factual evidence

the MTV grant proposal is done. just got back from kyx retreat where i read the info to write the paper below. this is what college is all about baby. next weekend going to oaklahoma for a flag-football tournement with teh blouse.
wrote it in 19 straight hrs after i got back from retreat ( i slept and ate inbetween) - i dont know why i will never do anything until i throw it all together the hour before.
this is what i do

JAPAN AND INDIA COURTS: UNDERSTANDING JAPANESE AND INDIAN COURTS THROUGH ENVIRONMENT LITIGATION

Often governments get so involved in modernization, industrialization and technological advancement that they lose sight of sustaining what they already have. The litigious process can get compounded and stray from the intended purpose of courts – to reflect the interest of the people. This occurs in Japan with the overabundance of extrajudicial practices and in India in the failure to adequately implement and use personnel properly.

Environment litigation is crucial to understand true sustainability of a countries progress. To understand Japanese litigation it is important to understand it in contrast to another litigation process. Juxtaposing Japanese courts to India’s courts gives light to the crucial process of environment litigation. Understanding environment litigation is important because it is important to the people.

Environment litigation is important to understand because it has a close connection to the livelihood of people. Economic development and industrialization in a fast pace is prevalent in developing countries. And often developing countries have the most lenient industrial restrictions on production methods because they are so new to the technology. Therefore pollution of natural resources is likely to occur in close proximity to communities. Although pollution is just as likely go occur in industrial developed countries the fact is in these instances is it is better maintained so that it does not cost lives or produce diseases. Pollution output in industrialized countries like the US is in most cases emitted in a much greater quantity (as Prime Minister Blair notes in his recent report on environmental degradation). It is just we have developed and introduced these new production means and are adapted and responsible to their waste and emissions so that we do have explosions or costly leaks that cost numerous lives. In contrast, a country where new technology is borrowed or where the new technology exceeds the technologies of comparable industrialized sectors the results is often hazardous. This often occurs in countries where the governments are concerned with fast passed economic development without the initial legal or political checks and balances. In these economically minded countries the repercussions of industries striding wider and further from legal regulations are deadly.

India and Japan both are similar to the generalized developing country discussed above dealing with safe industry production methods. Although Japan is very much an industrialized country it was - around the 70s and 80s - a nation under a long reigning party the LDP. Many Japanese scholars have noted through the three ruling forces of leaders in the LDP, leaders of business, and the elite bureaucrats have been known for providing real economic growth in the post-war era. India on the other hand can be characterized as a legitimate developing country. Both countries displayed behavior whose ruling class reflected behavior of the courts which, in the cases that will be presented, stifled victims of pollution disasters from receiving adequate aid and retribution.

To understand Japanese and Indian courts it is important to understand pollution cases because of the large social learning curve. Like I noted above victimization on society at a larger scale is often the outcome of a large corporation’s pollution spill. Therefore through the morality and legal issues that come out of the victimization of people important choices are made. Choices are made and often by important people in view of a national arena. The stakes are high and the outcome severe so passions rise and people fight and it is shown in the media to the national audience – sometimes the world audience if the repercussions are high enough. Since the stakes are so high and choices are made at the highest level institutional and legal framework are reshaped through the learning process.

We will look at the legal and institutional framework in two cases from India and Japan. From Japan we will look at the example in Minimata involving the Chisso plant and from IndiaBhopal incident involving a United State multinational corporation. In light of these cases we will understand the process of the severe pollution cases as well as the outcome and reaction in order to fully understand the reshaping of institutional and legal framework. we will look at the

To understand the courts and the processes involved it is important to understand the major similarities and differences in the courts in Japan and India. India and Japan litigiousness are myths seen in opposite extremes. But often, as Haley puts it in his article The Myth of the Reluctant Litigant, “with many myths, it contains an important element of truth” (Haley 371). These “important elements of truth” are important to understand the context of the pollution cases. As in Haley’s article he notes exceptions to the myths by citing recent pollution cases (of which I will discuss later).

This is important to understand the pollution cases in context of a countries litigiousness because they note the capability of pollution cases to pick legal systems apart. Pollution cases allow one to see more clearly by exposing all the weak places and misinterpretations people make. We are able to see clearly because the institutional frameworks are exposed where victims are able to take advantage of the only legal means they have to voice their demands: courts.

