Do we just have to give up what the Government does not do for us?

Will the courts award government compensation in case of the Fukushima nuclear accident?

Administrative inaction means the administration’s failure to proactively conduct activities that the administration is supposed to conduct. As a result of inaction, citizens may occasionally suffer damage.

For example, if a river overflows due to torrential rain and local residents are damaged thereby, the administration’s failure to maintain river banks are often accused.

So, is it impossible to place liability on the administration for its inaction?

For example, with respect to the Fukushima nuclear accident in 2011, residents affected by the accident have filed suits for government compensation. The key allegation in the litigation is that the government has failed to regulate the company which did not perform its duty to maintain the nuclear power station safe against tsunamis.

Multiple suits have been filed by different plaintiffs. While some courts’ judgments held that the government’s failure to exercise its regulatory authority was illegal, other judgments have denied the government liability.

In other words, with respect to administrative inaction in case of the Fukushima nuclear accident, as it now stands, controversy exists over whether or not the government has liability.

In many of the judgments holding that there is no need to place liability on the administration, the courts pointed out that, in light of the circumstances at the time where it was assumed that risks caused by earthquakes were higher than those caused by tsunamis, if the administration was committed to earthquake countermeasures and thereby adoption of tsunami countermeasures was delayed, it is not appropriate to place liability on the administration.

In relation to the above, the courts emphasized that the inaction was justified because resources including funding and human resources were finite. In short, because no one can give what he does not have, the inaction is excusable.

Basically, a court makes its determination by considering issues in accordance with laws.

If a law clearly sets forth that this shall be conducted, liability for inaction is likely to be placed on the administration. However, if there is no provision that sets forth that this shall definitely be conducted, or if the question of whether to conduct the activities is left to the discretion of the government or each local autonomy under the provisions, the inaction may be justified on the grounds of lack of resources.

When we citizens are not satisfied with such administrative inaction, we ultimately have no choice but to file suits and decisions are left up to a court. However, as I mentioned above, controversy exists over whether the government must assume liability for inaction. Actually, some courts determined that the laws were not requiring the government to conduct what is impossible.

It is possible to use ingenuity to overcome lack of resources

In fact, until recently, there were only a few cases in which the administration cited lack of resources as the reason for inaction. In most cases, the administration alleged that the accident or disaster was not foreseeable even if there was an administrative inaction behind the accident or disaster.

However, advancement of science and technology has enabled us to rigorously and explicitly foresee future events. Therefore, in relation to the Fukushima nuclear accident, the company itself is alleged to have estimated the possibility that tsunamis more than 10 meters high would rush toward the nuclear power station.

So why didn’t the government regulate the company so that it would take countermeasures? It may have been because of an actual lack of resources, or it may have been because of some arbitrary reasons.

What is important is to understand the real reasons for the inaction and to prevent the government from committing arbitrary inaction again. In other words, we need to avoid allowing lack of resources that may justify inaction to be used as a cover.

However, if lack of resources is the real cause of inaction, it is indeed the case that no one can give what he does not have. As a result, some people tend to think that it is unavoidable to prioritize administrative activities and consequently delay in implementation of some activities may arise.

However, it must be possible to use ingenuity including utilization of private sector resources in performing administrative activities when appropriate. In fact, crackdowns on illegal parking have been outsourced to private sector contractors. Operation of public libraries or parks has also been outsourced to private sector contractors.

By outsourcing activities that can be outsourced to private sector contractors without any problem, it will become possible to focus administrative resources on activities that can be conducted only by the administration.

In addition, I am of the opinion that it is critically important to create a system to have the administration faithfully demonstrate reasons for inaction, i.e., reasons why it does not or cannot conduct the activities concerned.

For example, in most cases where citizens file a suit regarding an administrative inaction, under the current system, the citizens who are plaintiffs are required to bear the burden of proving matters concerning legal issues of administrative inaction.

