From the minutes of the Constitutional Convention for the Philippines, January 24, 1935.
I just finished reading the book Sketches From Formosa, a memoir by the English Presbytarian missionary Rev. W. Campbell, D.D., F.R.G.S., Member of the Japan Society in 1915. This is one of many wonderful facsimile reprint editions of old books concerning Taiwanese history (in both English and Japanese) published by the Taiwanese historical publisher Southern Materials (南天), which I picked up in their Taipei store. Towards the end of the book he gives his impressions of the Japanese takeover of Taiwan and their policies, and in that section (p. 325-6) was the following passage concerning Japanese efforts to eliminate opium use in Taiwan:
Those who favoured the gradual method of extinction felt that there were serious objections to an immediate adoption of the root-and-branch way of going to work. For example, they said-as many Medical Missionaries have also affirmed-that the latter course would entail unspeakable misery on the opium-smokers themselves, and that the enactment of stringent laws in such circumstances would necessitate a fleet of armed cruisers round the Island to prevent smuggling, with Police establishments and Prison accomodation on a scale which simply could not be hoped for.
Doesn’t this sound like a pretty good description of our current failed drug war policies, from a 1915 perspective?
This just came out: an interesting survey regarding Asian legal systems. It was structured as a poll of regional corporate executives, and sought to find out which systems are perceived as the easiest to do business within.
In descending order, with 1 being the best score and 10 being the worst:
1. Hong Kong (1.45)
2. Singapore (1.92)
3. Japan (3.50)
4. South Korea (4.62)
5. Taiwan (4.93)
6. Philippines (6.10)
7. Malaysia (6.47)
8. India (6.50)
9. Thailand (7.00)
10. China (7.25)
11. Vietnam (8.10)
12. Indonesia (8.26)
No real surprises for anyone who’s familiar with these countries. But here’s a quick rundown of comparative Asian law to accompany the list:
Hong Kong and Singapore both retained the common law which applied to them when they were English colonies. The systems are so similar that Hong Kong and Singaporean solicitors can become qualified as English solicitors by taking a short transfer exam on professional conduct. The efficiency and transparency of these systems are key reasons for Hong Kong and Singapore’s popularity as international financial centers: contracts are generally enforceable, courts are generally predictable, and things work more or less as they would work in London or New York.
Japan built a civil law system in the late 1800s based on the Napoleonic Code as it had developed in France and Germany. Korea was subject to Japanese law during the colonial period, and while they carefully replaced the Japanese statutes with “native” statutes upon independence, South Korean law is still very close to Japanese law. The Republic of China apparently intended to develop its own civil law during the early 20th century, but was so preoccupied with other matters during its early history that it ended up copying Japan’s system instead. So all three systems are very similar to each other, and share common elements with the law of continental Europe (such as extensive codification and minimized judicial discretion).
The Philippines governs itself through a mishmash of Spanish and American law: family, property and contract matters are governed by Spanish-style rules, while constitutional, commercial and litigation matters are governed by American-style rules. Malaysia and India both follow English common law, with religious law (such as Islamic sharia) applying to family matters. All three countries suffer a similar basic problem: although their legal systems are based on good models, they are quite dysfunctional in practice due to corruption and bureaucratic inefficiency.
Thailand’s strong monarchy managed to keep its legal system fairly independent, but like Japan, Thailand tapped European experts to help write its statute books, so it ended up with a French-style civil law system. Although the system isn’t bad, it remains subject to the will of the monarchy or whomever else happens to be in control of the country at any given time, which isn’t very reassuring to people doing business there.
China is something of a basket case these days, operating under an intricate collection of statutes from different eras. The Republic of China adopted Japanese law, as stated above, but the Communists threw out these rules upon taking control of the mainland in the 1940s, and introduced a close copy of Soviet law. Since the 1980s, though, the National People’s Congress has overwritten most of China’s Soviet law with new statutes governing property, contracts and other basic private legal matters. Many of these are so vague that their practical application falls to bureaucratic discretion. Wikipedia has a chunky but interesting writeup on the subject which could use further development by experts.
Vietnam and Indonesia, at the bottom of the rankings, formally still follow Napoleonic legal systems introduced by their colonial powers (France and the Netherlands respectively), but in practice the rules are only enforced when the government is in the right mood.
