--The Asahi Shimbun, April 29
EDITORIAL: Judiciary can’t afford to duck concerns about security laws
About 500 citizens have sued the government over national security legislation enacted last year, claiming the legislation is unconstitutional because it allows Japan to engage in collective self-defense.
The lawsuit, filed with the Tokyo District Court on April 26, demands a court order to block any Self-Defense Forces deployment under the security laws, which passed the Diet last September and came into force on March 29. Similar legal actions are expected in various parts of the nation.
The judiciary should respond head-on to the vital constitutional questions raised by these suits. The courts should fulfill their judicial responsibility by making their own constitutional judgments on the matter. The Supreme Court, the guardian of the Constitution, should then make the final decision.
We should remember the Diet debate on the security bills submitted last year by the administration of Prime Minister Shinzo Abe.
Many legal experts, including constitutional scholars and former Supreme Court justices, denounced the legislation as “a violation of the Constitution” and “a denial of constitutionalism.” Many Japanese were disturbed by the government’s explanations about its interpretation of related constitutional provisions that were clearly at odds with past government statements.
But the government and ruling camp dismissed all these criticisms, saying it is the Supreme Court that has the mandate to make the final judgment on the constitutionality of laws. The government also argued that one top court ruling is more important than 100 theories. Eventually, the ruling coalition rammed the bills through the Diet by using its dominant parliamentary majority.
The administration’s policy of heeding only what the Supreme Court says in dealing with constitutional issues related to the legislation should not be taken as a sign of respect for the judiciary.
Through personnel changes, the Abe administration effectively stripped the Cabinet Legislation Bureau, the watchdog of legislative actions, of its ability to check bills from the legal point of view.
The Diet, the nation’s legislature, proved to be ruled by the dictates of the majority.
The role of the judiciary as one of the three branches of government under the checks and balances system has never been as important as it is now.
The plaintiffs of the latest lawsuit are demanding compensation for what they say is a violation of their constitutional right to live in peace. They also claim the people’s right to amend and determine the Constitution has been violated by the effective change to war-renouncing Article 9 made by the administration without following the formal procedure for constitutional amendments.
Past court rulings on lawsuits over such constitutional issues indicate that the plaintiffs face high hurdles.
Conventional wisdom in the Japanese judicial community says courts should not judge the constitutionality of specific laws unless there are concrete legal disputes that require such judgment.
A court refused to hear another lawsuit seeking the annulment of the new security laws, saying such a demand is inappropriate for judicial determination.
The consensus view among judicial experts is that even if a court decides to hear such a lawsuit, a constitutional judgment should not be made unless it is necessary for settling a dispute involving concrete interests.
Given the history of court rulings in this type of case, courts may opt to avoid making any constitutional judgment while rejecting the plaintiffs’ demand for compensation.
But the plaintiffs of the latest lawsuit include relatives of SDF personnel and residents living near military bases.
They need to make concrete arguments regarding their specific interests to persuade the court to hear the case.
At the heart of their lawsuit is serious anxiety about the government’s lack of respect for the basic principles of constitutionalism.
The judiciary should make sincere responses to the constitutional questions raised by these lawsuits without trivializing them.
The courts should not act in a way that will only further undermine public confidence in the governing system.
The Yomiuri Shimbun
Control tower urgently needed for export of defense equipment
It is important to scrupulously examine the reason Japan lost its bid for the contract and rebuild the government’s preparedness for exporting defense equipment.
With Japan, Germany and France competing to build next-generation submarines for Australia, Canberra selected a French company as its partner.
In accordance with the three principles on the transfer of defense equipment and technology, the Japanese government, jointly with the private sector, had proposed building a fleet based on the Maritime Self-Defense Force’s most advanced Soryu-class submarine, manufactured by Mitsubishi Heavy Industries, Ltd. and other companies.
