Saturday, December 3, 2011

"Editorial: All evidence should be released in criminal trials to prevent false convictions

"A court decision to retry a man who was convicted of a murder he claims he never committed has highlighted the need to fully release all evidence in criminal trials to prevent false convictions.

"The Kanazawa branch of the Nagoya High Court on Nov. 30 decided to retry Shoji Maekawa, 46, who served a seven-year prison term for murdering a junior high school girl in Fukui 25 years ago.

"The court made the decision after scrutinizing evidence including that which was not released in the trials of Maekawa, and the decision should be regarded as appropriate.

"Maekawa has categorically denied any involvement in the murder since he was arrested in March 1987, one year after the incident. Since there was no hard evidence that directly linked him to the incident, the focal point at issue during his trials was the credibility of a few acquaintances' testimonies suggesting that he was involved in the incident.

"The Fukui District Court acquitted Maekawa after pointing out that there are inconsistencies and contradictions between testimonies provided by the witnesses. In response to an appeal filed by prosecutors, the Kanazawa branch of the Nagoya High Court overturned the lower court's acquittal and sentenced Maekawa to seven years in prison after deeming the witnesses' testimonies are credible, a decision upheld by the Supreme Court. After he served his prison term, Maekawa asked the high court to retry the case in July 2004.

"What overturned the confirmed ruling was new evidence that prosecutors released for the first time in response to demands by the legal team for Maekawa and advice by the court. The new evidence includes unclear testimonies provided by eyewitnesses and photos of an autopsy conducted on the victim's body.

"The high court examined the new evidence as well as evidence based on which Maekawa had been convicted in a comprehensive fashion. It then pointed to the possibility that a weapon other than one left at the murder scene was used for the crime and pointed out that no traces of blood were found in a car that Maekawa was supposed to have ridden in after the incident. The high court further raised questions about the credibility of the acquaintances' testimonies, and concluded that there are rational doubts about recognizing him as the culprit.

"Prosecutors have come under mounting pressure to release all evidence relating to the focal point during trials since the Code of Criminal Procedure was amended in 2004 prior to the introduction of the lay-judge system. Still, prosecutors are authorized to take custody of almost all evidence. In the Fukui murder case, there is no doubt that prosecutors had deliberately concealed evidence in favor of Maekawa.

"In the postal discount abuse case last year, a prosecutor at the Osaka District Public Prosecutors Office's special investigation unit falsified evidence in an attempt to win conviction of the key defendant.

"The latest decision to open a retrial of Maekawa has highlighted the need to thoroughly review all evidence.

"A system should be created to mandate law enforcers to fully release evidence at least in the trials of serious crimes in which defendants deny their involvement as well as in retrials, instead of leaving a decision on how much evidence should be disclosed to the discretion of courts.

"The recording and filming of the questioning of suspects and defendants have already started on a trial basis, but the latest decision has illustrated the need to record or film the questioning of witnesses and others involved as well.

"Statements made by prosecutors and defendants and their lawyers have particular weight in lay-judge trials. However, the full release of evidence and the recording of questioning are indispensable to help lay judges selected from members of the general public make fair judgments.

"A quarter of a century has passed since Maekawa was arrested. In line with the principle of the benefit of the doubt, prosecutors should place priority on opening the retrial in order to get to the bottom of the incident rather than wasting time by appealing the high court's decision."

By Mainichi Shimbun (Editorial, 12/1/2011), Link to article (last visited 12/3/2011)

Saturday, November 19, 2011

Constitutionality of the Lay Judge System in Japan

"The Grand Bench of the Supreme Court upheld the constitutionality of the lay judge system in a ruling on a criminal trial where the system was disputed. The 15 justices voted unanimously on the system's constitutionality.

"This is the first Supreme Court ruling on the constitutionality of the lay judge system since it was introduced in May 2009.

"The ruling was not unexpected given that the top court has strongly supported the system. The decision can be said to indicate a milestone for the system to take firm root in society.

"The defendant in the criminal trial, in which lay judges took part, was a Philippine woman accused of smuggling stimulant drugs into Japan. She was sentenced to an unsuspended prison term at Chiba District Court.

"In an appeal to the high court, the woman's defense lawyers argued that the participation of lay judges was unconstitutional as they were not professional judges and that the woman was not guilty. After the high court rejected her appeal, the woman appealed to the top court.

===
"No constitutional provision

"The woman's defense lawyers based their argument that the lay judge system was unconstitutional principally on a provision in the Constitution that states, "The judges of the inferior courts shall be appointed by the Cabinet from a list of persons nominated by the Supreme Court."

"They said the lay judge system, under which such judges are chosen from a list of eligible voters by drawing lots, runs counter to this provision.

"The Supreme Court pointed out the Constitution had no provision that a district court trial should be conducted only with professional judges.

"In its opinion, the court said, "When the Constitution was enacted, it was interpreted within the government that the court could also adopt the jury system or the joint judge-jury system." It therefore concluded that the Constitution does not prohibit the participation of citizens in a trial.

"It also is noteworthy that the top court handed down its judgment on other points that the woman's defense claimed were unconstitutional.

"With regard to the assertion the lay judge system infringed on the independence of professional judges, the Supreme Court said the system was set up to ensure a fair trial, with the professional judges being the fundamental pillar of that trial.

===
"'Servitude' claim rejected

"The defendant also argued that citizens serving as lay judges could constitute involuntary "servitude," which the Constitution prohibits. The top court said the lay judge system was flexible, as people could refuse to serve in this capacity.

"However, experts have pointed out that when the system was being worked out, various constitutional problems arose. The system was launched even though these problems were not thrashed out in debates.

