Judicial review of public authorities

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Judicial review of public authorities omissions
in Japan

• Prof. Dr. Noriko Okubo
• Graduate School of Law and Politics
• Osaka University
• JAPAN

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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
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Administrative Case Litigation Act State
Redress Act
Legal ground for cases challenging omissions of
public authorities
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Liability for Non-use of Regulatory Power

• The Kansai Minamata Disease Case

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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)
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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
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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
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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)
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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)
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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
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Administrative Litigation

• Mandamus Action
• Illegal dumping cases

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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 factorys
operation).
Introduction of "mandamus action"
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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
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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
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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