Soryu-class submarines are equipped with the world’s most advanced technology. They excel in cruising capability, silent running to evade detection when navigating underwater, sonar detection and other attributes.
The huge contract, worth about 50 billion Australian dollars (\4.3 trillion), was for the construction of 12 submarines. It would have become Japan’s first full-fledged export of defense equipment. Prime Minister Shinzo Abe said, “It was a disappointing result.”
It is reasonable for Defense Minister Gen Nakatani to have indicated his intention to seek an explanation from Australia as to why Japan was not awarded the contract and learn lessons for future bids.
Australian Prime Minister Malcolm Turnbull said, “The French offer represented the capabilities best able to meet Australia’s unique needs.”
As Australia’s economy has slowed, uncertainty over the country’s employment situation is spreading. France had emphasized it would make a full-scale technology transfer, help foster Australian companies and create jobs in that country.
As Turnbull intends to dissolve Parliament shortly, his selection may also reflect his decision to focus on the economy with the election in mind.
But for building submarines, a military perspective is important under normal circumstances. We cannot agree with the choice if it was made by placing priority on the political situation.
Meanwhile, it is undeniable that Japan, while being overconfident in its high level of technology and paying little heed to its ratio of local production in Australia, failed to accurately comprehend either Australia’s needs or the moves taken by France and Germany in their bids, and did not exercise flexibility in taking the measures needed. This failure may have stemmed from the little experience MHI and other companies have in negotiating defense equipment deals with foreign countries.
It is crucial to build within such offices as the national security secretariat of the Cabinet Secretariat a framework to comprehensively analyze and assess business chances and domestic political circumstances of countries concerned, in addition to security issues, and establish a control tower to carry out such tasks.
Sufficient manpower should be mustered from such economy-related ministries as the Economy, Trade and Industry Ministry as well as from private companies. Also needed is to have a vision on implementing a growth strategy.
Needless to say, measures to prevent the leakage of technologies to third-party countries are essential. We can understand that cautious views were expressed within the MSDF and other entities over Japan’s provision of technology to Australia.
Also worrisome is that China is said to have urged Australia not to accept Japan’s proposal this time. If Canberra turned down Japan’s bid by giving too much consideration to Beijing, we cannot overlook it.
Former Australian Prime Minister Tony Abbott had recognized the importance of security cooperation among Japan, the United States and Australia. The Turnbull administration should explain what sort of role it will assume for the stability of the Asia-Pacific region.
(From The Yomiuri Shimbun, April 28, 2016)
--The Asahi Shimbun, April 27
EDITORIAL: Thorough talks needed to block abuse of planned hate speech law
A bill to outlaw hate speech, sponsored by the ruling coalition of the Liberal Democratic Party and Komeito, is currently under deliberation in the Upper House Legal Affairs Committee.
With the opposition camp having already presented a similar bill to the Diet last year, all Japanese political parties are at least in agreement that legislative measures must be taken to eliminate hate speech, which fans vile discrimination against certain ethnic groups.
But legal scholars are strongly concerned that such legislation could threaten freedom of expression depending on how it is enforced. Indeed, determining the conditions of enforcement will be a difficult and complex matter.
However, hate speech has shown no signs of abating in recent years. In a lawsuit against a citizens group that attacked the Tokushima prefectural union of teachers for donating money to a Korean school, the Takamatsu High Court on April 25 ruled that the group’s activities “represented an attitude of racial discrimination,” and it ordered the group to pay damages to the teachers’ union.
Hate-filled invectives against minorities, such as “get out of Japan,” are uttered nationwide. These human rights violations cannot be allowed to continue. We definitely believe the time has come to take some sort of legislative action.
Neither the ruling coalition-sponsored bill nor its opposition counterpart contains punitive provisions against offenders. While we would like both bills to clearly spell out that discrimination can never be condoned as a matter of basic human decency, we also believe that utmost care must be taken to ensure the legislation will not infringe upon freedom of expression.
