Photo/Illutration A victim of the government’s forced sterilization program, second from right, and his lawyers meet reporters in Tokyo on March 11 after the Tokyo High Court ruled in favor of the plaintiff. (The Asahi Shimbun)

The lapse of time can never absolve the state of its responsibility for enacting an unconstitutional law and applying it to justify the inhuman act of depriving individuals of their reproductive functions.

The Tokyo High Court on March 11 made the above argument in ordering the government to pay damages to a plaintiff who was forcibly sterilized under the former Eugenic Protection Law.

The ruling, which is as significant as that of the Osaka High Court last month, no longer allows the government and the Diet to sit back and do nothing. They need to immediately start discussing their plans for compensating victims and offering them a genuine apology.

Both the Tokyo and Osaka high courts deemed the old law to be in violation of the Constitution that guarantees the dignity and equality of all individuals under the law.

The government asserted that the plaintiff’s right to file a damages suit had already expired, but the courts rejected the claim as being “utterly in conflict with the principles of justice and fairness.”

Central to the government’s argument was the concept of “joseki kikan,” or statute of limitations on submitting lawsuits seeking compensation that expires unconditionally after 20 years. It is different from “jiko” statute of limitations that can be temporarily suspended or ceased under certain circumstances. This is what to date has hindered attempts by victims of past wrongdoing to seek legal redress years later in court.

However, the Tokyo court ruled that the unconditional application of statute of limitations should not be allowed in this case, citing a plethora of “exceptional circumstances” regarding forced sterilization.

For one, the Eugenic Protection Law was not abolished until as late as 1996. Moreover, the government not only failed to address the unconstitutionality of this law, but it also never investigated the damage the law caused, nor informed the victims that their human rights had been grossly violated.

And even after being urged by the United Nations and the Japan Federation of Bar Associations to take remedial action, the government still did not comply.

The court’s litany of these “exceptional circumstances” in its verdict brings to light the government’s and the Diet’s cold-hearted attitude toward victims of forced sterilization as well as society’s apathy that allowed this injustice to continue.

The court also pointed out that it was not until April 2019 when a law for the payment of lump sum compensation was enacted by the Diet and took effect that the victims were finally able to understand objectively that they had been wronged.

And the court concluded that any victim may sue for damages within five years until April 2024.

The ruling went even a step further than its Osaka court counterpart by extending benefits to all victims. It reflected the court’s determination to offer every assistance within reason, in view of the extreme gravity of the situation.

The ball is now in the government’s and Diet’s court.

The damages payment ordered by the Osaka court came to 13 million yen ($109,930) for a victim and 2 million yen for the plaintiff’s spouse, excluding attorneys’ fees, while the Tokyo court ordered payment of 15 million yen. These sums are way above the 3.2 million yen lump sum compensation payment under the 2019 law, indicating the pathetic inadequacy of the government’s relief plan.

That law, in fact, was not written on the premise that the old Eugenic Protection Law was unconstitutional. Even though the law does contain words of apology and regret, its flaw is that it does not name the party that was ultimately responsible.

In response to the two high court verdicts, the government and the Diet have no choice but to give the current relief program a complete overhaul.

--The Asahi Shimbun, March 16

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