By Norma Field
FULL ARTICLE (WITH CITATIONS) IS HERE:
For those inclined to keep their hopes well under control when it comes to the Japanese judiciary’s capacity to deliver decisions even mildly critical of the political establishment, news of the Tokyo High Court’s finding in favor of the Violence-against-Women-in-War Japan Network (VAWW-Net Japan) against the Japan Broadcasting Corporation (NHK) was stunning enough to provoke initial eye-rubbing. At least I can say for myself that I had to read twice, and thrice, the first brief listserv message from Nishino Rumiko, one of VAWW-Net’s two co-representatives since the premature death (2002) of founder Matsui Yayori.
The High Court fined NHK and two subsidiary companies two million yen in total, whereas the District Court had not found NHK liable. Although the charge of political interference was denied, NHK was deemed to have reneged on the autonomy fundamental to the editing rights it claimed as a broadcaster in making alterations to a documentary on the Women’s International Tribunal War Crimes Tribunal of which VAWW-Net Japan was a major organizer. NHK immediately appealed the ruling.
The Context of the Tokyo High Court Decision
The subject of the contested television program was the December 2000 Women’s International War Crimes Tribunal on Japan’s Military Sexual Slavery (the “Women’s Tribunal”). The Women’s Tribunal, proposed by Matsui and actualized through the efforts of an international army of legal experts, scholars, citizen activists, and of course, the survivors of Japan’s military sexual slavery, construed itself as the continuation of the International Military Tribunal of the Far East (1946-48), which notably had refused to take up the issues of sexual slavery and bacteriological warfare.
During the three days it was in session in Tokyo (a fourth day, during which the international team of justices deliberated to produce a preliminary finding, was devoted to testimony about current acts of sexual violence perpetrated in war zones the world over), the Tribunal put on record a mountain of historical documentation; demonstrated the solidarity of prosecution teams from China, East Timor, Indonesia, Japan, the Netherlands, the Philippines, and Taiwan, with North and South Korea memorably producing a joint indictment; and perhaps mostly importantly, gave the aging survivors from eight Asian countries and Holland a respectful hearing in a formal setting including a large, international audience.
Each member of the audience will have her own set of outstanding moments. For me, these include the compact live history lesson in serial colonialism—the Netherlands, Japan, Indonesia, East Timor–in which a member of the Indonesian prosecution team who had just examined witnesses from her country covered her face as an East Timorese prosecutor told the court that evidence she had hoped to introduce had been destroyed by the occupying Indonesian military; the remarkable instance of perpetrator testimony by two Japanese veterans who had served in China; and finally, the pronunciation by Chief Justice Gabrielle Kirk McDonald (President of the International War Crimes Tribunal for the Former Yugoslavia) that the judges had found the late Emperor Hirohito guilty of crimes against humanity. That moment, when the audience rose to its feet in response to the utterance of words that few who know Japan would have thought likely to hear in public, is well captured in the Tribunal documentary produced by VAWW-Net Japan. 
The drama and the historic significance of the Tribunal amply justified the presence of over 300 representatives of the media from around the world. Of that number, however, only one-third were from Japan, and resulting coverage was scanty at best, restricted principally to the Asahi Shimbun (where Matsui had been a pioneering woman foreign correspondent and member of the editorial board) and regional papers carrying the Kyodo News Service.  All the more important, then, was the prospect of NHK’s educational channel devoting one program in its four-part series on war responsibility in January of 2001. The disappointment and anger when the program actually aired on 30 January, four minutes short of the scheduled forty-four, are proportional to the hopes raised when subcontractor Documentary Japan (DJ), took its detailed proposal for the program to VAWW-Net in October of the previous year and secured promises of full cooperation. The changes cut the heart of the promised film that had been proposed by subcontractor Documentary Japan (DJ) in its detailed proposal for the program to VAWW-NET in October of the previous year. Gone was Chinese survivor testimony, perpetrator testimony, and of course, the guilty verdict against the emperor. Instead, there was an interview with Hata Ikuhiko, a historian known to be critical of the Tribunal, who had not attended it, whose knowledge of the actual proceedings, given the paucity of media coverage, was accordingly confined to precirculated announcements and most especially the yield of his preconceptions. Inordinately lengthy as it was, the interview filled in only some, not all, of the emptied minutes, suggesting how frantically the last-minute alterations had been made.
