Three Japanese Law Panels at the JSAA Conference, UWollongong, 27-29 June 2017

Thanks to Carol Lawson (ANU PhD candidate and former ANJeL Coordinator), with A/Prof Stacey Steele (UMelbourne and ANJeL Program Convenor for Judicial Visitors), for sharing below descriptions for their own upcoming conference panel (covering new developments in bankruptcy, privacy law and the legal profession) as well as panels on constitutionalism (timely also in light of the discussion over “informal amendment” of the Article 9 peace clause), and Japanese law and social change (considered also in a book review forthcoming in the Journal of Japanese Studies).
ANJeL members and others are encouraged to register before Friday 23 June for this biennial Japanese Studies of Australia conference held the ensuing week at the University of Wollongong.

TUESDAY 27 JUNE 15.30-17.00 Issues Surrounding the Japanese Constitution
Chair: Tsuji, Yuichiro (University of Tsukuba) After the Abe Administration won in the election in December, 2012, the interpretation of the Japanese Constitution has been controversial. The Japanese Constitution is now facing amendment. Speakers will discuss the current and historical issues of Japanese Constitution. The mission of the law and political science scholars is to bridge the gap between ordinary people and the Constitution, send their detailed internal analysis to other country’s researchers. In 2017 the Japanese Constitution is a hotly debated topic among people, the mission and duty of the constitutional law scholar are important issues.

Godzilla and emergency power in the Japanese Constitution

Tsuji, Yuichiro (University of Tsukuba)
The Japanese movie “Godzilla” illuminated controversial issues related to the existence of the Self Defense Force (SDF) under the current Constitution. In this movie, the Japanese government sent the SDF to fight against the external enemy, Godzilla. Under the Act Concerning Measures for the Protection of the People in Armed Attack Situations, Etc., the cabinet may send the SDF to use force against an external enemy, with the parliament’s approval. Godzilla allegedly met the requirements to send the SDF. Is Godzilla an extraordinary natural disaster, or an enemy ? After the 2015 political shift, constitutional scholars in Japan are compelled to explain the role of the SDF under constitutionalism and the role of judicial review outside Japan — how the Japanese Constitution solves these problems. For instance, it should be noted that there is no provision for emergency under the Japanese Constitution. The current paper helps to provide a better understanding of these issues for Japan and other countries.

Democracy and Language Policy in Early Postwar Japan

Cahusac de Caux, Basil (Monash University)
The occupation of Japan by the Allied Powers between 1945-1952 enabled a wider, though fluctuating and occasionally tenuous, expression of democratic ideals and discourses about civic society in Japan. I discuss the involvement of scholars and intellectuals in the postwar language policies that emanated from the Japanese Ministry of Education. Within numerous ministries and intellectual circles language played a vital role in the re-conceptualisation of democratisation that began in the second half of 1945. Many Japanese intellectuals were quick to embrace an array of political stances in response to the seismic shifts occurring in the typically decimated urban landscape. These political stances were applied to discussions focussing on the way individuals read, spoke, listened, and wrote. The results were mixed: simplification of Chinese characters, as well as limitations on the number of kanji used in officialdom, and a standardised orthography (kana) were proposed. These ideas, once formulated and agreed upon, found their way into arguably the most important political document in postwar Japanese history: the Japanese Constitution of 1946. This paper reflects on the involvement of scholars in language policy formulation and reform, and analyses the ways in which scholars from both the wartime and interwar period “hammered out” new proposals rooted in old debates.
Stronger Prime Ministership in Japan: The Case of Public Sector Reform
Iizuka, Shuntaro (University of Melbourne)
Previously, the Japanese Prime Minister (PM) was generally considered as a weak political actor, while non-elected bureaucrats in horizontally-constructed ministries allegedly had the actual power. However, this situation has gradually changed, with some arguing that there is a ‘presidentialization of the PM’. This presentation will firstly review studies on recent stronger PM-ships in Japan. It will show that the institutional changes due to the major politico-administrative reform around 2000, and the introduction of the single-member district system in 1996, have contributed to this phenomenon. Furthermore, this research will show an example of stronger PM-ship in the case of public sector reform: the arm’s-length agency scheme, i.e. Independent Administrative Agency (IAA). The IAAs were supposed to be ‘independent’, with their performance being evaluated ex-post objectively by third-party committees comprised of scholars and professionals. However, political interference in these agencies and the scheme has gradually been found, and further reform has been a critical issue since the late 2000s. In 2014, an amendment was finally passed by the Diet, in which the commitment of the PM as well as the ministers has become stronger. The presentation will conclude by arguing that the contemporary politico-administrative reform has entailed two vectors: upward to the PM and downward to the arm’s-length agencies, the consistency between them being a democratic issue.

