What is Seen from the “Back Side” of Nuclear Lawsuits

In 2016, different decisions were made in two lawsuits for the suspension of nuclear power plants. One of them is a temporary injunction issued by the Otsu District Court in March against the operation of the third and fourth reactors of the Takahama Nuclear Power Plant. The other one is the dismissal of a temporary injunction issued by the Miyazaki branch of the Fukuoka High Court in April against the first and second reactors of the Sendai Nuclear Power Plant. Examining the decisions in detail, it can be found that the two courts made exactly opposite judgments about the new restrictive standards for nuclear power plants. Why did this occur?

Responding to the Otsu District Court’s judgment, for example, some people doubt whether it is legitimate for only three judges to overturn an important political or administrative policy. However, this is just what the judicial check on the power of the government means. Strict self-judgment is prone to be insufficient inside the power. In Japan in particular, such self-judgment seems to have been almost totally lost. To cope with this, judges should monitor the power with an independent and cool-headed attitude as third parties that only follow the spirit of law and justice and their own conscience, and as representatives of the general public. In the case of nuclear power plants, the judiciary should perform the final fail-safe function. It is natural that trial decisions differ because they greatly depend on judges’ senses of values and ways of thinking and judges are human beings who have various senses of values and ways of thinking. However, what if there is a “maneuver” that considerably influences their senses of values and ways of thinking?

Although this is not generally known, the Supreme Court’s General Secretariat sponsored “conferences” in the past to consult about legal problems in specific types of cases. Consultation themes were determined by the bureaus in charge of cases, such as the Civil Affairs Bureau and the Administrative Affairs Bureau. Attending judges were appointed by the chief judge of each high court, district court, or family court. Conferences proceeded as follows: the attending judges stated opinions about each problem; the chairperson questioned some judges; and representative officers from the Civil Affairs Bureau, the Administrative Affairs Bureau, etc. reported the results of discussions within their bureaus and stated views. According to such an overview, the conference may seem like a kind of study meeting for judges. However, the “Secretariat General’s Views” included in the official materials that the Secretariat General complied from the conference results enormously influenced judges all over Japan. For example, in the conference held in October 1988, the Secretariat General stated a view to the effect that “it is sufficient to examine whether nuclear lawsuits are rational or not, respecting administrative agencies’ technical discretion.” It can be said that the judgment framework for the recent dismissal or revocation of temporary injunctions against nuclear power plants generally follow this Secretariat General’s view. Because judges are required to make judgments from a third-party viewpoint, following only the spirit of law and justice and their own conscience, it is necessary to consider which direction of trial follows the spirit more closely.