Japanese lawyers are filing for judicial review of TPP
Japan-US Weebly | 29 Sep 2014
Japanese lawyers are filing for judicial review of TPP
On September 19 and 20, Tokyo Shimbun reported that Japanese lawyers are preparing a lawsuit to stop the TPP negotiations and declare the TPP to be unconstitutional. In addition to judicial review, they are demanding compensation based on the State Redress Law. Article 17 of the Japanese constitution stipulates that when citizens are damaged by unlawful acts committed by civil servants, those citizens are entitled to receive reparations as defined by law. The law governing these reparations, the State Redress Law, was established in 1947.
On September 24, a coalition for the "Injunction Against TPP Negotiations and Judicial Review of the TPP” was officially established and held its first meeting in Tokyo. The lawyers involved in the case include two lawyers, Koji Iwatsuki and Masahiko Yamada, who worked on a 2008 case in which the Court found the deployment of the Japanese Self Defense Forces to Iraq as unconstitutional. In that case, the court found that the act of transporting multilateral forces to Baghdad by the Japanese Air Self Defense Forces was unconstitutional since transporting foreign soldiers to battlefields could be interpreted as participating in warfare, which violates Article 9. Even though the court found the deployment unconstitutional, it did not approve the reparation demanded by the plaintiffs.
On September 23 and 24, bilateral negotiations were carried out between the US and Japan in Washington, but they ended with little progress. The two sides talked about the conditions that would need to be met in order to trigger safeguards that are meant to control sudden changes in import. Since the US and Japan are pushing to reach an overall agreement on the TPP during this year---especially since the US midterm election and the APEC meeting are in November---this lawsuit has the potential to significantly influence US-Japan relations. While elections are the means for reflecting the opinion of the majority in politics, judicial review serves as a last resort for minorities to reflect their opinions in the political process. The grievances addressed by the plaintiffs in the TPP lawsuit were not adequately addressed through the election, so they are now trying assert their rights through judicial review. It is not clear how this will be resolved.
Why Are They Filing the Lawsuit?
Although the content of the TPP negotiations affects citizens’ lives, most of the negotiations are conducted in secret. Any documents relating to the negotiations are legally allowed to be kept secret for four years after the TPP agreement goes into effect. Tokyo Shimbun reported in August that the US and Japan have even been discussing ways to conceal the final agreement once it is reached. In essence, once they come to an agreement, the two sides will "put it in the freezer." The need for this has arisen because any agreement reached will entail lowering tariffs to intermediate levels, and may produce political backlash. US constituents are likely to view the remaining Japanese tariffs as being too high and Japanese citizens are likely to view the tariffs as being too low.
The most important element of the lawyers’ argument is that the secretiveness of negotiations violates the "right to know." Article 21 of the Japanese constitution guarantees an overall protection of free speech, but does not refer to the right to know. However, the right to know is considered by constitutional scholars to be a derivative of Article 21. Even though Article 21 only talks about the right to express, it is logical that if there is a freedom to express information, then there should also be a freedom to receive information. In Japan, when a court engages in judicial review, it normally uses one of two standards: stricter standards are applied for judicial review of freedom of speech issues, whereas looser standards are applied for judicial review of socio-economic rights. The logic is that once freedom of speech has been violated, it is difficult to construct appropriate remedies, whereas violations of socio-economic rights can be remedied by awarding monetary compensation. Therefore, the Court is more likely to find that the TPP is in violation of the right to know (which is connected to freedom of speech) than a violation of the right to live.
The lawyers also claim that the secretiveness of the TPP violates the Article 41, which stipulates that the Diet is the highest legislative authority in Japan. Since the information about the negotiations is not reported to members of the Diet, the government is asking the Diet to make a decision about whether to ratify the TPP without detailed information.
