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Japan’s new security legislation: Debate over constitutionality moves to the legal arena

Japan’s new security legislation is big news in Japan, though has been given little coverage here in England apart from the fighting which took place in parliament on 19th September following its enactment. The following is our translation of a Nikkei article which surmises the current state of play quite well. The original article can be found here.

Translation: On Friday 19th September the Japanese upper house enacted a series of security measures which have been more hotly debated than any other law in recent years. The debate as to whether the law is unconstitutional will likely now be continued in the courts. The highest court (Supreme Court) is delegated authority by Article 81 of the constitution to decide on the constitutionality of laws, though any lawsuit must be brought before courts of first and second instance before being appealed to the Supreme Court.

The Supreme Court has a history of handing down judgments which do not meet expectations. In 1952 the then Police Auxiliary Force was to become the Self Defence Force (comment from translator: the rearmament of Japan by the United States in light of the Korean War was the background to this). The constitutionality of the transformation was brought before the Supreme Court which commented, “we cannot rule abstractly on the constitutionality of laws”, that is to say, it requires a substantive incident in order to do so.

As a result, it is likely the Supreme Court would throw out a lawsuit claiming psychological injury caused by the increased likelihood of war occasioned by the introduction of the new security legislation for being too ‘abstract’.

The type of case envisaged to fall within the Supreme Court’s definition of ‘substantive’ would be, for example, a compensation claim by the relatives of a self defence force worker who died in action sanctioned under the new collective self-defence measures introduced by the security legislation. Another example would be a claim by a self-defence force worker to deem unfair a job dismissal imposed after the worker refused to follow orders sanctioned under the new security legislation.

Even if these cases are not thrown out for being insufficiently substantive, the Supreme Court may still avoid ruling on their constitutionality because of the deference it must pay to cabinet and parliamentary decisions in ‘highly politicised matters’ unless they are clearly unconstitutional.

The Supreme Court avoided making a decision on the constitutionality of the American and Japanese mutual cooperation treaty in 1959 in a case known as the ‘Sunagawa incident’. The Supreme Court commented, “it is not in principle amenable to pass judgment on such a highly politicised matter”.

On this point, a former Supreme Court judge has commented, “this constitutional theory (in dealing with ‘highly politicised matters’) is based on the principle that politicians have acted in accordance with the will of the people”. In respect of the new security legislation he added, “difficulties will be encountered as to whether it can justifiably be applied given the Supreme Court cannot appraise whether due process has been followed in understanding the will of the people (for example, whether an election has been fought over it)”.

Before its enactment, individuals from all areas of the Japanese legal profession spoke out against the new legislation. About 300 lawyers and academics attended the Japanese Bar Association’s meeting at the end of August, at which a former Supreme Court Judge, a former Cabinet legislation bureau chief and a number of constitutional law academics were all in agreement the security legislation breaches Article 9 of the constitution (translator’s note: Article 9 proclaims Japan is a pacifist state).

On September 15th a group of 75 former judges submitted a demand to the chairman of the Upper House for careful consideration of the security legislation, proclaiming, “the positions we have held as guardians of the constitution will not allow us to close our eyes to what is now happening.”

The right to complain about human rights abuses

Many Brits bemoan the loss of sovereignty of their government to European institutions. This is a hot topic in the media at the moment since the House of Commons voted overwhelmingly by 212 votes to reject a European Court of Human Rights (ECHR) demand that Britain give prisoners the vote. By deciding not to follow the European court’s instructions, the British government will be acting illegally.

I have not written this article to discuss whether the commons decision was right or wrong. I simply wish to contrast the current state of play in Britain with that in Japan in respect of an individual’s right to complain of human rights abuses. In doing so, I hope it will become clear why Britain is a far more democratic country thanks to the presence and power of the European courts.