"From the latest ruling, we can perceive the Supreme Court wants to settle the constitutionality of the lay judge system once and for all.

"Since the lay judge system was introduced 2-1/2 years ago, lay judges have carried out their obligations faithfully. It can be said the system has operated more or less steadily.

"Although the lay judge system has been ruled constitutional in the eyes of the law, it is still necessary for courts to give more consideration to reducing the burden on lay judges so that the system can take root even more firmly in society."

By Yomiuri Shimbun (Editorial 11/17/2011), Link to article (last visited 11/19/2011)

Call for Abstracts--Legal Symposium on LGBT Issues in Asia and Oceania

Symposium Announcement and Call for Papers

Rainbow Rising: Community, Solidarity, and Scholarship on Gender Identities and Sexualities in Asian and Oceanic Law & Policy

April 7, 2012
Honolulu, HI

We are pleased to invite you to attend a symposium, the first of its kind and magnitude: “Rainbow Rising: Community, Solidarity, and Scholarship on Gender Identities and Sexualities in Asian and Oceanic Law & Policy.” Rainbow Rising will be held at the William S. Richardson School of Law (Honolulu, HI) on Saturday, April 7, 2012, organized by the Law School’s Asian-Pacific Law & Policy Journal, Pacific-Asian Legal Studies Organization, and Lambda Law Student Association. The Symposium will facilitate a long-overdue dialogue on lesbian, gay, bisexual, and transgender issues throughout Asia and Oceania and will be a venue for the sharing of ideas and experiences among scholars, politicians, and community activists in attendance. We aim for a conduit of cross-cultural intellectual exchange and concrete results for GLBT communities throughout the Asia and Oceania regions.

The Asian-Pacific Law & Policy Journal is concurrently seeking submissions for scholarship to be published in conjunction with the Symposium. Any paper pertaining to lesbian, gay, bisexual, and transgender legal issues throughout Asia and Oceania will be considered. Selected authors will be invited to present their work in a panel as part of the Symposium, and, funding permitting, provided a partial travel stipend. The deadline for submission is December 15, 2011. Submissions must include a CV, and may be in the form of an abstract of no more than 500 words or already completed, but unpublished paper. If submitting a complete paper, please also include an abstract. Please submit papers and address any questions to the Asian-Pacific Law & Policy Journal at aplpjart@hawaii.edu or call (808) 956-8895.

Whether as a contributor or as an attendee, we hope you will join in what promises to be a full and exciting program in Honolulu!

Thursday, October 6, 2011

"Children born outside marriage have same inheritance rights as those under wedlock: court

"OSAKA -- An appeal court has ruled that a Civil Code provision that children born outside of marriage can inherit only half the amount of their parents' assets that those born in wedlock are entitled to is unconstitutional, sources close to the case have revealed.

"The Osaka High Court determined that a child of a deceased man born out of wedlock can inherit the same amount of assets as the man's three legitimate children.

""The legislative branch's failure to rectify the difference between children born in and out of wedlock goes beyond the boundary of its discretionary power," Presiding Judge Yoshifumi Akanishi said as he handed down the ruling.

"The ruling goes against the Supreme Court's decision in 1995 that the Civil Code clause is constitutional.

"Akanishi pointed out that views on family relations have diversified among members of the public, and ruled that the Civil Code provision runs counter to the constitutional guarantee of equality under law.

""The difference in the legal treatment of children born in and out of wedlock could contribute to discrimination," the judge said.

"The high court ruled on an appeal filed by the man's child outside of marriage against the Osaka Family Court's decision on the division of assets left by his father who died in 2008.

"The deceased man had a wife, three legitimate children and a child born outside of marriage.

"The man's wife filed an application with the family court in May last year for arbitration on the division of his assets between the members of his bereaved family. However, after they failed to reach an agreement, they asked the court to determine the amount that they would inherit.

"The lower court divided the man's assets in accordance with the Civil Code provision, but the child out of wedlock appealed the decision to the high court."

Mainichi Shimbun (10/4/2011), Link to article (last visited 10/6/2011)

Friday, September 16, 2011

"Law school reform needed to boost bar exam pass rate

"More and more in recent years, a law school diploma does not necessarily open the door to a career in that field.

"This year, 2,063 people passed the new bar examination, 11 fewer than last year and a pass rate of 23.54 percent. This percentage has declined for five straight years since the new bar exam started in 2006.

"At a Cabinet meeting nine years ago, the government approved a plan to increase the number of people who pass the new bar exam to 3,000 by 2010. However, this year's figure, like those in recent years, fell far short of this goal.

"Since former Prime Minister Ryutaro Hashimoto's Cabinet, the government has been pushing judicial reform along with administrative reform to reduce the number of public servants, and transform our society of ex ante regulations created by the administration into one that provides retroactive judicial relief.

"This is also an opportunity to make the judicial system more accessible to the public so they can more easily seek legal help to deal with daily troubles. This would also make the system more dependable and better able to protect people's rights.

"A large increase in legal professionals is essential for achieving such goals for the nation's institutional structure. More legal professionals than ever are needed to solve legal problems stemming from the Great East Japan Earthquake.

===
"More legal pros needed

"It is crucial to increase the number of applicants who pass the new bar exam to 3,000 as soon as possible. To achieve this, the government should give priority to reforming the nation's law schools.

"Seventy-four law schools are scattered across Japan, which has made enrollment easier. However, the percentage of students who pass the new bar exam remains low at an increasing number of law schools. This deters potential new students, which in turn starts a vicious cycle of deteriorating passing percentages.

