiyuki Oshima, a professor of civil law at Kyushu International University who heads the Japanese Society of Gender Identity Disorder, said that the ministry's view discriminates against people with the disorder.

""(The husband in Shiso) is no different from other husbands with children born through artificial insemination, in that there is no genetic relationship," Oshima said.

"Under civil law, a baby conceived while a woman is married is presumed to be her husband's child.

"In 2007, the Japan Society of Obstetrics and Gynecology's Ethics Committee issued a statement that artificial insemination with donated semen for wives of husbands who legally changed their sex does not violate its guidelines.

"Yasunori Yoshimura, a professor at Keio University's School of Medicine who heads the society, said, "A couple must be legally married to be eligible for artificial insemination with donor semen. There is no reason to deny a couple like the one in this case the procedure.""

By Satoko Uehara (Asahi Shimbun, 1/11/2010), Link to article (last visited 1/13/2010)

Thursday, January 7, 2010

"Govt may lower bar exam goal

"The government may lower its targeted increase in the number of successful bar exam applicants of 3,000 a year, government sources said.

"The move reflects government concerns that a blind adherence to the goal could cause a decline in the quality of legal experts in the near future.

"The Justice Ministry and the Education, Culture, Sports, Science and Technology Ministry will establish an expert panel in the spring to decide on a revised number of applicants who should pass the exam.

"The plan to increase the number to 3,000 from 2010 was originally approved by the Cabinet in March 2002 and had been a pillar of judicial system reform along with the introduction of the lay judge system.

"The Justice Ministry 's committee of the national bar exam had set the goal of gradually increasing the number of successful examinees each year.

"Setting aside successful candidates from the previous bar exam system, the number doubled from 1,009 in 2006 to 2,065 in 2008. But the number in 2009 leveled off at 2,043.

"The figure has never topped the committee's target number of between 2,500 and 2,900.

"If the number of successful examinees is increased, the examination's level of difficulty or minimum pass mark would have to have been lowered, causing the government to rethink its initiative.

"The number of graduate law schools has increased to 74, surpassing the government's initial projections, and many legal experts have voiced the concern that the level of education in the schools may have fallen.

"Though the government initially expected that 70 percent to 80 percent of law school graduates would pass the bar exam, the successful rate in 2009 was only 27.6 percent.

"Some legal experts voiced the fear that the low pass rate may deter talented people from entering law schools.

"In addition to the appropriate number of successful examinees, the expert panel will also consider a review of law schools' curriculums and the tightening up of achievement evaluation and completion tests in law schools.

"The panel is scheduled to finish its work by the end of 2011.

"The government will set a new target of the total number of legal professionals and successful bar examinees before the Cabinet makes a final decision on the matter.

"Review confirms experts' fear

"The government's tentative decision to reconsider its plan to raise the number of successful bar exam applicants reflects the opinion of legal experts who have voiced their concerns about the deterioration in the quality of the profession.

"The Japan Federation of Bar Associations has pointed out that the current situation will not guarantee the quality of legal professionals, and licensed lawyers will face difficulty in finding work.

"Noting that law schools have mushroomed in the hope of taking advantage of the government's target to attract more students, a legal expert said, "Many of them have been unable to secure top-quality instructors and therefore the content of their courses is insufficient."

"However, there are many regions where lawyers are in short supply.

"Prof. Setsuo Miyazawa of Aoyama Gakuin University's Law School said, "To make it easier for the public to use lawyers, an improvement in the basic personnel employed in the legal profession is essential."

"When reviewing the number of successful bar exam applicants and legal professionals in the future, the government needs to pay attention to such points."

By Yomiuri Shimbun (1/6/2010), Link to article (last visited 1/7/2010)

"Court rules Aug. poll not constitutional

"OSAKA--The Osaka High Court ruled Monday that August's House of Representatives election was unconstitutional because the disparity in the value of votes cast in single-seat constituencies reached 2.3-to-1, but rejected the plaintiff's demand that the election be annulled.

"This was the first time a court declared a lower house election to be unconstitutional since the 1994 introduction of the current election system, comprising single-seat constituencies and proportional representation.

"A man of Mino, Osaka Prefecture, had filed a lawsuit with the high court, demanding the prefectural election committee nullify the election results and rerun the poll because the disparity in the relative weight of votes cast in single-seat constituencies was unconstitutionally high.

"Presiding Judge Kitaru Narita agreed that the disparity went against the top law, saying in a ruling read out by another judge, "It's unacceptable in light of the Constitution regarding how the legislative body should be to leave the disparity above two, as it was [in the election]."

"But the judge rejected the plaintiff's demand to annul the poll on the grounds that revoking the election result would "seriously harm the public interest" and would not serve the public welfare.

"Similar lawsuits have been filed at seven other high courts and high court branches. The Osaka prefectural election board is set to appeal Monday's ruling.

"A law on a panel to be set up to determine single-seat constituencies in lower house elections--which was enacted when the two-tiered election system was introduced--stipulates that constituencies should be zoned so the vote value disparity does not exceed 2-to-1.

"In an attempt to fairly distribute seats covering depopulated areas, each of the nation's 47 prefectures were given one of the 300 single-seat constituency seats. The remainder of the seats were then distributed based on the size of each prefecture's population. This resulted in the vote disparity between sparsely and densely populated districts exceeding 2-to-1 from the beginning.

"The judge said, "It should be interpreted that the Constitution seeks complete equality of voter rights and calls for the equalization of the value of votes."

"The judge added the current system that first allotted one seat to each prefecture "was rational and considerably effective as an improvement measure during a transition period to improve the previously significant disparity.

"But this system now goes against the purpose of the Constitution."

"In the Aug. 30 poll, each ballot cast in Kochi Constituency No. 3, which had the smallest number of votes cast, was worth 2.3 times each vote cast in Chiba Constituency No. 4, which had the most voters.

"The gap between Kochi Constituency No. 3 and Osaka Constituency No. 9, in which the plaintiff lives, stood at 2.05-to- 1. The weight of a vote in 45 of the 300 single-seat constituencies was half or less than that of a vote in Kochi Constituency No. 3."

By Yomiuri Shimbun (12/29/2009), Link to article (last visited 1/7/2010)