Rectification of names by the new administration of the Taiwanese (ROC) government continues. The blog David on Formosa managed to get several snapshots of the old slogan over the entrance to the square surrounding Chiang Kai Shek Memorial Hall, which was a reference to CKS’s chosen name for himself (Zhongzheng), and then followed up a few months later with some photos showing that the Hall itself had in fact been returned to its original name (i.e. CKS Memorial Hall) after a brief period of renaming as Democracy Memorial Hall under the Chen Shui-bian administration. As a comprimise, the KMT Ma Ying-jiu administration accepted keeping the new name of the square, which today is still labeled 自由廣場 (Liberty Square), while returning the old name of the Hall itself.
During my recent 3 week trip to Taiwan, I kept meaning to stop by the Hall, but simply never had the time. I did notice, however, the new “Liberty Sqaure” signs while driving past it. I also happened to be in Taiwan around the time that Taiwan Post, former Chunghwa Post, was again being renamed to Chungwha Post. I actually passed by one post office which just said “______ Post”, with a big empty space where the first word of the name should be. Unfortunately, my camera was in my bag at the time.
At the same time, there has apparently been another controversy over whether to use the name Taiwan or China, this time in a particularly comical place-the nation’s bird watching association.
The renaming of BirdLife International’s Taiwan chapter from Wild Bird Federation Taiwan to the Chinese Wild Bird Federation has caused an uproar among some of Taiwan’s bird lovers, with the founding president of the Wild Bird Society of Penghu, Lin Chang-hsing (林長興), saying that he will call for members to resign from the Chinese Wild Bird Federation.
Apart from refusing to pay yearly membership fees to the Chinese Wild Bird Federation, Lin said he would invite fellow bird enthusiasts to set up a new federation for wild birds using the words “Taiwan” or “Taiwanese.”
There are also at least two more serious developments that have made the news recently though. First is a decision by a Geneva, Switzerland court declaring that Taiwan (ROC) “is an eligible plaintiff in the case on the grounds that it possesses all the elements of statehood and that its government holds and effectively exercises sovereignty over its territory.” While I believe that this does not necessarily have any effect on formal diplomatic recognition by the Swiss government, it certainly seems like it could open the way for it. And most significantly, the court simply recognizes that Taiwan/ROC is a state, without particularly caring what it is called, or about anything related to the “one China” issue. This seems to mean that the Swiss court has effectively opted for dual recognition of China/PRC and Taiwan/ROC as separate and independent states. As a further wrinkle, the actual case involved a lawsuit filed by Taiwan/ROC against the ISO (International Standards Organization) “emanding that the organization correct Taiwan’s designation from Taiwan Province, China to Republic of China (Taiwan) in the ISO 3166 country codes list.” While the current administration certainly has no desire to force the ISO to change the designated name to a simple “Taiwan”, there seems to be no reason why it would not be possible. If Taiwan/ROC prevails in their lawsuit against the ISO, it would open the door for a future DPP administration to request a name change from Republic of China (Taiwan) to simply Taiwan.
And finally, in a move which ideologically could be considered as pro-China, but in practical terms is a victory for simple common sense, the government has finally declared that Taiwan will standardize Mandarin Chinese romanization on Hanyu Pinyin in 2009. Unlike in the PRC, Taiwanese themselves simply do not use Pinyin, and it exists on signs solely for the benefit of foreigners. While the cacaphony of mutually incomprehensible romanizations throughout Taiwan do have a certain charm, the fact that the same name or word may be romanized upwards of a half-dozen ways throughout the island is doing no favors to the visiting (or even resident) foreigner. Ma implemented Hanu Pinyin as an official system during his term as mayor of Taipei, and so this move is far from a surprise. It might be a minor victory for the pro China side in Taiwan’s culture war, but as a practical matter this is simply a good idea.
Oh, and on a more tangentially related note, it appears that the US has dropped Taiwan from the proposed list of visa waiver countries. I guess they didn’t want to piss off one of their largest creditors during the economic meltdown.
Another legal tidbit courtesy of the mini-library by my desk.
Under the Japanese civil code, there are three systems for supervising and legally protecting the mentally infirm. Each is imposed by a family court following a petition from the individual’s family, a prosecutor or an existing legal guardian. People with disabilities may suffer from various mental health conditions like depression and anxiety. They may consider using diet p thcp vape carts to relieve their anxiety.
