Japanese Law Blog

Editorial on International Child Abduction

2012-01-26T10:42:00.005+09:00

"A subcommittee of the Legislative Council, an advisory panel to the justice minister, has decided on a draft outline for necessary domestic laws for Japan's participation in the Hague Convention on the Civil Aspects of International Child Abduction, which sets up expeditious procedures among member states to resolve child custody issues in failed international marriages. The government plans to submit bills on the matter to the Diet in March.

"The government needs to give sufficient consideration to protecting Japanese spouse's rights in revising current domestic laws or establishing new legislation, while respecting international rules.

"Under the terms of the treaty, if, for instance, a Japanese woman comes back to this country with her child who is under 16 years old without telling her non-Japanese husband or ex-husband, it will be regarded as an illegal abduction. When the husband or ex-husband demands the return of the child, the child in principle should be returned to his or her country of habitual residence after hearings in a Japanese family court.

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"Conditions for refusal

"What is important here is to clarify the circumstances under which parents who have returned to Japan with their children can refuse demands to hand the children over.

"The convention only vaguely stipulates circumstances such as there being a "grave risk that the child's return would expose the child to physical or psychological harm" as constituting defenses against returning a child to the other parent.

"The draft outline lists concrete conditions under which Japanese parents can refuse the return of their children. Those include cases when the Japanese parent or the child is likely to become the victim of domestic violence by the non-Japanese parent or when the non-Japanese parent is unlikely to properly raise and take care of the child in the child's country of habitual residence.

"Many Japanese mothers and their children come back to Japan to escape domestic violence at the hands of foreign husbands. There are also parents whose divorce has cost them their residence status in the countries where they and their children had been living.

"Taking these circumstances into consideration, it is appropriate to define the conditions that would constitute defenses against the return of children if the stated conditions do not violate the intent of the convention.

"If a Japanese parent does not obey an order to return his or her child, the draft says, it will be possible for a court to take forcible steps to effect the child's return. Family court officers responsible for persuading Japanese parents to cooperate and communicating with the children will have an extremely important role to play.

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"Foreign Ministry's roles

"Meanwhile, the Foreign Ministry will assist non-Japanese parents in matters such as procedures in Japanese family courts.

"According to a draft of related bills compiled by the ministry, when foreign spouses or former spouses file requests for assistance with the ministry, it will ask relevant schools and local governments to provide information on Japanese spouses and children to determine where the children are.

"Schools and organizations that receive such inquiries will be required to "provide information without delay."

"The Foreign Ministry will establish a "central authority" to deal with the matter. It will be important for the ministry to closely coordinate and cooperate with other government ministries concerned.

"The related bills will also clearly stipulate how to handle cases in which children who lived in Japan are taken away by non-Japanese spouses to other countries. Japanese mothers or fathers will have to demand the return of their children in foreign courts in such cases.

"The Foreign Ministry will gather information on domestic laws concerning the convention in other participating countries and provide them to Japanese parents. It will also ask foreign governments to cooperate with Japan in this regard. The ministry must extend sufficient assistance to both Japanese and foreign parents concerned to realize the smooth return of children."

By Yomiuri Shimbun (Editorial, 1/24/2012), Link to article (last visited 1/26/2012)

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

2011-12-03T10:46:00.006+09:00

"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)

Constitutionality of the Lay Judge System in Japan

2011-11-19T15:35:00.007+09:00

"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.

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"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.

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"'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

2011-11-19T15:29:00.004+09:00

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!

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

2011-10-06T23:12:00.004+09:00

"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)

"Law school reform needed to boost bar exam pass rate

2011-09-16T08:57:00.006+09:00

"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.

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"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.

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"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)

2011 Bar Exam

2011-09-12T10:22:00.003+09:00

"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)

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

2011-07-19T00:54:00.003+09:00

"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)

"Japan needs effective system for Hague child-custody treaty

2011-07-18T15:30:00.004+09:00

"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)

"Top court rules order to stand for anthem constitutional

2011-05-31T12:06:00.003+09:00

"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

2011-05-31T12:03:00.006+09:00

"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)

"Appellate courts' role heavier with lay judge trials

2011-05-23T20:44:00.003+09:00

"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)

"Careful debate needed on constitutional provision for disasters

2011-05-05T15:54:00.005+09:00

"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)

First Child Organ Transplant Under New Law

2011-04-13T10:15:00.007+09:00

"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)

"Prosecutorial reform must reflect outside opinion

2011-04-06T09:52:00.013+09:00

"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)

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

2011-03-08T12:35:00.007+09:00

"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)

"Japan must hurry to join Hague treaty

2011-01-30T21:53:00.003+09:00

"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)

"Lawyer-less lawsuits increasing

2011-01-20T19:45:00.002+09:00

"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)

"Regulations on manga

2010-12-05T02:14:00.003+09:00

"The Tokyo metropolitan government submitted a bill to revise an ordinance to strengthen regulations on depictions of sex specifically in manga and anime.

"It modified a bill rejected by the assembly in June and redefined subjects of regulation as those that "unjustly praise and exaggerate unlawful sexual acts and sex between close family members."

"Once again, manga artists, lawyers and organizations such as the Japan P.E.N. Club strongly oppose the proposal, saying it gives the administration too much leeway to arbitrarily exercise control at its discretion and will shrink back creative activities.

"An existing ordinance already stipulates that "books and magazines that stimulate sexual feelings and could hamper sound growth must not be sold or shown to 'seishonen' (young adults and children)."

"The governor is authorized to admonish publishers and others to take necessary measures and designate "harmful publications." Those that fall under the category of "obscene materials" are subject to control under criminal law. Manga is by no means uncontrolled.

"But the Tokyo government says the existing ordinance is inadequate. It is true that some manga makes us cringe, and many people think such publications must be kept out of the reach of children.

"However, the propriety of making the rules for that and leaving their implementation to the administration are problems that must be considered separately.

"The bill has to do with "freedom of expression," which is considered one of the most important basic human rights. First, the reasonable thing is to respect voluntary measures by concerned parties.

"Publishers and bookstores are establishing committees with the participation of outside experts and imposing voluntary regulations, such as marking materials considered inappropriate for young people, keeping them on special shelves in bookstores and putting them in bags or sealing them with tape.

"We urge them to listen to diversified opinions and continue to make efforts at exercising self-restraint. Currently, the Japanese term seishonen applies to 7-year-olds as well as 17-year-olds. This is unreasonable.

"Also in order to resolve this problem, we want publishers and bookstores to consider the introduction of labeling that takes into account the readers' age.

"While there may be creative expressions that split opinions, there are manga that we want young people to read.

"In "Kaze to Ki no Uta" (The song of wind and trees), Keiko Takemiya depicted sexual love between boys and sexual relations between father and son. While publishers feared complaints, Takemiya wrote it to get across to girls the problem of sex. The late psychologist Hayao Kawai, who served as commissioner for cultural affairs, lauded the manga, saying, "It fully expressed the internal world of adolescent girls."

"The manga is still being read widely. However, if the proposed revision is taken at face value, "Kaze to Ki no Uta" would be subject to regulation without question and would not reach teenage readers.

"In the past, a manga that Osamu Tezuka (1928-1989), who was also a medical doctor, wrote for sex education was treated as "harmful material."

"The Tokyo metropolitan government says it would not regulate such works. But we fear such decisions may be made arbitrarily by the administration. Tokyo also says the proposed regulation does not apply to creating manga. However, manga is also an industry, and pressure on distribution could easily have an impact on expression.

"In order not to restrict the freedom of expression of future Tezukas and Takemiyas and keep opportunities open for children to be moved by excellent, thought-provoking manga, we must be cautious about allowing public power to interfere."

By Asahi Shimbun (Editorial, 12/3/2010), Link to article (last visited 12/5/2010)

First death sentence in lay judge trial

2010-11-17T11:39:00.005+09:00

"A man charged with brutally murdering two men was sentenced to death in a ruling at the Yokohama District Court on Nov. 16, marking the first time for the ultimate penalty to be handed down in a lay judge trial.

"The 32-year-old defendant, Hiroyuki Ikeda, was sentenced to death for murdering a 28-year-old mah-jongg parlor manager and another 36-year-old man in Chiba Prefecture in 2009.

"In handing down the ruling, Presiding Judge Yoshifumi Asayama said the death penalty could not be avoided.

""The cruelty of his actions was inhuman, and the ultimate penalty cannot be avoided even if circumstances are taken into consideration to the maximum possible extent," the judge said.

"Ikeda admitted to a charge of murder and robbery, which carries a sentence of death or life imprisonment, and public prosecutors demanded the death penalty. It was the second time in a citizen judge trial for the death penalty to be sought. Lawyers for Ikeda requested avoidance of the death penalty, and the focus of the case was on the sentence.

"During the trial, Ikeda said, "Whatever the ruling is, I want to serve the sentence without resenting anyone." After the ruling, however, the judge made the rare move of recommending that the defense file an appeal due to the seriousness of the decision.

"The ruling adopted standards for handing down the death penalty that included the level of brutality of the murder method, the motive and the victim's feelings.

"Commenting on the fact that Ikeda had ignored the pleas of the two victims for their lives and used an electric saw and knife to cut their throats, the ruling said, "It was an extremely grotesque crime and among the conceivable methods of killing it was exceedingly brutal and the suffering of the victims is unimaginable." The ruling added that Ikeda was ruthless in refusing the final wishes of the victims to call their families.

"The ruling said that the motive was sparked by a request from Takero Kondo, the former manager of the mah-jongg parlor who had gotten into an argument with the two victims over management of the parlor. However, the court added that Ikeda had wanted to show off his power and obtain access to illegal drugs that Kondo allegedly ordered the smuggling of, and criticized his actions as "selfish and malicious." Kondo, 26, is on an international wanted list for alleged crimes including murder and robbery.

"The court said the shock and sadness felt by the victims' families was enormous and concluded that there was no option but to hand down the death penalty when considering the brutality, maliciousness, calculated nature and result of the crime.

"The ruling came 1 1/2 years after the launch of the lay judge system, under which citizen judges have a say in sentences.

"In a news conference after the ruling one of the six lay judges, a man in his 50s, said he was troubled by the case and wept several times in the courtroom.

""Even now I cry when I remember it," he said, adding that he fretted each day over whether the defendant should be sentenced to life imprisonment or death.

"Asked about his impression of Ikeda in court, he said, "In the trial, it looked like he was saying, 'I've done something bad, kill me.' But when we saw him listening to the opinions of the bereaved families, we could see his eyes going red with tears, and we cried as well."

"However, the lay judge said he tried to focus on the sentence as prescribed by law rather than on the defendant.

""Looking at the defendant alone in court you would cry and a proper trial couldn't go ahead," he said."

By Mainichi Shimbun (11/16/2010), Link to article (last visited 11/17/2010)

Children's Right to Know Their Origins

2010-11-11T08:38:00.005+09:00

"In the four years since Jikei Hospital in Kumamoto started operating the nation's first "baby hatch," where parents can anonymously leave babies they feel they cannot care for, 57 babies and infants have been dropped off at the hospital.

"In the same period, the hospital has also given free counselling to a number of people about such matters as pregnancy and child-rearing. The hospital continues to receive requests for such consultations.

"The role of the hospital highlights the problems facing society as a whole in aiding people who find it impossible to raise newborns.

"In responding to a buzzer at the incubator-like 24-hour baby hatch, hospital staffers often find newborns, some of them still with umbilical cords still attached.

"Of the 32 boys and 25 girls who were left in the hatch as of spring this year, 48, or 84 percent, were newborns. Six were infants under 1 year old, and three were over 1.

"Shortly after the hospital set up the hatch, which is named Konotori-no-Yurikago (stork's cradle), it received a 3-year-old boy.

""As we expected, many of the babies left were newborns," said Yukiko Tajiri, the hospital's chief nurse. "We've had [mothers] come to the hospital shortly after giving birth to babies at a home, which is dangerous."

"According to the Kumamoto municipal government, which monitors use of the hatch, the parents of 34 babies were confirmed to be from outside Kumamoto Prefecture.

"Of them, 15 were from the Kanto region, and five each were from the Kinki and Chubu regions.

""We saw that there are people in great distress throughout the country," said Taiji Hasuda, director of the hospital. "These babies might have been abused if this hospital hadn't been here."

"Sumio Ishihara, an official of the municipal government's Children's Future Bureau, said some still believe the baby hatch system encourages parents to abandon their children.

""It's obvious that a society that doesn't need such a system would be better," he said. "There are people who come here by train or car from as far as the Kanto region to drop off babies, and there are young people who aren't informed about contraception. [The baby hatch] sheds light on realities of society and flaws in the current system."

"The hospital changed part of the system, deleting a sentence on its Web site that said, "Parents can anonymously drop off babies." It also seeks to contact parents and on its Web page advises would-be users of the baby hatch to use an intercom at the hatch to ask for advice.

"Last fiscal year, the hospital was able to contact about 90 percent of parents who left infants in the baby hatch.

"In seven cases, parents changed their minds when they were dropping the baby off or after the hospital located them.

"Child welfare centers take care of infants left in the baby hatch until they can be temporarily placed in a child consultation office or in foster homes.

"The hospital says it tries to have such infants permanently placed in homes under a special adoption system that legally dissolves infants' relationship with their biological parents and makes them children of the adoptive parents.

"However, problems remain about children's right to know their origins.

""Anonymity is convenient for those who give birth to a baby, but this leaves a serious problem for children as they can't get any information about their origins," said Nobuko Kuroda, an official of Kumamoto prefectural government's Chuo child consultation center.

""The reasons why parents drop off infants include being unmarried, too young, poor or having a child as a result of an extramarital affair," said Prof. Reiho Kashiwame of Shukutoku University, who chairs a committee of the prefectural government tasked with reviewing the baby hatch system. "These problems reflect the society itself. [For example,] we discussed men who don't take responsibility.

""[The baby hatch] shows the child welfare system, as well as the maternal and child health system, don't adequately support people who have unintended pregnancies," she said. "The worries of such parents can lead to child-abuse deaths. The government needs to prepare a shelter for mothers and children that gives advice and can cope with crises.""

By Noriko Sakakibara (Yomiuri Shimbun, 11/7/2010), Link to article (last visited 11/11/2010)

"Fight to keep legal trainees' salaries

2010-10-20T10:34:00.005+09:00

"Efforts to continue the payment of monthly salaries to legal trainees have gained momentum ahead of the scheduled change to a system of loans on Nov. 1.

