Fukushima

Fukushima and the right to responsible government

Colin P. A. Jones argues that everyone must act to fix the ongoing nuclear crisis

Japan Times,

16 September, 2013

Reprinted dozens of times since it was first published in 1967, “The Legal Consciousness of the Japanese People” by the late Takeyoshi Kawashima is arguably the most influential book on Japanese law ever written.

One of Kawashima’s theories is that traditional Japanese society lacked a strong consciousness of rights. After the Meiji Restoration of 1868, when the government started translating Western legal codes to use for Japanese laws, there wasn’t even a Japanese term that could be used to express the concept of a “right,” so a new one had to be invented. With this cultural foundation, notwithstanding the introduction of Western-style courts and legal codes, the notion of using the former to assert rights under the latter never really took root.

Non-litigiousness remains an integral part of the “Japan is different” canon that Japanese people recount to foreigners and each other. While Kawashima’s explanation has been influential and merits attention, it is due some skepticism as well. I consider it noteworthy that just a few years after the Meiji Restoration, the new government created a statute of limitations. This suggests that whether or not the average Japanese person thought about asserting their rights, from a very early stage the nation’s leaders saw a need to restrict their ability to do so.

Interestingly, a subject that Kawashima barely mentions is that of responsibility. This is odd, since to recognize a right also implies a responsibility — on the part of a court or other government actor — to define and enforce that right. Kawashima posited that because of a culture of “wa” (harmony), Japanese people avoid “black and white” resolutions to disputes, preferring mediated compromises. From the standpoint of the court or other government authorities charged with resolving a dispute, mediated results have the benefit of leaving them free of responsibility for the substantive outcome. Cultural notions of wa can thus be recast as a mechanism by which government officials can exercise authority while minimizing the responsibility associated with doing so.

This is perfectly rational behavior: Most people, given the choice, would probably maximize their authority while minimizing their responsibility for its exercise, particularly if the rewards for taking more responsibility than necessary and succeeding were nil while the punishments for failure were significant.

Japanese bureaucratic organizations are said to base their personnel evaluations on a system of “gentenshugi,” meaning that advancement in the civil service is generally done in lock-step, with officials losing points for failures rather than gaining them for successes. Full marks are given for doing nothing wrong, or perhaps doing nothing at all.

In the Japan of yore, responsibility could hurt — seppuku is the traditional archetype of atonement for official failure. The first national penal code enacted by the Meiji government was based on models taken from Imperial China and derived from Confucian legal principles (the current penal code is based on German models but was not adopted until 1907). Under these early laws a judge who sentenced someone improperly was subject to the same punishment as they had wrongly meted out, including execution! There quickly developed a practice of judges pre-clearing their judgments with the central government so that somebody else could share responsibility.

Avoiding and obfuscating responsibility seems to have become a very basic feature of Japanese governance. Given that bureaucrats actually draft most of the laws that they end up administering, it is unsurprising that the resulting rules often make it hard to pin down who is actually responsible for anything. And while the Constitution vests in the Japanese people the power to remove public servants, the laws governing the public service make it almost impossible to do so in practice.

This fuzziness extends to the top of government. Even when the locus of responsibility seems clear, practices have developed that either obfuscate it or render it symbolic. We could start with the Emperor, who promulgates laws and performs other official acts but only in a symbolic capacity, and always in accordance with the advice and consent of the Cabinet, which in turn theoretically always acts based on unanimous decisions. Even laws empowering the prime minister to act alone have been interpreted as requiring Cabinet approval. Elected politicians circulate through Cabinet posts like plates of cheap sushi, rarely staying long enough to accomplish let alone be responsible for anything. Most legislation is drafted by bureaucrats, submitted by the Cabinet and passed by the Diet. Who is responsible for the end product? Good question!

In any event, it is almost impossible to challenge the laws or hold the people who make and administer them to account since the courts are exceptionally deferential to the legislative and executive branches. Judges are kept safely anonymous through frequent transfers in the lower courts and frequent turnover at the Supreme Court. Most elite bureaucrats are also transferred among posts so often that they are almost impossible to link to any particular policy or project.

Yet it would be wrong to just brand Japanese government institutions as completely irresponsible. Rather, the means of holding a member responsible for bad judgments are internalized as part of the rules and discipline governing the hierarchy to which they belong, with mechanisms for outsiders to assert responsibility — to assert rights — being minimized and neutralized whenever possible. For example, the constitution provides for the impeachment of judges, but most of the few impeachments that have occurred were cases in which a complaint was brought by … the Supreme Court.

This brings us to Tokyo Electric Company (Tepco).

When reporting on events at the stricken Fukushima No. 1 nuclear plant, the Japanese media dutifully refers to it as a Tepco facility, reinforcing the notion that only the troubled utility is to blame. But any normal company in the same situation would have been rendered insolvent ages ago, leaving the whole mess for the government to fix. This would have been a perfectly logical result — Tepco was merely operating the plant in accordance with the government’s energy strategy and supposedly rigorous set of safety regulations.

