Government loses crucial lawsuit over A-bomb disease certification: What will become of relief measures for A-bomb disease sufferers?

by Kohei Okata, Staff Writer

The Japanese government has lost a class action lawsuit over A-bomb disease certification at the Tokyo High Court. Atomic bomb survivors (hibakusha) nationwide have filed the class action lawsuits, seeking to reverse the government’s decisions to reject their applications for A-bomb disease certification. The government has indicated that the Tokyo High Court ruling would be a point for deciding on a settlement to these legal battles. However, the path toward reviewing the procedure of A-bomb disease certification and providing the relief that has been sought by the plaintiffs, for each one, is still uncertain.

The former certification criteria for A-bomb diseases, which were used in turning down the plaintiffs’ applications, have been significantly relaxed since April 2008. Now, five diseases, including cancer, are immediately certified as A-bomb diseases by a medical subcommittee of the Ministry of Health, Labour, and Welfare (MHLW) as long as the applicants meet one of the following requirements: 1) they were directly exposed to the atomic bombing within 3.5 kilometers of the hypocenter, or 2) they entered the cities of Hiroshima or Nagasaki within 100 hours after the atomic bombing.

Another review of the certification criteria is inevitable in order to add impaired liver function and thyroid dysfunction to the list of A-bomb diseases. Thyroid dysfunction was recognized as an A-bomb disease by the Osaka High Court ruling in May 2008 while impaired liver function was also recognized as an A-bomb disease by the Osaka High Court ruling in May 2009. These rulings are now finalized. The Tokyo High Court ruling issued on May 28, too, stated clearly, “The government should screen application materials on the premise that there is a correlation between these diseases and the radiation from the atomic bombs.” It can be said that the legal judgments concerning these two diseases have been established.

The subcommittee that has been considering how to handle these two diseases since last October was to make a decision on this matter in light of the Tokyo High Court ruling. The next meeting of the subcommittee is scheduled for June 22. But Hidenori Yamamoto, 76, the leader of the nationwide group of plaintiffs involved in the class action lawsuits over A-bomb disease certification, said, “It should be possible to make a political decision on the future direction of the review.”

The plaintiffs have been demanding that the government, based on a comprehensive assessment, make individual decisions about illnesses other than certified A-bomb diseases and cancers whose sufferers do not meet the requirements for immediate certification and recognize these illnesses as A-bomb diseases with greater flexibility.

The Tokyo High Court ruling condemned the former certification criteria as “inappropriate,” referring to the fact that the government underestimated the residual radiation and internal exposure to radiation. The former criteria were used until March 2008. The court then recognized the cancer of a plaintiff who experienced the atomic bombing five kilometers away from the hypocenter as an A-bomb disease, in consideration of the plaintiff’s involvement in a relief activity for hibakusha.

MHLW claims that it has reflected the spirit of High Court rulings that have been issued since last year in its comprehensive assessment of application materials for A-bomb disease certification. However, its range of recognition of A-bomb diseases is narrower than the one spelled out by the judicial decisions, and MHLW has failed to defuse criticism that it “discards hibakusha by drawing lines mechanically.” Thyroid dysfunction is the only disease that MHLW has recognized as an A-bomb disease other than the five A-bomb diseases already eligible for certification.

Tetsuro Miyahara, representing the attorneys supporting the class action lawsuits, argued, “There is a huge gap between the reality of the certification procedure and the legal judgments. It is essential to change the certification criteria and broaden their scope to reflect the court decisions.”

The plaintiffs, striving to secure relief for all those engaged in the class action lawsuits, have sought the smooth recognition of roughly 60 plaintiffs who are not recognized as A-bomb disease sufferers by the government even though the district courts ruled in their favor. Mr. Miyahara stressed, “The plaintiffs who received the rulings are recognized as A-bomb disease sufferers through judgments at court that were stricter than the Ministry’s certification criteria.”

But MHLW reacted negatively, contending that “The basis for the decisions at the district courts is mixed. If the rulings of the lower courts were considered sufficient, it would be difficult for the government to fight lawsuits of this kind at the high courts.” Though the plaintiffs have proposed the idea of lump-sum “settlement money” as a relief measure for the plaintiffs who lost their cases, MHLW dismissed the idea as “out of the question.”

Following the Tokyo High Court ruling that marked the 18th consecutive defeat for the government in the class action lawsuits over A-bomb disease certification, Prime Minister Taro Aso said, “We would like to address the issue with a view to offering relief to hibakusha.” However, there is a great divide between the plaintiffs and MHLW. For this reason, political decisions in the future will become a litmus test to see how much initiative the government can seize from the bureaucracy.

Demands of the plaintiffs in pursuit of a settlement to the lawsuits
[Review of the certification procedure]
1. To include impaired liver function and thyroid dysfunction in the immediate certification for A-bomb diseases
2. To broadly recognize cancers as an A-bomb disease
3. To make a comprehensive assessment of each application for A-bomb disease certification from the standpoint of “providing benefit for hibakusha when in doubt” in accordance with the court rulings to date

[Relief for the plaintiffs]
1. To immediately recognize the plaintiffs who won their cases at court as A-bomb disease sufferers
2. To deal with the plaintiffs who have not yet received their rulings or who lost their cases with a view to also offering relief to these hibakusha

(Originally published on May 30, 2009)

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Tokyo High Court ruling recognizes 9 A-bomb survivors as suffering from A-bomb diseases (June 2, 2009)