"Those who pass the bar exam train for one year at the Judicial Research and Training Institute before they decide whether to become prosecutors, judges or lawyers. During that year, trainees are paid about 200,000 yen monthly under the current system.

"This will change to a system of loans from Nov. 1, under which trainees can borrow from 180,000 yen to 280,000 yen monthly with no interest. The loans can be paid back in installments over a maximum of 10 years, with a five-year grace period.

"With only about 10 days remaining before the change, supporters of the salary system are trying to maintain it through a special procedure that would revise the Court Law without deliberations in the Diet.

"Others, however, strongly criticize the move to chip away at something that has already been decided, saying preservation of the salary system would run counter to efforts to reform the nation's judicial system.

""We've had considerable understanding from all political parties, except the Liberal Democratic Party," Japan Federation of Bar Associations President Kenji Utsunomiya told a regular press conference last Wednesday.

"The federation has been asking Diet members to revise the law to maintain the salary system for legal trainees, and postpone the enactment of the new system for three years.

""The loan system was created based on a target of increasing the number of successful bar exam applicants to about 3,000 a year," said Yoshiko Aibara, a deputy secretary general of the federation. "However, that target has not been reached and the number of people who want to join the legal profession has been decreasing.

""We need to reexamine all the reforms of the judicial system," Aibara said.

"Over the last several years, the government has provided nearly 10 billion yen for about 2,000 legal trainees. It was decided in 2004 to shift to the loan system, as an increase in legal professionals would increase the government's fiscal burden. The Court Law was revised to permit the enforcement of the loan system from Nov. 1.

"However, the legal affairs division of the Democratic Party of Japan's Policy Research Committee decided Sept. 13 to support the continuation of the salary system.

"New Komeito also is leaning toward agreeing to the bar federation's plan to delay enforcement for three years.

"The DPJ plans to submit a bill in the form of a proposal by the chairman of the the Judicial Affairs Committee in the House of Representatives or the House of Councillors.

"This is a kind of a lawmaker-sponsored bill that is submitted to the Diet after all parliamentary groups have agreed to the proposal in prior talks. Deliberations on the bill are essentially skipped, and it is approved unanimously.

"The DPJ expects this method to work, but it needs the LDP's cooperation to achieve unanimous approval.

"The LDP is expected to decide its position on the matter at a meeting of the party's Judicial Affairs Division scheduled for Wednesday. Utsunomiya attended the division's meeting Sept. 5 and strongly urged the salary system be retained.

""Because the state pays the salary, lawyers feel an obligation to serve the public," Utsunomiya said.

"Division Director Katsuei Hirasawa was skeptical, saying: "It's impossible to get the public to understand a system of paying the same salary to everyone, even to rich people." However, an increasing number of LDP Diet members support the federation's position, according to LDP sources.

"But there is also strong opposition to the move. According to the Supreme Court, 1,648 legal trainees, or 79 percent, of the 2,074 who passed the new version of the bar examination this year actually applied for loans.

""As quite a few trainees are wealthy, is it all right to pay them salaries using tax money without sufficient debate on continuing the system?" a senior Supreme Court official said.

""Some people are several million yen in debt due to such expenses as law school tuition," a 27-year-old legal trainee said.

""If fiscal conditions have to be taken into consideration, why doesn't the government exempt people who participate in public service from repaying the loans, such as working as lawyers in depopulated areas?" he proposed.

"Some in the judicial profession see continuing the salary system will dilute the judicial reforms aimed at increasing the number of those in the field.

""We have to try to increase the number of aspiring judicial professionals and successful applicants, in keeping with the trend of reform," said Kaoru Kamata, 62, vice head of the Japan Association of Law Schools.

"Kamata, who is to become president of Waseda University in early November, said, "If the salary system is maintained, the government will have to decrease the number of successful applicants due to budget considerations."

""Rather than maintaining the salary system, which will slow down the expansion of the judicial profession, they first should think about ways to increase the number of lawyers working at companies and local governments," said lawyer Hideaki Kubori, 66, a former president of the Daini Tokyo Bar Association and an expert on corporate legal affairs."

By Yomiuri Shimbun (10/20/2010), Link to article (last visited 10/20/2010)

"A look at how politics influenced the prosecutors

2010-09-28T01:41:00.005+09:00

"The decision by Japanese prosecutors to release the captain of a Chinese trawler appears to have been the result of strong political influence.

"While government officials at all levels are denying that political pressure was applied, government sources did say that Prime Minister Naoto Kan appeared increasingly agitated over the prolonged row with China over the arrest of the captain of the trawler that collided with two Japan Coast Guard vessels in waters near the Senkaku Islands.

"Kan was visibly frustrated even before he left Wednesday to attend a U.N. General Assembly session. Central government officials also whispered rumors that Kan remained agitated during his stay in New York before prosecutors decided to release the captain on Friday.

"Officials in the Kan administration were becoming increasingly concerned that bilateral relations could be hurt to an extent that it would take years to repair.

"Many central government bureaucrats said they believe that Kan hurried along the decision to release the captain.

"Kan himself stressed in a news conference in New York that no political interference had been involved in the prosecutors' decision.

""(The release) was the result of prosecutors considering the nature of the incident in a comprehensive manner and making a judgment in an orderly fashion based on domestic law," Kan said Friday evening in New York.

"He also called on China to observe more restraint.

""The two nations are important neighbors that have a responsibility to the international community," Kan told reporters. "In order to deepen a mutually beneficial relationship based on common strategic interests, both Japan and China must make efforts in a calm manner."

"However, in Tokyo, government bureaucrats said the government was irresponsible for saying the decision was made entirely by prosecutors.

""It's a farce to say prosecutors made the decision," a senior ministry official said. "(The government) is irresponsible."

"Some bureaucrats predicted events would turn out as they did in the wake of the arrest Tuesday of a prosecutor at the Osaka District Public Prosecutors Office on suspicion of altering evidence.

"After the arrest, a high-ranking Foreign Ministry official said, "It will absolutely have an effect on the Senkaku issue. The officials in the Supreme Public Prosecutors Office are not idiots."

"The official predicted that prosecutors would bow to political pressure and release the captain.

"Even after the captain's release, China has not backed down from its confrontational stance.

"Japanese officials were seeking a meeting in New York for Kan and Chinese Premier Wen Jiabao after the release, but that never materialized.

"Moreover, the Chinese Foreign Ministry demanded an apology and compensation for the detention of the captain.

"On Saturday, the Foreign Ministry released a statement that said, "China's request has absolutely no basis and cannot be accepted."

"In Nara, Katsuya Okada, the secretary-general of the ruling Democratic Party of Japan, said, "It is a completely unconvincing request. China should respond in a more restrained manner."

"A high-ranking Foreign Ministry official predicted that China will become increasingly arrogant.

"When asked about how to deal with such an emerging China, the official said, "There is nothing we can do. This is a huge trend that will continue for 20 years."

"Although the Kan administration initially gave the go-ahead to arrest the captain, it eventually hurried to resolve the issue even as it prepared for the criticism that such a move would bring.

"They were forced to make that course change because the unexpected pace at which China escalated its confrontational stance led government officials to begin thinking about the worst-case scenario.

"After calling the Japanese ambassador to the Chinese Foreign Ministry numerous times, even late at night, Beijing cut off all ministerial-level contact. Exports of rare earth metals from China also came to a halt.

"After four Japanese construction company employees were detained in China, a senior Foreign Ministry official said, "China has begun moving as the options available to it have decreased."

"The official also warned that Japanese in China should be more careful because "it is a nation like North Korea."

"Another Foreign Ministry official said other measures that Beijing could have taken include "an informal product boycott against Japanese companies" and "the carrying out of sentences, including the death penalty, against Japanese arrested in China in connection with prostitution and drugs."

"A Defense Ministry source said, "Chinese naval ships could be dispatched to the waters near the Senkaku Islands."

"In 1993 after France approved the sale of fighter jets to Taiwan, China, in a retaliatory measure, closed the French Consulate General in Guangzhou.

"Considering the circumstances, Beijing could have taken similar measures against Japan in the trawler incident, officials said.

"A high-ranking official in the prime minister's office said that if the captain had been indicted, China would likely have recalled its ambassador and might also have severed diplomatic ties.

"When asked about criticism of being weak-kneed, the official said, "What would you do? Would you go to war? In the past, this might have ended in war."

"The decision to release the captain was also a difficult one for prosecutors.

"After the decision was made, sources in the Supreme Public Prosecutors Office indicated just how unusual the decision was.

"One high-ranking prosecutor said, "There was enough evidence to indict, but we considered the effects on the Japan-China relationship. It just went beyond our hands."

"Another high-ranking prosecutor warned that prosecutors could not be held responsible if a similar incident occurred in the future.

"On Friday before the decision to release was made in Naha, Okinawa Prefecture, a meeting was held in Tokyo between officials of the Supreme Public Prosecutors Office, Fukuoka High Public Prosecutors Office and Naha District Public Prosecutors Office.

"Naha prosecutors asked that an indictment be allowed, but objections were raised by prosecutors at higher levels.

"The decision to release the captain was made at the meeting.

"A high-ranking Justice Ministry official explained why the decision to release the captain was made before the Wednesday detention deadline.

""If the decision was made after the prime minister returned to Japan, doubts would surely have been raised about political interference in the decision," the official said.

"Prosecutors also were aware of the pressure being applied by China.

"One senior prosecutor said, "The detention of the four Japanese had a psychological effect."

"Meanwhile, Tadamori Oshima, vice president of the opposition Liberal Democratic Party, said the party would ask that Toru Suzuki, the deputy prosecutor at the Naha District Public Prosecutors Office who made the announcement to release the captain, be called to testify in the Diet to explain the process behind the decision.

"An extraordinary Diet session will be convened from Friday.

"Oshima said about the comment by Chief Cabinet Secretary Yoshito Sengoku accepting the prosecutors' decision, "We have to think that is evidence of interference by politicians in the judicial sector.""

By Asahi Shimbun (9/27/2010), Link to article (last visited 9/28/2010)

National Legal Examination Results 2010

2010-09-10T18:50:00.005+09:00

"This year's bar exam pass rate under Japan's new system has hit a record low, proving it is difficult for applicants who did not major in law at universities to enter the profession.

"The new bar exam system is aimed at opening the door of the legal profession to people who don't have undergraduate law degrees, such as those with other professional careers or with undergraduate degrees other than law. Since the new system was introduced in 2006, law schools have been striving to help students who don't have undergraduate law degrees pass the annual exam.

"Despite such efforts, however, this year's exam -- the fifth under the new system -- was still tough, with the pass rate of applicants who don't have undergraduate law degrees being slightly more than 10 percent.

""Knowing the current pass rate, no working adult would quit their job to become legal professionals," says Keiichiro Murayama, a graduate of Yokohama National University's Law School. The 32-year-old passed this year's bar exam after a seven-year career as a newspaper writer and graduating from the law school. "I wouldn't have taken the risk if I had to wait another year."

"Azuna Ikeda, 29, a graduate of Tokyo Metropolitan University's Law School, is another one who passed this year. "Before passing the exam, I was telling a friend of mine what would happen in the future if I failed it," says Ikeda, who used to work for an IT-related company for three years before entering the law school.

"Concerning the predicted rise in demand for legal professionals -- court judges, prosecutors and lawyers -- in business, medical and other professional fields, the government had taken concrete steps to increase the number of those in the profession as part of its reforms of the country's judicial system. Still, growth in the number of those who pass the bar exam has been sluggish and there are only a few legal professionals who venture into other fields.

"In July, the Ministry of Justice and the Ministry of Education, Culture, Sports, Science and Technology referred to the entire system to nurture the legal profession as "falling into a vicious cycle," and criticized some law schools -- a gateway to the profession -- for failing to recruit high quality teachers. The government plans to get the system back on its feet, with improving education at law schools at the core, on the grounds that it is possible to secure 3,000 people to pass the exam per year if high quality education is provided."

By Mainichi Shimbun (9/10/2010), Link to article (last visited 9/10/2010)

Ten Years of Adult Guardianship Law Reform

2010-08-21T16:46:00.004+09:00

"Ten years ago, the adult guardianship system was established in Japan to ensure support for elderly and disabled persons who have diminished mental capacities and protect them from fraud and other foul play.

"Under this system, a guardian holds the power of attorney to manage the assets of the incapacitated ward, choose welfare service programs for the ward and handle legal matters such as signing a contract to commit the ward to an institution. Petitions for the courts to appoint guardians are now being filed in increasing numbers every year. More than 27,000 petitions were filed last year. But only about 60 percent of the appointed guardians are the families and relatives of the parties being cared for. Clearly, the current trend is to appoint as guardians lawyers, judicial scriveners, welfare workers and other specialists.

"By appointing such third-party professionals, rather than families and relatives who may be lax in their fiduciary duties, trouble can be avoided and the rights of the incapacitated elderly or disabled ward be protected. Some families and relatives are unhappy about this, but we believe it is the most reasonable way to ensure the system is enforced as the law intends.

"But the adult guardianship system is no protection for incapacitated people who have no kin to turn to, and whose assets are not worth hiring a professional to manage them for a monthly fee of several tens of thousands of yen. To help such people, several municipalities, including the city of Osaka and Tokyo's Setagaya and Shinagawa wards, have come up with the concept of "citizen guardians." These people live in the same community as the incapacitated person needing help, and they use their community network to provide free service.

"By this autumn, Setagaya Ward will have 62 such active and prospective guardians. Citizen guardians are appointed after 50 hours of training. Their duties include visiting their charges and checking their health, managing their household finances and handling pertinent legal contracts by proxy.

"To protect guardians from taking on burdens beyond their capacity or becoming involved in trouble, there are lawyers, doctors, accountants and other specialists providing support, and the overall working of the system is supervised by social welfare councils.

"But outside such a forward-thinking community as Setagaya Ward, most municipalities are reluctant to act. Their tight finances don't allow new undertakings, some say. Others say there is little demand for such guardians, and argue that professionals, rather than amateurs, should be tapped in this sort of situation.