Another constitutional right that the group is claiming to be violated by the TPP is the right to live. Article 25 stipulates that all citizens have right to live a life that guarantees minimum level of health and cultural satisfaction. The plaintiffs are claiming that the TPP violates the right to live because the parties to the TPP are negotiating the trade of genetically modified food as well as the loosening of rules on residual agricultural pesticides. As for genetically modified foods, in Japan food that is genetically modified GM must currently be labeled as such when it is sold. Many consumers feel that GM food is unsafe. Companies that sell non-genetically modified food are allow to label their products “Not GM” in order to appeal to consumers. In the US this “Not GM” label is not allowed and companies do not have to label products as being genetically modified. This has led to Japan’s “GM” and “Not GM” labels being discussed in the TPP negotiations. The plaintiffs are concerned that if Japan were to sign the TPP it would be unable to maintain its current labeling system.
In addition, the regulation of cheap generic medicines and the safety examination process for imported cars also do not conform to standards. Japan does not impose tariffs on imported cars so the negotiations over automobiles between Japan and US primarily concerned safety regulations. The lawyers claim that if these changes in law were implemented by the TPP, then it would endanger the right to live and the right to pursue freedom, life and happiness guaranteed by Article 13 of the Japanese constitution.
Who Are the Members of this Group?
The chairman of the group of plaintiffs is Katsumasa Haranaka, the former chair of the Japan Medical Association between 2010 and 2012. The JMA is the largest association of doctors in Japan, and all Japanese doctors are members. The JMA opposes the TPP because it thinks the agreement will lead to the destruction of the universal health care system in Japan. The main source of concern for the JMA is the potential inclusion of the controversial Investor State Dispute Settlement (ISDS) provision in the final agreement. A lot of observers think that the TPP will include ISDS, which is a provision that defines how disputes between foreign investors and a state should be resolved. Under the ISDS provision, when a country makes a law or regulation that contradicts the trade agreement, then the foreign companies invested in the country can file lawsuit and demand compensation from the government. The JMA is concerned that including ISDS in the TPP agreement will allow US insurance companies to file lawsuits claiming that the Japanese universal healthcare system violates the TPP. If they are successful, then this may enable US insurance companies to operate health insurance plans in Japan, thus undermining the Japanese system. The JMA is also concerned that the TPP may increase the prices of pharmaceutical products.
The vice chairs of the group are Koichi Kato, the chairman of the Japanese Consumers’ Cooperative Union (COOP), Nobuji Yamamoto, the chairman of the Pal System (Pal System is a delivery system affiliated with COOP), and Professor Yoshinori Ikezumi at Rikkyo University.
Professor Yoshizumi was the chairman of the coalition for “Injunction Against SDF Deployment to Iraq.” He states “it is obvious that people in rural areas and urban cities will suffer from violations of various human rights.”
One of the lawyers who participated in the 2008 Iraq war lawsuit, Yoshihiko Yamada, served as a member of the lower house of Japanese parliament for five terms, and he was a Minister of Agriculture, Forestry and Fisheries during the Kan administration in 2010. He passed the bar exam in 1969, and has worked as a practicing lawyer as well. He lost an election to the upper house in April 2014, and currently working as a lawyer.
Since all the lawyers are working as volunteers, the lawsuit is funded by donations from the plaintiffs. Each plaintiff pays 2,000 yen (approximately $20) to join the lawsuit. The group is ultimately aiming to grow to ten thousand plaintiffs.
Thirty people have joined the group as promoters. Some of these promoters are a singer Tokiko Kato, a journalist Mika Tsutsumi, Professor Nobuhiro Suzuki at Tokyo University.
Hirofumi Uzawa, Professor Emeritus at Tokyo University, was originally going to join the group as a promoter, but passed away on the 18th of September due to a stroke at the age of 86. He was an assistant professor at Stanford, a professor at Chicago University and later he taught Tokyo University. Due to his contribution to economics, he was believed to be a candidate for the Nobel Prize.
Source:
– Tokyo Shimbun September 19, 20 and 25.
– World Wave News NHK BS-1.
