Blog of the International Journal of Constitutional Law

The Buck Stops Nowhere: Japan’s Continuing Governance Problem

The first anniversary of Japan’s nuclear crisis is an occasion for sorrow and remembrance, but also an opportunity to evaluate the consequences of the tsunami for Japan’s governance system. As reported by a recent report by Japan’s Rebuild Japan Initiative, a private group, the natural disaster was exacerbated by managerial and governance disasters. The failure of the system to respond goes well beyond the particular leaders involved, though now former-Prime Minister Naoto Kan appeared weak and indecisive. It is, at some level, deeply constitutional in the small-c sense.

The problems began with Tokyo Electric Power (TEPCO), which ran the damaged nuclear plants. It apparently believed in the myth of total nuclear safety and was radically unprepared. It also made a series of human errors early in the disaster, and at one point considered simply abandoning the plant entirely. Indeed, we now know that further disaster was averted only because the on-site manager ignored orders from headquarters to stop injecting seawater into damaged cooling tanks. Headquarters wanted him to wait until the government made a decision. The manager’s act of disobedience saved many lives, but, as the Rebuild Japan report points out, the fact that it was necessary shows how dysfunctional the operation was.

The Government, too, looked weak. Throughout the crisis, no single person or entity came forward to assume command or take responsibility. The absence of clear leadership is to some extent a reflection of Japanese cultural style. The Prime Minister has historically been a weak figure in Japanese politics, usually serving as the face of backroom power brokers. Indeed, for centuries, Japan has been characterized by a gap between the public face of authority and actual political power. Before 1868, the Emperor reigned, but the Shoguns actually ruled. In the subsequent Meiji era, a group of oligarchs ran Japan, even while they adopted a constitution with a parliament and swore allegiance to the Emperor. In postwar Japan, it has been backroom politicians who pull the strings, with the bureaucracy making day-to-day decisions. The close ties between business and the bureaucracy mean it is often hard to tell where corporate interests end and government begins.

This pattern was apparent in the response to the nuclear disaster. TEPCO and the government seemed to be working closely together to manage the situation, but the company took the early lead. The government lacked even basic capacity to gather its own information, turning over its early briefings to TEPCO, and appointing a series of “scientific advisors” with industry ties. The task of regulating the industry is divided up among an Atomic Energy Commission, a Nuclear Safety Commission, a Nuclear and Industrial Safety Agency, and several other bodies in various ministries. Chains of command were unclear. To add to the confusion, the primary nuclear agencies provided different estimates as to the amount of radiation that had been released.

Without independent regulatory and information-gathering capacity, the government acted as if its primary role was to manage the public, dispensing bland assertions not to panic and avowing that “more needs to be done.” We now know that the Government was willfully slow in releasing information so as to avoid mass panic. For several days it refused to implement the recommendations of the International Atomic Energy Agency to evacuate a village 25 miles from the reactor. At one point, it considered an evacuation of Tokyo. But Japanese bureaucrats were worried about executing a mass evacuation for which they are ill prepared. Only time will tell whether these decisions lead to higher rates of cancer and other negative health effects.

Prime Minister Kan’s reaction to reports that upwardly revised estimates of released radiation was telling: rather than issuing a blanket statement that the government had in fact fully disclosed pertinent information, he said that he himself as Prime Minister had never hid any information because of inconvenience. The implication was that, although he was the head of government, he could not be responsible for what every agency knew or revealed. Furthermore, his answer left open the possibility of selective release of information for the public good.

Contrast the Gulf oil well disaster of 2010, when President Obama was out in front of the media, talking about holding his boot to the throat of BP. The message was clear—private business could not be trusted to handle the problem without pressure from the government. One cannot imagine Obama offering to bail out BP in the middle of the disaster. To some extent, the United States has a tradition of adversarial relations between government and business. Another reason why corporate interests reign more in Japan than in the U.S. is that we have mechanisms of legal liability—mass tort suits—that are technically available but not well developed in Japan. The Japanese equivalent of a class action proceeding requires each plaintiff to specifically designate the lead plaintiff as a representative. This “opt-in” is clumsier than our own system in which a lead plaintiff can represent all class members who do not opt out. The result in Japan is a system in which corporate interests predominate, and outsider lawyers play little role in incentivizing behavior.

The Japanese media has also played a role in insulating tight government-business relations. Japan has a free press, but it has a reputation for being fairly passive. There is no tradition of investigative reporting, and until recently, reporters had to join cartelized clubs called kissha in order to cover particular ministries or topics. This tended to lead to fairly uniform reporting across the major dailies. In the recent crisis, there has been some sign of change, but many Japanese have been relying on foreign sources of news to get accurate information about the extent of nuclear danger.

The unfortunate combination of the series of earthquakes, tsunami, and compromised nuclear facilities would pose a challenge to any government, even one that had devoted extensive resources to disaster preparedness. Japan’s government no doubt saved many lives with tough construction regulations, seawalls and other preparations. Once the disaster hit, however, its performance was confused. While the immediate crisis is over, the nation’s leadership void will remain until the Japanese people demand the overhaul of a broken system in which no one accepts responsibility.



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