Courts in Japan rule against nuclear restart – what can we expect in the future?
TOKYO (majirox news) — It may be too much to hope that Japan’s passive judiciary will lead a revolt against unpopular government policies, but according to Hiroshi Shimada and Kazuhiro Kasahara, who gave a June 3 press conference at the Foreign Correspondents’ Club of Japan in Tokyo, there may be signs that the days of judges rubber-stamping government policies could come to an end.
With Prime Minister Shinzo Abe’s administration’s approval rating at healthy 50% or so, this may not be any cause for worry by the politicians, but that approval figure masks widespread disapproval for several policies that Abe personally holds dear.
One is the restart of the nation’s nuclear reactors, mothballed since the 2011 earthquake, awaiting safety inspections. Fukui residents, concerned that two reactors on the Ōi site posed an unacceptable risk, filed suit to prevent reactors 3 and 4 from being restarted by Kansai Electric Power Company (KEPCO). Only for the third time in history, the district court found in favor of the plaintiffs, represented by a legal team which included Shimada and Kasahara (previous rulings have, however, been overturned by higher courts).
Shimada says there are three ways the court’s ruling departed from practices in the past. First, there was no requirement for the plaintiffs to prove a highly specific risk associated with the power plant – a more general risk assessment, including one that included previously unimaginable risks, was acceptable. The burden of proof was no longer wholly on the plaintiffs, who in previous such cases had been forced to disprove the official risk assessments, which concluded that the standards for operating nuclear power plants posed no risk. Lastly, it was a sign that the judiciary was still alive to the wishes of the people. Kasahara quotes Montesquieu in defence of an independent judiciary, a concept which has appeared elusive in many instances in Japan.
Both Kasahara and Shimada attribute this change in the judges’ view to the disaster at Fukushima which showed that, despite years of assurance that a natural event of the magnitude of March 11 2011 was impossible and the standards regarding the operation of nuclear power plants were completely adequate, the myth of total safety that had been promulgated about Japanese nuclear power was just that – a myth. The relative speed (by Japanese legal standards) of the ruling was a pleasant surprise to the plaintiffs, who filed in December 2012, and received their ruling in May 2014.
Rather than the usual appeal to technical issues, where the plaintiffs in previous cases did not have access to the data and arguments possessed by the defendants (power utilities), the judgement in the Ōi case was based around the concept of human rights as expressed in the Constitution. Kasahara describes this judgement as “beautiful.”
However, it is too soon to regard this verdict as a total victory. First, there is little in the court’s ruling that absolutely forbids KEPCO from restarting the reactors. The lawyers say, though, that were the utility to restart the plant in defiance of the court order, the public outcry and hostility, not just against the company, but against the government. Next, the ruling will be appealed, and no permanent injunction can be expected until the Supreme Court has ruled on the issue. Meanwhile, the risk assessment and report of the Nuclear Safety Agency is expected to appear, though there is by no means a guarantee that the court ruling will be endorsed, will also have to be taken into account.
Shimada claims that at a national meeting of judges called by the Supreme Court to discuss the nuclear issues, many district judges called for the judiciary to take a more proactive stance in matters related to nuclear safety. Though he points out that in other areas, such as the siting of garbage disposal facilities, the courts may disagree with the government, there is still a bowing to central authority in areas such as food safety and pharmaceutical approval.
But, if the judicial system does actually begin to assert its independence from government policy in one area where the public feels strongly, there is a possibility that it will act in other similar areas. The courts could interpret as unconstitutional Abe’s long-held plan to bypass a referendum on the Constitution through a unilateral “reinterpretation” by the Cabinet of Article 9, the “peace clause,” a plan which is opposed by over 60% of Japanese citizens. Such a ruling would deal a body-blow to the Abe administration and its plans to “normalize” Japan’s military capabilities.