The United Nations considers it a problem that Japan, which ratified the International Convention on the Elimination of All Forms of Racial Discrimination 21 years ago, still has no laws against racial discrimination. It has now become Japan’s obligation to the international community to declare a firm stance against discrimination of any sort against any race or nationality.
We hope the ruling and opposition parties will set aside their petty political interests and forge a consensus after thoroughly debating the issue and with complete transparency, from the standpoint of defending universal human rights.
Diet deliberations in the days ahead are expected to focus on the LDP-Komeito bill. But there are some problems with the legislation.
For instance, the bill defines victims of discrimination as “non-Japanese-born people and their descendants.” But the indigenous Ainu people of Japan have been subjected to discrimination. To make this right, we believe the ruling coalition should adopt the opposition-sponsored bill’s broader definition of victims as “non-Japanese races and ethnic groups.”
Another problem we see with the LDP-Komeito bill is that it will apply only to “legal aliens residing in Japan.” We find this hard to comprehend.
Discrimination in itself has nothing to do with the victim’s residency status. If this is left uncorrected, this bill could hurt those who are in the process of applying for refugee status.
In the past, the LDP manifested its intent to manipulate the hate speech issue to its own convenience. LDP legislators made statements hinting at applying hate speech legislation against anti-U.S. base activists and protesters opposed to nuclear power generation.
Such abuse of the law by politicians is exactly what we fear.
For the law to fully serve its intended purpose of eliminating all racial and ethnic discrimination, its non-arbitrary and appropriate enforcement must be guaranteed. And thorough discussion is also needed on how to monitor the enforcement of this law.
--The Asahi Shimbun, April 26
EDITORIAL: Doubts remain after top court apologizes for leprosy trials
The Supreme Court has officially admitted it made a serious mistake by allowing lower courts to hold criminal and other trials for leprosy patients outside regular courtrooms. But the mea culpa from the top court, which is regarded as the “bastion of human rights,” doesn’t answer key constitutional questions.
The Supreme Court on April 25 officially apologized to former leprosy patients and other people who suffered from this practice, saying it “deeply regrets having degraded the personalities and dignity of the patients and apologizes.”
The top court acknowledged that its approvals of the special separate trials for leprosy sufferers were discriminatory in nature and violated the court organization law.
It is extremely unusual for the nation’s highest court to admit having made a misjudgment concerning judicial procedures and offering such an apology. It took a step in the right direction by examining the issue.
However, the key question in this controversy was the constitutionality of the policy. The top court concluded that the “special trials” didn’t violate the constitutional principle of open trials.
The Supreme Court should ask itself whether this conclusion is acceptable to former patients and their families who suffered from discrimination and prejudices against leprosy, also known as Hansen’s disease.
The opinions of the court’s expert panel on the issue, released at the same time, raised two important constitutional questions.
First, the panel said there is no denying that the special trials for leprosy patients violated the constitutional principle of equality under the law. Secondly, the panel argued that it is hard not to suspect that the policy also violated the constitutional principle of public trials.
In 2005, an independent inquiry panel set up by the health ministry had already pointed out similar constitutional questions concerning the practice.
It is difficult to claim that the Supreme Court’s conclusion, issued after many years of failing to respond to the criticism, offers convincing, straightforward answers to these questions.
The health ministry’s panel referred to a controversial murder trial of a man from Kumamoto Prefecture who was said to have leprosy. In this case, known as the “Kikuchi Incident,” the defendant was eventually executed despite claiming his innocence.
The ministry panel said the man had effectively been tried in a closed-door proceeding.
The Supreme Court started looking into this issue after it received a demand for an examination of the legitimacy of the special trials. The demand came from lawyers and former leprosy patients who were seeking a retrial for the Kumamoto man.
Unsurprisingly, an organization of former leprosy patients involved in this campaign has denounced the top court’s failure to acknowledge the unconstitutionality of the practice. The organization said it strongly demands that the court “sincerely admit its own mistake.”
