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.

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"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.

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"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)