"For instance, Himeji Dokkyo University stopped accepting applications to its law school this academic year, and the consolidation of the law school at Toin University of Yokohama and Omiya Law School has been decided.

"The culling of law schools through consolidations and closures will continue to be unavoidable in the future.

===
"Free up curriculums

"Law schools are established with the ideals of emphasizing practical education and creating work-ready legal professionals. However, the current situation has a problem in that the schools are not allowed to teach curriculums that specialize in preparations for the bar exam.

"The chief ambition of law school students is to pass the bar exam. Law schools also need to help many students pass the exam and publicize this success from their own business viewpoint.

"To bridge the gap between the ideal and reality, we think law schools should be granted more freedom in designing their curriculums.

"The questions in the new bar exam also need to be reviewed. The new exam was based on evaluations of the old bar exam, which applicants could not pass without intense cramming. However, the situation remains largely unchanged.

"The Justice Ministry is in charge of the new bar exam, and the Education, Culture, Sports, Science and Technology Ministry supervises law schools. To reform the whole system, cooperation between the two ministries will be the most important factor."

By Yomiuri Shimbun (Editorial, 9/15/2011), Link to the article (last visited 9/16/2011)

Monday, September 12, 2011

2011 Bar Exam

"The pass rate for the revised bar exam hit a record low this year at 23.5 percent, the Ministry of Justice has announced, with the number of successful applicants far below a government target.

"In 2002, through a Cabinet decision the government set a target of 3,000 successful applicants a year. This year's exam passers numbered 2,063, falling below the goal and marking a fifth straight year of decline.

"There were 11 fewer successful applicants this year than last year. They were composed of 1,585 men and 478 women, according to the ministry's announcement on Sept. 8.

"The current, revamped bar exam was introduced in 2006 with the aim of boosting the number of legal professionals. The previous exam had a pass rate of only 2 to 3 percent.

"This year 3,620 students enrolled in law schools across the nation. This is nearly 40 percent lower than the 5,767 students that enrolled in 2004, which is the year the law school system was introduced by the government.

"The drop is particularly large amongst those entering law school after experience in the workforce. Compared to 2004, they were down more than 70 percent, from 2,792 to 764. It demonstrates that one of the hopes of the reforms -- accepting people from a wide range of fields into the legal profession -- is being undermined.

"Even after passing the bar exam, landing a job in the legal community is not easy. According to the Japan Federation of Bar Associations, 40 percent of legal apprentices who planned for employment this fall still had not secured jobs as of July.

""My parents paid for my expenses (while I prepared for the bar exam). Only those with comfortable amounts of money can concentrate on studying," said a 27-year-old man who passed this year's bar exam on his third try after finishing Dokkyo Law School. "I want to become a lawyer, but I'm worried because of the hiring slump."

"Alarmed by the situation, the government has opened a forum that crosses ministries and agencies to discuss how to improve the quality of education at law schools.

""The current situation poses a threat to the goal of the judicial system reform to nurture a large number of highly qualified legal experts," said a concerned official."

By Mainichi Shimbun (9/9/2011), Link to article (last visited 9/12/2011)

Tuesday, July 19, 2011

"14 children pronounced brain dead in past year did not donate organs despite legal changes

"Headlines were made across Japan in April when a child pronounced brain dead became the first and so far only child to donate organs under legal changes implemented in July 2010. A Mainichi survey has discovered, however, that at least 14 other children have been pronounced brain dead over the past year but did not donate any organs.

"The Mainichi survey -- conducted July 1-15 and receiving responses from 46 of the 56 medical institutions across Japan queried -- found that children had been pronounced brain dead at 11 facilities. Organ donations were not performed, however, due mainly to lack of parental consent or doctors failing to mention the possibility of donations. Particularly in cases of very small children, there was unwillingness among parents and doctors to equate brain death with the death of the patient, the survey showed.

"Organ transplants from brain dead children aged 15 and under became legal under revisions to the Organ Transplant Law that went into effect on July 17 last year.

"Among the 14 children revealed in the survey to have been pronounced brain dead, four did not make donations because parents would not consent, four because attending physicians could not bring themselves to suggest organ donation to the grieving family, two because doctors could not rule out that the child had been physically abused at home, and one because the doctor chose not to mention donations for medical reasons.

"Regarding the fact that just one brain dead child has donated organs in the past year, half the respondents said they had expected such a low figure, citing "parents' inability to accept that their child is brain dead" and "difficulty in ascertaining the role of physical abuse in a child patient's brain death," among other possible reasons.

"As of Feb. 1 this year, there are 303 medical institutions in Japan that openly perform organ transplants from brain dead donors aged 18 and over. Transplants from brain dead children are technically possible at all these facilities, though only 56 have declared their willingness to perform such procedures."

By Mainichi Shimbun (7/18/2011), Link to article (last visited 7/19/2011)

Monday, July 18, 2011

"Japan needs effective system for Hague child-custody treaty

"In line with Japan's decision to join the Hague Convention on child custody, work to create necessary domestic legislation is about to start at government organs like the Legislative Council of the Justice Ministry.

"The international agreement is designed to deal mainly with cross-border "abductions" by parents related to broken international marriages. If an international marriage collapses and one of the parents leaves the country with their child without consent from the other one, the treaty requires the return of the child to the country and the determination of the issue of custody according to the country's legal procedures.

"In a May Cabinet meeting, the government formally decided to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction. One key question is how to deal with cases in which the return of the child to the country of his or her habitual residence could undermine the welfare of the child.

"If, for instance, a Japanese wife returns to Japan with her child to escape from her foreign husband's violence or persecution, should the child still be returned to the country?

