Mainichi: Unequal treatment for foreign and/or foreign-residing A-bomb victims? Supreme Court decision due Sept. 8

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Hi Blog. Continuing with historical reflection on the 70th anniversary of the end of WWII-Pacific and the dropping of the atomic bombs, let me turn the keyboard over to Debito.org Reader JK for an interesting insight, this time quite germane to the aims of Debito.org.  Let’s see what ruling gets handed down next month.  Dr. ARUDOU, Debito

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August 11, 2015
JK: Hi Debito. Here’s something you may not have considered — unequal treatment for foreign and/or foreign-residing A-bomb victims.  From the article below:

“But separate from the law, the government sets an upper limit on financial medical aid to foreign atomic bomb sufferers.”

And this:

“Similar lawsuits were filed with district courts in Hiroshima and Nagasaki, but the two courts rejected the demands from A-bomb sufferers living outside Japan.”

Finally:

“I want them (Japanese authorities) to treat us the same way as they do to A-bomb sufferers in Japan no matter where we live.”

There’s obviously plenty of fodder here for a blog entry on debito.org, but putting that aside for the moment, there’s something subtle I noticed when reading the article, specifically, this:

2014年6月の大阪高裁判決は、援護法について「国の責任で被爆者の救済を 図る国家補償の性格がある。国外での医療費を支給対象から除外するこ とは合 理的ではない」などと認定。

In its June 2014 ruling, the Osaka High Court said that the Atomic Bomb Survivors’ Support Law “has an attribute of state reparations in which the state is required to take responsibility to give aid to A-bomb survivors. It is not reasonable to exclude medical expenses incurred abroad from the list of medical costs to be covered by the state.”

Did you catch it?

It’s this: reasonableness / unreasonableness as the basis for legal opinion (i.e. unreasonable exclusion of foreign medical expenses).

Does this ring a bell for you? I sure hope so!

If not, you may recall the legal opinion of a one Mr. Keiichi Sakamoto with regard to unreasonable discrimination

Now, I am no lawyer, but the problem I see with using the notion of reasonableness / unreasonableness in this way is that it leaves the door open to abuse (e.g. there may be a scenario where excluding medical expenses incurred abroad by foreign A-bomb victims is, in the opinion of the court, reasonable, or discrimination by an onsen refusing to admit NJ *is* reasonable, etc.)

At any rate, here are the references. Regards, JK

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http://mainichi.jp/english/english/newsselect/news/20150811p2a00m0na005000c.html
Supreme Court likely to rule in favor of Korean A-bomb sufferers over medical costs
The Mainichi Shinbun, August 11, 2015

The Supreme Court has decided to rule Sept. 8 on a lower court decision revoking the 2011 Osaka Prefectural Government’s decision not to cover the medical costs of South Korean survivors of the Hiroshima atomic bombing who received medical treatment in South Korea.

The Third Petty Bench of the Supreme Court is likely to uphold the Osaka High Court’s decision on the case as it has not held any hearings necessary to review the high court’s ruling that Japanese authorities must cover all medical expenses for A-bomb sufferers residing abroad.

The plaintiffs are a Korean who returned to South Korea after surviving the Hiroshima atomic bombing and relatives of two other now-deceased Korean A-bomb sufferers. Although the South Korean A-bomb survivors had received an Atomic Bomb Survivor’s Handbook, the Osaka Prefectural Government turned down their applications for provision of medical expenses incurred in South Korea. The plaintiffs have demanded that the Osaka Prefectural Government scrap its decision to refuse to pay them the medical costs, among other requests.

In its June 2014 ruling, the Osaka High Court said that the Atomic Bomb Survivors’ Support Law “has an attribute of state reparations in which the state is required to take responsibility to give aid to A-bomb survivors. It is not reasonable to exclude medical expenses incurred abroad from the list of medical costs to be covered by the state.” The Osaka High Court upheld the October 2013 Osaka District Court’s decision that called for payment of all medical costs and turned down an appeal from the Osaka Prefectural Government.