"We certainly believe each community should do as it sees fit. However, there is no doubt that petitions for guardianship appointments will keep increasing. And once a guardian has been appointed, in most cases his or her duties will continue until the ward dies. The number of people requiring guardians will snowball. In fact, there are already 130,000 people around the nation receiving support under the adult guardianship system. Each region must build a lasting, reliable system.

"Effective use of available guardians is important. We suggest experts be entrusted with difficult cases, such as when the ward owns substantial assets or there is a family feud, while citizen guardians may suffice in simpler cases. And the system should be flexible, making it possible to change guardians when a person's circumstances change.

"The loss of strong community ties is felt ever more acutely these days. This is all the more reason for society to pull together to develop new kinds of relationships. We believe the citizen guardianship system is a step in the right direction."

By Asahi Shimbun (Editorial, 8/20/2010), Link to article (last visited 8/21/2010)

New Lawyers and Job Market in Japan

2010-08-17T17:33:00.004+09:00

"About 40 percent of legal trainees preparing to enter the job market as lawyers later this year have yet to receive offers of employment, according to a survey by the Japan Federation of Bar Associations.

"One of the main reasons for this is a rapid increase in the number of people in the legal profession, meaning more competition for the few spots available at law firms.

"If the situation continues, many legal professionals will have little option but to open their own practices and try to establish themselves as lawyers in an unfavorable climate.

"Another reason for the situation is the limited areas in which lawyers are practicing.

""I've been rejected by over 70 law firms," said a 34-year-old would-be lawyer who passed the bar last year.

"He was hoping to begin his career as an "isoben" lawyer at a firm in the Tokyo metropolitan area after finishing his legal training at the end of this year. Isoben lawyers help their senior colleagues deal with client requests while working on fixed salaries.

"The man intended to cut his teeth at a law firm, find his own clients and forge out on his own. If things had gone according to plan, he would have had no need to worry about his future.

""I've even begun considering just renting space in a law office," he said. In this approach--known as nokiben--lawyers are responsible for finding their own clients and generating their own income.

"The man said he had become increasingly anxious over repaying the 7 million yen he borrowed for law school.

"This man is just one of 2,000 would-be lawyers surveyed last year by the federation. Among the nearly 1,200 who responded, 43 percent said they had not received job offers. This is up from the 30 percent who had complained of the problem in the previous annual survey.

"Fifty-eight of the legal professionals entering the job market last year were unable to find jobs as isoben or even as nokiben, and instead were forced to open their own practices.

"The federation predicts people entering the legal profession will increasingly need to open and run their own businesses, as the glut of lawyers is making it more difficult for legal trainees to get their feet in the door.

"Since 2000, the government has been pushing judicial reform to increase the number of legal professionals in an attempt to improve legal services for the general population.

"As a result, the number of people who pass national bar exams doubled from 1,000 to more than 2,000 annually. As of the end of last fiscal year, there were 28,789 registered lawyers. A decade ago, that number was 17,126.

"Riichiro Takahashi, vice president of the federation, said, "If we start to see a lot of people opening up their own firms without having trained under more experienced attorneys, we could see a lot of problems in terms of protecting citizens' rights."

"With this unprecedented situation, the federation is urging bar associations to explore new areas of need for the profession. In April, the federation opened its Himawari Chusho Kigyo Center, a center for small and midsize companies that do not have lawyers on retainer. Managers with legal concerns can call the center to be transferred to their local bar association.

""We want businesses to know there are uses for lawyers outside of court," one federation official said.

"On July 20, the federation made an urgent request to the Japan Business Federation (Nippon Keidanren) and other major economic organizations, asking them to make sure their members had a full understanding of services available from corporate lawyers.

"There were more than 400 lawyers directly employed by the corporate world as of the end of last year, but this trend has slowed since Lehman Brothers went bust in 2008.

"As of March, there were 200 lawyers employed as full-time staff at the offices of the Japan Legal Support Center, which provides legal services mainly in rural areas.

"A Japan External Trade Organization official who helps companies in the Shikoku region do business overseas says lawyers are spread unevenly throughout the country.

""There is demand here for lawyers with expertise in international business and other affairs, but there are few nearby," according to the official.

"Nippon Keidanren's Business Infrastructure Bureau says lawyers tend to be concentrated in big cities and there are many regions that have a shortage of lawyers. The bureau also says further measures need to be taken to expand the demand for lawyers by, for example, expanding the network of Legal Support Centers."

By Yomiuri Shimbun (8/14/2010), Link to article (last visited 8/17/2010)

Organ Transplantation Law and Brain Death

2010-08-12T16:04:00.005+09:00

"Under the revised law on organ transplantation that went into full effect on July 17, organs of people declared brain-dead may be donated with the consent of family members even if the intent of the patient is unknown.

"On Tuesday, organs were contributed under the provisions of this new legislation for the first time.

"The donor, a man in his 20s, was confirmed brain-dead on Monday due to injuries suffered in a traffic accident. His heart, lungs, liver and other organs were harvested for transplantation into patients who had been waiting for such donations.

"Under the previous law, organ donations required the consent of the donor in writing. With the amended version, the final decision is left to the family unless the brain-dead person had specifically expressed opposition to the use of his or her organs.

"According to the Japan Organ Transplant Network, Japan's only organization for coordinating organ transplantation, the man expressed the desire to donate his organs while watching a television program on that subject with his family. The family decided to have his organs donated after weighing the wishes he voiced at that time.

"This is welcome news for patients waiting for organ donations. The family, however, must have had an extremely difficult time reaching the decision in the absence of the man's written consent.

"We must respect the sentiment of these family members and firmly support their decision.

"At the same time, we hope this precious experience can also be used effectively to realize more medical transplantations.

"In this particular case, the fact that family members discussed organ transplantation apparently made it easier to hypothesize what choice the man would have made. There is no doubt, however, that cases devoid of such clues will emerge in the future.

"As a reference for such instances, the Ministry of Health, Labor and Welfare must thoroughly examine and verify this case, and disclose its findings to the greatest degree possible.

"Under the revised transplant law, physicians are required to inform family members of the organ donation option in the event that a loved one is declared brain-dead.

"In this case, how and when was the family informed of this alternative? What process did they go through to reach the decision to donate the man's organs?

"To establish a truly reliable medical transplantation system, it is crucial to uphold full transparency and not bottle up the process behind closed doors. While respecting the family's wishes for solitude, as well as the right for privacy, every reasonable effort must be made to clarify what happened in this case.

"Prompted by this example, the general public must have become more aware of the heavy responsibilities of family members.

"The issues include whether to donate organs and what choices best reflect the wishes of potential donors. There will be cases when such decisions must be rendered amid intense sorrow, even if based solely on conjecture.

"Firm knowledge of what the person in question desired will ease the psychological burden of family members. Toward that end, daily conversations about such subjects, as well as recording one's desires in writing whenever possible, may be very wise approaches.

"The upcoming Bon holiday break is a period when families, including grandparents in many cases, gather for vacations or other activities. This could be an excellent opportunity to discuss the recent transplant case, and consider the preferred course of action if such a situation occurs within one's own family unit."

Asahi Shimbun (Editorial, 8/11/2010), Link to article (last visited 8/12/2010)

"Death Penalty Debate

2010-07-31T15:04:00.005+09:00

"Two executions were carried out Wednesday, the first under the government led by the Democratic Party of Japan.

"Justice Minister Keiko Chiba, who ordered the executions and witnessed the hangings, said, "Once again, I strongly felt the need for a fundamental debate on capital punishment."

"She expressed her intention to set up a study group on the issue within the ministry and to give the media access to execution sites.

"Opposition parties have criticized Chiba, who lost her seat in the July 11 Upper House election, for remaining in office.

"Since Chiba has made clear her opposition to capital punishment, her decision to sign the execution orders raised criticism and questions. Chiba's qualifications as justice minister are certain to be discussed during the extraordinary Diet session.

"The points she raised deserve a serious response, however.

"Although the need for a debate on capital punishment has long been pointed out, there have been no in-depth discussions. Authorities have kept facts surrounding executions in strict secrecy, allowing the public to stay away from the issue.

"There have been no serious problems because the majority of citizens felt that capital punishment has no direct bearing on them. But the public must now face the issue because the citizen judge system was introduced for trials for serious crimes in May last year.

"It can be quite difficult to form an opinion on the death penalty. We have not been able to take a clear stand on this issue.

"In opinion polls, supporters overwhelmingly outnumber abolitionists. But this type of punishment leaves absolutely no room for mistakes in court judgments.

"Amid the global trend toward abolition, calls are growing overseas for Japan to stop using the death penalty. If Japan maintains capital punishment, it could face various disadvantages and negative treatment from abroad.

"Any decision on the issue must be in sync with the people's sense of justice and views about criminal punishment. We know it sounds banal, but the only way to find an answer is through an exhaustive debate.

"More attention should be paid to the information and perceptions that have built the people's views on the issue.

"Although many people feel that public security is deteriorating, the number of vicious crimes has been declining. How should we understand this perception gap?

"How should we consider the conflicting views about whether capital punishment serves as a deterrent to criminal behavior?

"What about the feelings and suffering of the crime victims and their families? What kind of life do death-row inmates lead, and how do they and people around them handle the day of execution?

"We need to know the realities surrounding the issue for meaningful discussions. Chiba's proposals to create a study group and allow the press to see the execution sites must help move us toward that goal.

"We should closely watch the situation to ensure that Chiba's proposals will not be left in the air or watered down under a new justice minister expected in the near future.

"It can be depressing to think about or discuss the issue of crime and punishment, and the question of whether the death penalty is necessary must be a subject that many people want to avoid.

"But each member of society needs to face this challenge now that citizens are directly involved in criminal trials."

Asahi Shimbun (Editorial, 7/30/2010), Link to article (last visited 7/31/2010)

Inheritance Rights of Illegitimate Children

2010-07-10T18:13:00.004+09:00

"A civil lawsuit over the constitutionality of a law that halves the inheritances of illegitimate children has been referred to the Grand Bench of the Supreme Court, raising the possibility that a judicial precedent which favors the law could be revised.

"The Third Petty Branch of the Supreme Court referred the case to the court's Grand Bench, which is composed of all 15 justices, on July 7. The move raises the possibility that a precedent set in 1995 by a Grand Bench ruling in favor of the Civil Code stipulation could be revised.

"Article 900 of the Civil Code stipulates that the inheritance of a child who is born out of wedlock stands at half that of a legitimate child. In the ruling in 1995, just five of the 15 justices were opposed to the stipulation, stating that it was unconstitutional.

"Since then, five subsequent rulings by petty benches of the Supreme Court have favored the stipulation, but opinions have been split. In a ruling by the Second Petty Bench in September last year, one of four justices opposed the stipulation, and one who ruled that it was constitutional gave the opinion that the law should be changed.

"The latest case arose after a woman from Wakayama Prefecture, who is a legitimate child, applied for her inheritance to be split with her younger brother, who was born out of wedlock, and both the Wakayama Family Court and Osaka High Court set the younger brother's inheritance at half that of his sister. This prompted the younger brother to launch a special appeal.

"If the Grand Bench rules that the Civil Code stipulation is unconstitutional, then the decision could greatly influence the current legal system's attitude to legal marriages.

"The Court Organization Law and Supreme Court regulations state that cases should be referred to the Grand Bench when new constitutional decisions are made or if there is a need to change judicial precedents. Cases at Supreme Court petty benches in which the opinions of justices are evenly split are also forwarded to the Grand Bench."

By Mainichi Shimbun (7/10/2010), Link to article (last visited 7/10/2010)

Asahi Shimbun on foreigners' voting rights

2010-07-06T12:34:00.004+09:00

"The June 28 edition of the Sankei Shimbun wrote in its editorial that voters should pay close attention to the different arguments from political parties regarding "the framework of this country." On this, we agree.

"The point in question is whether to grant permanent foreign residents the right to vote in local elections. Since we can't see any obvious differences between the two major parties on economic and foreign policies, foreign suffrage is one of the major issues that has split the nation.

"In their election manifestoes, New Komeito, the Japanese Communist Party and the Social Democratic Party pledge to achieve foreign suffrage. Other parties, like the Liberal Democratic Party, the People's New Party, the Sunrise Party of Japan and Your Party, are opposed to the change.

"In contrast, the ruling Democratic Party of Japan's manifesto says nothing about the issue. When the DPJ was formed, its party platform said foreign suffrage should be "realized quickly." After gaining power, then Prime Minister Yukio Hatoyama and then Secretary-General Ichiro Ozawa were eager to make this happen.

"But the DPJ's coalition partner, the People's New Party, and some local assemblies reject the idea. Even some DPJ members are against the move.

"Prime Minister Naoto Kan said in the Diet, "While there is no change in the party's position, there are different opinions that the parties must discuss." With both Ozawa and Hatoyama gone, it seems that the engine behind foreign suffrage has stalled.

"More than 2.2 million foreign residents are registered in Japan, and 910,000 of them have been granted permanent resident status. Japan is already a country comprising people with various backgrounds. It is appropriate to have those people rooted in their local communities to share the responsibility in solving problems and developing their communities.

"It is also appropriate to allow their participation in local elections as residents, while respecting their bonds to their home nations.

"In its new strategy for economic growth, the government says it will consider a framework for taking in foreigners to supplement the work force. To become an open country, Japan must create an environment that foreigners find easy to live in.

"An Asahi Shimbun survey in late April and May showed that 49 percent of the respondents were in favor of foreign suffrage while 43 percent were against it.

"Since public opinion is divided, the DPJ, which put the issue on the public agenda, should not waffle but should give steady and persuasive arguments to the public.

"The LDP is raising the tone of its criticism, saying foreigners' voting rights, along with the dual surname system for married couples, is a policy that will "destroy the framework of this country." The party apparently wants to make the voting rights issue a major conflicting point between conservatives and liberals.

"Some opponents express concerns about the negative effects on national security. However, this kind of argument can nurture anti-foreign bigotry and ostracism. It sounds like nothing more than an inward-looking call for self-preservation.

"Some say foreigner suffrage goes "against the Constitution." However, it is only natural to construe from the Supreme Court ruling of February 1995 that the Constitution neither guarantees nor prohibits foreigner suffrage but rather "allows" it.

"The decision on foreign suffrage depends on legislative policy.

"In an age when people easily cross national borders, what kind of society does Japan wish to become? How do we determine the qualifications and rights of people who comprise our country and communities? To what extent do we want to open our gates to immigrants? How do we control social diversity and turn it into energy?