VAWW-Net Japan sued NHK, DJ, and NHK Enterprises 21, Inc. (an NHK subsidiary that had subcontracted the project to DJ), in July of 2001, for 20 million yen, charging them with having violated its trust in making fundamental alterations to the program without prior explanation in response to right-wing pressures. The Tokyo District Court verdict of March 2004 found only DJ guilty of having violated expectations raised by the original proposal and imposed a fine of one million yen. NHK was found not to be liable under the principle of “freedom to edit” as provided for in the Broadcast Law. Both defendants and plaintiffs appealed. The High Court hearings were scheduled to conclude at the end of January 2005 when the Asahi broke the news of whistleblowing by the program’s chief producer, Nagai Satoru, who, taking seriously NHK’s compliance regulations, had come forward in December to state that the program had been altered in response to pressures by then Deputy Cabinet Secretary Abe Shinzo and Economics and Industry Minister Nakagawa Shoichi. On January 13, the day after the story appeared in the Asahi, Nagai himself appeared in a moving press conference in which, in addition to addressing the issues at hand, and calling on the top leadership of NHK to take responsibility and resign, he referred to the difficulty of coming forward, wishing no more than anyone to risk turning himself and his family out on the streets, and yet concluding that the truth had to be told. 
In response to these disclosures, VAWW-Net applied for and received an extension of the hearings. Abe and Nakagawa vehemently denied having intervened, and the media embarked on a feeding frenzy, framing the issue as a contest between media giants NHK and Asahi, but in effect pillorying the latter on the dubious grounds that any favorable reporting on the Tribunal would promote pro-North Korean sentiment. It will be recalled that revelation of North Korean abductions had fanned hostility to North Korea and also provided the occasion for Abe’s meteoric rise to prominence.  For its part, the Asahi conducted an internal investigation and appointed an external review committee consisting of four lawyers and scholars, and announced on October 1, 2005, that while there had been some regrettable shortcomings in the preparations leading to the first article, it stood by the main point of the original article, namely, that “‘remarks by politicians had in effect exerted pressure and led to the alteration of the content of the NHK program.'” 
The Tokyo High Court Decision I: Editing Rights vs. Expectation Rights and Duty to Disclose?
In the High Court case, VAWW-Net accused the defendants of having violated the plaintiffs’ “expectation rights” (kitaiken) and also failed to fulfill their “duty to disclose” (setsumei gimu, literally, “obligation to explain”). The reason NHK and its subsidiaries committed these violations, they charged, was external intervention, first by rightists, and then by elected politicians. The defendants denied political intervention and countered the “expectation rights” and the “duty to disclose” with their own “freedom to edit” (henshu no jiyu in the Broadcast Law, Article 3, “freedom to compile a broadcast program,” hoso bangumi hensei no jiyu).  The court, with Judge Minami Toshifumi presiding, acknowledged VAWW-Net’s claims with the exception of the charge of interference by elected politicians. 
Although most media attention has focused on the drama of charges and countercharges over Nakagawa’s and Abe’s roles, the question of political interference goes to the heart of broadcast freedom and therefore, to freedom of expression. The media’s sensationalizing treatment has left in the shadows the key terms of the court battle, that is, “expectation rights” and “duty to disclose” on the one hand, and editing rights on the other. The first is unfamiliar enough that the Asahi glosses it as a key word after one of its articles on the High Court decision.  There, its examples are drawn from medical malpractice cases or labor cases in which the employer goes back on words that had led an employee to expect contract renewal. “Duty to disclose” usually pertains to consumer transactions (real estate, securities, etc.) and health-care issues.  In other words, in according legitimacy to the plaintiffs’ use of these concepts, the Court is effectively expanding the terms of argument for broadcasting cases.
But first we should pause before the apparent tension between “expectation rights” and “duty to disclose” on the one hand, and on the other, editing rights, which is at the heart of NHK’s defense. The Court is sensitive to the tension and lays out its reasoning carefully. It acknowledges that the content of broadcast programs is subject to constant change from the planning stage to airtime and that moreover, it is usual for those who cooperate with and participate in such programs to understand that the content may change from what had originally been explained to them. Because editing rights follow logically from the freedom of speech, the press, and “all other forms of expression” guaranteed by the Constitution (Article 21), they are not to be unduly restricted (“Decision,” p. 51). On the other hand, since those who cooperate in the production of a program do so of their free will, the prospective use of their participation understandably constitutes a factor in their decision to collaborate or not. The Court distinguishes between news programming and the case at hand, namely a documentary or a cultural or educational program, and determines that especially in the case of the latter, those who cooperate have a particular interest in the “extent and manner in which [their role] is presented, and how their opinions and activities are reflected” (“Decision,” p. 52). In weighing these respective claims, it becomes necessary to examine the overall relationship between the two parties to determine whether the words and actions of the program makers had led cooperators to entertain expectations with respect to the resulting program that exceptionally merit legal protection.