"At the time of the Cabinet approval of Japan's participation in the pact, the government specified several conditions that will allow it to refuse the return of the child under the law. They include: The child has suffered from the father's violence; the husband has exercised violence against the wife in a way that has seriously traumatized the child; the wife cannot go with the child due to financial and other reasons and there is no appropriate person in the country who can take care of the child.

"Some critics say these exceptional clauses would strip the teeth from the treaty. But these provisos are based on relevant court decisions made in countries that are parties to the treaty.

"The government needs to explain the intentions of these clauses carefully to prevent misunderstandings that could undermine international confidence in Japan.

"Whether specific cases meet any of the conditions that enable the government to refuse the return of the child will be determined by family courts in Japan, according to the government's plan.

"There are some important questions that need to be answered through in-depth discussions on actual cases. What kind of evidence is needed to prove the exercise of violence in a foreign country, for instance? What does the phrase "seriously traumatized" exactly mean?

"An accumulation of precedents would foster stability in court decisions on such cases and promote public understanding of the issue.

"Debate is also needed on the duties of the "Central Authority," which is supposed to play the central role in the proceedings for the return of the child.

"Under the treaty, the Central Authority is obliged to perform such functions as locating and protecting the child, providing information and advice to the parties concerned for the settlement of the dispute and securing the safe return of the child to the other country.

"None of these is an easy task. Some of the contracting countries post photos of children on the Internet to find them. But that wouldn't be acceptable in Japan.

"What kind of powers and information in the possession of public institutions should be used for carrying out these tasks? Should police also become involved?

"The Foreign Ministry, which will be designated as Japan's Central Authority for dealing with cases according to the treaty, needs to define its roles and responsibilities carefully by learning from the experiences of experts handling various cases of family disputes and listening to the views of the public.

"Japan will have to fulfill the obligations of a signatory country. But smooth enforcement of the law will be impossible unless there are clear ideas about actual implementation that are shared by all of society and enjoy broad public support.

"There will also be cases in which Japan demands the return of a child who has been taken to another country.

"There are no significant differences in parental love for children between fathers and mothers.

"Japan needs to establish a system that can deal effectively with cases under the Hague Convention. The system should not favor specific positions or viewpoints and should put the priority on the child's happiness."

By Asahi Shimbun (Editorial, 7/12/2011), Link to article (last visited 7/18/2011)

Tuesday, May 31, 2011

"Top court rules order to stand for anthem constitutional

"The top court for the first time ruled on May 30 that it is constitutional for a principal to order a school's teachers to stand for the singing of the Japanese "Kimigayo" national anthem at the school's graduation ceremony.

"The decision is expected to affect similar lawsuits as well as school policies around the country.

"The lawsuit was filed by a 64-year-old former teacher of a Tokyo metropolitan high school who was reprimanded for not standing and facing the Hinomaru national flag while the "Kimigayo" was sung at the graduation ceremony in March 2004.

"The teacher was refused re-employment as a contract worker when he reached retirement age in March 2007. He filed the suit, seeking damages from the metropolitan government.

"The Tokyo District Court in January 2009 ruled that the principal's order was constitutional. But the court ordered the metropolitan government to pay about 2.1 million yen ($25,980), saying it abused its discretionary power because he followed the principal's orders after March 2004.

"The Tokyo High Court in October 2009 rejected the plaintiff's claims, saying that the metropolitan government has broad discretionary powers, and the former teacher appealed the ruling.

"On May 30, the Supreme Court said the order to stand for the national anthem does not violate Article 19 of the Constitution, which guarantees freedom of thought and conscience.

"The Second Petty Bench said it is difficult to consider the act of standing for the "Kimigayo" an expression of a specific thought or a thought against it.

"The ruling said the order does not force or forbid a specific thought and does not immediately restrict an individual's freedom of thought and conscience."

By Asahi Shimbun (5/31/2011), Link to article (last visited 5/31/2011)

"Law change targets abuse by parents

"A bill enacted Friday will allow courts to suspend parental rights for up to two years, rather than the indefinite term currently allowed, with the aim of better protecting children from abuse by their parents.

"The Civil Code currently allows family courts to suspend parental rights for an unspecified period, but the measure has rarely been implemented due to concerns about the potential impact of indefinite suspensions on parent-child relationships.

"Introducing the two-year limit is intended to improve the legal system's effectiveness in protecting children from abuse.

"The bill to revise the Civil Code, the Child Welfare Law and other related laws was unanimously approved at a plenary session of the House of Councillors, having been passed by the House of Representatives last month.

"The revised laws will be enforced from April next year or later.

"Under the revised Civil Code, family courts will be able to suspend parental rights for a period of up to two years. It will be possible to extend the period of suspension, depending on certain factors.

"The revised code also will make it easier for parental rights to minors to be assigned to corporations operating child welfare facilities or to groups of people."

By Yomiuri Shimbun (5/28/2011), Link to article (last visited 5/31/2011)

Monday, May 23, 2011

"Appellate courts' role heavier with lay judge trials

"Two years have passed since the start of the lay judge system in which ordinary citizens take part in criminal proceedings as judges to help decide a trial outcome.

"Supreme Court Chief Justice Hirochika Takezaki has said, "Thanks to the excellent qualities of lay judges, the system has run fairly smoothly."

"Just as Takezaki commented, lay judges' efforts to steadily fulfill their weighty responsibility have greatly helped the system take root in society.

"So far, more than 16,000 people have served as lay judges or reserve lay judges, handing down rulings to a total of 2,144 defendants as of May 14.