"Politicians need to discuss the suffrage issue based on their answers to these questions. The issue of foreign residents' voting rights is a prelude to something bigger."

By Asahi Shimbun (Editorial, 7/5/2010), Link to article (last visited 7/6/2010)

International Child Abduction and Japan

2010-06-25T00:18:00.006+09:00

"POINT OF VIEW/ Yukiko Yamada: Present system may isolate Japanese mothers

"In discussing the Hague Convention on the Civil Aspects of International Child Abduction, we should note that there are cases in which children living in Japan are spirited overseas by their divorced or separated parents.

"I believe Japan should be a party to the convention. But if Japan joins simply because of pressure from the West, it could cause problems.

"Those who support Japan's participation explain that the nature of the convention is "neutral" as it imposes equal obligations to both parents. According to a report, however, about 70 percent of international child abductions involve mothers taking back their children to their native countries.

"Also in the case of Japanese who married foreign nationals, an overwhelming majority of cases involve Japanese mothers taking back their children from the fathers' countries. When we consider this situation, we should tread cautiously.

"Let us consider situations that involve Japanese mothers and American fathers, which are said to be the most common. When Japanese women marry American men and go to the United States, in many cases, they cannot communicate freely in English and are financially dependent on their husbands. When their marriage breaks up and the parents fight over custody of their children, Japanese women are often forced to live on their own without any job to support themselves or friends to whom they can turn to for help.

"Typically, a woman would have to come up with the equivalent of millions of yen to hire a lawyer for a court battle. Even when the women can speak and understand everyday English, it is difficult for them to fight in court. In the United States, some states are said to lack a system of legal aid that pays a percentage of lawyer fees.

"In the United States, parents are usually granted joint custody of their children in a divorce. The parents' right to see their children on a regular basis is also recognized as a matter of course. Even when a court grants custody to the mother, she is usually required by law to allow weekend visitation rights by the father.

"In many cases, Japanese women are unable to return to Japan unless they give up their children. In some cases, they are victims of domestic violence. Joining the convention could mean forcing mothers and children who have escaped to Japan to go back to their abusive husbands' countries. Mothers could be arrested as kidnappers.

"If Japan signs the convention, it needs to change its systems to fulfill its obligations under the convention. In Europe and the United States, the authorities scan bank accounts and pediatric records when they suspect a child has been abducted by a parent. In many cases, the procedure is carried out by the police.

"In Japan, it is not unusual for divorced mothers to go back to their parents' home with their children. But in cases when the mothers return to Japan with their children, the police may be required to intervene. Many Japanese would regard the situation as strange.

"As an exception, the convention provides that a child does not have to be returned when "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

"But I believe the exceptional case would not be easily recognized. For example, would the exception apply when the wife alone is exposed to domestic violence by her husband? Also, it is difficult to prove a woman's account of her life overseas when she has already left the country.

"In Europe and the United States, where joint custody is the norm, even after couples divorce, parents are usually granted equal rights to see their children. In order to minimize the discrepancy in judicial decisions on child-care and meeting rights among signatories of the convention, I believe Japan will have to shift to a joint custody system from the current regime of single custody.

"As a lawyer, I have handled divorce battles for 30 years. But I know of only a few couples who I thought would be able to properly care for their children through joint custody. In Japan, the parents of divorced couples are often involved in the tug-of-war over how to care for the children.

"Japan needs to come up with a system that matches the actual situation. Ideas worth considering include making joint custody an option or creating a system to adjust the custody issue from the standpoint of children.

"The Japanese government needs to have a system whereby those who enter into international marriages are warned about the risks they could face if they divorce. Support should also be provided to those who divorce.

"Shutting the doors to Japanese parents and children who return home seeking protection and forcing them to return overseas where they could face isolation or worse problems runs counter to the Convention on the Rights of the Child, which calls for the "best interests" of children."

"Yukiko Yamada is a lawyer with the Chiba prefectural bar association and the former chair of the Japan Federation of Bar Associations' Committee on Children's Rights."

By Yukiko Yamada (Asahi Shimbun, 6/24/2010), Link to article (last visited 6/25/2010)

Surrogacy in Japan

2010-06-24T23:50:00.005+09:00

Title: SURROGACY IN JAPAN: LEGAL IMPLICATIONS FOR PARENTAGE AND CITIZENSHIP

Abstract: "Japan has not yet regulated assisted reproductive technology by law. This lack of rules and regulations leaves to the courts the solution of numerous controversies, and puts patients in a situation of considerable uncertainty about their rights. First, the article uses a Supreme Court case on foreign surrogacy to discuss how courts should decide when there is a conflict between existing laws and the best interest of the child. Then, after describing the current situation and trends of surrogacy in Japan, the article examines a potential problem of coherence in prohibiting surrogacy and at the same time allowing adoption by the intended parents."

Journal: Family Court Review, Volume 48, Issue 3, 2010, Pages 417-430

Link to article

Lay Judge System: First Not Guilty Verdict

2010-06-23T15:14:00.006+09:00

"CHIBA -- A panel of citizen judges acquitted a man of smuggling stimulants into Japan, setting a precedent for the first non-guilty verdict in a lay judge trial.

"Kikuo Anzai, 59, a company executive from Sagamihara, Kanagawa Prefecture, was acquitted of violating the Stimulants Control Law and the Customs Law at the Chiba District Court on June 22.

"Anzai had been charged with importing stimulants after he was asked by a third person to bring a chocolate can into the country. Prosecutors had demanded Anzai be sentenced to 12 years in prison and fined 6 million yen.

"It marks the nation's first case in which a defendant was acquitted during a lay judge trial. Observers are now focusing their attention on whether prosecutors will appeal the case since none of the past rulings handed down at citizen judge trials has ever been appealed.

"During the trial, whether Anzai had been aware that the chocolate can in his bag contained stimulants became the point of contention. While prosecutors argued that the defendant brought the can into the country after he was commissioned by a person -- who is currently on trial for drug smuggling -- to do so in return for money, his defense counsel claimed that he was unaware of the content of the can as he was entrusted with it as a souvenir for someone else.

"The ruling concluded that the defendant's claim cannot be labeled unreliable, citing the fact that he had complied with a customs request that the can be X-rayed for inspection.

""Based on conventional wisdom, it cannot be recognized that the defendant was unquestionably aware of illegal drugs hidden inside the can," the ruling said.

"Following the decision, the two male citizen judges and three of the four female citizen judges who attended the trial met reporters.

""Although we were presented with the situation that the defendant had faced, there was no solid evidence supporting his guilt," said one of the male citizen judges, a company employee.

"The Chiba District Public Prosecutors Office commented on the ruling following the trial.

""We take the ruling seriously as a result of deliberations among both professional and citizen judges. We believe we did our utmost in making our arguments and presenting the evidence, but we'd like to scrutinize the content of the ruling to see if there were any shortcomings on our part before examining whether to appeal the case," said a representative of the prosecutors office."

By Mainichi Shimbun (6/22/2010), Link to article (last visited 6/23/2010)

Divorce Ceremonies

2010-06-17T11:20:00.004+09:00

"Saori Teshima had long dreamt of the moment. Standing nervously next to her smartly-suited partner in front of friends and loved ones, a sparkling ring appeared before her.

"But contrary to conventional wedding rules, the man at Saori's side did not slip the ring lovingly onto her left hand before sealing their union with a kiss.

"Instead, the pair were handed a hammer - which they held together as they proceeded to smash the ring to symbolise the end of their five-year marriage.

"So goes another divorce ceremony - a bizarre, but increasingly popular ritual among Japanese couples, who choose to end their marriages with the same pomp and ceremony with which they began them.

"From drinking toasts to never seeing each other again, through to symbolic rides in separate rickshaws to reflect the start of a new journey, the ceremonies consist of a string of symbolic acts to mark the definitive end of a marriage.

"Their introduction is timely: more than 251,000 divorces took place in Japan in 2008, a figure blamed partly on the poor economic climate and the end of the salaryman-led family units which used to be the bedrock of much of Japanese life.

"Yet with divorce still something of a taboo in Japanese society, the ceremonies have caught on as a way to publicly formalise the separation in a way that is socially acceptable to friends and family.

"Pioneering the trend for divorce ceremonies is Hiroki Terai, 29, an entrepreneurial former sales man from Japan's Chiba district, who dreamt up the idea after friends of his decided to separate last year.

"Since setting up a company devoted to divorce ceremonies in March, he has been contacted by more than 700 people and conducted 21 divorce ceremonies – costing from £44 to £700 - with a further nine booked.

""A ceremony at the end of a marriage gives the couple and their friends and family the opportunity to gain emotional closure," he said.

""Couples ranging from 21 to 57 have taken part in ceremonies so far. Some wear white dresses, a few opt for cakes, and it's always very moving.

""Everyone deserves a fresh new start. Two couples actually decided to stay together after the ceremony because it made them realise how much they still cared."

"Roland Kelts, a Japan culture expert and lecturer at the University of Tokyo, described how divorce ceremonies were a welcome tool for Japanese to deal with shifting family structures.

""Today's Japanese women are well-educated and worldly," he says. "They watch Sex and the City and wonder why their husbands are not more dynamic.

""And their husbands, having lost the security of lifetime employment and its perks, are wondering why their wives are so impatient. No wonder divorce has risen to a third of Japanese marriages."

"Saori Teshima, 34, and her husband Daigo, 36, who runs a wholesale fish company, has just "celebrated" a divorce ceremony to mark the beginning of their new lives.

"The couple, who have a four-year-old daughter, split last year after Saori discovered her husband was having an affair, and divorce papers are being processed.

"The event began as Saori, dressed in a casual grey dress over jeans and straw hat, and a nervous Daigo, in white shirt and suit, gathered at the gates of a Tokyo temple with a dozen close friends wearing smart clothes and faintly bemused expressions.

"A sombre atmosphere prevailed, as formal greetings were exchanged before the soon-to-be-ex couple was led to two – separate - waiting rickshaws which led them off to "Divorce Mansion", premises owned by Mr Terai which serve as a kind of registry office-in-reverse.

"Following behind on foot, one guest Aoyama Tsuyoshi, 32, a healthcare businessman, said: "I thought it was a joke when I first received the invitation.

""But I soon realised that they were serious as they want to start afresh after their marriage. It is a sad day but I am happy to be here to support them."

""I think the 'divorce ceremony' phenomenon in Japan is healthy - a sign that the country can embrace change as a national 'family,' rather than a cold-hearted 'system' of sclerotic preconceived taboos."

"Upon arrival at Divorce Mansion – a small undercover space with fleuro wall paintings – guests signed a book before being handed a pair of chopsticks as a divorce souvenir symbol of the splitting couple.

"With the couple standing side by side, Mr Terai then declared: "The couple married in May 2005 and they were blessed with a child, however, the husband's business was not going well, also there were relationships issues, so they have decided to divorce.

""I hope that today will mark a new start for the couple. I hope that this ceremony will help them get closure."

"As in a traditional wedding, the climax involved the ring, which was then smashed by the couple with a hammer, prompting polite, if uncertain, applause from the guests.

"Ceremony over, the divorce party headed to a local restaurant – with ex-bride on one table and ex-groom on the other – where a toast of green tea was drunk before a sombre bento box lunch of tempura prawns, rice and miso soup.

"After eating, Saori explained: "My husband found out about divorce ceremonies on the internet and I was against the idea at first. But then I realised it might be a good opportunity to get some closure.

""Today, I am feeling sad but also relieved. I feel a sense of release, like something is finally finished." She added: "I met my husband through friends and we had a very good relationship at first. He was always cheerful and fun to be with.

""We married in a very small ceremony and had a baby girl. But I became suspicious he was having an affair – from smiles over emails on his mobile and fancy chocolate gifts.

""When I confronted him, he confessed. Now the divorce is being processed and we are about to move to new homes."

"For her husband Daigo, the ceremony was less about dwelling on past mistakes and more about creating hope for the future.

""I was very happy to marry her, but over time, we became too used to each other's daily existence," he said.

""It has been very difficult recently, but during the ceremony, I could tell that Saori's mood changed as she smashed the ring – she seemed refreshed and relieved, like a weight had been removed."

"Not everyone was convinced, however.

"Dressed in a black dress that brought to mind funerals rather than weddings, guest Kumiko Takatsu, 35, who works for a bridal company, said: "'I'm not sure this is a good idea.

""It is always very difficult when couples divorce and I don't know if this helps. The atmosphere today was very anxious.""

By Danielle Demetriou (Telegraph, 6/13/2010), Link to article (last visited 6/17/2010)

"Kan Is A Japan Rarity: A Lawyer PM

2010-06-14T14:20:00.008+09:00

"In the U.S., the current president, vice-president, first lady and secretary of state are all lawyers. More than 40% of the members of Congress hold law degrees, in fact. Finally, they have some like-minded counterparts at the top of the Japanese government.

"Prime Minister Naoto Kan (pictured) is the first “benrishi” lawyer to be prime minister in Japan since World War II, “benrishi” being licensed to handle patents — such as for his Mahjong machine — and other intellectual property matters.

"Kan’s top aide, Chief Cabinet Secretary Yoshito Sengoku, is a “bengoshi”, or general lawyer. Altogether, the Kan “irregular militia” cabinet has four lawyers, the same number as the final Hatoyama cabinet it replaced, and the new secretary general of the ruling Democratic Party of Japan, Yukio Edano, is also a lawyer.

"That’s quite a sea change from the last administration in the Liberal Democrat Party’s nearly 50-year rule: Taro Aso had no lawyers in his cabinet at all. (...)"

By Peter Landers (Japan Real Time/WSJ, 6/10/2010), Link to article (last visited 6/14/2010)

"Experts divided on signing 'parental kidnapping' treaty

2010-05-14T23:59:00.006+09:00

"On the FBI's Web site there is a section for "parental kidnapping," listing parents, including Japanese women, wanted for allegedly kidnapping their own children.

"Japan has been the target of international criticism for not signing the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which aims to secure the prompt return of children wrongfully taken out of the country of their "habitual residence" by a parent.

"After the Democratic Party of Japan took power last year, government leaders started giving serious consideration to signing the treaty, but experts are divided on whether this would be a good idea. Some say Japan should join as soon as possible, but many — even those who basically favor the convention — have expressed concern, citing systemic, legal and cultural differences. With so much at stake, it doesn't seem likely Japan will be signing the treaty anytime soon.