On the basis of careful examination of the detailed program plans presented to representatives of VAWW-Net as well as the frequency and quality of interaction, the Court concludes that the plaintiff was led to form concrete expectations with respect to the program. (“Decision,” p. 54). Of special interest is that the Court notes that with respect to questioning by Shoji Rutsuko (co-representative with Nishino), DJ had stated that if the Tribunal were to indict the emperor and produce a verdict, that should be included in the broadcast (“Decision,” p. 52). As for the “duty to disclose,” the Court is also cautious about using this principle to infringe on editing rights and therefore on freedom of the press. Balancing interests of the two parties again, it nonetheless observes that had VAWW-Net been told that plans had changed and the program would be considerably different from what they had originally understood, VAWW-Net would have had the option of withdrawing from the program, proposing preferred alternatives, or approaching another broadcaster. Thus, the defendant’s failure to disclose had resulted in the violation of the plaintiff’s legally protected rights (“Decision,” p. 66).
Most impressive is the Court’s willingness to spell out alternatives to the deletions made by NHK. It rejects NHK’s reasoning that it deleted scenes of survivors breaking down in sobs or fainting because of the “strong impression” they would create. All that was called for was deletion of the fainting scene, the Court observes. “As for the claim that because opinion was divided on the question of the emperor’s responsibility, the section pertaining to explanation of the judgment was deleted, the defendant could have repeated the explanation that opinion was divided as to the legal responsibility of the Japanese state and the emperor, or to have made clear that it was not NHK’s view ….” (“Decision,” p. 62).
Freedom of the press and freedom of expression are so important that even those critical of NHK and supportive of VAWW-Net have worried that the latter’s appealing to “expectation rights” and “duty to disclose” was potentially threatening to freedom of expression, which would be ironic indeed. NHK’s defense is clever because it appeals to a genuinely precious democratic principle: they are saying, in effect, we could not have observed the plaintiffs’ “expectation rights” or fulfill our “duty to disclose” without infringing on our freedom to edit as we see fit, which is constitutionally guaranteed. The Court, however, pierces through this reasoning: NHK, it finds, “abused or deviated from the editing rights valued and guaranteed by the Constitution in the changes [it effected], and it as good as abandoned the autonomy and independence that are the substance of editing rights; to acknowledge the ‘duty to disclose’ owed the plaintiffs is not to infringe on the editing rights of the defendants” (“Decision,” p. 65). Rather than restricting editing rights in recognizing VAWW-Net’s claims, the Court is saying, it is reprimanding NHK for having failed to exercise its editing rights. In upholding VAWW-Net’s claims, the decision begins by balancing the interests at hand, but in the end, it seems that the Court in fact sees no opposition between VAWW-Net’s expectation rights and NHK’s duty to disclose, on the one hand, and NHK’s editing rights, on the other.  It gets there by considering the process whereby NHK came to justify its actions by appealing to editing rights.
The Tokyo High Court Decision II: What Constitutes Political Interference?
That process, of course, is described by VAWW-Net as NHK’s yielding to political pressure, initially from rightist groups, and subsequently, from powerful LDP politicians, namely Abe and Nakagawa. This is the claim that has caught public attention, or more precisely, the only aspect of the Tribunal that has garnered widespread media attention. The part of the decision reviewing the contacts between NHK leadership and then Deputy Cabinet Secretary Abe describes the scene of the latter stating his own long-held views and following up by urging that the program be “fair and neutral,” as befits a public broadcaster, but goes on to cite a passage from Abe’s personal website in which he records his own account of the meeting with the NHK representatives:
Since I had heard from a concerned party that efforts were being made to manipulate coverage according to the wishes of the sponsors, such as by requiring those who wished to attend the mock tribunal to sign a pledge of “agreement with the goals of the tribunal,” I inquired into the facts of the matter. As a result, I learned that even though the roles of judge and prosecutor were to be filled, there were no lawyers [or] witnesses [for the defense]  and therefore, that this was clearly of a biased nature, so I pointed out that the coverage needed to be fair and neutral, as was required especially of NHK. I suspected that this might be part of an underground plan to quell [public reaction] to the abductee problem and to portray North Korea as a victim (“Decision,” pp. 45-46).
