Japan Institute for National Fundamentals

Speaking out

Katsuhiko Takaike

【#363】Two Otsu Incidents

Katsuhiko Takaike / 2016.03.15 (Tue)

March 14, 2016

     On March 9, Otsu District Court Presiding Judge Yoshihiko Yamamoto ordered the suspension of the Nos. 3 and 4 reactors of Kansai Electric Power Co.’s Takahama Nuclear Power Station in Takahama, Fukui Prefecture, in western Japan following their restart in January and February respectively, accepting 29 Shiga Prefecture residents’ petition for the provisional disposition of the reactors. The order should be called an incident that will leave a stain on Japan’s judicial history.
     In the Meiji Period, a major incident that was later called Otsu Incident occurred. On May 11, 1891, a policeman on guard attacked and injured a Russian crown prince in Otsu, Shiga Prefecture. While the Japanese government insisted to apply lese-majesty and impose death penalty on the policeman, justices of the then Supreme Court at its meeting at the Otsu District Court determined the offence as an ordinary attempted murder and sentenced the policeman to life imprisonment, instead of death.
     Throughout the prewar and postwar periods, this episode has long been viewed as a symbolic event in which Japan’s judicial branch managed to maintain judicial independence against outside pressure.

Suspicions about suspension of nuclear reactors
     In contrast, the latest “Otsu incident” involves some questions and suspicions.
     First, the petitioners are not residents close to the Takahama Nuclear Power Station but those in Shiga Prefecture neighboring Fukui Prefecture. They live in an area several tens of kilometers from the nuclear power station. I doubt if they are qualified for the petition.
     Next, the decision was made as a provisional disposition for which some urgency is required. Rather than a provisional disposition, the petitioners should have filed a full-blown lawsuit to halt the nuclear reactors that restarted operations after the Nuclear Regulation Authority’s screening that is known as the toughest in the world (and criticized as too tough).
     In April last year, the Fukui District Court decided on provisional disposition against the restart of the same Takahama reactors. The decision was ridiculous and cancelled later. The decision by Judge Yamamoto in Otsu was even worse.
     The Yamamoto decision held Kansai Electric Power as responsible for proving the reactors as safe, running counter to the usual burden of proof rule for a provisional disposition.
     All told, we suspect that the judge might have attempted to suspend the reactors from the beginning. That a judge with no expertise on nuclear power decides by himself to suspend a nuclear power plant in operation amounts to a terror attack by the judiciary.

Judicial deterioration
     Judicial experts including judges, prosecutors and lawyers have increasingly been criticized for being qualitatively deteriorated. Judges are especially criticized for being preoccupied with their promotion and for groveling in the dirt. I admit such tendency exists and have a feeling that populist rulings have recently increased. Measures to expel preposterous judges should be taken in order to correct the situation, including the adoption of a U.S.-like system of parliamentary scrutiny on the qualification of newly-appointed Supreme Court justices as advocated by Yoichi Shimada, a member of the Planning Committee at the Japan Institute for National Fundamentals, and the appointment in a certain proportion of lawyers with practical experience as judges.

Katsuhiko Takaike is an attorney-at-law serving as Vice President of the Japan Institute for National Fundamentals (JINF).