"William Duncan, deputy secretary general of the Hague Conference on Private International Law and a noted expert on the child abduction treaty, says there is nothing technically stopping Japan from signing the treaty and the country should join as soon as possible because not doing so leaves children at risk.

"Eighty-two countries are members of the Hague Convention, including the United States, the United Kingdom, Canada and France. China is counted among them, but really only Hong Kong and Macau are party to the treaty. Of the Group of Eight countries, Japan and Russia are the only two that haven't signed.

""Every country has challenges (when joining the Hague Convention) and none of what I heard here about the challenges that Japan faces is particularly exceptional," Duncan said in an interview during a visit to Tokyo in March. "We will always encourage states to come in as quickly as they can because we know from our experience that this does save children from harm."

"If Japan were to sign the treaty, one of the things it must do is appoint a "central authority" to deal with the issue of international parental abduction, he said.

"At the moment, such cases involve multiple agencies, including both the Justice and Foreign ministries.

"A Justice Ministry official said signing on to the convention would necessitate numerous changes, including setting up a system for handing over children and determining how far the central authority would be allowed to go in searching for those allegedly abducted by a parent.

""Even if Japan decides to join the treaty, there are many technical issues that need to be considered and it won't be easy to overcome," the official said, adding, "Japan should engage in thorough discussions of the pros and cons of the Hague Convention instead of just giving in to international pressure."

"It is estimated there are about 200 active cases involving Japanese, among them 40 dealing with Canada, 83 with the United States and 38 with the United Kingdom, according to the embassies of those countries. The Foreign Ministry said it is aware of 35 cases involving France.

"Left-behind parents "go through hell, absolute hell," said Duncan, who has worked with a number of such people. "It is an enduring wound to have a child taken from you in circumstances where there is no justification for it. It is a terrible thing to see and a terrible thing to live with. . . . It's a situation of constant anguish."

"But attorney Kensuke Onuki, an expert on the issue who has represented Japanese mothers who have brought their children to Japan, said he is against joining the treaty because it would in principle force the children to return to their home country.

"Onuki points out the "taking person" is usually the mother, and almost all of the cases he is currently dealing with involve "domestic violence, unjust control and verbal abuse."

""Why a woman would flee with her child back to her parents' home, leaving everything including assets, is because she can't stay," Onuki said. "And the biggest key as to why a Japanese mother would leave is not because she is scared for herself but because the child becomes mentally unstable."

"Article 13 of the convention does stipulate that children will not be returned if there is a risk it "would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

"Duncan says fleeing from an abusive environment is not classed as an abduction.

"Onuki, however, says Article 13 has only been applied to extreme cases of child abuse, arguing that the treaty is based on the rights of parents while the welfare of children is sidestepped.

""What is important is to consider what is the best situation for the child and not the rights of the parents — whether it is better for the child to live in Japan with his or her mother, or live with the father abroad," Onuki said. "But the Hague Convention does not allow that consideration. The only situation that will stop a child from being returned is if the child would be raped or physically abused" by the left-behind parent.

"Another issue that has raised concern is the Western concept of joint custody, as opposed to Japan's sole custody system.

"Article 819 of Japan's Civil Law stipulates that in a divorce, one of the parents gets custody of the child, in most cases the mother, while many Hague members have a joint-custody system.

"In Japan, there is no specific clause in the Civil Law covering the parent without custody, but he or she can seek visitation rights.

"There are problems with this system, however, because mothers often refuse fathers visitation rights and something needs to be done about it, including establishing a stronger system to ensure those rights are upheld, Onuki said.

"But that doesn't mean Japan should revise the Civil Law and jump to create a joint-custody system, he added.

"Revising the Civil Law "would fundamentally change Japan's family system, and that is pretty difficult to do," Onuki said.

"Experts have questioned the benefits of complete joint custody, which gives equal rights to both parents to the point of tossing the child back and forth, legally splitting time to secure the parents' rights.

"Attorney Mikiko Otani, an expert on family law who ultimately supports joining the Hague Convention, said she used to be enthusiastic about adopting a joint-custody system in Japan, but the more she studied other countries' examples the more she realized various aspects merit discussion.

""Children should definitely have interaction with both parents," Otani said. "But I think children should have a stable base. On one hand we have to come up with a way to secure a stable home for children of divorced parents, but on the other hand we need to make sure that the children maintain a loving relationship with both parents."

"Otani, also an expert on international human rights law, said she also has some concerns about how the treaty is implemented, including how the return of children is handled if the mother refuses to give the child back to the country of habitual residence.

""The Hague Convention doesn't say tear the child away from a parent, but the aim of the treaty is the expeditious return of the child, and in some countries the mother can be arrested," she said.

"Otani agrees that the convention is based on the principle of returning the child and only in very extreme violent cases has the Article 13 defense been successfully invoked. The interpretation of Article 13 could be expanded to cases where mothers are victims of domestic violence, but it is not explicitly recognized in the treaty, she added.

""The Hague Convention is rigid and focuses so strongly on the prompt return of the child that I wonder if there needs to be room for flexibility to serve the best interests of the child," she said.

"Otani, who currently handles cases on behalf of left-behind parents abroad and here, said that even though she has some mixed feelings about the Hague Convention, Japan should ultimately follow the international norm.

""At present, Japanese mothers are being called kidnappers and have been put on the internationally wanted criminal list, living in constant fear of having their children taken away," she said.

""I doubt that situation is good for the children. . . . By signing the treaty, I think Japan can resolve this issue within the rules of the common international framework called the Hague Convention.""

By Masami Ito (Japan Times, 5/14/2010), Link to article (last visited 5/15/2010)

"Statute of limitation for murder abolished

2010-04-28T11:29:00.003+09:00

"The Diet on Tuesday passed bills into law abolishing the statute of limitation for murder cases and doubling the limits for other crimes that result in death.

"The government promulgated and enacted the legislation later the same day.

"The bills to revise the Criminal Procedure Code and the Penal Code were passed at the House of Representatives plenary session with the support of the ruling parties, the Liberal Democratic Party and New Komeito.

"Ahead of the plenary session, the lower house's Judicial Affairs Committee unanimously approved the bills.

"The abolishment and extension of the statutes of limitation also will be applied to past cases whose limits had not expired by the time the legislation was enacted.

"The statute of limitation in a 1995 case in which a couple in Kurashiki, Okayama Prefecture, was fatally stabbed and their house set alight, which was to expire midnight Wednesday, was abolished.

"The government and ruling parties started deliberations on the bills on April 1 at the House of Councillors. They passed the upper house on April 14 and were sent to the lower house.

"Under the revised law, the statute of limitation will be abolished for murder, murder-robbery and other crimes for which the maximum penalty is the death sentence. Before the revision, the statute of limitation expired 25 years after the crime.

"The statute of limitation for sexual assault resulting in death and rape resulting in death, for which the maximum penalty is life imprisonment, will be extended from 15 years to 30 years.

"The duration will be extended from 10 years to 20 years for bodily injury resulting in death and dangerous driving resulting in death, for which the maximum penalty is 20 years in prison.

"The abolishment and doubling of statutes of limitation is expected to prolong investigations into unsolved cases. Because of this, investigative authorities will need to preserve evidence for years.

"Experts have pointed out that if investigators make errors in handing over evidence to their successors, it could result in innocent people being arrested and facing criminal charges.

"Judicial affairs committees of both houses of the Diet therefore adopted supplementary resolutions to the legislation calling for items of evidence to be stored properly.

"Isao Okamura, a lawyer representing the National Association of Crime Victims and Surviving Families, was delighted by Tuesday's developments.

""I welcome [the revision] from the bottom of my heart," he said in a statement.

"But Yukio Yamashita, acting head of the Committee on Criminal Law Legislation of the Japan Federation of Bar Associations, believes the revision is not without flaws.

""It's inappropriate to revise the entire legal system so hastily for a case whose statute of limitation will expire soon," he said.

"The federation finds it particularly problematic that the revision can be applied retroactively to past cases.

""[The Diet] should have summoned constitutional experts and listened to their opinions," Yamashita said."

Yomiuri Shimbun (4/28/2010), Link to article (last visited 4/28/2010)

Transparency in the Supreme Court: New Justice

2010-04-16T23:59:00.006+09:00

"The government in March announced the appointment of Kiyoko Okabe, a professor at Keio University's law school, as a Supreme Court justice, effective Monday.

"It will be the first time for more than one woman to concurrently serve among the 15 justices. The other is Ryuko Sakurai.

"It is said that the Cabinet of Yukio Hatoyama has a keen interest in promoting a woman to take over from a retiring male justice. While this is welcome, it seems somewhat belated. Still, this development suggests that society is changing.

"At this juncture, we wish to point out that questions we always had have yet again gone unanswered. Why Okabe? As in past cases, the reasons for the appointment were not made public. What are the tasks that the judiciary must tackle? What is expected of Okabe and with what intent was the appointment made?

"With regard to the appointment of Supreme Court justices, when candidates are selected from among legal experts, it is customary for the Cabinet to accept the recommendation of the chief justice and in the case of intellectuals, the Cabinet takes the initiative and confirms the intent of the Supreme Court.

"This is wisdom that has been built with the independence of the judiciary in mind. While respecting the principle, we have been calling for greater transparency in the process. Increased transparency meets the philosophy of democracy and enhances trust for trials. When a planned appointment is dubious from the viewpoint of separation of powers, enhanced transparency would help voters discern its propriety.

"In recent years, the Supreme Court has issued a number of noteworthy rulings. Among them is the case which questioned the Public Offices Election Law that did not give Japanese citizens living abroad the right to vote and a spate of rulings that paved the way for reducing burdens on consumers struggling under high-interest loans. Of course, we find some rulings unconvincing. However, from a broad perspective, the top court rulings seem to be advancing in a direction that can win public support.

"It is the role of Supreme Court justices, each with a unique personality, to draw out such rulings. Having diversified people with different backgrounds, viewpoints and values on the bench activates debate and gives rise to rulings that meet the times and open up a new era.

"What we find worrisome is that the Supreme Court has been handling a large number of cases. As many as 10,000 cases are put before the top court each year. Even though the lineup of the bench may be diversified, it is questionable whether the justices are able to fulfill their roles as "guardians of the Constitution."

"Many retired justices complain that they were too busy, saying if they had been given more time, they might have been able to engage in more intensive discussions and reach different conclusions. The fact that they harbored such feelings close to regret weighs heavily.

"While the law restricts reasons for appeal to the top court, we don't think it is functioning as it should. While the court is increasingly expected to keep the administration and legislature in check, the number of appeals is expected to grow in response to an increase in the number of lawyers and other factors. Systems that look to the future are needed. Moreover, should the awareness of the judicial world remain as it is? We need to start debate based on a broad perspective.

"The Supreme Court is the last bastion to hear objections of minorities and protect human rights. The contents of rulings are important. At the same time, we should also pay more attention to the selection of justices, the environment surrounding them and how they perform their duties."

By Asahi Shimbun (Editorial, 4/15/2010), Link to article (last visited 4/17/2010)

"Lay judges' decisions respected by high courts

2010-04-01T22:12:00.004+09:00

"With 10 months having passed since the start of the lay judge system, high courts nationwide have rejected all appeals filed by 10 defendants in criminal cases tried by citizen judges under the system.

"This shows that the high courts have respected the decisions handed down so far by lay judges at district courts and their branches across the nation, according to observers.

"On Thursday, the Niigata District Court closed its first trial in a case under the system. This means all 60 district and branch courts have passed judgment on cases under the system, which took effect on May 21 last year.

"According to a Yomiuri Shimbun survey, 417 accused people had received sentences in lay judge trials as of March 19, and just 124 people, or 29.7 percent, appealed the court rulings. This was lower than the figure of 34.6 percent in 2008, when all trials were heard only by professional judges.

"So far, public prosecutors have not appealed for the overturn of a ruling. All 10 people who have so far received appeal court decisions saw their appeals rejected, indicating the high courts' stance of respecting the lay judge decisions.

"In a burglary-injury case in Kyoto, a man who received a 5-1/2-year prison sentence appealed to the Osaka High Court for a reduction in the sentence. But the high court rejected the appeal on March 16, saying, "The ruling given in a lay judge trial can be more severe than the expected sentence in trials ruled only by professional judges because lay judges reflect the points of view and feelings of the public."

"A defense attorney in an appeal trial of a sex crime case in the Tohoku region voiced concern that it may become difficult for appeals against sentences that defendants feels are too severe to be upheld, but added that it is good that lay judges' decisions are respected.

"Meanwhile, 17 people decided to drop appeals they had filed.

"A 24-year-old man who was sent to prison for 17 years for killing a woman at a hotel in Nagoya decided to drop his appeal two months after he filed it. His attorney said the man explained that he realized how appalling his crime was after pondering the sentence. The attorney recalled that the man seemed to take to heart the sentence handed down by the citizen judges.

"Of the 397 lay judge trials that had been held as of March 19, decisions were reached in about 64 percent of them within three days of the first hearings, and 97 percent ended within five days. While this shows that lay judge trials proceeded quickly, various opinions were heard from lay judges at press conferences after the rulings.

""I've been told there's a pile of documents on my desk at the office. Three days is the most I can take off work," a male company employee in his 50s said after he took a part in a lay judge trial at the Chiba District Court for three days in January.

"On the other hand, a woman who participated in a lay judge trial at the Mito District Court for two days in February asked whether two days was enough to consider whether a person is guilty of the crime he or she is accused of."

By Yomiuri Shimbun (3/31/2010), Link to article (last visited 4/1/2010)

"Local suffrage for foreigners in sight, but opposition grows stronger

2010-03-17T19:45:00.004+09:00

"TOKYO (Kyodo) -- For Chang Yooka, there is hardly a moment in her daily life that she feels she is a third-generation Korean.

"But the 27-year-old faces that reality every time an election takes place in her hometown because she does not have the right to vote in any election.

"Chang was born to Korean parents in Ichinomiya, Aichi Prefecture. She hardly speaks Korean and most of her friends from school or work are Japanese.

"Unlike her parents or grandparents who all suffered bullying and various forms of discrimination in Japanese society because of their nationality, Chang spent her childhood without facing such problems and had no trouble finding a job.