In its probe into the matter, the Supreme Court avoided making any judgment about individual cases on the grounds of the independence of judges.
But flawed judicial procedures could cast doubts on the appropriateness of the trials themselves.
The top court should have scrutinized individual cases for possible relief for victims and restoration of their honor.
The judiciary should seriously consider any request for a retrial from a victim of the system.
The challenge facing the Japanese judiciary is how to use the results of the investigation to promote efforts to eliminate discrimination and prejudices from society.
The Supreme Court should move beyond this apology and continue performing its responsibility to tackle this challenge.
--The Asahi Shimbun, April 24
EDITORIAL: Improved system needed to assist disabled people in disasters
Many people with disabilities have been unable to enter crucially important evacuation shelters in areas hit hard by the recent succession of earthquakes in Kumamoto and other prefectures.
“I was told that people on wheelchairs are not allowed because the hall has bumps on the floor,” one of them said.
“I got no information from anywhere, so I spent nights in a car for a week,” said another.
“Welfare evacuation shelters” were supposed to be set up for people with disabilities and elderly people, who would find it difficult to live in evacuation shelters for the general public.
Welfare evacuation shelters refer to schools, welfare facilities and other institutions that have signed agreements with municipal governments in preparation for a possible disaster.
But the system failed in the face of the real earthquake disaster.
Some 35,000 people in Kumamoto, the capital of Kumamoto Prefecture, are registered as “persons requiring support,” who were expected to need help in evacuating from a disaster.
While 176 institutions had signed agreements to serve as welfare evacuation shelters, the number of institutions that actually accepted people in need was slow to grow.
Some of the institutions were short-staffed because care providers became quake victims themselves. Some of the buildings were destroyed, and water supply was cut.
After volunteer workers were recruited, 33 welfare evacuation shelters were opened by April 22. But only 80-odd people have entered those shelters. Officials at one shelter have complained that all they can do is to provide space because they cannot afford to provide assistance.
People with disabilities and others who remain out of welfare evacuation shelters may face serious difficulties from the prolonged consequences of the earthquake disaster. Checking for their safety has turned out to be more difficult than initially expected.
Given the situation, Kumamoto Gakuen University has been drawing attention for its activities. The university in Kumamoto city has made its presence felt by accepting up to 60 or so people who are disabled or elderly.
Initially, the university only had its athletic field designated as a wide-area evacuation ground. As local residents began to assemble on its campus amid the succession of powerful earthquakes, however, the university decided to let local inhabitants use four of its classrooms.
It also designated a grand hall in one of its buildings for exclusive use by "persons requiring support." University officials have arranged a framework, whereby certified care workers with connections to the university and volunteering students are available 24 hours a day to watch those evacuees who require support.
The law on the elimination of disability discrimination, which took effect this month, says public institutions are obliged to “provide reasonable accommodation.” They are supposed to respond, to a reasonable extent, to the requests of disabled people to eliminate social barriers.
Kumamoto Gakuen University’s undertaking is a pioneering attempt at fleshing out the spirit of that law.
Two professors at the university, who were involved in opening the evacuation shelter, have worked with groups of disabled people and their supporters to set up a “center for people with disabilities in disaster areas.”
Instead of bringing disabled people together in a single evacuation shelter, the center will serve as a hub for providing appropriate information to people with disabilities in different areas, and will continue to give them necessary support until they can return to their previous lifestyles.
Close to 80,000 people continue to live in evacuation following the Kumamoto earthquakes. And it is never easy for people with disabilities to live the same way as people without disabilities.
In normal times, we should prepare mechanisms, for example, to use the list of “persons requiring support” to determine their safety status in emergencies and to allow welfare institutions to dispatch staff members to each other on a broader regional scale.
Doing so would be one way to prepare for the next disaster, which could hit any part of Japan.