WEDNESDAY 28 JUNE 15.30-17.00 Limits to Japanese Law: Winds of change and the bastion of conservatism

Chair: Laura Dales (University of Queensland) The interface between legislation and social practice is marked by either the maintenance of social order or through initiating social change. In contemporary Japan, the tension between maintaining a particularly conservative form of social order based on traditional notions of family/women and pressure to change legislation to reflect social reality have manifested in diverse ways. These three papers focus on this tension with examples of how it plays out in everyday dynamics within Japanese society.

Article 772 and Japan’s unregistered

David Chapman (University of Queensland)
There are estimated to be more than 10,000 children in Japan that are without legal identity usually afforded through household registration. These children are placed in an extremely vulnerable position with diminished security and inadequate access to fundamental services provided by the state. In many cases, this situation continues into adulthood where a lifetime of difficulties awaits. In this paper I argue that, Japan’s problem of unregistered children (mukosekiji) has been a matter of legislation that favours patriarchy and normative notions of family, which, combined with systemic inadequacies, has failed to adequately address the situation. I further argue that, the specific conditions of article 772 of the Japanese Civil Code restrict choice for women in unsafe circumstances such as a difficult divorce, domestic violence and reprisal from the state and, coupled with the Household Registration Law, places at risk the fundamental right of children to protection by the state and the family.

Cultural politics of family values: Persuasive strategies used by Nippon Kaigi

Toyoda, Etsuko (University of Melbourne)
This presentation is about persuasive strategies utilised in the current cultural politics of family values in Japan. In 2015, the Japanese Supreme Court upheld the constitutionality of Japanese Civil Code 750, which stipulates a system of one-family-one-surname. The Japanese government is on a mission to amend the Constitution, including the article pertaining to family. Their draft emphasises that family is “the natural and basic unit of society” and family members “must help one another”. Media coverage of the recent governmental progress towards the constitutional change has revealed the existence of a political pressure group with conservative nationalistic ideologies, including the concept of a rigid patriarchal family lineage. In this study, I examine the messages concerning family values produced by this organisation, Nippon Kaigi, using a critical discourse analysis approach, to determine their rhetoric or language, which appear to have managed to persuade malleable people. The findings from the analysis revealed that the organisation uses several persuasive linguistic and non-linguistic strategies, including the contrastive use of inclusive/pleasant terms versus exclusive/fearful terms, and the use of expressions showing cause-effect relations and assertion. Their discourse potentially aggravates the discrimination against people who do not fit in the social norm.
Sexual harassment and women’s political participation
Emma Dalton (RMIT)
In this paper, I look at the sexual harassment of women politicians in Japan. Since the late 1980s, sexual harassment, or sekuhara, as it is commonly referred to in Japan, has gradually come to be understood as bad business practice, harmful to women and eventually against the spirit of the Equal Employment Opportunity Law (EEOL). In 1997, the EEOL was revised to include an amendment that placed an affirmative obligation on employers to prevent sexual harassment in the workplace (Article 11). This came into effect in 1999. This has provided avenue for victims of sexual harassment to lodge complaints with their employers, which must be followed up. Yet the law is criticised for its limitations, a major one of which is that private plaintiffs cannot use it to sue individual harassers. In addition, some argue that cultural shifts have lagged legal developments in this area, thus rendering the law’s spirit less effective. Recent public instances of sexual harassment against women politicians and the results of a 2014 survey of metropolitan assemblywomen suggest that despite the existence of legal measures to prevent sexual harassment, sexual harassment is still not taken seriously by many, including those in policy-making decisions. I suggest that sexual harassment makes politics a hostile workplace for many women, with potential repercussions on women’s political influence.