"Over the past year, citizen judges have had to make tough decisions in an increasing number of cases, such as when a defendant denied committing the crime and when prosecutors sought the death penalty. The death sentence was handed down in five cases involving lay judges in the past year.

===
"Not all rulings upheld

"In a case involving lay judges at the Kagoshima District Court in December, prosecutors had demanded the death penalty for a defendant accused of a robbery that resulted in death, but the court acquitted him. The panel of lay judges and professional judges criticized the prosecution, saying there were "questions about whether the investigation was carried out properly."

"The district court ruling closely observed the principle of the benefit of the doubt, which says a defendant is innocent until proven guilty. The prosecution has appealed and the trial of second instance, or appellate trial, will be carried out with professional judges alone.

"A Tokyo High Court ruling issued in March raised questions about to what extent an appeal court should value a district court decision made by a panel including lay judges.

"In this case, the Chiba District Court found innocent a defendant who had been indicted for allegedly smuggling stimulant drugs in a can of chocolates. The court said his claim that he was unaware drugs were in the can "could not necessarily be deemed false."

"The Tokyo High Court, however, reversed the district court's ruling and found the defendant guilty. The high court was swayed by the fact that the defendant's statements in court were often inconsistent, and concluded that the accused "fabricated stories every time his excuses failed to pass muster." The high court's decision also said the lower court's evaluation of the evidence was wrong.

"The high court ruling has been criticized by some as playing down the meaning of the lay judge system.

===
"Value of 3-tier court system

"The lay judge system is aimed at reflecting ordinary citizens' common sense in court rulings. High courts, as a matter of principle, should pay full attention to conclusions reached in trials in which lay judges have taken part.

"However, a high court is quite entitled to review the conclusion reached by a court of first instance if it has doubts about that court's findings. This is the point of having a three-tiered judiciary system of district, high and supreme courts.

"In a Yomiuri Shimbun survey on the roles of appellate courts, 80 percent of people with experience serving as lay judges were in favor of high courts "issuing judgments on their own, if necessary."

"A high court also has the option of sending a case back to a district court to have it deliberated anew by a fresh lineup of lay judges.

"What is important is that a higher court, if it objects to a lower court ruling, clearly demonstrate why it cannot support the decision. Appellate court proceedings are becoming increasingly important."

By Yomiuri Shimbun (Editorial, 5/21/2011), Link to article (last visited 5/23/2011)

Thursday, May 5, 2011

"Careful debate needed on constitutional provision for disasters

"When Japan's postwar Constitution was put into force 64 years ago on May 3, 1947, rubble and ruins caused by American air raids remained in various parts of the nation. Japan's recovery and reconstruction from the devastation wrought by the war had barely begun.

"Now, we are in the middle of the worst national crisis since the end of World War II, as the Great East Japan Earthquake has left wide areas in northeastern Japan in ruins and triggered a nuclear disaster.

"The nation is facing the colossal challenge of helping disaster victims rebuild their shattered lives and restore their livelihoods while supporting the recovery and reconstruction of cities and towns in broad areas ravaged by the calamity.

"The challenge raises the knotty question of how to strike a balance between private rights and public interests. The issue requires serious public debate from the viewpoint of the Constitution.

"Immediately after Japan was hit by the catastrophic earthquake and tsunami on March 11, the nation's grass roots demonstrated strength and power.

"As days passed by, however, the calamity increasingly made clearer the importance of the government's role as the ultimate guardian of the people's lives and rights.

"What should be done, for instance, to support people whose houses were swept away by the tsunami?

"In Japan, there was no system for the government to compensate for the losses of private properties.

"After a fierce controversy following such natural disasters as the Great Hanshin Earthquake, which flattened the city of Kobe and surrounding areas in 1995, and a powerful quake that rocked western parts of Tottori Prefecture in 2000, the current program of public financial support for recovery of damaged private properties was established. It provides up to 3 million yen ($37,000) for housing reconstruction by disaster victims.

"The March 11 calamity has provoked calls for raising the maximum amount of financial support provided under the program.

"There is also the serious problem of people facing the prospect of having to borrow money to repair their houses while still making mortgage payments.

"What about people who cannot return to their homes because of radiation leaks from the stricken Fukushima No. 1 nuclear power plant? How much burden should the government and society as a whole bear for supporting such people?

"These are, however, not the only weighty questions.

"In affected areas, some residents are already building prefabricated houses amid the rubble on their own.

"We deeply sympathize with the natural desire of disaster victims to live in their own homes.

"But there can be cases where a certain degree of restriction on use of privately owned land is necessary and justifiable from the viewpoint of rebuilding the areas while making them less vulnerable to future disasters.

"The government should work with local authorities concerned to swiftly craft a plan to deal with related issues. It needs to win support from disaster victims for the plan by specifically explaining the extent of necessary restrictions on private rights and the approach adopted for such restrictions.

"Some people are arguing for a constitutional revision to overcome the conflict between private rights and public interests.

"Lawmakers of the main opposition Liberal Democratic Party, for instance, are calling for a new constitutional provision to cope with emergencies.

"The envisaged provision would expand the government's powers during large-scale natural disasters and restrict people's human rights. Proponents, of course, may feel the provision could be invoked during national security crises.

"But such a constitutional provision could undermine the system to check the power of the government. Remember what happened in the United States after the 9/11 terror attacks in 2001. The provision could cause a serious erosion in the nation's democracy itself.

"Quite a few things can be done under the current legal framework.

"Only after these policy options are duly explored, careful debate should start on limitations in the current Constitution and the legal framework.

"A cool-headed approach is important in dealing with this issue all the more because the nation is in a crisis."