""I've had few bad experiences as a result of being Korean," said Chang, who now lives in Tokyo's Taito Ward and works at Japanese game software developer Konami Corp. She even started studying Korean at college in the hope of learning more about her ethnic identity.

""The only thing that still differentiates us from Japanese people is local suffrage," she said.

"But she and others like her may be granted the right to vote in elections for local governments and assembly members soon, or in a couple of years at the latest, as the government of Prime Minister Yukio Hatoyama is eager to enact a law to extend local suffrage to permanent foreign residents.

"It remains not clear, however, whether the government will submit legislation on the matter to parliament or if it would be passed during the current Diet session through June 16 because of an increasingly fierce backlash from conservative lawmakers from both the ruling and opposition camps.

"Kim Jong Soo, an active advocate of granting local suffrage to foreigners and a third-generation Korean who headed the Korean Youth Association in Japan until very recently, said Koreans and other permanent foreign residents in Japan deserve the right to vote in view of the fact that they have long fulfilled their duty to pay taxes.

""We're talking about local elections not national elections," said the 33-year-old who now serves as a supervisor for the Tokyo-based organization. "We're certainly interested in how our residential areas are managed and we should have the right to take part in local politics."

""If Japan makes this come true, it will be a strong message to the international community that the country does not ignore foreign residents, whose number already exceeds 2.2 million," he said.

"The issue first drew attention in 1995 when the Supreme Court declared that the Constitution does not prohibit granting permanent foreign residents the right to vote in local elections in order to have their views reflected in local administration.

"Since 1998, Hatoyama's Democratic Party of Japan and a few other parties, including the New Komeito party and the Japanese Communist Party, have submitted related bills in vain to the Diet.

"Hatoyama and DPJ Secretary General Ichiro Ozawa, the kingmaker in the ruling party, are among those strongly advocating the legislation.

"Hatoyama expressed his eagerness to submit a bill to extend local suffrage to foreigners earlier this year, noting that this year marks the centenary of Japan's annexation of the Korean Peninsula in 1910.

"Opposition lawmakers claim, however, that Ozawa, who is in charge of the DPJ's election strategy, has the ulterior motive of capturing the support of permanent foreign residents in Japan, who numbered over 910,000 as of 2008.

"Of the total, 490,000 foreigners hold regular permanent residency status, with Chinese constituting the largest group followed by Brazilians and Filipinos.

"The remaining 420,000 have special permanent residency, which is granted to those from the Korean Peninsula and Taiwan who have lived in Japan since before the end of World War II and lost Japanese nationality through the San Francisco Peace Treaty, as well as their descendants. Of those special permanent residents, 99 percent are Koreans.

"The planned legislation faces a major stumbling block in Shizuka Kamei, leader of the minor conservative People's New Party, one of the DPJ's two coalition partners.

"Kamei, an outspoken political bigwig, has said the envisioned law could fan ethnic sentiment among Koreans and lead to conflict with Japanese, and that anyone seeking the right to vote should apply for naturalization.

"In Japan, nationality is based on parentage not location of birth and those who obtain foreign nationality automatically lose Japanese citizenship.

"But Chang, who greatly values her ethnic roots and identity, and does not hesitate to use her real name, has no intention of renouncing her Korean citizenship in exchange for local suffrage.

"Some members of the main opposition Liberal Democratic Party have also stepped up their opposition to hamper the enactment of such a law.

""We are strongly concerned that the results of local elections, especially in a major city or prefecture such as Osaka, could influence national politics," said Seiichiro Murakami, a senior LDP lawmaker who heads a party group opposed to such legislation.

"Murakami and other opponents have expressed concern that Korean voters could sway the course of long-standing territorial disputes between Japan and South Korea over islands such as Tsushima and Takeshima.

"Some opponents argue that if Koreans gain voting rights, they could move to Japan-controlled Tsushima, for example, and elect local assembly members claiming that the island is South Korean territory.

""That's such an extreme assumption," Kim said, arguing that it is based on the prejudiced idea that foreigners are some sort of menace to Japanese society.

"The National Association of Chairpersons of Prefectural Assemblies has also adopted a cautious stance on granting local suffrage to foreign residents.

"It adopted a resolution in January calling on the government to listen to the organization's views on the issue, which it claims "concerns the foundation of democracy" and has "a significant bearing on the administration of local municipalities."

"Supporters maintain that many countries in Europe have introduced some form of local suffrage for foreigners.

"Murakami of the LDP said, however, "Europe has historically functioned in a different framework and that should not be applied to Japan."

"Advocates also maintain that South Korea adopted a legal amendment in 2005 to allow permanent foreign residents aged 19 or older to vote in local elections.

"Although opponents counter that the amendment affects only around 100 Japanese residents living in South Korea, Kim said it signifies a radical shift for a country often described as "nationalistic."

""Japan will not be able to buck the growing international trend," he said, suggesting that the time may come soon for Japan to eventually allow dual citizenship."

By Mainichi Shimbun (3/17/2010), Link to article (last visited 3/17/2010)

Asahi Editorial on Family Law Reform

2010-03-05T16:28:00.003+09:00

"It now seems uncertain whether proposed Civil Law revisions that would enable married couples to use separate surnames will be submitted to the Diet during the current session.

"While Justice Minister Keiko Chiba is eager to pass the bill into law, Financial Services Minister Shizuka Kamei of the People's New Party, a ruling coalition partner of the Democratic Party of Japan, has come out clearly against it. Some DPJ members also oppose it.

"The bill reflects recommendations made by the Legislative Council in 1996. However, due to strong opposition by the Liberal Democratic Party, which was then in power, the government has been unable to submit the bill.

"Opponents claim that Japanese culture and tradition demand that married couples use the same family name. They argue that having different surnames would sever family ties and cause children to suffer.

"However, the proposed system will merely give couples the choice of using the same or different surnames when they marry. It does not require or force anyone to keep the surname they were born with. To avoid any confusion, the proposed bill requires couples to decide in advance on their children's surname and to ensure that all siblings have the same family name.

"Furthermore, the bill has proposals to shorten the current six-month period immediately after a divorce during which a divorced woman cannot remarry to 100 days and to abolish discrimination against children born out of wedlock regarding their inheritance rights.

"These proposals all reflect today's diverse lifestyles. We believe these revisions would both create a more comfortable environment for working women to pursue careers and improve the low birthrate.

"The U.N. Committee on the Elimination of Discrimination against Women has recommended the Japanese government promptly implement such reforms.

"According to an Asahi Shimbun public opinion poll conducted last December, 49 percent of respondents supported the idea of letting couples use separate surnames, while 43 percent were against it. Among women in their 30s and 40s, many of whom are working and raising children, nearly 70 percent were for it.

"The times have changed and families now take diversified forms. Women account for more than 40 percent of the working population. The traditional concept of the family took for granted that the man would work while the woman would stay home to look after their children and keep house.

"However, the actual situation today for many people is very far from that outdated concept. Many couples live in common-law marriages because of work-related reasons, even though they know they will face disadvantages. Divorced and single mothers are supporting their children on their own. Providing an environment that makes it easier for such women to work leads to "protecting life," a slogan advocated by Prime Minister Yukio Hatoyama.

"Making the working world better for women will only help rebuild Japan's stagnant economy and society.

"Kamei calls for measures to bolster the economy and stresses the views of employees in advocating revisions to the worker dispatch law. We believe supporting women's advancement in society will also lead to a stronger economy and help to stabilize employment in the long run.

"The DPJ has been urging these revisions. Hatoyama should do everything he can to form a consensus within the DPJ and the ruling coalition. Discussions should be diligently moved forward."

By Asahi Shimbun (Editorial, 3/4/2010), Link to article (last visited 3/5/2010)

"1 lawyer, 1 island, 3 years, 1,000 cases

2010-02-28T23:21:00.004+09:00

"SADO, Niigata--For three years, 29-year-old lawyer Satoko Tomita has been working on Sado Island, Niigata Prefecture, as the first person to be assigned from a program to give far-flung areas desperately needed legal services.

"In those three years, Tomita has handled more than 1,000 cases--a remarkable number for an island of just 65,000 people.

"Sent by the Houterasu program run by the Japan Legal Support Center, she helps residents of the Sea of Japan island solve legal issues, including numerous debt-related cases. In that time, Tomita said she has managed to help residents secure 410 million yen in total refunds related to excessive interest payments.

""Every day, I felt as if I was looking at Japan through this small island," Tomita said.

"But this will soon end--next month Tomita is to be reassigned to Okinawa Prefecture.

"Sado Island is about 1.4 times bigger in area than the combined 23 wards of Tokyo. Before the Houterasu office opened, there was only one lawyer on the island, a 70-year-old man.

"Tomita volunteered for the Sado assignment, and recalled thinking, "I want to do everything on my own in the remote area to force myself to grow professionally."

"Tomita first decided to become a lawyer when she was in high school. She studied law at Tokyo Metropolitan University, where she also served as the head of the university's hot-air balloon club.

"While studying there, she passed the national bar exam and worked as an intern at a law firm in Tokyo for two years. When her dispatch to Sado Island was decided, one of her senior colleagues told her, "There'll probably be only a few cases [to handle]."

"However, the day before the Houterasu office opened on the island, the telephone would not stop ringing.

"Over the three years she has dealt with more than 1,000 legal consultations, about 40 percent pertaining to multiple debt.

"Recently, she helped a fisherman in his 50s tackle a 40 million yen debt by helping him apply for voluntary bankruptcy procedures, letting him restart his financial life.

"The man inherited his father's debt on the purchase of a new fishing boat plus the payment burdens on his own housing loan. Because his income was hit by a decline in fish prices, he failed to repay the debts on schedule and his home was auctioned by creditors. "Before, I didn't know what I should do first," the man said. "Now, I can get a sense of where my life can go from here on."

"Agriculture and fisheries are big industries on the island, where ties between residents are strong. This means that usually there are not many major conflicts in daily life.

"However, most residents have only small sources of revenue and incomes are generally low, making it all too easy for a person who has borrowed money to fall behind on interest payments and drop into a financial abyss.

""People close to a person [with financial trouble] support one another to prevent him or her from declaring voluntary bankruptcy," Tomita said. "It complicates debt problems."

"She learned to ask clients who visited the office for the first time whether other family members also were in debt.

"Often she found her clients were being forced to make interest rate payments higher than limits set by the Interest Rate Restriction Law. She helped file more than 300 lawsuits demanding refunds for excessive interest payments, and her clients have received a total of about 410 million yen.

"But the individual circumstances of her clients have varied widely. In one case, an elderly person had become a victim of a vicious sales scheme and the person's home was auctioned off. In another case, a young woman repeatedly borrowed money from unmanned loan-dispensing machines to buy rice.

"In another case, a woman with dementia began shouting at her home care helper, fearing she would be robbed of money. Tomita consulted a local social welfare council and became the woman's legal guardian.

"Tomita managed the woman's assets and signed a contract with a nursing care service facility so that the woman would be able to use the services of the helper.

""If experts in different fields, such as legal, welfare and nursing care services, collaborate, we can support many people. I have begun to see new potential for lawyers. I want to be a lawyer who is a do-gooder in clients' neighborhoods," Tomita said.

"In March, she will begin work in Okinawa as a lay judge trial lawyer.

"Houterasu offices started activities in 2006 as branches of the Japan Legal Support Center, which became an independent administrative entity under the jurisdiction of the Justice Ministry. The offices were opened to offer the public easier access to legal services.

"Usually, the offices provide information about payments for lawyers in civil suits, how to use a system of state-designated lawyers in criminal trials and other legal issues.

"There are 97 Houterasu offices nationwide with about 200 lawyers working at them. Fifty are located in areas with district courts and 26 in rural places where there have been a dire shortage of lawyers, such as remote islands.

"There were 68,910 cases in fiscal 2007 and 80,442 cases in fiscal 2008 in which people used the system to pay for their civil lawsuit costs. In fiscal 2009, the number is estimated to reach 100,000. "

By Yomiuri Shimbun (2/28/2010), Link to article (last visited 2/28/2010)

*Japan Legal Support Center

Family Law Reform

2010-02-23T01:39:00.003+09:00

"TOKYO (Kyodo) -- The Justice Ministry unveiled on Friday at a policy meeting the outline of a bill to revise Japan's Civil Code which would enable married couples to choose whether to have the same family name or keep their birth names.

"Justice Minister Keiko Chiba hopes to gain Cabinet approval by the end of March, and the government is considering submitting the bill -- which also includes abolishing inheritance discrimination against children born out of wedlock -- to the Diet during its current session.

"Prime Minister Yukio Hatoyama has said he supports the idea of allowing people to retain their surnames after marriage, but Cabinet minister Shizuka Kamei, leader of the People's New Party, one of the Democratic Party of Japan's two ruling-coalition partners, has repeatedly expressed opposition, making it unlikely that coordination within the Cabinet will go smoothly.

"In a broader revision to the law, couples could make a one-time choice of whether to have the same or different family names when they get married. And if they decide to have separate names, the family name of their children should be unified with either one of them.

"Couples married before the revision, on the other hand, would have a year after the revision to make their choice, but the family name of their children would remain the same.

"Other proposed revisions include shortening to 100 days the current six-month prohibition period for divorced women to remarry, raising the legal marriage age for women from 16 years old or older to the same as men -- 18 years old or older -- and setting "living separately for more than five years against the purpose of marriage" as legal grounds for divorce.

"The DPJ has attempted a number of times since 1997 to legislate the proposal to revise the law since it was first put forward by a Justice Ministry advisory panel in 1996.

"But it has never succeeded due mainly to opposition from the then ruling Liberal Democratic Party which argued that allowing married couples to have different family names would lead to family breakdowns and destroy traditional Japanese values."

By Mainichi Shimbun (2/20/2010), Link to article (last visited 2/23/2010)

Guest Post

2010-02-23T01:20:00.003+09:00

Cherry Blossom Festival in DC

Springtime, perfect for having picnics, wearing shorts and admiring the Cherry Blossom in DC. The National Cherry Blossom Festival is an two-week (per annum) event that celebrates springtime in Washington, DC as well as the 1912 gift of the cherry blossom trees and the enduring friendship between the people of the United States and Japan.