The state has been covering all medical expenses for A-bomb sufferers residing in Japan under the Atomic Bomb Survivors’ Support Law. But separate from the law, the government sets an upper limit on financial medical aid to foreign atomic bomb sufferers. Such being the case, A-bomb sufferers living abroad have argued that the government’s support for them is not enough.

According to the Ministry of Health, Labor and Welfare, there were about 4,300 A-bomb sufferers living abroad who had an Atomic Bomb Survivor’s Handbook as of the end of March 2015. Similar lawsuits were filed with district courts in Hiroshima and Nagasaki, but the two courts rejected the demands from A-bomb sufferers living outside Japan.

The South Korean plaintiffs are likely to win the lawsuit being fought in Osaka over whether the provision for medical expense coverage stipulated in the Atomic Bomb Survivors’ Support Law applies to A-bomb sufferers living abroad. Supporters for A-bomb sufferers abroad said A-bomb victims and their bereaved families overseas had felt relieved after hearing the news. But because the district courts in Hiroshima and Nagasaki handed down opposite rulings over similar lawsuits, supporters for foreign A-bomb victims are calling for quickly removing the disparity in medical support between the victims in Japan and those abroad considering the years passed since the atomic bombings.

The plaintiffs in the lawsuit filed in Osaka are Lee Hong-hyon, a 69-year-old South Korean man, and relatives of two other South Korean A-bomb sufferers who already passed away. They filed applications with the Osaka Prefectural Government to receive medical expenses incurred in South Korea. But the prefectural government turned down their applications, saying that medical expenses incurred overseas cannot be covered. Therefore, the South Koreans decided to file the lawsuit.

Junko Ichiba, 59-year-old chair of the Association of Citizens for the Support of South Korean Atomic Bomb Victims, conveyed the latest development to the South Korean plaintiffs on the evening of Aug. 10. Ichiba quoted Lee Hong-hyon as saying, “I want them (Japanese authorities) to treat us the same way as they do to A-bomb sufferers in Japan no matter where we live.”

People concerned with the lawsuits in Hiroshima and Nagasaki expressed hope that the Osaka case would have a positive effect on the cases in Hiroshima and Nagasaki. Keizaburo Toyonaga, a 79-year-old A-bomb sufferer who heads the Hiroshima branch of the “Citizens’ Association for Helping Korean A-bomb Survivors,” said, “I am very pleased. The Atomic Bomb Survivors’ Support Law should be revised as soon as possible.” Nobuto Hirano, co-representative of a Nagasaki-based liaison support group for A-bomb victims overseas, said, “It is good news. The state should revise the system promptly.” The group provides support to plaintiffs in the Nagasaki case.
ENDS

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在外被爆者医療費:「全額支給」確定へ9月8日最高裁判決
http://mainichi.jp/select/news/20150811k0000m040074000c.html

被爆者援護法の医療費支給規定が海外に住む被爆者に適用されるかが争われた訴訟の上告審で、最高裁第3小法廷(岡部喜代子裁判長)は判決期日を9月8日に指定した。高裁の判断を見直す際に必要な弁論を開いておらず、在外被爆者の医療費の全額支給を認めた大阪高裁判決が確定する見通しとなった。

原告は、広島で被爆し韓国に帰国した被爆者や死亡した被爆者の遺族ら。被爆者健康手帳の交付を受けたが、韓国での医療費の支給申請を大阪府に却下され、処分の取り消しなどを求めていた。

2014年6月の大阪高裁判決は、援護法について「国の責任で被爆者の救済を図る国家補償の性格がある。国外での医療費を支給対象から除外することは合理的ではない」などと認定。医療費の全額支給を認めた1審・大阪地裁判決(13年10月)を支持し、府側の控訴を棄却していた。

国は援護法に基づいて、国内の被爆者に医療費を全額支給している。しかし在外被爆者については援護法とは別枠で上限を設けて医療費を助成し、在外被爆者らは「不十分だ」と訴えていた。