The Court’s conclusion, however, is that there was insufficient evidence to prove that the politicians in question had said anything concrete or made suggestions pertaining to the program in question that exceeded the bounds of general opinion (“Decision,” p. 61). Rather, the problem lay with NHK: tension was mounting even before the program was aired, “with interest expressed from various quarters, such as protests from right-wing organizations,” coinciding with a new budgetary cycle. Anxious to avoid any adverse impact by the program on the budget, NHK leadership sought explanatory meetings with parliamentary representatives. Given the context and content of the words, they took the injunction to be “fair and impartial … more seriously than necessary and, guessing the intent [behind the words], they attended a prescreening with the goal of producing a program that would not offend anyone, giving repeated and direct instructions for revisions” (“Decision,” pp. 59-60).
Both Prime Minister Abe and NHK claimed that the decision refuted the charge of political interference. VAWW-Net proclaimed total victory. Both are right and both are wrong. A literal reading of the decision, which states that there is inadequate evidence to prove political interference, supports Abe and NHK. But to acknowledge broadcasters’ worries that elected politicians’ views of a program would adversely affect budget decisions and their responding to comments from powerful politicians by editing a problematic program is in fact to point to a form of political pressure. To put it all on the subjective response of the broadcasters—recognized, to be sure, as an unfortunate response, one tantamount to reneging on the autonomy that is the whole point of “editing rights”—is surely to ignore the fundamental meaning of the power of the purse.
Two experts clarified the merits and limits of the decision shortly after it was announced. While commending the court for criticizing NHK’s self-censorship, University of Tokyo professor Takahashi Tetsuya, who had appeared as a commentator in the program, goes on to say, “The decision fails to understand that to be told by politicians to be ‘fair and neutral’ constitutes pressure . . . . The decision should have indicated what it is that has the potential of turning into pressure.”  Media critic Matsuoka Hiroshi points out the astonishing fact that even though there have been countless instances of alleged political interference in programming and self-censorship in the postwar decades, this is the first instance where the issue has been fought in the courtroom. Even if the words “political interference” do not appear in the decision, the causal relationships are clear. Excessive self-censorship is promoted by the LDP practice of summoning NHK management from the executive on down for the purpose of budgetary deliberations. The budget, in effect, is held hostage to the government and the majority party. 
In the Meanwhile and for the Future
The case will now go to the Supreme Court. Under the circumstances, it is almost tempting to think that in refusing to pronounce what it must surely have recognized, namely, the presence of political pressure, Chief Judge Minami’s decision was leaving the door open, just a crack, to avoid being overturned.
In the meanwhile, the high court victory brings sorely needed encouragement to progressive forces in Japan. Worries remain, nevertheless, about the long-term consequences of the introduction of what have essentially been contractual concepts (expectation rights and disclosure) into deliberations about freedom of the press: what if a rightist politician were to sue a broadcaster or a publisher on the grounds of violation of expectation rights? The knotty challenges of this case underscore the difficulty of getting dissenting views heard in Japan today, with minority parties at a severe disadvantage since the electoral system was changed in 1994 , and the mainstream media increasingly inhospitable to controversial views challenging the political establishment. A lawsuit, protracted and costly as it is, is one of the few avenues for gaining visibility.
The current regime is going full steam ahead to assure NHK subservience to ruling party priorities. In November of 2006 the Minister of Public Management, Home Affairs, Posts and Telecommunications directed NHK to give priority to coverage of the North Korean abduction issue in its international short-wave broadcasts. The Japan Congress of Journalists promptly issued a demand for retraction of the directive, citing freedom of expression and “freedom to edit” as guaranteed by the Constitution and the Broadcast Law. 
In February, the first exhibit in Hokkaido of artwork by former comfort women opened in a department store in the city of Obihiro. The sponsors had originally requested use of space in a municipal citizens’ hall but were turned down on the grounds that such space was reserved for the “promotion of arts and culture.” The city’s education board, asked to sponsor an event scheduled for March titled “A Gathering to Listen to the Testimony of “Japanese Military Comfort Women” refused, saying that the terminology deviated from the government’s use of “so-called (iwayuru) military comfort women.” 