For me, the crucial point of this debate which many people seem to forget, is the fact that John Hirst, a prisoner serving a life sentence for manslaughter, was able to take the country to court for abusing his human rights – he argued the UK’s blanket ban on prisoner voting was incompatible with Article 3 of Protocol 1 of the European Convention on Human Rights, which guarantees ‘free elections…which will ensure the free expression of the opinion of the people…’

Anyway, regardless of what John Hirst was claiming, I wish to concentrate on the fact that he was able to have his case against the state heard by an international body. This would certainly not have been possible in Japan.

A summary of the situation in Japan is given in a recent blog article by Kazuo Hizumi, a famous lawyer/journalist.

[translated from original Japanese] In Japan it is still the case that criminal investigation procedures are not transparent and severe restrictions remain on the freedom of electioneering. In addition, the inequality in respect of female pay is simply atrocious. Why, in what is ostensibly a democratic state, should the human rights of citizens be so inadequately protected? One way of breaking out of this malaise would be to introduce an ‘Individual Complaints System’.

Hizumi sensei is referring to the fact that although Japan is signatory to multiple international human rights treaties, because the treaties are not part of Japan’s domestic law, Japanese citizens cannot use one of these treaties to bring a case against their government. Some of the treaties have an optional mechanism which states can opt into, allowing individuals to make specific complaints to the relevant international committees that their rights have been violated. However, Japan has not taken this option on any of them. Interestingly, the UK government has chosen only to allow individual complaints in respect of the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities, but most importantly is answerable to European Court of Human Rights in relation to individual complaints arising out the European Convention of Human Rights.

This has become such a hot topic in Japan that even Nichibenren, the Japanese solicitor’s regulatory body (equivalent of our Law Society) has arranged a discussion between its members on 25 February to put pressure on the Japanese government to allow citizens to enforce the rights arising from these treaties. I have translated the invitation to this discussion below:

[translated from original Japanese] It has been just over one year since the birth of this administration, an administration which had pronounced in its manifesto that it would bring in an Individual Complaints System….

The Individual Complaints System is a system whereby individuals who have exhausted all avenues for obtaining a remedy for human rights abuses under a (human rights) treaty in the national courts, a means of demanding a remedy from whichever international body is specified in that treaty.

An Individual Complaints System is contained within the International Convention on Social, Economic and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment among others. However, by not opting to implement an Individual Complaints System in respect of any of these treaties, out of all 30 OECD (Organization for Economic Co-operation and Development) member states and all G8 member states, Japan is the only state not to have any kind of Individual Complaints System in place.

The Japanese government and courts have continued to take an extremely negative approach towards both the implementation and cases involving each of these human rights treaties. As a result, the implementation within Japan of each treaty remains at an extremely unsatisfactory level. This situation is inconsistent with both pillars of Japan’s foreign policy, ‘Value-oriented diplomacy and Human Rights Diplomacy’, and is not befitting of a member-state of the United Nations Human Rights Council .

The creation of a national human rights body and the implementation of an Individual Complaints System in Japan would be extremely effective for the improvement of the country’s human rights situation. Furthermore, the UN Human Rights Council along with other UN bodies are demanding that Japan introduce an Individual Complaints System.

It follows that John Hirst’s case would have probably been given short shrift in the Japanese courts, and without a procedure in place to appeal to an international body, the matter would have ended there. Regardless of the particular merits of his case, our country is a more democratic place thanks to the structures we have in place which gave him that opportunity.

Canon blows generic ink away

Interesting developments in the printer ink market in Japan.

Everyone who owns an inkjet printer knows the extortionate cost of new ink carts. In fact, the manufacturers often make a loss on the printer itself purely to hook consumers into a lifetime of purchasing their heavily over-priced ink.

However, everyone who owns an inkjet printer knows there are alternative carts which are far cheaper. Obviously, printer manufacturers do everything within their power (usually programming their software to reject these generic carts) to ensure their customers continue to purchase ink from them. Well, one Japanese printer giant has taken extremely direct measures.