Whether Tepco was ever a normal company, it certainly isn’t now that it is majority-owned by the Nuclear Damage Liability Facilitation Fund, a quasi-governmental entity created shortly after the Great East Japan Earthquake, ostensibly to help resolve damage claims arising from the Fukushima meltdown. It has done so by propping up Tepco financially, with critics suggesting that this Fund’s real agenda is to limit claims — the corporate form does, after all, exist for the specific purpose of limiting liability. And this is the Tepco whose lawyers famously argued in court that since it did not own the radioactive fallout strewn across people’s land, it was not responsible for the resulting damages. Although the Fund is supposed to act as an additional source of compensation funding, the arrangement still puts a buffer between the disaster and the public purse.

Compensation is “just” a matter of money. However, considering that it is also the Fund’s statutory mandate, its controlling interest in Tepco does not bode well for the prospects of Tepco being managed in a way that prioritizes actually fixing the stricken Fukushima plant — as opposed to being kept alive in a zombie-like state as an entity whose ability to compensate anyone will necessarily be limited by its cash flow. Perhaps that is convenient, too — kept alive, Tepco provides a useful, non-governmental blame nexus for everything bad that has happened to date and may happen in the all-too-near future.

If anything called for a nation’s government to quickly intervene actively on a massive scale and assume direct responsibility for a situation, it would be the crisis that continues to unfold 200 km from Tokyo. That a financially crippled, demoralized company bleeding talented employees is clearly not up to the task of remediating what could still prove to be the worst nuclear disaster in history should by now be obvious. Could anyone in a position of authority ever have responsibly expected otherwise?

Yet here we are 2½ years later, learning highly radioactive water has been leaking into the groundwater and the ocean and that storage tanks full of even more radioactive water are starting to fail. Surely it is a basic fact of life in nuclear power that fuel rods need to be kept cool whether sitting in a containment pool or melted through the reactor floor? The accumulation of radioactive water at the Fukushima plant was an utterly predictable problem almost from the day things first started to explode.

Tepco gets a failing grade here for sure, but what about the people expecting a single company to deal with a problem of such unprecedented magnitude in the first place? If there is still money for things such as bullet trains, and now — Olympic swimming pools. Surely fixing Fukushima would be an infrastructure project of similar magnitude worthy of pursuing as a matter of national urgency.

Recently the government finally announced that it will intervene directly in resolving the water problem, supposedly by turning the earth near the plant into a giant popsicle (and where will the power needed to keep the ground frozen come from again?). Such assertiveness on Fukushima by the government is long overdue, yet the amounts involved seem small given the scope and potential impact of the disaster — the yen equivalent of just a few hundred-million dollars. Furthermore, the government probably had to act because the leakage had clearly become a crisis, one ranked a 3 by the International Atomic Energy Agency on its 1-7 scale — just as the International Olympic Committee was making its decision on the 2020 Games.

While almost nobody looks forward to crises, they do have the merits of both requiring action and restricting options in a way that naturally limits responsibility for the results, because “what else could we do? It was an emergency.” Of course, few likely think this way in advance, but a crisis like water leakage at Fukushima certainly smacks of being a byproduct of the prolonged avoidance of responsible decision-making.

Don’t be surprised if Tepco continues to remain the primary scapegoat for most of what happens at Fukushima and if the further crises develop, despite seeming predictable in hindsight.

For example, does Japan have an endless supply of workers willing to toil in dangerous conditions, and who have not already received the maximum dosage of radiation permitted by law? Chernobyl was contained by a Soviet leadership that drafted vast numbers of people — pilots, soldiers, engineers, miners — as part of a concentrated national response. Is it realistic to expect Tepco to fix Fukushima armed only with employment contracts and a powerful incentive to sacrifice compliance with those agreements and worker safety?

A great irony of the current political situation may be that fixing Fukushima is a concrete example of a crisis where many Japanese people might actually agree that the government should be able to exercise broad emergency powers of the type the Liberal Democratic Party wants to enshrine in a new constitution. Indeed, the absence of such powers may be one reason why the government seems so frustratingly passive.

However, to recognize Fukushima as a greater threat would entail admitting responsibility for the failed nuclear policies of the past, and make it that much harder to bring other plants back online, not to mention sully Tokyo’s winning Olympic bid. So while Tepco keeps trying to patch radioactive holes that render parts of the Japanese mainland uninhabitable, Prime Minister Shinzo Abe seeks support for his authoritarian new constitution by emphasizing territorial disputes involving islands that were never inhabited in the first place.

It will probably take an imminent crisis for the government to resolve any of the serious problems facing the nation today — not just Fukushima, but the national debt, declining global competitiveness, the shrinking population and growing demographic imbalance.

Unfortunately, the historical precedents are not great. It took a double atom-bombing and (by some accounts) two separate admonitions by Emperor Hirohito for Japan’s “leaders” to finally accept the Potsdam Declaration and end World War II. Of course, being constitutionally “sacred and inviolable,” the Emperor could not be held responsible for anything.

We can’t expect similar Deus ex Machina resolutions to Fukushima or anything else. Japan is supposedly a democracy, so in theory a responsibility-shirking government is ultimately the people’s problem — and responsibility — just as much as the nuclear disaster and all the nation’s other problems. Fortunately the people have a plentiful supply of other targets to blame until enough of them come to that realization.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto