Law – Page 22 – Mutantfrog Travelogue

Entering Japan, refugee-style

Good morning, Frogheads! I got back to Tokyo earlier this week, but thanks to my school’s very poor taste in temporary housing, I haven’t been able to get online. Fortunately there are Hotspots all over the place, so all hope for blogging hasn’t been totally lost. I’m currently reporting to you live from a Mos Burger overlooking the Yamanote Line, or “the ringworm of Tokyo” as Adamu calls it.

I had a different experience arriving at Narita this time, because I did it without a visa. It’s not that I was too stupid or lazy to get one; there were circumstances. Continue reading Entering Japan, refugee-style

Cambodian citizenship

According to every news agency in the world, Angelina Jolie has just been made a Cambodian citizen. She was awarded this honor via “a royal decree giving her Cambodian citizenship.”

According to the Cambodian Constitution of 1993, the status of the King is basically:

The King of Cambodia shall reign but shall not govern.

It goes on to list the various duties of the King, but they all basically come down to issuing proclamations that have been pre-approved by the Assembly. The King is granted no power to make any decisions on his own, not even to appoint his own heir.

How are normal people like us, who aren’t important enough to have special acts and royal proclamations made in our name, treated by Cambodia’s citizenship law?

CAMBODIA (Formerly Kampuchea)
CITIZENSHIP: Citizenship is based upon Decree No. 913-NS, of November 20, 1954, and Law
No. 904-NS, dated September 27, 1954.

BY BIRTH: Birth within the territory of Cambodia does not automatically confer citizenship.
Two exceptions are these:
Child born in Cambodia, of non-citizen parents who were also born in Cambodia.
Child of unknown parents found in Cambodian territory.

BY DESCENT: Legitimate child of a Cambodian mother or father, regardless of the country of
birth. (According to Cambodian law, “legitimate” refers to the child being formally
acknowledged by either of its parents.)

MARRIAGE:
A foreign wife of a Cambodian citizen is eligible for citizenship upon the date of the
marriage.
A foreign husband of a Cambodian citizen must fulfill all naturalization requirements, but
need reside only for two years.

BY NATURALIZATION: Cambodian citizenship may be acquired upon fulfillment of the
following conditions: Person has resided for at least five years in the country, knows the
language and culture, has a steady means of support, and is of good moral character.

DUAL CITIZENSHIP: NOT RECOGNIZED.
Exception: A Cambodian wife of a foreign national is permitted to retain her Cambodian
citizenship unless required to renounce it by the laws of the husband’s home country.

Hmmm. Article 49 of the constitution says

All Khmer citizens shall have the duty to take part in the national reconstruction and to defend the homeland. The duty to defend the country shall be determined by law.

And Cambodia doesn’t recognize dual citizenship. If Cambodia gets in another war, you better watch out Angelina or they might just draft you.

On language skills in the Tokyo legal market

If you head to Japan to find a legal job, you’ll realize something pretty quickly: What school you went to, what you did there, and what work experience you have, all trumps your Japanese ability. Easily. A person from a top-20 school who speaks no Japanese at all is miles ahead of a person from a second or third-tier school who’s totally fluent.

That’s not to say language doesn’t matter at all. It can save an otherwise crappy resumé (mine comes to mind), and it can qualify a person for a better job. If you have an Ivy League degree and speak Japanese, the town is your oyster. But it’s not nearly as important as the other qualifications that law firms look for back in the US.

I used to think this was just a matter of priorities: firms value nice schools over language ability, since the schools woo clients more easily, there’s no shortage of translators and interpreters to bridge the language gap, and many Japanese clients don’t expect to see a gaijin speaking their language anyway. No doubt all of these factors play a role.

But I was recently talking to a seasoned lawyer from a big American firm in Tokyo, and he said that language skills can actually be a problem for many clients. That made no sense to me, so I prodded him on. “It’s actually pretty simple,” he said. “In many cases, they don’t want you to know everything that’s happened on their side of the case. If you know Japanese, you have a way of independently finding out. So if you don’t know Japanese, they figure they have more control over you.”

So what’s the best solution? Know the language, but don’t make the fact readily apparent?

Is this Fujimori’s “plan?”