Canon took 6 generic ink manufacturers to court for patent infringement in June last year. Canon’s patent protected cartridges contain an LED. The court of first instance ruled in Canon’s favour. On Tuesday this week the generic ink manufacturers’ appeal was thrown out and they were handed an injunction to suspend sales.

IQ-pat make a good point in his blog that the shockwaves of this case may cause Japanese businesses to perhaps choose not to proceed with new plans when faced with the risk of infringing intellectual property. On the flipside, it will also encourage intellectual property owners to be more bullish about protecting their assets and enforcing their rights, so we may see lots more of this type of litigation.

Thanks to Corporate/IP lawyer, Nao Yoshizawa for drawing my attention to this ruling in his recent tweet.

RokuRaku rocked by court ruling

All ex-pats become homesick at some point. The best remedy for homesickness is watching a bit of homeland TV. When I lived in Japan, watching Premier League football did it for me. For my wife, it’s Japanese dramas.

In the past, VHS tapes or DVDs of these dramas would be passed from home to home within the Japanese housewife communities living abroad. However, popularisation of the net, faster speeds and flagrant copyright abuse means that now, one only need know where to look for a quick homesickness cure.

One method Japanese people use to watch their favourite programmes when living abroad is registering with an online TV service and paying subscription fees to be able to watch all shows being broadcast on homeland terrestrial TV. Subscribers can select the programmes they want to watch before being broadcast, then watch them at a reasonable hour whenever they want – watching them live is usually out of the question due to difference in time zones.

These services have been in the spotlight recently, being sued for copyright infringement. I think the following blog article by patent attorney, Hiroatsu Ito, very clearly explains the details of a decision in a recent case and its implications for these services. I have translated it from the original Japanese. See the full article here.

On 20th January 2011, Japan’s supreme court heard an appeal by NHK (translator’s note: NHK is Japan’s equivalent of the BBC) and 5 other privately owned broadcasters for an injunction against the service known as ‘Japan Digital Household Electronics’ for infringement of copyright. The service involves the customer using a ‘RokuRaku’ device to receive recorded TV programmes outside of Japan via the internet.

The supreme court allowed the appeal from NHK, following the ruling of infringement from the court of first instance, overturning the decision of the Intellectual Property High Court (second instance). A summary of the judgement is below:

This judgement is in respect of a service which makes possible the acquisition of recordings of TV programmes which have already been broadcast. The service provider, as the administrator and controller of the process of receiving the initial broadcast (using an aerial) and then transferring it to machines with a built-in duplication facility (The ‘Duplication Device’), is to be held as the perpetrator of the duplication whenever the broadcast programme is automatically duplicated by a Duplication Device instructed to record, even though that instruction is carried out by the service user.

In other words, “When judging who is carrying out the duplication of original works , it is appropriate to take into account various factors including 1) what is being duplicated; 2) the method of duplication; and 3) the details and level of participation in the duplication process; in order to judge the actual perpetrator of the duplication.”

In this case, because the service provider’s actions were not limited to merely creating an environment to facilitate the duplication, but, in controlling and administering that process, also involved carrying out the pivotal act in occasioning the duplication by inputting information into the users’ Duplication Devices once the broadcast had been received, the service provider was ruled to be the perpetrator of the duplication and was therefore judged to have infringed copyright.

This decision was no surprise after a similar service, ‘Maneki TV’, suffered the same fate at the hands of the supreme court a couple of days earlier.

I guess this means Japanese people will need to rely on sites hosted in China for their copyright infringement from now on.

3 years for stealing a pot noodle

pot noodleI wanted to translate this article dated 19th January on 弁護士の良心 (translation “The conscience of a lawyer”) written by a criminal lawyer in Japan called Eishi Suzuki.  Here is the translation:

“This happened yesterday at court.

The defendant I was representing was being indicted on charges of stealing a pot noodle worth ¥105 (75p) from a convenience store.