Legal systems are made to grow and change through the changing of what society’s demand. As Khare notes in Anthropology Today the important question in terms of industrial development is it is often the question of society’s willingness to take risk. It is hard to define how far a society will go with industrial development and risky new production methods until they are put to the test. In result of testing often hazardous never before used production methods the legal system is the sole teller of the truth – meaning the definition of how far societies are willing to go for industrial development, or the answer to Khare’s anthropological question. The courts are the sole teller of the truth because it is society who decides what is and isn’t litigious. And if economic development is most important at the cost of the environment or certain community’s livelihood then people will be reluctant to litigate. Or on the other hand, if people are more prone to litigate considering the appearance of new technological production methods then it is reasonable to assume that people are unsatisfied with the hazardous technological processes. Once again pollution cases are a good teller of a society’s true propensity to litigate because of the high stakes involved. Or more to the point, pollution cases are a good measure of the effectiveness of the legal system to reflect what is it society wants because of the stakes involved. Therefore it is important to understand society’s reluctance or propensity to litigate.

Measuring Japan and India’s Propensity to Litigate: Two Misunderstood Litigants

To explain the overburdened courts in India it is common to presuppose Indians hold a communal hatred passed down from generation to generation fueled by the caste system (Moor 1136). And on the other side it is common to view Japan’s reluctance to litigate as the result of an unwillingness to formally litigate, or not stray from the group consensus (Haley 360). These two perceptions are widely pervasive and largely inaccurate.

To compare these two conflict-management-systems it is necessary to first clearly define litigiousness. In his article Moor defines it as “the propensity or willingness to litigate” (Moor 1138). The truth is the illustration of India’s overburdened court and Japan’s empty court does not all have to do with peoples “willingness to litigate.” Haley explains in Japan’s case it has to do with internal and external reasons Japanese do not show up in formal litigation.

The external reason Japan doesn’t show up in courts is because it is more productive for a person to settle disputes outside of court than to go through the lengthy legal process. The Minimata pollution case shows an exception to this illustration. But for a general understanding of the external limits to litigate in Japan, the explanation lies largely in the fact the legal process is time consuming because of the three-tiered system. The three-tiered system is composed of mediation, direct-negotiations and then formal litigious process. Because Japanese are forced to go through the first two processes in any lawsuit Japanese find it easier and less time consuming to use the informal less direct means of conflict-resolution, i.e. negotiation or mediation.

The internal reason Japanese are less prone to litigate is because of the lack of judges and lawyers (Haley 380). There are a lack of judges and lawyers because of relying on the examination process. Alternatively judges and lawyers in India are very prevalent but cases do not rise with the rise in judges in the judicial process. This seems to counter Haley’s notion that there is a reluctance to litigate because of the number of judges.

In India’s case a rising number of judges do not reflect more cases. In India there is a different legal system. Litigation policy does not rely on the Japanese “three-tiered” system. Like I noted above, India is characterized by the affluence of Indians in court. But as Moor notes in his article this is misunderstood. The fact is because there is little direct-negotiation and third party mediation many suits get filed at the district level court. Moreover India has added more judges to the district level courts to try to ease the delays from the abundance of suits filed at the district level. These additions don’t help because of the many reviews and appeals that come with each case. There is over-scheduling of each case. The judges don’t show up at hearings and continually grant absences (Moor 1148). There is a problem of implementation in India’s judicial process.

The situation in both countries is an inability to smoothly negotiate the cases that need to be negotiated, mitigate the cases that need to be mitigated and so on up to the highest courts. In Japan this is illustrated by the “reluctance” of people to litigate because of the internal and external constraints. In India there is an affinity of people to litigate because over-scheduling a lackadaisical attitude has become institutionalized in the litigation process. What can be drawn from this information is in Japan there is a tendency to resolve issues before it reaches litigation process because of extrajudicial measures. What can be drawn with the information from India is a court system that has the necessary tools to have a successful system but fails in the implementation of these processes.

India’s behavior is very much related to a developing country’s characterization (especially one with colonial background). Meaning it has all the necessary tools to succeed yet it is lacking in adequate foresight which comes from personnel who understand how the system works. Therefore Indian courts remain largely in a task oriented phase. They schedule many things without getting much done. India’s judicial framework looks mainly incrementally in each task without implementing to the best of its ability.