DC Attractions include multiple festivals, museums, monuments, and more. The National Cherry Blossom Festival, Inc., is a 501(c)(3) organization that coordinates, produces, and supports creative and diverse activities promoting traditional and contemporary arts and culture, natural beauty and the environment, and community spirit and youth education. It's also begins peak season for an influx of tourists to Washington, also brought in by the thousands of historical landmarks, museums, and other buildings. The National Museum of Crime & Punishment, located in Washington, D.C. is one of those such buildings, with excellent depictions of historically famous crime scenes along detailed information concerning past wars, forensics, organized crime, and more.

"Limiting parental rights

2010-02-19T11:33:00.003+09:00

"Child welfare institutions and foster families caring for children who were abused by their parents often face a serious stumbling block.

"When they attempt to carry out procedures or sign contracts meant to benefit an abused child, the child's parents have the right to block such actions, and many do.

"For example, some parents refuse to give consent to medical treatments and hospitalization for their children. Or they don't agree to let their children be transferred to classes for children with disabilities.

"In severe cases, parental child abuse leads to a child's death. Last month, Fukuoka prefectural police arrested the parents of a 7-month-old child on suspicion of murder. The baby died after the parents apparently refused to allow medical treatment to be performed.

"Parental rights are legally defined as the obligations borne by parents to rear their children. They concern such matters as education, supervision, asset management and legal representation.

"For children in foster care because of abuse or other reasons, the Child Welfare Law allows directors of children's institutions and foster parents to make decisions about a child's life on behalf of the child.

"But parental intentions are often given precedence when it comes to education, career and assets. In too many cases, for example, parents withdraw money from their child's bank accounts without permission.

"Justice Minister Keiko Chiba has asked her ministry's Legislative Council to work on revising the Civil Law to prevent parents from abusing their parental rights. The council's task is to work out a system to restrict parental rights when the parents are abusing the child, temporarily handing control to the heads of welfare institutions and foster parents.

"The government plans to submit a revision bill to next year's regular Diet session.

"The current law allows a family court to declare parental rights terminated when the parents have abused those rights. But this punitive action is only taken in severe cases. That is because the court decision is recorded on the family register and deprives parents of all parental rights indefinitely.

"In many cases, concerned parties, including the heads of child consultation centers, hesitate to take such a drastic step.

"One solution would be to suspend parental rights only temporarily in cases where the lives and future of the child are threatened, allowing a reversal of the suspension to take place if the situation improves. That would better protect the child's safety and make it easier to rebuild the parent-child relationship at a later date. We hope the revisions will establish such a system.

"But the involvement of the courts is essential to prevent related administrative organizations from suspending parental rights for an unnecessarily long period.

"In its report released in January, a Justice Ministry study group proposed setting in the law an upper limit on the term of a suspension and allowing a family court to decide the suspension period. This proposal is worth serious consideration.

"Decisions on restoring parental rights should be made carefully and according to strict criteria, such as clear improvement in the parents' behavior.

"One worthwhile idea would be to empower the family court to order abusive parents to receive counseling from experts. The court would then decide when and whether to restore parental rights and the necessary support after observing the parents' attitudes during such counseling.

"An effective system should be established to monitor and support both parents and children to protect the children from repeated abuse.

"The current provisions concerning parental rights in the Civil Law were formulated during the Meiji Era (1868-1912) and are based on outdated views about the family. In one good example, the law gives parents the legal right to discipline their children. This provision can be used in court trials to justify child abuse. Scrapping this outdated provision should be a top priority in revising the law.

"The guiding principle behind changing the law should be that parental rights must be exercised only in a child's best interests."

Asahi Shimbun (Editorial, 2/18/2010), Link to article (last visited 2/19/2010)

Saiban-in System

2010-02-04T11:04:00.004+09:00

"It has been six months since the lay judge system was launched. This new approach has clearly changed the very foundations of the nation's judicial system.

"Inaugurated last August, the new system in its first six months has seen more than 1,000 ordinary members of the public participate in the judging of about 200 rulings.

"Many of these people say they joined deliberations over their judgments with mixed feelings, agonizing over whether they were qualified to judge others. Some of them wondered if they accurately assessed the testimony and evidence. But they did their duty. We applaud their commitment to democracy.

"If the volume of cases remains the same as seen since last August, the number of lay judges called to serve is likely to reach around 10,000 nationwide this year.

"So far, almost all citizen judge trials have been cases in which defendants have not contested the indictments. As a result, citizen judges have only been asked to weigh in at the sentencing phase.

"From here on, however, citizen judges will have to consider cases in which accused insist on their innocence, the death penalty is a possibility or other complications arise.

"Last week, a woman was arrested in Saitama and charged with killing a man she met on an online marriage website by making his death from asphyxiation appear as though he had committed suicide by burning charcoal briquettes. If she is indicted for murder, her trial will be among those in which citizen judges sit on the bench.

"Mistakes are sometimes made by professional justices. One high-profile example is the recent retrial of Toshikazu Sugaya, who was falsely convicted and imprisoned for the murder of a young girl in Ashikaga, Tochigi Prefecture, nearly two decades ago. Above all else, bringing in ordinary citizens whose common sense and fresh perspectives will hopefully prevent such erroneous charges and miscarriages of justice is very welcome.

"Citizen judges will soon be asked to render tougher rulings. As such, this year will be a stern test of whether the system is workable over the long term.

"In a court-conducted questionnaire given to lay judges, many said they felt the time devoted to examination and deliberations during trials was inadequate.

"However, to shorten the time spent examining the evidence, the citizen judge system adopted an intensive hearing approach that keeps the trial in session for successive days, rather than over lengthy weeks or months. This was done in part to lighten the burden on citizen judges, who must be absent from their job and family responsibilities to serve.

"But if complaints continue to be voiced about insufficient deliberation, then extending the trial time is a feasible alternative.

"During pretrial procedures, steps must be taken to avoid an excessive narrowing of the issues and examination of evidence simply in the quest for speed. Toward that end, we recommend opening up the procedures to public disclosure and outside checks.

"With many citizen judge trials yet to commence, the Supreme Public Prosecutors Office has directed prosecutors nationwide to promptly disclose evidence to defense lawyers in those cases. It is crucial that all available evidence be submitted, even if some is against the prosecutors.

"To develop a sound defense, meanwhile, lawyers must be granted ready access to defendants from the time they are arrested and detained as suspects. In this area, much still remains wanting in terms of the quality and quantity of preparedness by bar associations nationwide.

"Many court proceedings also require improvement, such upholding the privacy of sex crime victims.

"In some cases, innocent suspects have been pressured into making false confessions. Guilty parties, meanwhile, sometimes refuse to admit to their crimes. In such situations, should a punishment be meted out or is an innocent verdict called for? Every possible effort must be made to foster a judicial environment that empowers citizen judges to render decisions with the confidence that they have reviewed the full facts."

By Asahi Shimbun (Editorial, 2/3/2010), Link to article (last visited 2/4/2010)

"Born in Japan, but ordered out

2010-02-04T10:55:00.006+09:00

"TOKYO -- Fida Khan, a gangly 14-year-old, told the court that immigration authorities should not deport him and his family merely because his foreign-born parents lacked proper visas when they came to Japan more than 20 years ago.

"During the past two decades, his Pakistani father and Filipino mother have held steady jobs, raised children, paid taxes and have never been in trouble with the law.

""I have the right to do my best to become a person who can contribute to this society," Fida told a Tokyo district court in Japanese, the only language he speaks.

"But the court ruled last year that Fida has no right to stay in the country where he was born. Unless a higher court or the Minister of Justice intervenes, a deportation order will soon split the Khan family, sending the father, Waqar Hassan Khan, back to Pakistan, while dispatching Fida and his sister Fatima, 7, to the Philippines with their mother, Jennette.

"Aggressive enforcement of Japanese immigration laws has increased in recent years as the country's economy has floundered and the need for cheap foreign labor has fallen.

"Nationality in Japan is based on blood and parentage, not place of birth. This island nation was closed to the outside world until the 1850s, when U.S. warships forced it to open up to trade. Wariness of foreigners remains a potent political force, one that politicians dare not ignore, especially when the economy is weak.

"As a result, the number of illegal immigrants has been slashed, often by deportation, from 300,000 in 1995 to just 130,000, a minuscule number in comparison to other rich countries. The United States, whose population is 2 1/2 times that of Japan's, has about 90 times as many illegal immigrants (11.6 million). (...)"

By Blaine Harden, The Washington Post (1/17/2010), Link to article (last visited 2/4/2010)

*Noriko Calderon's Case

"Drawing a clear line between government organizations and religion

2010-01-21T13:07:00.003+09:00

"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

2010-01-21T13:03:00.003+09:00

"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)

"Surname bill would require children to share same name

2010-01-13T10:35:00.003+09:00

"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

2010-01-13T10:27:00.004+09:00

"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)

"Govt may lower bar exam goal

2010-01-07T09:55:00.004+09:00

"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

2010-01-07T09:51:00.004+09:00

"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)

Tokyo Air Raid Lawsuit

2009-12-16T01:54:00.004+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Double Standard on International Child Abduction?

2009-12-04T21:21:00.004+09:00

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

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

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

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

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

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

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

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

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

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

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

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

*Savoie case

"Surrogate birth family allows 1st media photos

2009-11-26T00:05:00.003+09:00

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

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

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

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

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

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

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

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

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

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

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

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

"Foreigners' suffrage

2009-11-26T00:01:00.003+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Selection of Supreme Court Justices

2009-11-21T02:05:00.003+09:00

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

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

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

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

"Ex-businessmen doing poorly on bar exam

2009-11-21T01:56:00.004+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Asahi editorial: discrimination against illegitimate children

2009-11-11T15:46:00.007+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Law schools troubled by bar exam failure rate

2009-10-29T00:17:00.004+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Separate Surnames

2009-10-17T16:20:00.006+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Supreme Court: Illegitimate Children and Discrimination

2009-10-04T16:35:00.005+09:00

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

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

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

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

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

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

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

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

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

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

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

"Law schools fail to fulfill role

2009-09-27T17:25:00.004+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Bar exam pass rate hits record low

2009-09-11T18:29:00.005+09:00

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

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

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

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

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

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

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

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

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

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

Supreme Court Justices: popular review

2009-08-28T09:04:00.005+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Gender Equality in Japan

2009-07-31T18:55:00.004+09:00

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

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

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

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

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

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

===
"Japan severely criticized

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

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

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

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

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

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

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

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

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

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

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

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

"However, a mountain of issues remain unaddressed.

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

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

===
"Optional Protocol left unratified

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

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

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

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

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

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

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

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

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

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

Age of Majority in Japan

2009-07-31T18:42:00.003+09:00

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

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

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

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

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

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

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

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

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

"Law schools must put quality before quantity

2009-07-28T11:58:00.004+09:00

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

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

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

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

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

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

"Vicious circle

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

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

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

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

"Quotas to be raised

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

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

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

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

"Controversial child organ transplant bill voted into law

2009-07-13T23:14:00.003+09:00

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

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

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

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

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

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

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

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

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

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

"Revising child porn law

2009-07-01T18:57:00.004+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Controversial child organ transplant bill passes Lower House

2009-06-18T23:40:00.004+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DNA and the Criminal Justice System

2009-06-06T14:16:00.003+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Citizen judges in court

2009-05-20T22:03:00.004+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Like lay judges, court interpreter system still in nascency

2009-05-16T23:07:00.004+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Organ transplant rules must be revised

2009-05-06T14:21:00.003+09:00

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

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

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

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

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

===

"Infants let down by system

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

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

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

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

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

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

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

===

"New bills proposed

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

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

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

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

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

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

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

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

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

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

"64% oppose revising Article 9

2009-05-04T13:57:00.003+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"63% support death penalty as lay judges

2009-05-04T13:52:00.004+09:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"New organ donation bill seeks to abolish age limit

2009-04-25T18:49:00.003+09:00

"A blueprint for a new bill to revise the Organ Transplant Law being drawn up by lawmakers of the Liberal Democratic Party and the main opposition Democratic Party of Japan combines elements from older bills by abolishing the age limit on organ donors and would have brain death declared only if organ donation were at stake, The Yomiuri Shimbun learned Friday.

"Three bills related to organ donation have been submitted to the Diet so far. The new blueprint incorporates parts of two of these bills in an effort to expand the potential for transplants.

"The lawmakers, along with concerned lawmakers from ruling coalition partner New Komeito, aim to submit the new bill in mid-May.

"Former Environment Minister Ichiro Kamoshita, an LDP lawmaker and top board member on the House of Representatives Committee on Health, Labor and Welfare, and DPJ lower house member Osamu Fujimura, aim to revise the law during the current Diet session.

"Among the three bills submitted to the Diet, the first one stipulates that brain- dead people would be declared legally dead without exception, and that age limits for organ donors would be abolished. The second bill seeks to change the age limit from "15 years old and older" to "12 years old and older." The third bill seeks to more strictly define brain death.

"The new bill adopts parts from the first bill in terms of the age limit and elements found in the second bill that address the definition of brain death. The lawmakers aim to win over more lawmakers to the revision of the law with their goal of allowing organ transplants from children.

"Aside from age restrictions, the new bill maintains the basic conditions for organ donations stipulated by the current law, which requires that donors have written documents stating their will to be organ donors and stipulating their families' consent.

"The new bill, however, would not require donors under 15 to present written intent to be a donor. However, the lawmakers also intend to include measures in the new bill to stipulate the establishment of an ethics committee or similar organization in hospitals to look into potential child abuse and others causes that could have caused donors' deaths."

By Yomiuri Shimbun (4/25/2009), Link to article (last visited 4/25/2009)

"Law school quotas set to be slashed

2009-04-18T15:13:00.008+09:00

"Japan is churning out too many law students, fueling concern about low success rates in bar exams and the quality of those entering the legal profession.

"Against this background, the University of Tokyo and Kyoto University have decided to cut annual admission quotas to their law schools by 20 percent from the next school year beginning April 2010, sources said.

"With the aim of improving overall quality, the two prestigious national universities opted to reduce admissions in line with an education ministry policy to cut back on student quotas at all 74 law schools around the nation, the sources said.

"Other national universities are expected to follow suit.

"The planned reduction is expected to have a major impact on law schools, which were established in 2004 as a pillar of judicial system reforms, analysts said.

"In 2002, the government set a goal of raising the number of successful annual bar exam candidates to 3,000 by the 2010 school year. But it remains uncertain if the target can be achieved.

"A key reason for the deterioration in the quality of students is that law schools were set up one after another around the nation.