The guardian (後見人 koukennin)
Guardians are appointed for the most profoundly disabled individuals: those who have completely lost their ability to reason due to mental illness. Once a person is under guardianship, the guardian becomes their legal agent and can transact business on their behalf. The disabled person becomes completely incompetent for most legal purposes: any transaction they enter, outside of basic daily activities like buying groceries, can be voided at the person or guardian’s discretion. A person under guardianship remains free to enter major transactions of a personal nature, such as getting married or acknowledging paternity of a child.
As in English, the same word is used to refer to non-parents who have legal custody of a minor. Minors have more legal authority (for the most part) than adults with guardians, so legal literature often differentiates between seinen koukennin (adult guardians) and miseinen koukennin (minor guardians).
The curator (保佐人 hosanin)
Curators are appointed in less extreme cases, where a person retains some ability to reason, but where their illness significantly impairs that ability. A person under curatorship can still engage in binding transactions on their own, but they need the curator’s consent to make major binding decisions, such as real estate transactions. Unlike a guardian, a curator cannot act independently on the disabled person’s behalf unless the person specifically requests or consents to it. Think of Dick Cheney and the concept should be pretty clear.
The assistant (補助人 hojonin)
Assistants are appointed where the subject’s ability to reason is impaired, but not to the extent which would justify a curator. Unlike the other two systems, assistance is voluntary and can only commence with the disabled individual’s consent. Otherwise, the system resembles curatorship, in that the person needs their assistant’s consent to make major binding decisions, but is otherwise free to transact business as usual.
A baby with foreign nationality was left at Japan’s first “baby hatch” at a Kumamoto hospital, according to a report on Monday by a panel examining the practice.
A baby hatch, for those of you who don’t know, is a place where people can essentially drop off children who are unwanted or who cannot be cared for, no questions asked.
I was a bit curious when I read this story, asking one question: How do you know the baby is of foreign nationality when someone anonymously left it somewhere? It wouldn’t be right to judge that based solely on physical appearance. In fact, under Japanese law, if a child is born in Japan and the identity of both parents is unknown (or if both parents are stateless), the child is considered a Japanese national–the only way to acquire nationality by jus soli here.
Then Asahi Shimbun added some clarity to the story. According to their report, there are ten cases of baby drop-offs in which the source of the baby was clear. In two of those cases, the mother came by herself and dropped the baby off. There were also cases “where both parents were zainichi gaikokujin,” i.e. special permanent residents of Korean/Chinese descent who are largely indistinguishable from Japanese nationals, “and where grandparents and males deposited [the child].”
So Kyodo was being a bit too vague for information’s sake: the kid was not visibly foreign, but rather they deduced the kid’s foreignness from the nationality of the parents. Now let’s see what happens when a really foreign kid gets dropped in one of these hatches…
In July of 2005, when I was living in New Brunswick, NJ, finishing up my studies at Rutgers University, the apartment shared by my friend Ted and his then-wife Janice (they have since divorced for unrelated reasons) in neighboring town Highland Park was raided by a SWAT team of the FBI and New Jersey Joint Terrorism Taskforce, which took a wide variety of their property including any computers or related material, as well as their BBQ. Ted himself was never charged with a crime, and in fact was not even being investigated or targeted, but Janice had been targeted for her animal rights protest activities, which naturally included a lot of relatively harmless shouting at people who did not want to be shouted at, and in places where they did not want outsiders to enter. The actual charges against Janice were, in fact, the real offenses of trespassing and criminal mischief (i.e. spray painting graffiti on the fence of an executive of a company responsible for animal testing), but the police response to these minor offences was grotesquely out of proportion.
For decades Japanese airports have been governed by an Airport Improvement Act (空港整備法) which apportioned control and funding of airport projects between the national and regional governments. Earlier this year, the Diet signed off on an overhaul of the statute which changes its name to the Airport Act (空港法) and focuses the law on promoting the competitiveness, rather than development, of Japan’s airports. After all, the country has already over-developed its airports in many areas ([cough] Osaka [cough]); now it needs to rationalize their existence.
