Japan Law Geek

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.

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!

It’s a small development, but a welcome one.

According to the Japan Times, Hyogo Prefecture (you know – the one of which Kobe is the capital) has passed a total ban of smoking in school and hospitals as of 1 April, 2013.

I know what you’re thinking – April Fool’s, right? No. Sadly, though, it does not appear to cover restaurants.

Hyogo initially planned to extend the total ban to private establishments, including department stores, hotels and restaurants, but was forced to back down in the face of stiff opposition from local business groups.

Private establishments will instead be required to set up smoking and nonsmoking sections by April 2014. Offenders could be slapped with a fine of up to ¥300,000.

Hyogo Prefecture is now the second in Japan to introduce such a ban. The first ban was implemented by Kanagawa Prefecture, which came into effect on 1 April, 2010.

It seems like the movement to ban smoking in Hyogo is quite a sophisticated one – they have a fairly thorough website that is worth checking out. It’s a good resource for anyone interested in smoking in Japan. As an aside, you may also want to check out 25 Cafes – a good site which has a review of non-smoking cafes. It’s currently limited to Tokyo, but my understanding is that the author plans on expanding its scope.

You should also check out my earlier post on Non-Smoking Japan!

Below the fold is a PDF summary of the history of tobacco control in Japan prepared by the World Health Organisation. Read more…

Here is a unique idea – let’s review a human being for a change… the Minister of Justice, Mr Toshio Ogawa.

There is, of course, a knack to passing judgment on someone else which, coincidentally, appears to be part of the new Justice Minister’s job description. According to the (at least) the title of the Japan Times, Ogawa “feels signing off on hangings just part of job description“. This is misleading though, because he does go on to explain in the interview that “I don’t really want to do it, but that is one of the justice minister’s job descriptions. With 130 inmates on death row and public opinion showing 85 percent of Japanese support the death sentence, it is inexcusable not to sign off on executions“.

Fair point. Although I am vehemently opposed to capital punishment, any Japanese Justice Minister would be in a difficult position when it comes to signing off on an execution. A 2009 Survey found that 85.8% were supported the death penalty. Read more…

So it seems that the concept of government responsibility re: a Non-Smoking Japan may indeed have reached our shores like the black lung ship of Commodore Perry… or perhaps not.

According to the Yomiuri Shimbun today, the Ministry of Health, Labour and Wealth are “attempting” to “set a target for the proportion of smokers”:

厚生労働省が宿願としている「成人の喫煙率の数値目標設定」に再挑戦する。

同省はこれまでも喫煙率を下げようと、数値目標の導入を打ち出しては、その度にたばこ業界や他省庁などの反対で撤回に追い込まれてきた。今回も先行きは不透明だ。

１日に開催されたがん対策推進協議会で、同省は、喫煙率を４割近く減らし、「２０２２年度までに喫煙率を１２・２％以下にする」という目標を盛り込んだ基本計画の素案を示し、了承された。２０１０年分の国民健康・栄養調査で、喫煙率は過去最低の１９・５％。このうち３７・６％は喫煙を「やめたい」と答えていた。厚労省はこの全員が禁煙したと仮定して目標を決めた。

同省は、これらの数値を来年度からの「がん対策推進基本計画」などに取り入れる意向。数値目標が実現すれば初めてだが、同計画は閣議決定事項のため、全省庁の了解が必要になる。

As explained in the text above, according to the 2010 National Health and Nutrition Examination Survey, the proportion of smokers in Japan dropped to 19.5% – the lowest ever percentage of the population. Of those who responded that they smoked, 37.6% claimed that they wanted to quit, thus making theoretically possible the proposed decrease of 40% in the proportion of smokers by 2022.

Note, however, that the final paragraph of the article states that the implementation of the plan requires the approval of all the ministries – and herein lies the problem… Read more…

If, like me, you are consistently at a loss when thinking of ways to entertain people at your house parties, you may want to consider showing video recordings of deliberations by the House of Councillors!!

With this, you will be able to entertain your friends for (literally) hours upon hours upon hours!!

Just when you thought Christmas had come and gone, I’ve just discovered (though somewhat belatedly) a present from the LDP that there is an LDP-sponsored bill currently being considered in the House of Representatives that would establish yet another public holiday to commemorate the “restoration of sovereignty” to Japan following the Treaty of San Francisco. Read more…