"Initially, total student enrollment at the law schools was expected to be about 4,000. With universities promoting their law schools to attract students, however, the total figure swelled to about 5,800.

"Despite the rush of applicants, only about 30 percent of the total number of graduates passed the annual bar exam under a new system in 2008, which was much lower than the initially anticipated success rate of 70 to 80 percent.

"Some law schools have yet to produce a single successful examinee.

"Experts say the quality of education and the aptitude of those studying at law schools have deteriorated.

"They also point to a decrease in the level of even judicial trainees who passed the bar exams and are undergoing training as law specialists.

"Judges and lawyers have cast doubt on the effectiveness of having such a large number of law school students. This issue has also come to the attention of the ruling Liberal Democratic Party.

"With 300 spots, the University of Tokyo has the largest annual law school quota among national universities. It plans to reduce the figure to 240 from the next school year.

""We made the decision, along with reviews of the curriculum, in an effort to improve the quality and effectiveness of our education," said Masahito Inoue, dean of the university's graduate school for law and politics.

"Kyoto University also plans to slash its admission quota from 200 to 160.

""We believe it has become necessary to raise the ratio of successful examinees for law schools as a whole," said Katsumi Yamamoto, a senior official of the law school.

"A special committee of the Central Council for Education, an advisory board to the education minister, issued a final report Friday with recommendations to improve the quality of the nation's law schools.

"The minister, Ryu Shionoya, plans to deliver the recommendations to law schools, urging them to abide by the proposals.

"The report said schools that don't have twice as many applicants as their quota should reduce their quota the following year.

"One-third of the nation's law schools fit this category in the 2008 school year.

"According to executives of the Japan Association of Law Schools, the majority of the 23 national universities will cut annual admission quotas for their law schools by 10 to 30 percent.

"Tokyo's Waseda University, which has a quota of 300, is considering reducing the number from the 2011 school year. Chuo University, which accepts the same number of students, has no plans to cut back."

By Tomoya Ishikawa, Fumiaki Onishi and Manabu Aoike (Asahi Shimbun, 4/18/2009), Link to article (last visited 4/18/2009)

"Supreme Court acquits professor of groping charges

2009-04-15T22:00:00.005+09:00

"The Supreme Court on Tuesday acquitted a professor of charges he molested a female student on a packed train in Tokyo, overturning guilty verdicts that were based entirely on the teenager's testimony.

"It was the first time the top court has given an innocent verdict in a groping case.

"The Supreme Court's Third Petty Bench said the lower courts' rulings that sentenced Masahiro Nagura, 63, a professor at the National Defense Medical College, to 22 months in prison lacked necessary prudence.

"Three of the five justices supported the innocent ruling for Nagura, who is now on temporary leave from his college, while two said the guilty verdict should stand.

"The Supreme Court said that "especially prudent judgment is required" in cases of molestation on trains because it is difficult for police and prosecutors to gather objective evidence. In addition, the court said, the suspect will have a difficult time formulating a defense after being accused of groping.

"The ruling will likely force prosecutors to be more cautious on deciding whether to indict suspects based only on the testimonies of the accusers.

"Judges may also take a tougher approach to accepting prosecutors' arguments that are based on limited evidence. Police officers will be required to collect more scientific evidence, such as fibers and bodily fluids, in groping cases.

"Prosecutors indicted Nagura on charges he molested a 17-year-old senior high school student in a packed train on the Odakyu Line in Tokyo's Setagaya Ward on the morning of April 18, 2006. They said he inserted his hand inside the teenager's underwear and fondled her.

"The only evidence against Nagura was the girl's statement that she had been sexually assaulted.

"There were no witnesses. And police found no fibers from the girl's underwear on Nagura's hands.

"Nagura insisted he was innocent. But the Tokyo District Court and the Tokyo High Court both found him guilty, saying the girl's testimony was credible.

"However, the Third Petty Bench noted flaws in the lower courts' rulings.

""Reasonable doubt still remains on the claim that Nagura committed the crime," the ruling said.

"The top court said that Nagura's character does not fit the profile of a molester.

"The ruling also noted that after the alleged molestation began, the girl left the train but returned to the same car and stood near the professor.

"The ruling cast doubt on the testimony of the girl, saying that if the molestation had been persistent as she claimed, she would have made a more serious effort to avoid it.

"Recognizing that prosecutors had no new evidence to present, the top court did not return the case to the lower courts but ruled that Nagura is innocent.

"According to the Supreme Court, the top court has given innocent rulings to only 16 suspects since 1980. In rare cases like Nagura's, the top court did so because it deemed the lower courts' rulings were based on an erroneous recognition of the facts."

By Asahi Shimbun (4/15/2009), Link to article (last visited 4/15/2009)

Noriko Calderon’s Case

2009-04-15T09:42:00.008+09:00

"Despite being Japan's most densely populated area, Warabi rarely causes a blip on the national media radar.

"Set in a rusting corner of Saitama Prefecture, the city has two minor recent claims to fame: a communist mayor and the 13-year-old daughter of illegal Filipino immigrants.

"An odd place perhaps for two groups with radically different visions of Japan to take to the streets, but this is where neo-nationalists and liberal opponents could be found slugging it out last weekend.

"On one side, a party of nationalists crammed into a small park and listened to ringleader Makoto Sakurai, a rising new-right star who turns out for protests in a three-piece suit and watch chain.

""People in other countries are looking at this case very carefully," Sakurai told the crowd to cheers of "Send illegal foreigners home!" "They see that we are a soft touch. If we allow this girl to stay, many more will come. It's totally unacceptable."

"Some of the nationalists handed out copies of an article from a Manila newspaper "proving" that the case had received a lot of publicity in the Philippines. "Filipinos now know that if they have a child illegally in Japan, the child will win special rights," said Takehiro Tanaka.

"Hemmed in behind police with riot shields, a group of counterdemonstrators were kept half a kilometer away near Warabi Station. "They're racists," spat Ryo Hagitani. "Please don't mistake their views for those of ordinary people. Japanese people don't support them. We want foreigners to come here."

"Noriko Calderon, the unwitting target of all this attention, would have heard Sakurai from the cramped Warabi apartment she shares with her Filipino parents. But she was miles away with her mother, thanking supporters who had backed their fight to stay in Japan.

"Last month, the family's six-month legal battle ended when Justice Minister Eisuke Mori gave Noriko a one-year special residence permit, allowing her to live with her aunt and continue school in this city. Her parents, Arlan and Sarah, who came to Japan in the early 1990s on false passports, were sent back to the Philippines on Monday.

(...)"

By David McNEILL (Japan Times, 4/14/2009), Link to article (last visited 4/15/2009)

"A-bomb disease ruling

2009-03-27T21:29:00.004+09:00

"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

2009-03-27T21:19:00.004+09:00

"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)

"Death sentence rulings pose problem for lay judges

2009-03-20T23:19:00.006+09:00

"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

2009-03-20T01:42:00.004+09:00

"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)

"Plight of a Filipino family

2009-03-15T22:57:00.003+09:00

"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

2009-03-15T22:53:00.004+09:00

"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

2009-03-15T22:32:00.003+09:00

"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)

Waistline Law and the Monitoring of Society

2009-02-06T00:04:00.004+09:00

Last June, the New York Times published an article discussing Japan’s latest efforts to make public health an issue that was backed by law. Loosely referred to as the waistline law, Japanese companies and cities are required to take waist measurements of people within specific parameters in order to combat obesity in the country.

While many Americans would ultimately fail the strict guidelines for waistline measurements established by the law in question, many Japanese are simply on the cusp of what is referred to in Japan as “metabo,” a word that has become slang for obese, without all of the harsh connotations.

Metabo actually refers to metabolic syndrome, a condition which is said to contribute to diabetes and other vascular complications. Obesity, especially abdominal obesity, along with high blood pressure, high cholesterol, and high glucose levels are all named as factors in metabolic syndrome.

In specified cities, 65% of individuals between the ages of 40-74 on public health insurance had to meet very specific waistline measurements—or face the challenge of reducing inches in order to comply with the new law. The waistline measurement requirements for men were 33.5 inches or less and 35.4 inches or less for women.

While this effort is a proactive step in the right direction toward minimizing health care costs related to metabolic syndrome, many people see the necessity to comply with this law as another way to privatize health care costs. Individuals will have to work on maintaining their frames if they don’t want to be placed on a government-regulated diet.

Detractors view this as an unnecessary precaution and a serious invasion of privacy. Notices were distributed to all citizens in various locales who matched the criteria put forth by the government. Those who didn’t appear were to be summoned a second time.

In all, the effort being put forth by the Japanese government is one that is trying to bring public health concerns to the forefront of the national psyche. However, many believe that harsher laws and taxes could be levied against tobacco, which is still used by a large number of the population, despite its status as an advanced nation. After all, tobacco use also contributes to being metabo.

For now, enforcement will run slowly, with percentages of people meeting the guidelines increasing to 25% by 2015. This may be plenty of time to get things back into shape, but for many people in Japan, it seems like a lot of time, effort, and resources for a marginal priority.

*This post was contributed by Holly McCarthy, who writes on the subject of Careers in criminal justice. She invites your feedback at hollymccarthy12 at gmail dot com

"Karoshi" – death from overworking

2009-02-05T23:50:00.004+09:00

"A Japanese company has been ordered to pay more than £780,000 in damages to the relatives of an overworked employee who committed suicide.

"The agricultural firm made the payment after the 33-year-old worker killed himself four years ago after becoming depressed due to his growing workload.

"A judge at Kushiro District Court on Japan's northernmost island of Hokkaido ruled the co-operative failed to fulfil its duty to ensure workplace safety and prevent his death.

"Ordering the company to pay £785,500 (100 million yen) in damages to the worker's relatives, Judge Tadahiro Okayama told the court: "The course of suicide arises from his work."

"Mr Okayama added that the co-operative "could have prevented [the suicide] if it had taken appropriate measures such as restricting his working hours and recommending him to visit a psychiatrist", according to Kyodo news agency.

"While thousands of workers are estimated to die every year from overworking and a growing number of relatives are seeking compensation, the amount of damages awarded in the latest Hokkaido case was unusually high.

"Deaths related to workplace stresses are becoming an increasingly serious phenomenon in modern day Japan, due to a burgeoning office culture famous for its long hours, strict codes and hierarchical structures.

"Testimony to the growing problem of overworking is the existence of the word "karoshi" – meaning death from overworking – alongside a national karoshi hotline and a law specifically created to compensate relatives of karoshi victims.

"As many as 2,200 workers committed suicide in Japan due to work conditions, according to police figures, while a further 10,000 are estimated to have suffered work-related heart attacks or strokes during the same year, according to Rengo, a major labour union federation.

"The current climate of economic decline has prompted some analysts to predict that incidents of death from overworking will steadily increase over the coming year due to soaring workplace stresses.

"Martin Schulz, a senior economist at Fujitsu Research Institute in Tokyo, told Bloomberg, "Karoshi will likely pick up again.""

By Danielle Demetriou (Telegraph, 2/3/2009), Link to article (last visited 2/5/2009)

"Civil service reform

2009-02-05T12:44:00.002+09:00

"Reforming the nation's civil service system has two purposes.

"One is to give greater mobility to the bureaucracy by banishing the territorial mentality of bureaucrats who are said to think for their ministries or agencies rather than for the nation.

"Another is to end the amakudari system that breeds corruption, including government-led bid-rigging and other forms of government-industry collusion.

"The Taro Aso administration on Tuesday finalized its reform timetable, which shows what reforms are to be implemented and how. The schedule covers the period from 2009 through 2012.

"The centerpiece of the proposed reforms is the creation of a new "Cabinet personnel and administrative management bureau," which would integrate the management of senior personnel of all ministries and agencies. Another highlight is a review of the current early retirement system.

"The government initially intended to create this new Cabinet bureau during fiscal 2009, but postponed it until after April 2010 because preparations were thrown off schedule by the abrupt resignation of former Prime Minister Yasuo Fukuda last autumn.

"However, with a Lower House election due before too long, the Aso administration needed to at least avoid being blamed for falling back on reform. That was why the timetable was announced Tuesday.

"But Masahito Tani, president of the National Personnel Authority, is vehemently opposed to the establishment of the new Cabinet bureau.

"Tani pointed out that transferring some of the NPA's functions to the new bureau, such as deciding the salary rankings of civil servants, could violate the Constitution.

"He argues that the government has entrusted the NPA, an independent entity, with these and other powers as basic labor rights of such government employees are restricted. Akira Amari, state minister for administrative reform, disagreed. "The functions to be transferred have nothing to do with civil servants' basic labor rights," he countered.

"Some members of the ruling coalition criticized Tani for "just trying to defend the NPA's turf."

"According to the timetable, a government study panel this year will decide how far to ease the restrictions on basic labor rights. This is a matter that concerns civil servants' basic rights. We believe any discussion of the transfer of the NPA's functions to the new Cabinet bureau should await the government panel's ruling.

"As for amakudari, the timetable shows that laws will be revised enabling civil servants to work until their mandatory retirement age. Various rules for delayed mandatory retirement and re-employment will be prepared in stages by fiscal 2012.

"To eliminate amakudari, the personnel system must be radically overhauled. There is no point in simply talking about the matter or making promises if the system of helping bureaucrats land cushy post-retirement jobs remains effectively unchanged. On the other hand, care must be taken to keep civil service an attractive profession so that talented individuals will still want to work for the government.

"Aso on Tuesday in the Diet addressed the issue of government ministries and agencies mediating amakudari and watari (post-retirement job hopping) for their retired officials. "I would like to create a government ordinance to end such mediations during this year," Aso said.

"This was a surprise. Until quite recently, Aso was adamant about not scrapping an existing government ordinance that permits such mediations in exceptional cases.

"Aso should, of course, fix what is not right. However, the announcement of the timetable at this time, coupled with his unexpected policy about-face, somehow smacks of a popularity-seeking stunt at the expense of civil servants.

"Regardless of which political party holds power, the purpose of any civil service system reform should be to create an efficient bureaucracy that carries out the party's will. The reform needs to be bold, but nothing can be gained by proceeding in haste and demoralizing the bureaucracy itself.

"Aso should include opposition parties in the process and design a good, solid plan."

By Asahi Shimbun (Editorial, 2/5/2009), Link to article (last visited 2/5/2009)