Notes written by Dando, a former Supreme Court judge, reveal that the independence of the judiciary was threatened by the Supreme Court’s decision in the Osaka Airport pollution case.

Shigemitsu Dando was a criminal law scholar and former Supreme Court Justice. After his death in 2012, his nearly 100,000 items were donated to Ryukoku University in Kyoto. The university, which has a correctional and protection center, has launched the Dando Collection Research Project and is conducting various research activities based on the donated materials. It is said that the reason for the donation of Dando’s Notebook to Ryukoku University was because Takeo Mizuno, a member of the plaintiff’s legal team, is a professor (practitioner) at the University.

The results of the joint research with NHK was broadcast as a special program on ETV on April 15, 2023.
Osaka Airport is an international airport located in Ikeda City, Osaka Prefecture. Twenty-eight residents of the surrounding area, who were troubled by the noise and vibration of aircraft taking off and landing at the airport, demanded that the government, which manages the airport, stop night flights and compensate them for damages, claiming that the noise constituted a tort under the National Compensation Law.
This is the so-called “Osaka International Airport Pollution Lawsuit”. This is the first case in which the government was held liable for damage caused by aircraft noise. In 1975, the Osaka High Court granted an injunction against night flights at Osaka Airport and compensation for damages on the grounds that the residents’ “right to sleep peacefully” had been infringed based on their environmental rights as a personal right. From the filing of the first lawsuit in December 1969 to the settlement of the fourth lawsuit in March 1984, a total of 15 years passed. During that time, the first trial (Osaka District Court, February 27, 1974) and the appeal (Osaka High Court, November 27, 1975) of the first and third lawsuits were decided. The rest of the team members were in their late 20s to early 30s, and all of them had less than 10 years of legal experience. The young lawyers, who had no experience in a lawsuit of this magnitude, had no compass to guide them, and they tackled the lawsuit based solely on the certainty that justice would be done. Among the defense lawyers were Takii and Tahara, who later became Supreme Court judges, and Kuboi who became president of the Japan Federation of Bar Associations.
However, on December 16, 1981, the Supreme Court ruled against the residents’ request for an injunction against the flights. The court ruled that the national airport was not subject to a civil suit because the national government’s air administrative authority extends to national airports, The court dismissed as inadmissible a suit seeking an injunction against the use of the state-run airport for aircraft takeoffs and landings during certain hours as a civil claim based on personal or environmental rights. However, the court accepted the claim for compensation for past damages for noise, etc. caused by the use of the airport by applying Article 2 of the National Compensation Law, as it was based on special sacrifices. The claim for future damages was dismissed on the grounds that it is difficult to determine the extent of future damages and does not qualify as a claim for which an action for future benefits can be brought (Minshu, vol. 35, no. 10, p. 1369).
https://www.courts.go.jp/app/hanrei_jp/detail2?id=54227
Regarding the flight injunction, an agreement was subsequently reached between the local residents and the national government that no flights would be made after 9 p.m., effectively protecting the residents’ “right to sleep in a quiet environment. This remains in effect to this day. I was a bar exam student at the time and passed that year, and I remember studying this case.
By the way, among the materials donated to Ryukoku University was a notebook that revealed the inner workings of the Supreme Court’s deliberations in this case. Dando’s notebook contained a surprising fact that the Supreme Court subcommittee had initially settled on the conclusion of “approval of the flight injunction. Dando criticized the majority decision, saying, “The Dando decision should not close the way to seek relief from the court.

Former President of the Supreme Court of Justice Murakami intervened in this decision because he thought it would have a significant impact on other pollution litigation. However, it should be left to the judgement of the people and history, and the judge should make the decision from his own thought and conscience.

On 15 April 2023, NHK broadcast a special programme based on Judge Danto’s notes on the events leading up to the Supreme Court decision in the Osaka Airport litigation. According to the report, the small court in charge of the case at the Supreme Court was scheduled to reject the appeal by the State, which lost the second trial, and issue a ruling in favour of the Osaka High Court ruling (approving the injunction against flights after 09:00). However, at the instigation of the Ministry of Justice, the Chief Justice of the Supreme Court and others, the case was referred to the Grand Chamber of the Supreme Court, which ruled to revoke the Osaka High Court decision (rejecting the flight injunction). However, the conclusion was changed when former Chief Justice Murakami, who had worked for the Ministry of Justice for a long time and was said to be the de facto representative of the Ministry of Justice, telephoned the then Chief Justice and recommended that the case be referred to the Grand Chamber of the Supreme Court. This makes it seem doubtful that the Constitution guarantees the independence of judges, but the substance of this guarantee is not in doubt.

This incident reminds us of the Hiraga letter case in the Naganuma Nike case litigation. In 1969, the Minister of Agriculture and Forestry cancelled the designation of a state-owned security forest under Article 26, paragraph 2 of the Forest Law in order to build the Air Self-Defence Force’s Nike J surface-to-air missile base at Umaoizan, Naganuma Town, Yubari County, Hokkaido. Some local residents filed an administrative lawsuit with the Sapporo District Court seeking cancellation of the administrative measures, claiming that the lifting of the security forest was illegal on the grounds that the SDF was an unconstitutional entity and that there was “no public interest in the construction of the base” due to flood dangers. On 14 September 1969, Kenta Hiraga, the then director of the Sapporo District Court, presented Shigeo Fukushima, the presiding judge of the Sapporo District Court in charge of the case, with a detailed memo entitled “One Senior’s Advice”, in which he suggested that the plaintiff’s petition be rejected on the issues raised by the court’s decision. This is known as the “Hiraga letter issue”. The Director-General of the Supreme Court Secretariat issued Hiraga with a cautionary disposition, as such an action by the Director-General was considered a violation of Article 76(3) of the Constitution of Japan, which stipulates the ‘independence of judges’. However, the first instance decision issued by Justice Fukushima was later annulled by the Sapporo High Court and the Supreme Court.

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