Fujimori’s hop through Chile comes in a convenient window, as the Chilean government is changing its procedural laws on extradition, and it isn’t clear which regime should control his case. From yesterday’s Miami Herald:

Under Chile’s old judicial system, extradition hearings could take up to two years, because judges were required to do the grueling work of investigating facts. If those rules are applied, Fujimori would miss his date with voters. The new system simplifies the process by requiring judges in extradition cases only to review evidence presented by attorneys, which would cut the time to an estimated four to six months. That could free Fujimori or send him back to Peru before the elections.

And, by the way, he didn’t fly through Atlanta and Mexico City, as previously reported, but instead took a private plane and stopped in Tijuana. Apparently, he was in and out before the Mexican government even knew what had happened. The immigration inspectors in Tijuana have been fired.

Congress v. Constitution, chapter 942

[11:09] Wade: I love it when Congress acts unconstitutionally [11:09] Joe: ?

In a 49-42 vote, senators added the provision by Sen. Lindsey Graham, R-S.C., to a sweeping defense policy bill. Under the provision, Guantanamo Bay detainees would be allowed to appeal their status as an “enemy combatant” one time, to the Circuit Court of Appeals in Washington, D.C. But they would not be able to file petitions known as writs of habeas corpus, which are used to fight unlawful detentions, in that or any other U.S. court.

“For 200 years, ladies and gentlemen, in the law of armed conflict, no nation has given an enemy combatant, a terrorist, an al-Qaida member the ability to go into every federal court in this United States and sue the people that are fighting the war for us,” Graham told his colleagues. (AP report)

[11:11] Joe: hmmm

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (U.S. Constitution, Article 1, Section 9, Clause 2)

[11:11] Joe: well, this is a "case of invasion," I guess [11:12] Joe: not an invasion of us, but still . . . [11:13] Wade: If Asahi Metal could be heard by the courts, I think the habeas motions for "unlawful enemy combatants" are definitely worthy of the federal courts

Now, the Supreme Court already said that enemy combatants can file habeas motions, and only Clarence Thomas dissented from the notion that enemy combatants get due process protection. Even with that fact aside, Graham’s quote makes no sense whatsoever. Its lack of logic is matched only by its lack of factual basis.

Though I’m no fan of terrorists, lawyers in the Senate should know better than this. You don’t mess with the Constitution, especially when the Supreme Court has just told you not to. Want to get rid of habeas corpus? Vote on a constitutional amendment. Call it the “Deprivation of Rights Amendment.” That’ll go over real well.

Is Alberto Fujimori Japanese?

Following on Joe’s Alberto Fujimori post, I have some different issues that I would like to examine. Why is Alberto Fujimori being protected by the Japanese government? What legal rights does he have in Peru or Japan? What is his citizenship under the law of both countries? I think the best way to examine this is with a timeline of his life, and references to the appropriate law.

This is going to be a long one, so click below for the entire thing.
Continue reading Is Alberto Fujimori Japanese?

Taro Aso, Muneo Suzuki violated Japanese Election Law

What, me worry?
According to the awesome citizen reporting site JANJAN, Taro Aso and Muneo Suzuki are among many Japanese politicians who were in violation of the Public Office Election Law as late as October 7.

Article 178 of the law (can be found here after a somewhat cumbersome search) states that it is illegal for the winner or loser of an election to distribute or display letters thanking constituents.

However, as of October 7, Taro Aso had this message on his site:

“I achieved my 9th victory in the 44th Lower House election, held this past September 11, thanks to the passionate support of all of you in [my] election district [Fukuoka 8th]. I give my hearty thanks from the bottom of my heart.”

And Muneo Suzuki, this:
“I express my gratitude regarding [my] recent election victory.”

The Diet members violating this law cannot be punished for it, as the POE Law is one of Japan’s “bekarazu ho” (“shouldn’t laws”) that gives lots of guidelines but little enforcement. However, one can face punishment if there is any sort of direct monetary benefit to voters pre- or post-election.

The same article bans “election victory celebrations,” morale-boosting act such as riding around cars or marching in groups, and giving out the names of people and groups that supported your election.

This issue is not new. In 2000, Shukan Post, one of Japan’s infamous weeklies, fingered MOF bureaucrat-turned-Diet member Ichizo Miyamoto for writing a letter thanking his constituents (article cached by Google here). Kind of unfair, though, (especially given the article’s inflammatory tone) considering that more than 80 politicians (or ex-politicians) are engaging in the same activity almost unscathed!

