Weekly Roundup #5
- Fukushima residents forced to evacuate after the 11 March Nuclear Incident/Accident/Meltdown (I have no idea what we’re supposed to be calling it) have finally decided to bring a suit against TEPCO and the Japanese government for damages (mental anguish, etc) with compensation totals apparently reach JPY100 million for some households. Interesting, but by no means unexpected.
- I am intentionally not commenting on the deterioration in Chinese/Japanese relations, so I will just link to the Japan Times article – Jet roars as Japan, U.S., Australia hold drill – and ask, “Boys and girls – is this really helpful?”
- Did anyone else notice that the MOJ released the 2012 White Paper on Crime (２０１２年犯罪白書)? I know what I’m reading this weekend! How about you?
- The LDP are preparing to remove the ban on the use of the internet in election campaigns. ABOUT TIME! The JCP, predictably, are in favor of this.
OMG – what IS that?
Oops.
It seems that Singaporean photographer, Leslie Kee, has just been arrested by Japanese police for violating Japan’s law against obscenity (わいせつ); or more specifically, Article 175 of the Criminal Code.
The penal provision stipulates that Kee may now be facing imprisonment of up to 2 years or a fine of not more than 2.5 million yen. Given that this was a for-profit venture (he was selling his book for 6000 yen – bargain!), it’s more than likely that he will be given a fine. I would be surprised if he (and especially the two employees of the book publisher) were to serve any time in prison for this.
As unfortunate as this is, it does serve as a good opportunity to shine a spotlight on the ironically perverse manner in which Japan defines obscenity, and enforces against it. Forget that the Japanese Constitution (drafted by Americans, let us not forget), provides at Article 21 that:
Article 21. Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.
It’s fairly explicit; pithy yet certain in its language. And yet, the Supreme Court seems unconcerned in upholding it in any meaningful way.
The most curious thing about this legal contradiction is the paradox that emerges from the juxtaposition also of this seemingly totalitarian penal code re: naughty rags with the abundance of soft-core porn in newspapers and magazines, and also the ease with which one can obtain borderline criminal material like the Rapeman comic. Perhaps the newly-minted Minister Tanigaki could take a look a reforming this archaic law… but we would be wise not to hold our breath.
For more reading, I suggest looking at the journal article, Obscenity, Pornography, and Law in Japan: Reconsidering Oshima’s In the Realm of the Senses, by James R. Alexander - it’s a nice (and relatively recent) introduction to the topic. Another, perhaps more relevant, article is Obscenity in Japan: Moral Guidance without Legal Guidance, by Amanda Dobbins.
[Review] Minister of Justice – Sadakazu Tanigaki
Lets be honest – it you have been trying to keep tabs on the Minister of Justice, you (like me) will have experienced a profound and painful episode of whiplash. The year 2012 witnessed the rise (and inevitable fall) of six Ministers of Justice. With those numbers, you’re more likely to last longer as a prime minister; a jarring and sobering statistic.
And so it is that we welcome Sadakazu Tanigaki as the new official seat warmer; lets see how long he lasts.
During his inaugural press conference as the newly-minted Minister of Justice, there isn’t much that comes as much as a surprise. He lists the priorities of his tenure as making Japan the safest country in the world (really, as if it already isn’t!!). To accomplish this, he aims to support victims of crimes, fight against recidivism (by supporting their reintegration into society), and finally, always the crowd-pleaser, fight against organised crime.
Given the revolving door that is the Minister-ship, and reflecting on the vagueness of these completely immeasurable goals, it’s hard to muster much of feeling about him (or really, any of them). What is perhaps more interesting, though, is reading between the lines of his answers to the only two substantive questions (you lose, Asahi!).
Yomiuri asks him about his position on the death penalty; his response is predictably elusive, but he does seem to hint that he is uncomfortable with it, falling back into the safe zone of saying that he will respect the decision of the courts, and that capital punishment is reflective of social values. It’s hard to hold this against him given just how singularly minded the Japanese people are when it comes to government-sanctioned murder – something I reported on the last time I bothered to review a Minister of Justice.
NikoNiko asked him about the recording of interrogations, where again, he backs into the safe corner of not wanting to tie the hands of investigators, but assures the reporter that he will watch the situation carefully and make his decision as he goes.
Interesting to see what, if anything, he does, but I’m inclined to think that the bureaucracy will do what it wants to do, and he will just warm that seat until another cabinet reshuffle (probably within the next year).
Watch the press conference (below) and judge for yourself if you think he will have any influence over the behemoth that is the gyousei.
Weekly Roundup #4
- The National Police Agency has released the monthly suicide rates for 2012 (up to the end of August)… just one problem… the data table is empty… completely empty… I’m not too blindly optimistic to think that there haven’t been any suicides nationally thus far this year.
- The Public Prosecutors Office has released its 2011 statistics and by contrast to the NPA suicide data, there is way too much information here for me to digest right now. Let me know if there is anything interesting.
- The Ministry of Justice is considering proposing an amendment to the Juvenile Law such that the maximum possible sentence is five years longer. Why?