厚生労働省によると被爆者健康手帳を持つ在外被爆者は3月末現在で約4300人。広島、長崎両地裁でも同種の訴訟が起こされていたが、在外被爆者側の請求を棄却(いずれも控訴)しており、司法判断が分かれていた。【山本将克】

mainichi081015

ENDS

==========================================
— UPDATE: GOOD NEWS. DEBITO

Supreme Court rules hibakusha overseas are entitled to full medical expenses
BY TOMOHIRO OSAKI STAFF WRITER
THE JAPAN TIMES, SEP 8, 2015
http://www.japantimes.co.jp/news/2015/09/08/national/crime-legal/supreme-court-rules-hibakusha-overseas-entitled-full-medical-expenses/

8 comments on “Mainichi: Unequal treatment for foreign and/or foreign-residing A-bomb victims? Supreme Court decision due Sept. 8

  • Yes JK, good point: Judge Keiichi Sakamoto’s phrase “unreasonable discrimination” meaning unreasonable entry-denial-based-on-race, carries with it the awful reality that according to that particular ruling, there exists in Japan legal “REASONABLE discrimination” meaning REASONABLE entry-denial-based-on-race.

    Which is why I never liked that ruling. because it said in effect, “Entry-denial based on race is still LEGAL in Japan, all companies in Japan have the RIGHT to deny-entry-based-on-racial-appearance, but THIS particular company owner went just a little too far, into the area of UN-reasonable entry-denial-based-on-race, by (gasp) denying entry to a person WITH a Japanese Passport.”

    See, as a tax-paying Resident-of-Japan here over 20 years with 4 Japanese children – or as they are labelled here in Japan, 4 “haafu” (half-breed-mongrels) – I don’t like the fact that this ruling basically stated, “IF you’re a Japanese citizen (qualification number one), and IF the Judge happens to thinks the company owner went too far into unreasonableness (qualification number two), THEN and only then, the perpetrator of race-based-entry-denial MIGHT be penalized.

    If you are NOT a Japanese Passport holder, then you will get no justice, according to the precedent set by Judge Keiichi Sakamoto.

    Residents-of-Japan who LACK a Japanese Passport are firmly in the legally-safe-zone of REASONABLE-entry-denial-based-on-race, according to that ruling.

    As Judge Keiichi Sakamoto himself wrote, “The convention has only general, abstract provisions recommending appropriate measures to eliminate racial discrimination…” and thus the Japanese governmental branches “do NOT have any obligation to institute legislature/ordinances to ban racial discrimination.”

    Nevermind the fact that the treaty Japan signed says that the Japanese governmental branches DO have an obligation to institute legislature/ordinances to ban racial discrimination.

    Nevermind the fact that the treaty Japan signed is supposed to be legally superior to all laws of Japan.

    Thus, I don’t like the precedent set by Judge Keiichi Sakamoto’s “this was unreasonable racial discrimination, but REASONABLE racial discrimination still isn’t banned, haha, sorry” ruling.

    I like much better what Judge Tetsuro Sou said as he handed down his ruling in the Ana Bortz case: “Banning foreigners from a store has an element of treating them cruelly because of their differences and is not appropriate behavior: Japan is a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination and THAT TREATY IS EFFECTIVE AS DOMESTIC LAW.” 🙂

    For those interested in the “unreasonable discrimination” phrase, here are three examples of the phrase appearing within Debito.org

    Ctrl-F “unreasonable discrimination”:
    http://www.debito.org/otarusupremecourt.html

    Ctrl-F “unreasonable discrimination”:
    http://www.debito.org/canonpenceilrsummer07.pdf

    Ctrl-F “unreasonable discrimination”:
    http://debito.org/highcourthanketsupress.html

    And for those interested in the subsequent “reasonable discrimination” phrase, here are three examples of the phrase appearing within Debito.org

    Ctrl-F “reasonable discrimination”:
    http://www.debito.org/?p=6201

    Ctrl-F “reasonable discrimination”:
    http://www.debito.org/TheCommunity/kokutaiproject.html

    Ctrl-F “reasonable discrimination”:
    http://www.debito.org/CCPR1998.html

    “The Committee is concerned about the vagueness of the concept of ‘reasonable discrimination’, which, in the absence of objective criteria, is incompatible with article 26 of the Covenant. The Committee finds that the arguments advanced by the State party in support of this concept are the same as had been advanced during the consideration of the third periodic report, and which the Committee found to be unacceptable.”