The article hints that the laws exist to prevent “ex post facto vote buying,” which makes sense. I mean, who wouldn’t vote for whoever throws the most bitchin’ parties?

Please, people, get the Alito debate right

The SEPTA strike finally ended early this morning. In a way, losing mass transit was beneficial: with a 90-minute commute on foot, I had some forced spare time to listen to podcasts on my way to and from campus, including Face The Nation and Meet The Press. The episodes two weekends ago, coming in the wake of the Scooter Libby indictment, were most amusing.

But this weekend, it was all about Alito. And I had to hear Democrats on both shows go on about how “he wanted to strip-search a 10-year-old.” The case was Doe v. Groody, 361 F.3d 232 (3d Cir. 2004), text available here. Now, I know these senators must know better—they went to law school, for feck’s sake. So let’s get this straight.

The searches took place as part of a drug bust. The suspected dealer is referred to as “John Doe.”
When the police applied for a search warrant, they asked several times to be able to “search all occupants of the residence and their belongings to prevent the removal, concealment, or destruction of any evidence requested in this warrant.” In fact, it says “all occupants” several times, as if to scream “DON’T LET ANYONE GET AWAY!”
When they got the warrant, the box marked “premises and/or persons to be searched” said “John Doe” and gave some of his personal information. This information filled up the entire box on the form.
The police conducting the raid knew there were going to be women in the house, and didn’t want the suspected dealer to hide the goods on the women, so they got a female meter maid to go in with them.
The meter maid took the wife and daughter of the suspect into the bathroom and had them strip down to show they didn’t have anything hidden in their clothes.
After this happened, the victims sued the police officers individually under Section 1983. The police officers argued that they should get qualified immunity because they didn’t violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”
The district court rejected this argument and decided the officers should be liable. They appealed. Alito was one of the three-judge panel who got the appeal.
Two of the judges voted to affirm the district court’s decision, since the warrant only said “John Doe.” Alito dissented on the grounds that the officers clearly intended to get a warrant to search everyone, and had a decent reason to believe they were given the right to do so.

Now, criticizing Alito on this last issue is one thing, but he certainly isn’t in favor of strip-searching children left and right. All he wanted was to keep police officers from being sued when they were doing something they thought they were authorized to do. If you want to go after perverts in the government, go after Scooter.

Teaching courtroom antics in Japan and China

Eddie Ohlbaum, an amazing trial lawyer who teaches evidence and trial advocacy classes at Temple (in which I am a quite happy student), was just in Japan teaching lawyers how to BS a jury.

It’s a fun story, but not nearly as dramatic as the real reason for his Asian tour: he was going to assist lawyers in the first due process trial ever held in the People’s Republic of China. On the last day of class before he left, he gave us a brief but impassioned speech about how proud he was to be part of this.

Note the lack of a link here: that’s because it didn’t happen. Instead, he and his colleagues were allowed to witness… a guilty plea. With some superficial witness statements tacked on to determine sentencing: each side was allowed exactly two questions per witness. Ohlbaum’s account of the entire affair was quite amusing: he described his conversations with the defense lawyer, who had no clue that anything special was going on. “But you just went through fifty pages’ worth of discovery!” “Uh, yeah.” “Have you ever seen that much discovery in a trial before?” “No…” “Have you ever seen ANY discovery in a trial before?” “Uh, I guess not… what’s your point?”

The whole thing smacked of show in the end. One highlight: while the defendant was eligible for 3 to 10 years in prison (extortion charges), he got off with five years’ probation. PROBATION. According to Ohlbaum, when the sentence was handed down, the lawyer looked around the courtroom as if to say: “Huh? Am I still in China?”

The other money quote from the good professor’s Asia recap was this: “If you can choose to commit a crime in Japan or the U.S., seriously, it’s worth it to buy the plane ticket.”

My moving nightmare — a quiz for my readers in law school

My plans were to be blogging from my new place in Rockville by now, but as you will see below that was not in the cards. The following is a 100% true story of what happened to me yesterday. Names have been changed.
Continue reading My moving nightmare — a quiz for my readers in law school