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Supreme Court's probe into leprosy patients' 'special courts' keeps constitutionality blurry

While the Supreme Court of Japan took the unusual step of admitting and apologizing for errors that were made in the judicial proceedings of so-called "special courts" for leprosy patients in violation of the Court Law, it did not go so far as to address the constitutionality of the "special courts," which a report released by an expert panel said was unconstitutional.

At the beginning of a press conference held in Tokyo on April 25, the head of the Supreme Court's General Secretariat, Yukihiko Imasaki, said, "The special courts fostered prejudice and discrimination, and deeply hurt the patients and their dignity. For this, we apologize." He then bowed for approximately one minute.

Yet, other statements made in the press conference were not necessarily in line with the expert panel's report.

The expert panel, set up by the Supreme Court, had argued that the special courts for leprosy patients had violated the Constitution, which guarantees that all people are equal under the law. Such an explicit statement, however, was not included in the Supreme Court's report. Asked about the Supreme Court report's wording that the routine use of special courts for leprosy patients regardless of their individual health conditions is "suspected of having been discriminatory," Imasaki said, "It's fine to interpret it as saying the practice is suspected to have been unconstitutional."

Why is it, then, that the suspected unconstitutionality of the special courts was not explicitly included in the Supreme Court's report, but was expressed as a verbal admission at the press conference?

In response to a 2001 Kumamoto District Court ruling that found the government's quarantine policy for leprosy patients unconstitutional, the government and the Diet apologized, but the Supreme Court was apprehensive about conducting a probe into the practice. The reason for this was because since the Constitution stipulates that "all judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws," there was a possibility that an investigation into the special courts could itself be a violation of the Constitution.

In the latest investigation, the Supreme Court tried to circumvent constitutional restrictions by limiting the probe to the locations in which the Supreme Court's special courts were held, which would make it a judicial administrative issue. The notion that the court's independence must not be violated could be read between the lines in the report.

"Because it's a fine line between investigations of judicial proceedings and evaluations of individual court cases, there was hesitation toward the probe," Imasaki said. "We have to take to heart that because of this, the investigation was delayed."

However, Imasaki also said at the press conference, "Whether the contents of the court cases were erroneous should be resolved through lawsuits (such as patients' appeals for retrials)."

There has been strong criticism from leprosy patients and their supporters toward the position the top court has taken. Three organizations, including the National Council of Hansen's Disease Sanatorium Residents, have released a statement seeking continued investigations into the issue, saying that if the top court is claiming that the special courts were nothing more than cases of mistaken enforcement of the Court Law, "it would be the equivalent of completely overlooking the courts' responsibility for making people ineligible for protection under the Constitution simply because they have Hansen's disease, and this, we cannot abide."

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