The prosecution submitted a long custodial sentence would be necessary and requested a total of 3 years. In defence, I submitted that what the defendant required was not a harsh sentence but the provision of some time in an environment which could allow him to reconsider his actions. I then awaited judgment – slightly nervously as there were 5 trainee solicitors watching and I didn’t want to lose face!

You’re probably thinking “why such a harsh sentence for something so minor?”

The answer lies in “Prevention and Punishment of Theft Law” at section 3 titled “Serial Theft aggravated by prior multiple commission”. The section states, “ A person committing a similar type of theft 3 or more times within 10 years… shall be given a custodial sentence of 3 or more years.” This penalty dates back to 1930 (this shows in the outdated Japanese) but has not been reformed once since then.

In other words, my client has been termed a serial theft offender. Incidentally, under court procedure serious crimes deserving a custodial sentence of one year or above should only usually be dealt with under the supervision of 3 acting judges. However, on this occasion a theft can be dealt with by one presiding judge. The only other similar exception to this rule is is for the offence of serial gambling.

Whatever happens, despite each individual crime being quite petty, there is a serious punishment for this type of serial theft. However, even without the section 3 offence, this type of theft would still attract a maximum penalty of 10 years in prison due to the provisions for aggravated offences (these apply when the offender persistently commits the same offence, regardless of the crime), so I doubt there is any need for both laws to be in place.

The judge seemed like a woman with a good heart and seemed to listen intently while I called evidence from the defendant (I made reference to his upbringing, family relationships, interpersonal relationships, feelings of loneliness and isolation etc. ) and at the end she made a strong but kind statement to the defendant to dissuade him from future crime.

I await the judgement with interest.”

I will post the judgment as soon as I find out.

Japan’s minimum wage

Unlike in England where employers must apply the same minimum wage (£5.93 for over 21s) regardless of whether their employees work in London or Manchester, in Japan different rates apply dependent on region as well as business sector.

For example, a factory worker in Tokyo must receive ¥821 per hour as a minimum whereas somebody doing a similar job in Yamagata praefecture must receive only ¥645 ph as a minimum. As an example of how minimum wages differ from sector to sector, a steelworker in Aichi would have to be paid ¥862ph as a minimum in comparison with a department store sales adviser working on the same street who would only have to be paid ¥785ph as a minimum.

Recently there has been a push to raise minimum wage rates to above the 800 Yen threshold regardless of region or sector. The government is proposing this under the assumption it will improve economic fortunes. In a recent tweet, corporate lawyer Nao Yoshizawa commented the following in relation to a new report of an investigation into the effect of a rise in the minimum wage for small-medium size enterprises.


Translation: “The Ministry of Health, Labour and Welfare’s report suggested the ground would be ready for an increase in the minimum wage if measures are put in place to provide financial support to those SMEs (small or medium sized enterprises) most exposed to its effects. However, simply because SMEs are receiving financial support doesn’t mean that wages can be increased. The Japanese labour force needs to be analysed against the background of competition with the labour force of other countries. It’s not as if only Japan has the right to be a utopia.”

I tend to agree. In the UK more needs to be done to help provide SMEs with a workforce at a price cheap enough to help them compete globally. Unfortunately, in the UK we are saddled with a workforce requiring high wages to service their expensive mortgages or rent, so it is very difficult for UK SMEs to compete with those in other countries. I guess we have no choice but to become one-man-bands for the time being.

Google Adwords

Google can provide businesses with immediate access to global markets. To maximise their potential presence within their market, businesses can optimise their sites for specific keywords and phrases so they appear higher in the free search results section on Google, but they can also agree to pay a fee to Google (on a pay per click basis) which will ensure that their business’s ad appears as a “sponsored link” when a visitor to Google types in certain search terms or “keywords” – this pay per click service is known as ‘Google Adwords’.