By Asahi Shimbun (Editorial, 5/3/2011), Link to article (last visited 5/5/2011)

Wednesday, April 13, 2011

First Child Organ Transplant Under New Law

"The Japan Organ Transplant Network said Tuesday a child under the age of 15 was declared brain dead earlier in the day, in the nation's first such case under the revised Organ Transplant Law.

"The declaration was made at 7:37 a.m. Tuesday for a boy in the 10-to-14 age range who had been at a hospital in the Kanto-Koshinetsu region after a traffic accident, the network said. Several of the boy's organs will be transplanted at Osaka University Hospital and four other medical institutions, it added.

"The boy is set to become the first brain-dead donor aged under 15 in line with the revised law that took effect in July to allow organ transplants from brain-dead people aged under 15.

"According to the organization, the boy was taken to the hospital after suffering serious head injuries in the traffic accident. On Monday morning, three members of the boy's family were informed by his chief doctor and a transplant coordinator that his brain was highly likely to have lost most of its functions. His family then gave consent to donate his organs.

"Based on the law, the patient's first brain-death diagnosis was made at 8:25 p.m. Monday and a second, confirmatory diagnosis was made Tuesday morning, the organization said.

"The hospital's abuse prevention panel confirmed there was no physical abuse of the boy involved in this case as required by law, it added.

"The organs scheduled to be donated are heart, lung, liver, pancreas and kidney. An operation to harvest the organs was set to be carried out beginning 5 a.m. Wednesday.

""Our son told us he wants to do a job that would be of great service to society," his parents said in a statement that was read by Juntaro Ashikari, the network's medical section head, at a press conference Tuesday. "His wish didn't come true as his brain didn't recover. But his body hung in there with all the strength he had left. We've all agreed this is an action that would suit him. If parts of his body continue to live on in someone else, we feel it will offer a small measure of comfort in the grief we feel at losing him."

"Under the revised law, organ donations from brain-dead patients aged under 15 are allowed with the consent of their families unless the child had previously clearly expressed a will to refuse to donate organs. In this case, the boy did not leave any instructions about organ donation before he died.

"The law also requires institutions harvesting organs from such brain-dead children to confirm the children were not victims of physical abuse.

"The revisions to the law were prompted by new guidelines set by the World Health Organization last year that call on people to receive organ transplants in their own countries rather than overseas. However, whether the number of organ donations from brain-dead children will rise is in doubt, as determining whether children's brain deaths were caused by abuse is difficult and many hospitals are not yet capable of handling organ donations from children.

"Soichiro Kitamura, president emeritus of the National Cerebral and Cardiovascular Center, said: "Children account for more than half the patients who have had organ transplants overseas. If child patients come to be able to receive organs from children [in Japan], that would be socially significant.""

By Yomiuri Shimbun (4/13/2011), Link to article (last visited 4/13/2011)

Wednesday, April 6, 2011

"Prosecutorial reform must reflect outside opinion

"Prosecutorial reform must be carried out at the initiative of the prosecutors, but outside opinions, however harsh, should be considered with wholehearted sincerity.

"An expert panel, established in the wake of a series of irregularities involving a special squad of prosecutors at the Osaka District Public Prosecutors Office, has compiled a report listing recommendations and handed it to Justice Minister Satsuki Eda.

"In examining how prosecutors should carry out their duties, the panel called on the judicial and prosecutorial authorities to conduct a sweeping review of their functions, ranging from organization to investigative methods.

"In 2009, the prosecutors arrested and indicted Atsuko Muraki, a former director general with the Health, Labor and Welfare Ministry, in connection with a postal discount abuse scandal, although she was innocent. The prosecutor in charge of the postal abuse case tampered with evidence, and his misconduct was allegedly covered up by his superiors. The incident revealed structural faults within the prosecutorial system.

"The special squad of prosecutors ignored their mission of "elucidating the truth based on law and justice" out of a desire to establish a case against a senior bureaucrat of a central government office. They resorted to coercive investigation methods repeatedly, such as trying to obtain depositions that fit their storylines.

"Senior prosecutors of the Osaka District Public Prosecutors Office as well as the Osaka High Public Prosecutors Office and the Supreme Public Prosecutors Office approved the arrest and indictment of Muraki without recognizing how thin their case was.

===

"Monitoring function required

"It was natural for the panel to place priority on bolstering the functions needed to monitor the investigation process.

"To improve transparency, it proposed the establishment of a system in which outsiders would be encouraged to offer advice and a department to accept and deal with complaints about interrogations.

"The panel also proposed transferring the right to indict to prosecutors not belonging to a special investigation squad. Up to now, cases undertaken by a special squad are conducted under the guidance of the lead prosecutor. As a result, evidence is often not given the thorough assessment it should receive.

"Based on the panel's recommendations, the judicial and prosecutorial authorities must carry out drastic reforms as quickly as possible.

"Prosecutors must ensure their investigations bring perpetrators to justice, and that the rights of suspects and defendants are protected.

"Audio and visual recordings of closed-door interrogations are effective methods to prevent false charges. But police and prosecutors are concerned that recording all questions and answers during the interrogation process will make it more difficult to arrive at the truth.

"To what degree could such recordings be permitted so as not to affect investigations? We suggest the prosecutors carry them out on a trial basis in various cases involving special investigation squads.

===

"Don't depend on depositions

"The excessive emphasis placed on depositions in investigations and trials also should be examined. It is important to look into methods of investigation to establish cases that do not necessarily depend on depositions.

"A plea bargain system exists in some countries under which punishment is reduced if a defendant admits a charge. It is unclear whether Japanese society would accept such a system.

