Judicial review of public authorities’ omissions in Japa n

1. Judicial review of public authorities’ omissions in Japan Prof. Dr. Noriko Okubo Graduate School of Law and Politics Osaka University JAPAN

2. ■ Three instances for environmental litigation (1) Supreme Court (2) 8 High Courts (with 6 branch offices) (3) 50 District Courts■ Prohibition of extraordinary tribunal (Art. 76 of Constitution) : No specialized court Japanese judicial System

3. ■Administrative Case Litigation Act■ State Redress Act Legal ground for cases challenging omissions of public authorities

4. Liability for Non-use of Regulatory Power The Kansai Minamata Disease Case

5. ■ State liability for public officers exercising the authority of the State■ “Exercise of authority” also includes the non-exercise or the inaction by the executive branch, i.e. non-use of its regulatory power. State Redress Act (Article 1)

6. ■ Discovery of Minamata disease Minamata city, Kumamoto prefecture, in 1956■ This case was attributed to the methyl mercury that had accumulated in fishes and those who ate them had been poisoned with it. Discovery of Minamata disease

7. ■ Claim for Damages in Torts (Art. 709 of Civil Code )・Victims have won the cases seeking compensation from the polluter, the Company Chisso.・However, it is not always easy to diagnose Minamata Disease because in many cases its typical symptoms only partially appear.■ State liability case on the grounds of non-use of their regulatory power Two types of Minamata cases

8. ■Considerable discretion as to how and when to exercise its regulatory power■ Unlawful if such failure is extremely unreasonable in light of three factors :(a) Purpose of the laws and ordinances that are the basis of the authority (b) the nature of the authority(c) the specific circumstances of the case When omissions are unlawful? (Case Law)

9. ■Government, as of the end of November 1959, could recognize a) that considerable number of patients had died of the disease,b) high probability about causative substance. ■ Spread of Disease could be prevented if authority had been exercised at that time. Judgment of Supreme Court (15.10.2004)

10. ■Government was liable for failing to promptly issue the ministerial ordinances to regulate asbestos based on Labor Standards Act and on Industrial Safety and Health Act (Osaka High Court: 26.12.2013). Other State Liability Cases

11. Administrative Litigation Mandamus Action Illegal dumping cases

12. ■Revision of Administrative Case Litigation Act in 2004■ Action through which the plaintiff is able to seek a certain act of an administrative agency (e.g. an order to suspend a factory’s operation). Introduction of "mandamus action"

13. ■ Typical measure to prevent pollution by illegal dumping■ Lower courts admitted right of neighborhood to live in a healthful and peaceful environment needs to be protected as part of an personal right (e.g. Sendai District Court: 28.3.1992) and issued injunctions. Before 2004 Civil Injunctive Relief

14. ■Fukuoka High Court ordered the Governor of Fukuoka prefecture to take action against illegal waste traders who were damaging the living environment (2.7.2011). ■ Such decision became definitive when the Supreme Court rejected the final appeal by the local government (7.3.2012). Recent mandamus action

15. ■In public health cases, civil litigation has been relatively effective in Japan. ■ State liability lawsuits proof to be effective measure to challenge the non-use of the regulatory power. ■ Mandamus action is expected to be effective to control illegal failures by public authorities. ■ Deficit of judicial review because of the lack of standing in the field of nature protection Future Perspectives