Minimata and Bhopal

These two characterizations of the courts in India and Japan are what distinguish themselves from each other. We will see through the discussion of the pollution cases that these characteristics of the courts are defined by our discussion of the pollution cases. We will see how these two characteristics distinguish themselves from the other cases and also maintain this behavior even after reforms are passed. These distinguishing characteristics are drawn from the juxtaposition of Japan’s and India’s legal framework to each other.

Before we discuss the process and draw connections between the cases we need to identify outstanding differences in the cases. Japan’s case occurred from a corporation dumping chemical waste upstream affecting the community in a significant way. India’s case came from a gas explosion poisoning the air people breathed in the city of Bhopal. Japans case was a gradual process and was not identified and attributed to the Chisso Corporation until much later. In Bhopal the case was automatically identified to the U.S. multinational corporation. Therefore before compensation in Japan was determined the legal and structural framework of the courts had to be reshaped. The primary problem in compensating the victims lied in drawing the connection from the victim’s disease to the corporation’s dumping – attributing the problem to Chisso with adequate evidence. Therefore most changes occurred in the way people approached the legal system and the framework in which the government worked with the people in order for victims to get what they wanted – compensation, justice and deterrence. (Notes on Japans case comes from Upham’s chapter “Environment Tragedy and Response”)

The pollution disaster in India affected many more victims than in Japan and it did so obviously to the nation and the world, therefore the primary concern was how to respond to the situation. The goals were left to the government and not so much to the people in India’s case. And because of India’s problem of over-scheduling in the district courts it was up to the government to find a way to adequately represent the victims of Bhopal in such a crucial case. Some of the conventional problems of the courts were addressed but the primary task that remained was making sure this never happened again to the people of India. The goals were similar to Japan – adequate compensation for victims, justice and proper discipline to deter the kind of hazardous behavior that brought the explosion. (Notes on India’s Bhopal case comes from the compilation book, Learning from Disaster)

Again the crucial actors in this case were different. In Japan’s case it was the victims that brought change in the legal framework. The work and activist behavior was in the victims themselves that brought attention. The Indian government was the primary actor in the Bhopal disaster. The main actor in India was the government because everyone already knew who to blame for the deaths and the U.S. wasn’t going to take adequate initiative. This governmental approach to victim compensation and deterrence reflects India’s incremental paternalistic approach to risk management.

India’s court’s characterization of operating incrementally is largely related to the environmental litigation case in Bhopal, India. In his book Fortun displays an Affiliated Construction Trades Counsel poster reading “SAFETY STREET OR DEATH ROW?” (Fortun 71) and underneath showing questions society should consider when new construction is going up. These questions have largely to do with the nature of India’s case, i.e. Are the workers who build skilled?; or What effort is being made to replace the most hazardous chemicals with less dangerous ones? These questions are the type of questions people in Bhopal didn’t ask when the plant went up. Unlike Japan India’s case dealt with a foreign factor which helped move the production capabilities in the future. In order to slow these things down and let society’s learning catch up with the technology people had to become part of the new plants in town. People not only had to be educated on the new methods of production but they also had to be educated on the potential hazards of the new methods of production. Before the Bhopal disaster signs like this were not in the streets of India. People were largely unaffiliated with choices on when and how multinational corporations were built. Fortun says

The Bhopal case ran on paternalistic and scientific logics not unlike those of colonialism. Gas victims, like colonial subjects, were sucked into the law, but not granted competence. Nor could they opt out. Thus while the United States pushed India ahead of the times, the government of India reinstated the past. (Furtun 41)

Even after laws and legislation enactment was implemented India’s inspectors lacked the skill to adequately inspect the plants and people did not facilitate discussions with plants (Haden 95). India could not implement things that personnel could handle.

Because of this paternalistic behavior India’s legal system had to move incrementally. In India’s case victims were seen as subjects of whom compensation is determined from the top-down. India’s government was the primary actor in the development and implementation of the hazardous production methods.