"The panel proposed the establishment of a forum to discuss such institutional reforms as well as legislative preparations for the adoption of audio and visual recordings of interrogations.

"We hope the judicial and prosecutorial authorities discuss reforms from a wide perspective while listening to the voice of the people."

By Yomiuri Shimbun (Editorial, 4/5/2011), Link to article (last visited 4/6/2011)

Tuesday, March 8, 2011

"Children caught in international tug-of-war as Japan hesitates to ratify Hague Convention

"When an international marriage falls apart, heartbreak can arise when one parent flees to their home country with their child or children without the other's consent. In Japan, which has not yet ratified the Hague Convention on the Civil Aspects of International Child Abduction, such cases are the focus of intense debate.

"The United States and Europe are ratcheting up the pressure on Japan to ratify the Hague Convention, which dictates the return of children to their original country of residence.

"What kinds of situations are occurring, and what precautions should people take before marrying? We collected people's experiences and words of advice.

* * *

""I was just in time," said a single mother, 37, living in Tokyo, with a sigh of relief.

"In 2006, she met and married a French man while she was working at a company in the United States.

"However, on top of refusing to work, he was extremely violent to her at home, and declared he would not take care of their child. She decided to move out, taking her 2-year-old son to Japan in 2008 after she found a job at a foreign-owned company.

"Due to the cost and bother involved in divorce procedures, she decided to wait for her relationship with her husband to fade away.

"But one day, she started receiving numerous e-mails and phone calls from him in which he threatened to have her thrown in jail as an abductor if she did not return their child.

"Her lawyer warned her that Japan was moving toward ratifying the Hague Convention, which could mean that her child might be taken back by her husband. She quickly filed for a divorce through Japan's family court system.

"As the woman's husband would not divulge his contact details, he was consequently regarded by the courts as a missing person. That led to her being granted 100 percent custody of her son, and her divorce was finalized in 2010.

"She had also registered her marriage in France, so she spent six months going through that country's divorce application procedure via the French Embassy.

"In the case of another woman in her 30s who got married in a different country in Europe, her husband was abusive to both her and her child. She fled to Japan five years ago, but says, "I can't give my name because I'm afraid my child will be taken back."

"A 50-year-old woman who married an American man in Japan subsequently divorced him in 1998 because he made no financial contribution to their living expenses.

"He gave up custody rights to their two children, aged 2 and 5 at the time, on the grounds that they would be raised in Japan.

"However, the man later took the children to the United States without her permission. The woman felt dismayed, because she "had taken care of them 90 percent of the time."

"When she tried to meet her children in the United States, she was arrested by the police for disorderly behavior by a parent with no custody rights.

"Following that incident, the woman relocated to the United States so she could fight for custody in court. Her legal struggle has lasted nine years.

"Recently, her children's wish to live with her has been recognized, and she is expected to be granted joint custody of her children in the United States.

""If Japan had ratified the Hague Convention, it wouldn't have been necessary for me to chase them all the way to the United States," the woman says.

"The Hague Convention states that children taken overseas by one parent without the consent of the other must be returned to their country of previous residence.

"If a child's whereabouts are unknown, signatory countries must assist in tracking the child down. However, the convention cannot be applied retroactively to parents and children who moved overseas before it was ratified.

"In contrast to Japan, where one parent loses custody rights after divorce, it is common in Europe and the United States for joint custody to be granted, where both parents retain responsibility for a child's upbringing.

"The proportion of custody held by each parent is always decided in court.

"In Japan, marriages and divorces are finalized after the necessary documents are submitted. In other countries, the process varies, and it is necessary for parents to fulfill the requirements of the relevant country.

"Ministry of Health, Labor and Welfare statistics for 2009 showed there were 34,000 marriages where one spouse held foreign citizenship, representing a sixfold increase over the past 40 years.

"According to the Foreign Ministry, inquiries received as of January from foreign governments about children abducted to Japan had risen to 100 from the United States, 38 from Britain, 37 from Canada, and 30 from France.

"Former United Nations staffer Etsuko Tsukagoshi, 37, who is married to an American and wrote the book "Cross-Cultural Marriage 101" (Kokusai Kekkon Ichinensei), says: "International marriages take time to rectify once they turn sour. I advise people to make adequate preparations, such as thoroughly studying the laws of their future spouse's home country."

"Lawyer Mikiko Otani, an expert on international law, gives the following advice: "When you live overseas as a foreigner, you are inevitably in a weak position because of the differences in language and each country's systems. I'd like people to make themselves aware of the differences with Japan, and to find information from the country itself. If you intend to take flight back to Japan because of violence from your husband, first seek protection from the local police and women's shelters, and guidance from local specialists. They can also help you to secure evidence and provide necessary advice.""

By Satomi Sugihara and Mieko Takenobu (Asahi Shimbun, 3/4/2011), Link to article (last visited 3/8/2011)

Sunday, January 30, 2011

"Japan must hurry to join Hague treaty

"International marriages are on the rise, and subsequently so are cases in which former spouses engage in international custody battles over their children.

"To help address this situation, the government set up a senior vice-ministerial council involving related ministries and tasked with discussing the possibility of Japan joining an international convention. The discussions necessary for Japan to join the convention should be expedited.

"The Hague Convention on the Civil Aspects of International Child Abduction contains the principle that children from an international marriage who are removed from their country of residence by one of their divorced parents, without the other parent's consent, must be returned to the country of residence.

"Signatory nations are obligated to provide administrative cooperation in such efforts as discovering the whereabouts of such children and restoring them to their country of habitual residence.

"Eighty-two countries, mostly in the West and Latin America, have signed the convention, while Japan has not.