    So, currently in Japan, the Government can not legally deny-entry-based-on-race to “The People” (which was shrewdly translated as “Japanese Citizens Only”) in public places, but COMPANIES in Japan CAN still legally deny-entry-based-on-race, since the constitution only limits misbehavior perpetrated by the GOVERNMENT.

    If you sue a company in Japan for denying-entry-based-on-racial-appearance, you had better hope you are a Japanese-Passport-holding-citizen, or you had better hope you are lucky enough to have Judge Tetsuro Sou on the bench that day, because he is so far the ONLY judge to have officially stated, “Banning FOREIGNERS from a store has an element of treating them cruelly because of their differences and is not appropriate behavior: Japan is a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination and THAT TREATY IS EFFECTIVE AS DOMESTIC LAW.” 🙂

    — Also do searches for “unrational discrimination” and “irrational discrimination”, as well as 合理的差別 and 不合理的差別, which are the alternate translations of the key words involved.

  • Onceagaijin,alwaysagaijin says:

    Reasonable discrimination? WTF?

    So instead of obeying the convention, Japan has decided to reinterpret the convention it signed up to based on the fact that it believes some discrimination is reasonable?
    So, in fact, instead of outlawing discrimination, Japan has legalised it? Yet it signed a convention outlawing it?

    So Japan reserves the right to indulge in racism and doublethink, and have a judge publicly assert this?

  • Thanks for those additional phrases, here are the search results for interested readers:

    Both “不合理的差別” and “合理的差別” appear on these 3 pages:
    http://www.debito.org/kousaikansoubun.html both
    http://www.debito.org/highcourthearing6update.html both
    http://www.debito.org/kirin052107.ppt both

    Just “合理的差別” (but not “不合理的差別”) appears on these 4 pages:
    http://www.debito.org/lawsuitkansoubun.html
    http://www.debito.org/appealhearingtwo.html
    http://www.debito.org/nihongotimeline.html
    http://www.debito.org/keikendan.html

    Add in the kana な then “不合理な差別” appears on these 8 pages:
    http://www.debito.org/lawsuitkansoubun.html
    http://www.debito.org/kunibengodanword.doc
    http://www.debito.org/shikousohandout030503.html
    http://www.debito.org/chongsanessay.html
    http://www.debito.org/highcourthanketsupress.html
    http://www.debito.org/nihonnoarubekisugata.html
    http://www.debito.org/?p=1715
    http://www.debito.org/?p=10060

    The phrase “irrational discrimination” appears on these 4 pages:
    http://www.debito.org/kokutaiproject.html
    http://www.debito.org/hanketsunewseng.html
    http://www.debito.org/TheCommunity/kokutaiproject.html
    http://www.debito.org/?p=13271

    The phrase “unrational discrimination” appears on these 17 pages:
    http://www.debito.org/rapporteur.html
    http://www.debito.org/otarulawsuit.html
    http://www.debito.org/bengodanenglish.html
    http://www.debito.org/lawsuitprebriefing.html
    http://www.debito.org/decisionbrief111202.html
    http://www.debito.org/canonpenceilrsummer07.pdf
    http://www.debito.org/oldkunibengodanenglish.html
    http://www.debito.org/highcourthanketsupress.html
    http://www.debito.org/highcourtdecisionopinion.html
    http://www.debito.org/ArudouBustamantestatement032310.doc
    http://www.debito.org/?p=2076
    http://www.debito.org/?p=2083
    http://www.debito.org/?p=2122
    http://www.debito.org/?p=4428
    http://www.debito.org/?p=5703
    http://www.debito.org/?p=6408
    http://www.debito.org/?p=6714

    That’s a total of 36 unique pages in which those phrases appear.