If, contrary to the current system, a system in which the burden of proof is on the administration is established, the administration will not fail to conduct necessary activities on a daily basis and it should be difficult for the administration to use lack of resources as an excuse.

Actually, in the U.S., this kind of discussion has been held actively.

A legal system to prevent the administration from escaping into inaction is necessary

For example, in the U.S., there is a system to allow citizens to file petitions to require the administration to enforce regulations if it is not properly doing so. When a petition is filed, the administration is obliged to provide clear reasons for not having placed regulations.

In such cases, the administration often cites lack of resources as the reason. Under these circumstances, active discussion has been held on the idea that the administration should bear the burden of proving that lack of resources is the real cause of inaction. To tell the truth, it is difficult also for the administration to prove lack of resources.

I think a concept of not allowing the administration to use what it cannot prove as an excuse is behind the discussion. This is a legal system design to steer the administration in a direction beneficial to citizens through the concept.

In Japan, the Administrative Procedure Act introduced a system to allow citizens to file petitions with the administration. However, this Act does not oblige the administration to respond to petitions filed by citizens.

That is to say, the system is based on the assumption that petitions are a part of information collected from citizens and decisions about how to utilize it are left to the administration’s discretion.

Under this system, in order for the voices of citizens to really get through to the administration, we have no choice but to file suits against the administration. However, heavy economic, temporal and psychological burdens are placed on plaintiff citizens. In addition, they face a problem associated with the burden of proof as I mentioned before. Therefore, the odds of citizens’ winning court cases are very low as it now stands.

In light of the above, I think it is also necessary in Japan to develop legal systems to require the administration to faithfully respond to petitions filed by citizens at the stage prior to litigation and to bear the burden of proving the matters explained by the administration.

Of course, just mocking the American method will not make everything go well.

Basically, the laws of Japan are based on the concept of controlling the administration so that it will not place overly strict regulations. In other words, it is deemed desirable to prevent the administration from behaving recklessly and infringing on citizens’ rights.

For example, the landslide disaster in Atami City in the summer of 2021 resulting from torrential rain is alleged to have been caused by a private real estate agent’s act of raising the ground level in a way different from the submitted plan.

It is said that though Atami City repeatedly urged the real estate agent to cease raising the ground level in an illegal way, the real estate agent did not yield. As a result, owing to torrential rain, the mound of soil collapsed and this disaster caused deaths.

If you look at the outcome alone, it may seem that Atami City should have imposed stricter regulations. Acts of endangering the lives and health of citizens must be regulated because to protect the lives and health of citizens is without doubt the most important role of the national and local governments.

On the other hand, the regulated party may feel that regulations imposed on activities conducted on its own land may infringe on its rights. Maybe Atami City had a sense that it is inappropriate to forcibly regulate private activities.

Eventually, the concept of adjusting these conflicts in a well-balanced manner underlies the Japanese legal system. One of the ways to embody the concept is to design a system in which each petition filed by citizens is collected as an opinion and responded to on a case-by-case basis in the overall situation.

However, this does not definitely mean that the administration may overlook citizens’ petitions. Instead, in light of the purpose of the system design, if a situation in which the administration takes no notice of citizens’ petitions and escapes into inaction continues, a system that requires the administration to faithfully provide reasons for implementing or not implementing applicable measures should be introduced.

On a final note, we tend to think that even though these problems lie behind accidents or disasters, such problems are related only to victims or sufferers.

However, as can be clearly seen from the example of the Fukushima nuclear accident, justification of administrative inaction may generate significant impacts on lives of all the people of our country.

To consider what kind of system we should design in order to solve these problems constructively is indeed a mission that should be fulfilled in the political field. However, it is very important that each of us consider the above-mentioned issue with interest as a member of modern society.

* The information contained herein is current as of March 2022.
* The contents of articles on Meiji.net are based on the personal ideas and opinions of the author and do not indicate the official opinion of Meiji University.
* I work to achieve SDGs related to the educational and research themes that I am currently engaged in.

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