Is the Adwords service capable of being abused? Take, for example, a businessman who has already built up a substantial amount of goodwill, to the extent that when a consumer thinks of a particular product, such as camping in France, she thinks of the name of the businessman’s company. Let’s assume the businessman has had the forethought to register a trade mark over his company name. Approaching the holiday season, the consumer will start her research of prices by first entering the businessman’s company name into Google. Results are generated, showing a couple of sponsored links, one of which is offering camping holidays in France, but is not the businessman’s company. This scenario is possible because Google has taken advantage of a message from the UK courts from a decision in 2008 (Mr Spicy v Yahoo!) holding that search engines can sell to third parties keywords that are similar or even identical to trade marked names, which can obviously result in consumers visiting and purchasing products or services from competitive websites.

A number of trademark owners (including Louis Vuitton) have since brought trademark infringement proceedings against Google for this very practice across a number of different states in the EU. In the Louis Vuitton case, the French courts gave Louis Vuitton (and others) the victory they sought. However, Google appealed, and the case was referred to the European Court of Justice (recently renamed the Court of Justice of the EU (CJEU)). Trademark proprietors from other member states have also had their lawsuits against Google referred to the CJEU, the ultimate question being: “Are the sale of keywords in this manner an infringement of a trademark?”

Google held its breath at the end of March 2010 when the CJEU came to a decision in relation to the Louis Vuitton case. It was held that Google does not infringe trademarks by selling keyword related advert space to entities other than the trademark proprietor. Google was obviously delighted. The court did add, however, an advertiser could be guilty of trademark infringement if their ad suggested there is an economic link between itself and the trademark proprietor, which is likely to confuse the average internet user as to the origin of the goods or services being advertised.

The result is that Google has been given the go ahead to continue using its policy in the EU. However, advertisers need to tread very carefully when bidding on a competitor’s trademark to ensure that the link and the advertisement clearly identifies the goods or services being advertised are those of the advertiser.

Whilst this appears to be a victory for Google, a number of cases still remain in the CJEU’s pipeline and the CJEU has not indicated if it will use this judgement to dispense with the other outstanding references.

Establishing a company in the UK

The most popular vehicle for a business in the UK is a private limited company. The main reason for its popularity is the fact that it limits the liability of the person or group of people interested in establishing the business. In theory this means that should the company business fail for some reason, only the assets owned by or tied to the business are at risk of being lost. For example, if Takashi, a homeowner, establishes a business under the ownership of a company using an unsecured loan in the name of the company, even if the business fails with the loan remaining unpaid, Takashi’s home is safe from the hands of the company’s creditors. The same would not be true if Takashi set up the business in his own name as opposed to in a company name.

There are some simple formalities to follow in order to create a company. There need only be one person involved and that person does not even have to be a UK resident! If Takashi, a Japanese national, wanted to form his own company in the UK he would need to follow the procedure for registering it with “Companies House”, the UK company registrar for a fee of only £15 if carried out online. The main requirements for a successful registration are as follows:

Choosing the company name

Takashi must choose a name which no other company has. He can check whether the name he wants has already been taken by carrying out a simple search at Companies House

Choosing a director

A UK company must have at least one director. The directors have the power to bind the company to agreements so must be chosen carefully. In our example, Takashi chooses himself.

Choosing shareholders

The shareholders are the legal owners of the company. The company must have at least one share and at least one person to hold that share. In our example if Takashi is the sole company shareholder and he owns the company’s only share, then he legally owns 100% of the company.

Choosing the company’s constitution

Just like a country, a company must have a constitution – this is called the “Articles of Association” (or “Articles”) A company must have Articles in order to be registered with Companies House. However, if Takashi does not want to take the time to create his own Articles, Companies House will provide his company a default set. Click here to see what this would look like. The Articles stipulates how the directors must run the company and also powers held by shareholders (UK company law specifies certain rules which all companies must follow in respect of the relationship between directors, shareholders and companies, but most of these rules can be varied in the Articles)

Choosing the company’s registered office

This address must be in the UK, but does not necessarily have to be an actual place of business for the company. For example, it can be Takashi’s solicitor’s office.

If you would like assistance with the formalities of establishing a company in the UK please contact me.