    Thanks for bringing up this legally very relevant area of thought JK.

    Bringing up legal phrases as you did JK, can lead to a better life for people in Japan who are foreigners, as well as a better life for people in Japan who merely APPEAR to be foreigners.

    For example, I take pride in the fact that Debito’s site helped me to discover and share the vital-yet-still-rarely-understood “出入国管理法” “第二十三条” “職務の執行に当たり” limiting-qualifier.
    http://law.e-gov.go.jp/htmldata/S26/S26SE319.html

    (The very vital limiting-qualifier which says that the ONLY time a foreigner is required to show their Zairyuu Card to a Police Officer is “in the event that the police officer is acting within the confines of the Police Duties Law” and thank goodness the Police Duties Law requires that the Police Officer must have BEFORE initiating any stop of any individual: the prerequisite “PROBABLE CAUSE to believe this individual committed a CRIME.”)

    Anyway, looking through those 36 links with those phrases above, it is a reminder to me that I and my children owe you much gratitude for all of your good life work Debito. 🙂

  • JK here again.

    As I see it, here’s the situation in a nutshell:

    If you become a hibakusha in Japan while being foreign, a) your medical expenses incurred abroad *might* be covered by the state, (in the opinion of the Osaka High Court, it is not reasonable to exclude them from the list), but you’ll need to wait until September 8th 2015 to know for sure, and b) there’s a cost cap on the financial medical aid you can expect to receive.

    First off, this whole situation shouldn’t even be happening. The GOJ should have taken the position (in 1945!) that a hibakusha is a hibakusha, full stop. None of this domestic hibakusha vs. ‘overseas’ (read: foreign) hibakusha crap, and how overseas hibakusha are “betsuwaku” (i.e. a special case).

    So, shame on Japan for expecting the world’s pity and understanding for being the victim of nuclear weapons, but then taking the low road regarding the treatment NJ atomic bomb sufferers.

    Second, I fear that the notion of domestic victim vs. NJ victim could rear its ugly head in other ways. For example, suppose a NJ becomes a karoshi – can the family of the deceased expect a fair deal, or something less owing to the fact that the victim was working ‘abroad’, or a ‘special case’? Will it be the opinion of the court that the benefits awarded to the family were unreasonable / irrational?

  • Jim di Griz says:

    @ JK #4

    This issue has been set out in terms of former Japanese Empire Korean (and other nationality) citizens who were irradiated by atom bombs and thier welfare.
    But I put it to you all that this is a smoke and mirrors act to establish a legal framework that will allow Japan to avoid responsibility for the welfare of the NJ workers it will need to bring in (and, of course, this is Japan, so they won’t be allowed to stay) to deal with the Fukushima cleanup as the pool of Japanese workers is drying up as workers reach and exceed safe dose limits.
    Abe promised the Olympic Committee that Fukushima was ‘under control’, he’s going to need a lot of NJ workers to build the stadium and facilities AND get the radiation clean up on track before 2020.

  • — UPDATE: GOOD NEWS. DEBITO

    Supreme Court rules hibakusha overseas are entitled to full medical expenses
    BY TOMOHIRO OSAKI STAFF WRITER
    THE JAPAN TIMES, SEP 8, 2015
    http://www.japantimes.co.jp/news/2015/09/08/national/crime-legal/supreme-court-rules-hibakusha-overseas-entitled-full-medical-expenses/

    In a legal first, the Supreme Court on Tuesday declared South Korean survivors of the 1945 U.S atomic bombing of Hiroshima as fully eligible for government-sponsored medical subsidies — a landmark victory for hibakusha living overseas as they seek to secure recognition of their rights.