The Abe administration still formally stands by the Murayama Statement of 1995 expressing remorse and apology for the “facts of history”—i.e., a “mistaken national policy” that led to war and through “colonial rule and aggression, caused tremendous damage and suffering to the people of many countries, particularly to those of Asian nations”  and the 1993 Comment by then Chief Cabinet Secretary Kono Yohei acknowledging the fact of the establishment and maintenance of comfort stations directly or indirectly by the Japanese military and the deceptive and or coercive recruitment of women.  Yet many of its supporters seem bent on undoing the historical understanding they represent. Recently, Democratic Representative Michael Honda (California) called attention to this in the preface to his Congressional resolution calling for Japanese government apology. The Japanese government will lobby, again, to demonstrate how it has already apologized and the efforts made through the Asian Women’s Fund (coming to an end in March of this year). Honda is well aware that apologies have been made:
However, it is clear that these statements are not viewed by the government of Japan with unequivocal respect, and the comfort women themselves do not consider them formal apologies. Japan has equivocated in its stance on this issue, which is made clear in their recent attempts to alter previous public statements and their school textbooks …. Today, some members of Japan’s Liberal Democratic Party strive to review and even possibly rescind Secretary Kono’s statement. 
Addressing “Madame Speaker,” Representative Honda refers to a fact of which both the Japanese government and VAWW-Net are exquisitely aware: “the few surviving comfort women in the world who live with this burden are dying.” For rightist zealots, an increasingly vocal group, their natural passage from this world seems inadequate: the women must somehow be discredited for the restoration of Japan’s honor. For VAWW-Net members and other Japanese committed to postwar responsibility and reconciliation with Asia, seeking justice for the frail and dwindling group is also crucial to their self-understanding, and to the kind of society that Japan will become.
The International Women’s Tribunal for Japanese Military Sexual Slavery has been repeatedly referred to as a “mock” tribunal (in Japanese, mogi saiban). It is gratifying to see the organizers’ term of “international people’s tribunal” (kokusai minshu hotei) appear in the high court decision. The Women’s Tribunal took its inspiration from the Russell International War Crimes Tribunal of 1967, formed, as the philosopher Jean-Paul Sartre said in his inaugural statement, “to decide whether the accusation of ‘war crimes’ leveled against the government of the United States as well as against those of South Korea, New Zealand and Australia, during the conflict in Vietnam, are justified.”  It was to be a tribunal of “simple citizens,” who, “coopting ourselves from all over the world,” have been able “to give our Tribunal a more universal structure than that which prevailed at Nuremberg.” The importance of this point rests not in numbers of countries represented, but rather, in the fact that US citizens were among the members of the jury. The tribunal, in other words, could not be characterized as one set of nation states trying another.
The charter of the Women’s Tribunal acknowledges that its organizers are “Mindful that while the Tribunal, as a people’s and women’s initiative, has no real power to enforce its judgments, it nonetheless carries the moral authority demanding their wide acceptance and enforcement by the international community and national governments.” 
A still more recent tribunal created by international civil society, the World Tribunal on Iraq, which met in Istanbul in June 2005, states as its principal objective “to tell and disseminate the truth about the Iraq War, underscoring the accountability of those responsible and underlining the significance of justice for the Iraqi people.” Its legitimacy is said to be “located in the collective conscience of humanity.” 
Each tribunal has sought to have a real effect in the world. Each has amassed knowledge for the future in the form of gathered testimony. That is a palpable legacy, more so than the effect any has had on the moral obtuseness of national governments. And yet the most powerful effect of all may be their reminder of an inextinguishable desire to make visible the “collective conscience of humanity.”
The Tokyo High Court decision of January 2007 represents a moment when that conscience met with recognition, however faulty, however impermanent, on the part of an institution of the nation-state.
The joy of a legal victory won on behalf of the conscience of humanity is perfectly expressed by the figure darting from the courthouse to unfurl the white banner bearing the characters, “shoso,” “case won.” Shoji Rutsuko, co-representative of VAWW-Net, wrote the organization listserv that when she heard the decision, along with incredulity, the long-held desire to raise her hands in joy just once in the courthouse yard overcame her, so she “raised her hands and ran.” 
The conscience of humanity will have its day.
Norma Field is currently working on the proletarian writer Kobayashi Takiji and together with Heather Bowen-Struyk, preparing Literature for Revolution, an anthology of Japanese proletarian fiction and criticism for the University of Chicago Press. She is a member of VAWW-Net Japan. She wrote this article for Japan Focus. Posted February 10, 2007.
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