===

"Friction over Japan's status

"This has led to trouble between Japan and signatory nations, with Japanese women returning to this country with their children and being sued over parental rights by their former husbands in their original country of residence. There are said to be nearly 100 such cases involving Japanese and U.S. parents.

"Earlier this year, U.S. Secretary of State Hillary Clinton asked Foreign Minister Seiji Maehara for Japan to join the convention soon. The French Senate adopted a resolution along the same lines earlier this week.

"There is a strong view within the government that Japan should not deepen the diplomatic friction over the issue.

"The convention itself is based on the idea that disputes related to parental rights should be resolved in accordance with the law of the original state of residence.

"Therefore, the convention is not a framework under which only Japan suffers a disadvantage. By becoming a signatory, the government of this country can seek the return to Japan of children wrongfully removed to, or held in, another signatory nation.

"The number of Japanese who marry foreigners has recently averaged around 40,000 a year, about quadrupled from 1983, when the Hague convention came into force. As if in line with the increase, the number of couples who eventually divorce and battle over parental rights also is rising.

"The times require Japan to join the Hague convention, which has become established as the international standard.

===

"Govt has work to do

"For Japan to join the convention, the government has to choose a supervisory ministry and prepare relevant domestic laws. It also has to take measures to inform international couples of the contents of the Hague convention.

"Domestic violence by former husbands is often cited as a reason why Japanese women take their children from their country of habitual residence to Japan. More than a few people are wary of Japan's signing the convention, saying it will harm the interests of Japanese citizens if such mothers are obliged to return their children.

"The convention stipulates that if there is a high possibility that return would expose a child to danger, the relevant authority of the state receiving the request is not obliged to order the return of the child.

"We hope the government will do its utmost to dispel lingering apprehension by examining actual cases in which parents refuse to return children and look into what sort of measures other countries are taking with regard to domestic violence."

By Yomiuri Shimbun (1/28/2011), Link to article (last visited 1/30/2011)

Thursday, January 20, 2011

"Lawyer-less lawsuits increasing

"Despite significant growth in the number of lawyers in recent years, the number of litigants who choose to represent themselves in civil lawsuits has also been rising steadily.

"According to Supreme Court statistics, 73 percent of civil lawsuits were undertaken without legal representation last year--up 14 percentage points from 2000. This contrasts with the growth of about 80 percent in the number of lawyers over the same period, as a result of reforms to the judiciary system.

"This state of affairs runs counter to the purpose of the judiciary reforms: to make it easier for people to hire lawyers. The increase in lawsuits undertaken without legal representation--in which plaintiffs or defendants are not represented by professional counsel--appears to reflect the high fees charged by lawyers, observers said.

"The Supreme Court's Legal Training and Research Institute is planning to conduct a survey on such lawyerless civil lawsuits.

"The number of lawyers in the nation rose from about 17,000 in 2000 to 30,000 in December. The increase was expected to encourage competition among lawyers, thereby resulting in lower fees, which would make it easier for people to seek lawyers' help.

"However, the Supreme Court's data showed the percentage of civil lawsuits without lawyers in district courts rose from 59 percent in 2000 to 73 percent, or 139,491 cases, between January and October 2010.

"The top court attributed the rise partly to an increase in lawsuits in which borrowers are demanding that moneylenders repay unlawfully high interest payments the borrowers made on loans.

"This type of civil suit--which has a particularly high percentage of cases without lawyers--has sharply increased since 2006, when the Supreme Court ruled that annual interest rates exceeding the maximum of 15 percent to 20 percent set by the Interest Rate Restriction Law are illegal.

"Even excluding these lawsuits, however, the percentage of civil cases without lawyers was mostly unchanged from 10 years ago at about 60 percent.

"This apparently is due to the fact that lawyers' fees remain high. Just the advance payment for retaining professional counsel can be hundreds of thousands of yen.

"With this and the risk of losing a court battle, many members of the public do not feel they can readily hire a lawyer.

"In addition, ordinary citizens now have better access to information about filing lawsuits through the Internet. As a result, some legal experts say, an increasing number of people consider filing lawsuits on their own.

""It's possible lawyers have avoided requests in which their pay would be low," a senior court official said. But a 37-year-old lawyer working in a Tokyo law firm said, "As the number of lawyers has increased, the competition to survive has intensified.

""Though one of a lawyer's roles is to serve the public interest, we can't afford to accept requests for unprofitable work," he said.

"Many lawyers have demanded improvements to the system to help finance civil lawsuits, under which offices of the Japan Legal Support Center (Houterasu) pay lawyers to represent people in court.

"In some lawsuits without lawyers, judges need to advise parties who are not legal professionals. This can be problematic, however, as it may draw criticism that the impartiality of the trial is being compromised.

"Therefore, the Legal Training and Research Institute will ask a panel comprising nine judges and scholars to study current conditions and the potential problems in lawsuits without lawyers, starting this year.

""I think there are two types of lawsuits without lawyers," said Prof. Satoru Shinomiya of Kokugakuin University, who worked on the judicial system reforms and headed a Japan Federation of Bar Associations office for research on judicial system reforms.

""In one type, lawyers are not necessary because the points under dispute are not that complicated. In the other, the parties asked for lawyers' help but were rejected," Shinomiya said.

""In provincial regions where there are still fewer lawyers than in urban areas, there must be many cases in which lawyers should offer assistance. Contributing to society and the public is a very important mission of lawyers. Bar associations also should conduct research on why there are more lawsuits without lawyers," he said."

By Yomiuri Shimbun (1/17/2011), Link to article (last visited 1/20/2011)