[Symposium] Upcoming Nichibenren events
Here are two upcoming events hosted by the Nichibenren that you may want to put into your diaries:
1. Earthquake disaster reconstruction and the role of law – website / pamphlet
第２５回司法シンポジウムでは、「震災復興と司法の役割」という全体会テーマの下、第１分科会「震災復興に向けての弁護士の役割と立法提言」、第２分科会「地域司法の充実を目指す新たな視点と取組－３・１１を契機として－」の２つの分科会を開催し、震災復興と司法の役割について考えます。
日時 ２０１２年９月１５日（土）１０：３０～１７：３０
場所 弁護士会館 千代田区霞が関１－１－３ 地下鉄丸ノ内線・日比谷線・千代田線 「霞ヶ関駅」
内容等
○ 第１分科会 １０：３０～１５：１５ 弁護士会館２階講堂「クレオ」
「震災復興に向けての弁護士の役割」○第２分科会 １１：００～１５：１５ 弁護士会館１７階１７０１会議室
「地域司法の充実を目指す新たな視点と取組－３・１１を契機として－」○全体会 １５：３０～１７：３０ 弁護士会館２階講堂「クレオ」
「震災復興と司法の役割」
2. Day for considering the abolition of the death penalty – website
See also the Declaration Calling for Establishment of Measures for Rehabilitation of Convicted Persons and Cross-Society Discussion on Abolition of the Death Penalty (Japanese)
Weekly Roundup #3
- Foreigners living in Japan illegally are apparently urging the authorities (I cannot begin to imagine what kind of influence they think they have) to grant them special permission to stay here. Perhaps this is a job for the brand-spanking new foreigner friendly law firm?
- It’s nice to see FOI (Freedom of Information) requests shedding some light on events. Kyodo reports that “[a]ccording to internal documents obtained through an information disclosure request, five of the seven judges who submitted a set of proposals in a Jan. 26 to 27 study meeting, hosted by the Supreme Court, on nuclear issues pointed out the need to examine the safety more thoroughly than before.” It would be interesting to see what the court system will do, if anything, about NPP (Nuclear Power Plant) safety. I’m currently working on an article about anti-NPP litigation so stay tuned!
- The Tokyo District Court has ruled that Samsung did not infringe Apple’s patents! I haven’t seen the judgment, but I understand that it was limited to a single patent re: the syncing of mobile devices to computers. Will update with more information once the judgment has been released.
- Fascinating article by SF Gate about consumer credit in Japan – “Yakuza-Lending Surge Feared as Fight to Ease Japan Law Looms”.
Battle Royale! Apple versus Samsung!
The Tokyo District Court is expected to come down with its ruling today re: Apple versus Samsung. Exciting stuff.
UPDATE: The Tokyo District Court has ruled that Samsung did not infringe Apple’s patents! I haven’t seen the judgment, but I understand that it was limited to a single patent re: the syncing of mobile devices to computers. Will update with more information once the judgment has been released.
Must be a relief for Samsung!
A huge blow to big tobacco
Regular readers of this blog are no doubt aware that I have a dim view of smoking. So it is with great joy that I can report that the Australian High Court have just dealt Big Tobacco a huge blow by confirming the legality of the Australian government’s initiative to require cigarette companies to use plain packaging for their products.
As I mentioned in my earlier post about smoking in Japan, JT International initiated a legal challenge against the Commonwealth of Australia on 14 December 2011 “[i]n order to protect its ability to use its brands and key trade marks on the packaging of tobacco products sold in Australia”. According to the Sydney Morning Herald article:
“During the hearings in April the companies – British American Tobacco, Philip Morris, Imperial Tobacco, Van Nelle Tabak Nederland and JT International SA – argued the measure breached the constitutional requirement that the acquisition of property by the government be on just terms.
But to make that case, the companies had to show that the government gained a measurable benefit as a consequence, which is apart from the claimed benefits to population health.”
It would seem that they were unsuccessful in making that point. The text of the decision of the High Court has yet to be released, but it will likely be influential on other jurisdictions (namely the UK) hoping to implement the same packaging requirements.
UPDATE
It would seem that the webpage on the JT domain re: the Australian challenge has been taken down 
On the plus side, they’ve replace it with a webpage now attacking the UK initiative. Curiously, the webpage says:
“The campaign, a first for JTI, questions the consultation process and targets both government and decision makers.”
Not sure why this is a “first” for JTI… they obviously don’t think anyone notices… I do 
UPDATE #2
The Nikkei has a report noting that the story will likely not end with the Australian High Court. The article suggests that Philip Morris will take the matter to a “United Nations tribunal” claiming that “the law breaches a 1993 trade deal between Australia and Hong Kong that safeguards each country’s respective offshore investments”.
The details of this action can be gleaned from its press statement of last year, where it outlines its argument as follows:
The Australia – Hong Kong Bilateral Investment Treaty (BIT)
The Treaty was entered into by the Governments of Hong Kong and Australia in 1993 and seeks to create favorable conditions for greater investment and promote economic cooperation, by providing reciprocal protection for investments made in one country by investors from the other.Australia is in breach of the BIT because plain packaging:
• Amounts to unlawful expropriation of PMA’s investments and valuable intellectual property without compensation (Article 6(1))
• Fails to provide fair and equitable treatment to PMA’s investments in Australia (Article 2(2))
• Unreasonably impairs PMA’s investments in Australia (Article 2(2))
• Fails to provide full protection and security for PMA’s investments in Australia (Article 2(2))
• Breaches Australia’s international obligations in relation to PMA’s investments (Article 2(2)) by violating The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), the Paris Convention for the Protection of Industrial Property and the WTO Agreement on Technical Barriers to Trade (TBT)Steps to date
On June 27, PMA first notified the Government that it would take legal action under Australia’s Bilateral Investment Treaty with Hong Kong if Australia proceeded to pass plain packaging legislation. In accordance with the terms of the BIT, the notice triggered a three month mandatory negotiation period between PMA and the Australian Government. With the passage of the legislation, it is clear that PMA was unable to resolve the dispute with the Government during this time. The notice served on the Australian Government today begins the formal legal proceedings under the Arbitration Rules of the United Nations Commission on International Trade Law 2010. PMA is proposing Singapore as the seat of arbitration and that the appointing authority be the Secretary-General of the Permanent Court of Arbitration at The Hague.
WATCH THIS SPACE!
Jiko shoukai!
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