Likewise India’s government acted in a paternalistic way in the process and reaction to the court cases. Before the Bhopal case there was the law of parens patriae that inhibited the government from representing the people against itself (Rozencranz 50). Since there was no apparent means for the victims to approach the Supreme Court on a wide scale, the government took action through the Bhopal Act (Rozenctanz 54). The government went against parens patriae to represent the people against itself. Thus the government acted in a paternalistic way.

Therefore the government opted for the quickest relief by demanding $470 million from the multinational. This settlement was seen by victims as a case without legal liability and no long-term changes (Rozenctanz 56). Therefore there were legislative initiatives. They included the Environment Protection Act, 1986; The Factories (amendment) Act, 1987; The Air (Amendment) Act, 1987; The Hazardous Wastes (Management and Handling) Rules, 1989; The Public Liability Insurance Act, 1991. These acts goal was to provide long-term changes but it turned out the “regulatory reform ran ahead of institutional reform” (Bowonder 76). Inspectors responsible for these acts were not trained enough to catch the problems. Again this is a sign of a paternalistic government implementing legislature without taking into account the nature of its people. It gave tasks to people who could not carry through their duties.

As we have seen from the discussion on Japan’s courts the Japanese have been characterized as reluctant to litigate primarily because of extrajudicial practices. Victims in the Minamata case were able to get through these extrajudicial system because of the severity of the case only then in the aftermath to have extrajudicial policies fall in their laps. Through the elements in the case Japanese politics goals were as follows: to eliminate pollution causing dissatisfaction; weaken new model of socialization; and to settle moral accounts (Upham 56). All of these goals were in reaction to the people of Japan – not in reaction to the pollution. The secondary outcome of pleasing the people was a more disciplined regulated corporation. The restructuring sought to please the people and not so much ease pollution on environment.

The government responded to these tasks with the Dispute Law, Compensation Law, and other laws making information more accessible to the people (Upham 58). The reaction to these laws achieved the previous goals: they did this by resolving health issues; the lawsuits in the aftermath of Minamata were not as crucial as in Minimata because the interests were narrower, they didn’t appeal to the national scene as much; the cases afterwards held much moral ambiguity – they weren’t about life and death matters anymore (all notes from Upham). These laws eliminated pollution causing dissatisfaction because the dissatisfaction came out of killing many people in communities. The laws weakened the new model of socialization that had been characterized primarily from one extremist who lost his father and brother to the disease. He was the coordinator example for the large social movement. The laws and outcome of the case resolved the moral issues related to the extremists and those who lost loved ones. Therefore through the extrajudicial policies the demands of the people were resolved.

Drawing Conclusions: What can be learned?

The above examples show us two views to the dissemination of legislature and knowledge: one fueled primarily from the top down; the other primarily from the bottom up – social movements.

India shows an example of dissemination of knowledge from the top-down. Decisions in relation to the Bhopal case were made from the government to meet and ease the pain of the people. The primary implications of this appear to me a more incremental approach to risk management. This approach is important because it only looks at society’s needs at a near-sighted perspective. The legal and judicial system largely lacks the vision to future problems. Responsibility remains only to tell people what to do without asking them if they are willing or capable to do this. This has large implications to a people’s welfare if choices are made. Implications relating to what kind of plants are built and how they are managed.

Japan’s case is more of a bottom approach to implementing judicial and legal framework. It was the people’s large outcry that prompted the government – it was not the people who responded to the government policies and initiatives. The implication of this is a government continually seeking to ‘quiet down’ the people. It is also a government’s duty if social movements threaten the framework to disseminate large outcries in order to create peace and conformity. The result of this will reshape a government system. In the Minimata case, Upham shows the contentious politics that rose up in the large social moral issues put pressure on the leading LDP. Upham believes to some extent the pollution cases are similar to the civil rights movement in the U.S. (the 4 big pollution cases helped characterize a movement called the ‘citizens movement’) Upham notes it was partly due to the controversies in politics at the time the “big 4” pollution cases (Minamata being one of the “big 4”) were in process that the LDP lost some power to opposition parties pulling for the victims (Upham 54).

Both the top-down and bottom-up approach do not stop the manufacturing of hazardous chemicals and waste. In both systems polluting production methods will still be used, they will just do it so that it looks more like industrialized countries pollution. Pollution on a large scale but without obviously costing lives.

does it all have any relevance - i dont know - guess ill see what i do when i get out of this little place.