    The Health, Labor and Welfare Ministry responded by saying it will “take the ruling seriously” and pledged to conduct a swift policy overhaul to subsidize medical bills for an estimated 4,000 overseas hibakusha worldwide in accordance with existing law.

    The top court upheld a decision last year by the Osaka High Court, which ruled that Osaka Prefecture acted illegally in 2011 when it refused to reimburse the Korean-based survivors for their medical expenses.

    The prefecture said it was acting in accordance with the central government’s long-standing policy that hibakusha living abroad do not qualify for medical subsidies designated by the Atomic Bomb Survivors’ Assistance Act because they are not receiving treatment in Japan.

    Noting that the law has no geographical clause, Chief Justice Kiyoko Okabe ruled that Osaka’s refusal to deny the Koreans subsidies solely based on the fact that they received treatment outside Japan “runs counter to” the principle of the survivors’ assistance act, which aims to address health problems of hibakusha “no matter where they live.”

    “The Japanese government and Osaka Prefecture never agreed to pay our medical bills until the Supreme Court handed down the ruling. I hope they will demonstrate to us from now on that they are capable of appreciating how precious human lives are,” Lee Hong-hyun, one of the three plaintiffs, said in a statement after the ruling.

    Lee, 69, was exposed to radiation while in his mother’s womb. He suffered from kidney disease and had a transplant in 1990.

    The Supreme Court ruling resolves the last remaining example of major discrimination facing overseas hibakusha. Over the years the state has rectified, step by step, its discriminatory treatment of them whenever rebuked by the judiciary.

    Lawyers said the ruling will also affect similar lawsuits currently in the Hiroshima and Fukuoka high courts, in which survivors of the Hiroshima and Nagasaki atomic bombings now living in South Korea and the United States are appealing district court rulings denying them full medical expenses.

    Both Hiroshima and Nagasaki prefectures, according to the lawyers, are now legally bound to rescind their initial refusals to compensate the plaintiffs’ medical bills.

    Under the survivors’ assistance act, hibakusha in Japan are eligible for government coverage of all medical expenses incurred by diseases and injuries they suffered from the bombings. The government, however, previously maintained the act does not apply to survivors overseas, instead granting them up to ¥300,000 of annual subsidies outside of the law’s framework.

    Many overseas hibakusha argue the amount is insufficient and that their costs should be met in full in line with the law.

    During the Osaka High Court trial, the Osaka Prefectural Government asserted that the law cannot be applied to survivors overseas due to difficulties in scrutinizing the “validity” of medical treatment they received abroad and verifying the bills they paid. The high court dismissed this argument as flimsy, pointing out that the law is meant to help hibakusha “regardless of their financial ability and nationality.”

    In 2002, in response to a class lawsuit filed by South Korea-based hibakusha, the Osaka High Court judged as illegal a government notice declaring survivors would forfeit the eligibility to receive monthly health allowances after moving out of Japan. The notice was scrapped the following year.

    Later, survivors were granted the right to apply for recognition without even visiting Japan. It became possible in 2008 for them to apply for hibakusha certificates and in 2010 to be recognized as having bomb-related diseases while remaining overseas.
    ENDS

  • “Chief Justice Kiyoko Okabe ruled that Osaka’s refusal to deny the Koreans subsidies…”

    typo – should be “refusal to grant”

  • I am writing to request some information on behalf of a South Korean peace organization, Solidarity for Peace and Reunification of Korea.
    The organization is looking for information about any lawsuits that may have been brought in USA courts or the International Court of Justice, by Hiroshima / Nagasaki atomic bombing survivors (Japanese, Koreans, Chinese, or citizens of other countries), against USA officials or companies that were involved in the production and / or deployment of the atomic bombs dropped on Hiroshima / Nagasaki.
    In searching for information in the internet, I came across this article “Mainichi: unequal treatment for foreign and foreign-residing A-bomb victims?”
    I thought that perhaps the author of this article might be able to refer us to publications, research, web sites, or individuals that have information on whether any such legal cases / lawsuits were ever initiated.
    Thank you for any information that you may be able to provide.

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