Statement on Redress for Victims of the Now-defunct Eugenic Protection Act in the Wake of the Tokyo District Court’s Judgment
On June 30, 2020, the Tokyo District Court entered judgment against the plaintiff (“Judgment”) in a lawsuit filed against the Government seeking compensation for a compulsory sterilization operation, which was performed in accordance with the now-defunct Eugenic Protection Act (“Act”).
Following the judgment rendered by the Sendai District Court on May 28, 2019 (“Sendai District Court’s Judgment”), the Judgment was the second in Japan ruling on similar lawsuits that were filed across the country seeking compensation from the Government for the damage caused by the forced sterilization and other operations conducted under the Act.
In regard to the compulsory sterilization undertaken under the state’s eugenics program, the “Act on Lump-sum Payment, etc. to Persons Who Underwent Eugenic Surgery or Other Operations in Accordance with the Now-defunct Eugenic Protection Act” (“Act on Lump-sum Payment”) was enacted on April 24, 2019. Consequently, 941 claims were filed by June 28, 2020, of which 621 cases had been identified as eligible at the end of June 2020.
The number of claims filed, 941, fell short of even 4% of the estimated 25,000 victims who were forcibly sterilized under the Act, reflecting the stagnant progress of their filing a claim for a lump sum payment. Given the circumstances, the lawsuit before the Tokyo District Court was getting attention to see how the Tokyo District Court would rule on the case.
The Judgment found that the compulsory sterilization violated the freedom in decision making, which is protected by Article 13 of the Constitution of Japan, to decide whether one will have a natural child. In this regard, we appreciate the Judgment.
However, the Judgment made no reference whatsoever to the unconstitutionality of the Act. In this respect the Judgment is retrograde compared to the Sendai District Court’s Judgment, which not only declared plainly the unconstitutionality of the Act, but affirmed the absolute necessity of special legislation to protect the victims.
Additionally, the Judgment reasoned that, as of 1996 at the latest, when the Act was amended, it was not difficult for the plaintiff to file a lawsuit to seek compensation from the state. On this premise, the Judgment dismissed the plaintiff’s claim on the ground that, reckoning from 1996, the statute of limitations for claiming compensation for loss or damage set forth in Article 724(ii) of the former Civil Code, had already expired at the time the lawsuit was filed.
This ruling is quite contrary to justice and fairness, since the decision was made without adequate consideration on the various circumstances that made the exercise of the right to claim compensation extremely difficult—such as the outrageousness of the damage of being deprived of the right to decide whether the plaintiff would have and raise a child, or the fact that using “measures including deceptive maneuvers” was permitted in performing the sterilization, so that the plaintiff could not be aware of himself having undergone the operation in accordance with the unconstitutional law, as well as the fear of being subjected to further discrimination.
Meanwhile, the compulsory sterilization carried out under the Act, including the one the plaintiff underwent, was something whereby the state caused serious physically-invasive pain to victims on the discriminatory ground based on eugenics that people with disabilities, etc. were “inferior” (Article 1 of the Act). Therefore, it constitutes “torture” referred to in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Japan has also ratified. This instrument obligates state parties to ensure that the victim of an act of torture obtains redress, hence, in light of the spirit of the convention, any time limit that hinders victims from filing a lawsuit must not be in place and applying the statute of limitations to the damage in this case is contrary to the intention of the convention.
We are hoping the Japanese courts will not apply the statute of limitations to the damage sustained in these cases and make an appropriate ruling on the amount of compensation claimed by the victims.
On June 17, 2020, it was decided by both houses of the Diet that an investigation would take place to look into the circumstances of the legislation and the social background relevant to the Act, as well as the realities and other conditions of the damage. A thorough review and verification are indispensable to prevent the state from repeating the violation of the right to self-decision making, and the redress for victims must be enhanced on the basis of the results of the investigation.
The Japan Federation of Bar Associations is fully committed to bringing about genuine redress for the damage inflicted by the Act, for which we will monitor closely the progress of the operation of the Act on Lump-sum Payment and the investigation conducted by the Diet as we continue to voice proposals, etc. as needed.
July 15, 2020
Japan Federation of Bar Associations