THURSDAY 29 JUNE 9.00-10.30 Debates and developments in Japanese law and society

Chair / Discussant: Carol Lawson (Australian National University) This panel brings together three papers on contemporary issues in Japanese law. The papers highlight the dynamic nature of debates in Japanese law and society as Japan continues to actively seek economic and social reform through its legal system. The panel will consider the changing role of judicial scriveners (shihō-shoshi), recent empirical data revealing who uses formal personal bankruptcy proceedings, and the balance between legal sanctions for invasion of privacy and the constitutional right to speak and write freely. These topics will facilitate a discussion of a broad range of issues facing Japan’s legal system, including access to justice and courts, regulatory design and territorial battles, gender discrimination, and social expectations regarding public figures such as celebrities.
Empowering judicial scriveners as litigators in Japan: a critical look at the justifiability and value of the reform
Dr. Kay-Wah Chan (Macquarie University) and non-presenting co-author Professor Takayuki Ii (Senshu University)
In Japan, there is a quasi-legal profession of judicial scriveners (shihō-shoshi). Traditionally, shihō-shoshi handle the preparation of relevant documents for litigants to file with courts but did not have the right to represent them in courts. This was changed as part of a large-scale justice system reform in Japan. From April 2003, shihō-shoshi who took an induction course, passed a certification examination and obtained the Justice Minister’s certification are permitted to offer legal advice and represent litigants in Summary Court civil lawsuits. These law-related work used to be monopolised by the full-fledged legal profession of bengoshi. The objective of the reform was to enhance the public’s accessibility to legal service. However, such a change could result in competition between the two professions. This is aggravated by the fact that the justice system reform also aimed at substantially expanding the bengoshi population. This paper will examine the justifiability and value of the expansion of shihō-shoshi’s permitted scope of practice. It will empirically investigate the situation and development of the two professions, Summary Court civil litigation, and legal representation in such lawsuits after the reform.

Going bankrupt in Japan: who, when, how and why?

A/Professor Stacey Steele (Melbourne Law School) (presenting via Skype)
This paper analyses recent empirical data collected by the Japanese Federation of Bar Associations and other organisations to consider the different contexts of using formal personal bankruptcy proceedings in Japan. The data enables a picture of the average bankrupt to be drawn, revealing disparities between men and women, liquidation and rehabilitation proceedings, increasing elderly bankruptcy and geographical disparities. The data also suggests that fewer people are using formal bankruptcy proceedings, and the paper considers why this might be the case. The decreasing formal filings run counter to the goal of reformers in the early 21st century when the Japanese insolvency law framework was drastically renovated. The paper also argues that Japan’s experience also provides suggestions for the way forward in Australia as the Government considers amendments to the Bankruptcy Act relating to personal bankruptcy.
Avoiding the spotlight: celebrities in the shadows of privacy
Professor Dan Rosen (Chuo Law School; Visiting Research Scholar, Melbourne Law School)
Celebrities are private citizens who voluntarily assume public roles in society. They crave attention, and yet–at certain times–they seek solitude. Once attracted, however, people and the press are not inclined to look away. Stories about the lives of entertainers, on and off the job, are a staple of magazines, television “wide shows,” and internet chatter. This paper examines the sources of legal claims to protection of privacy in Japan and the countervailing right to freedom of speech and press. Societies differ in the balance they strike between the two. In Japan, social expectations about celebrities also have weight. Famous people often conclude that their careers are better served by apologizing for private behavior than by seeking legal redress for its disclosure.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.