Reflections on the Human Condition - Api-fellowships.org

and local freedom of information came together in the
mid-1990s to push litigrants over the low barriers and
start the litigation boom. (Marshall: 2004, 16-17)
When old-fashioned graft is involved, such as illegal
subsidies to councilman, lower courts have sided with
the taxpayer. (Marshall: 2004, 28-29)
Two Cases of Bid-Rigging
In one ruling the Court held that the one year statute of
limitations did not apply to fiscal negligence under LAA
Section 242, and so the appeals court should not have
disallowed the claims of a group of Aichi residents who
filed suit to recover overcharges from a contractor joint
venture that had signed a contract with Aichi Prefecture
for payment for cost overruns on a performing arts
center. (3 October 2002, 56 Minshuu 8 at 1611) The
Court also ruled that there was no statute of limitation
on negligence to sue for damages and remanded the
case to the trial court for a hearing on the merits. (2 July
2002, 56 Minshuu 6 at 1049) (Marshall: 2004, 30-31)
In a case of advisory fees, the mayor was ordered to
pay additional advisory fees to some local assemblymen
without any legal grounds. The lower court ordered the
mayor and some assemblymen to return such monies
to Nogaya City. Before appealling to the high court,
all defendants returned monies as per the lower court’s
order. Then the high court dismissed the suit because the
Nagoya City had got all monies back already; therefore,
no damage remained. However, Nagoya City refused
to pay lawyer fees and other expenses requested by the
Nagoya Citizen Ombudsman on the grounds that the
high court dismissed the suit. The Ombudsman lost.
How tricky the Nagoya City was! Luckily, the Nagoya
District Court ordered the City to pay.
Information disclosure laws and judicial support increase
the number of resident suits. Officers, both bureaucrats
and politicians, have certainly become concerned
and feel insecure about their work performance and
decisions. They have to listen to the public voice and
get public consent before making any decisions.
As the number of suits increased in the late 1990s, the
national federations for local government and for
local public employees unions began to complain that
the burden of litigation on the individuals named in
derivative suits had become intolerable. Local government
had been pushing to make it much harder to bring taxpayer
suits, to limit criminally punishable actions and to
strengthen the substantive tests for liability in order to
shield governors, mayors and their employees.
SOCIAL JUSTICE, HUMAN RIGHTS AND CIVIL SOCIETY
407
But the Second Study Group, comprising of
administrative law scholars, proposed the following
principles: 1) empowering local audit boards; 2)
strengthening the power of the elected executive to
order an employee to pay compensation; 3) weakening
the statutory test for taxpayer injunction claims; 4)
reconstituting taxpayer derivative claims into two-stage
process; (a) the taxpayer sues the executive and (b) the
local government recovers the funds from the employee
or the executive; 5) preventing the application of
civil temporary restraining orders; and 6) allowing the
taxpayer to claim reasonable legal fees. Such proposed
principles were included in the Cabinet bill revising the
Local Autonomy Act and ultimately passed the Diet
session in March 2002.
These changes seem to make taxpayer suits serve the
interests of government efficiency while giving local
governments more opportunities to frustrate taxpayer
suits in court. (Marshall: 2004, 35-39)
The 2002 reforms to taxpayer suit law attempt to
direct disputes back into the local audit boards and
make derivative suits more cumbersome but also make
it easier to get an injunction and provide a chance to
recover lawyer fees. Courts retain a role in the work
of holding local government accountable. (Marshall:
2004, 40-41)
The 2002 reforms are understandable to a certain extent
because the resident suits harm government officers.
Greater difficulty in filing a suit was traded for a better
chance of claiming legal fees. This trade is a worthwhile
one.
CONCLUSION
Politics in Japan and Thailand have been somewhat
alike. For example, laws on freedom of information,
called the Official Information Law in Thailand and the
Information Disclosure Law in Japan, were enforced in
1999 and 2001 respectively. PM Thaksin Shinawatra
won a majority vote in 2001 and has served as Thailand’s
prime minister since January 2001; meanwhile, PM
Jun’ichiro Koizumi has served as Japan’s prime minister
since April 2001. Both prime ministers have the same
goal of combating corruption.
For Thailand, the CPI in 2005 was 3.80, which is 0.60
points better than its score of 3.20 in 2000. However,
Japan’s CPI in 2005 was 7.30, which was 0.90 better
than its score of 6.40 in 2000.
The Thai media opines that Thai people have democracy
Ref lections on the Human Condition: Change, Conflict and Modernity
The Work of the 2004/2005 API Fellows