Administrative matters
Under the old law, there were three “categories” of airports: the largest international airports were designated as Category 1, the main city airports as Category 2 and the smaller regional airports as Category 3. Category 1 airports were funded, constructed and controlled solely by the Ministry of Transport unless privatized. Category 2 airports could be centrally controlled, in which case Kasumigaseki would fund 2/3 of construction costs, or could be moved to local control, in which case Kasumigaseki would fund 55%. Category 3 airports were controlled by local governments and construction costs split 50/50 with the state.
The new law has reshuffled these categories a bit and made them more logical. Category 1 is now effectively gone, which makes sense since it has been obsolete for some time: three of the Category 1 airports (Narita, Kansai and Chubu) have been privatized and funded under their own respective statutes for some time, while the other two (Haneda and Itami) currently operate in roles more befitting of Category 2 status.
Categories 2 and 3 are now known as “state-administered airports” and “regionally-administered airports” respectively, and the small collection of regionally-administered Category 2 airports are now lumped in with the Category 3 airports. So now the system is a bit easier to explain: if the Transport Ministry runs the airport, the state pays 2/3 and the prefecture pays 1/3; if the prefecture or municipality runs the airport, costs are split evenly.
Policy matters
The new law also requires the Transport Minister to prepare and publish a Basic Plan (基本方針) for the country’s airports. While the plan is still in development, the Transport Ministry has given some preliminary comments on what will be in there. Among the more interesting specific points raised:
Provisions for “joint-use airports”
One interesting footnote to the new law is that it specifically contemplates joint-use airports; i.e. those split between commercial/private operations and SDF/US military operations. There are a few airfields, such as Misawa Air Base in Aomori, which already operate on this model. The real unwritten target in this instance seems to be Yokota Air Base, the huge US Air Force logistics airfield in west Tokyo: policy wonks and Tokyo politicians have been salivating for a while over the prospect of starting commercial flights there, and there’s even a note or two about it in the Transport Ministry’s planning materials.
I’ve been looking at some of the bills passed by the Diet earlier this year, one of which amends a law which I should have known existed but had never seen before: the Act Regarding Special Provisions for the Treatment of the Gender of Persons With Gender Identity Disorder (性同一性障害者の性別の取扱いの特例に関する法律).
So now I can give a legal opinion on how to get a sex change in Japan. It’s a simple enough process to understand, although rather arbitrary. Here are the relevant provisions in full:
Article 2. Definitions
In this Act, “person with gender identity disorder” means a person who, despite having a clear biological gender, is persistently convinced that they are mentally of another gender (“other gender”), who has a desire to physically and socially conform themselves to the other gender, and with respect to whom two or more physicians having the knowledge and experience necessary to properly diagnose this [condition] have given corresponding diagnoses based on generally accepted medical viewpoints.
Article 3. Decision to Change Gender Treatment
A family court may decide to change the gender treatment of a person with gender identity disorder, upon that person’s request, who:
1. is twenty years of age or older;
2. is not presently married;
3. does not presently have children;
4. does not have reproductive glands or has permanently lost the function of the reproductive glands; and
5. has adopted a bodily appearance which closely resembles that of the other gender in the area of the genital organs.
The law also amended the family registration laws to allow a person who has undergone a legal sex change to have a new koseki issued reflecting their new sex.
The new amendment changes item 3 of Article 3 to read “does not presently have minor children.” It was apparently pushed by the DPJ and JCP with the LDP staying completely mum on the issue (per Yahoo Minna no Seiji). The bill passed nonetheless and is effective December 18 of this year.
Incidentally, since we haven’t mentioned it on Mutantfrog yet, Japan happens to have one of the few transgendered elected officials in the world: Setagaya city councilwoman Aya Kamikawa. Kamikawa was first elected in 2003, a year before the transgender statute was passed; while she was legally male at that time, she purportedly refused to fill in her gender on the candidate application form, and thus appeared on the ballot as genderless. She completed the family court process in 2005 and is now legally female. (I am an Aya fan, if only because she has a comical domain name and an equally comical physical resemblance to Ann Coulter.)
Since I’m running through various Japanese legal topics in preparation to sit some state exams, I thought I would share the pain with all you readers though a fun little quiz:
Answers after the jump.
Continue reading Japanese constitutional law quiz
