Tuesday, April 29, 2008

"Victim Participation System" and Mock Trials

"The Supreme Court has decided to launch mock trials with participation from people posing as crime victims ahead of the introduction of the citizen (lay) judge system in Japan next year.

"The trials will be held in line with the implementation of another system starting this year, in which victims will take part in trials.

"Both the lay judge system and the victim participation system are pillars of judicial reform in Japan, but the Japan Federation of Bar Associations and some victim support groups have expressed fears that victims' opinions may negatively affect the ability of lay judges to make appropriate decisions. The Supreme Court aims to eliminate such fears through the mock trials.

"The decision to implement the victim participation system was the result of past comments from crime victims that they had been left out of criminal trials. Under the new system, which will be used in the trial of serious crimes such as murder, victims and bereaved family members will sit next to public prosecutors and will be able to directly question defendants and witnesses, and state their opinions on sentencing.

"The Japan Federation of Bar Associations has expressed reservations about the system.

""There is a possibility that lay judges -- who are ordinary citizens -- will be strongly affected by the opinions of the victims, hindering calm acknowledgement of the facts and fair sentencing," a federation representative said.

"One scheduled mock trial will depict a male defendant who falls asleep while drink driving and crashes into an oncoming car, killing the other driver. It will be based on an actual incident, and the theme will be the sentencing when the defendant has admitted to the crime.

"Lawyers active in supporting victims will take part, playing the part of bereaved family members, and it will be examined whether lay judges are strongly affected by questions from bereaved families who take a strong line. The extent to which opinions about sentencing can be reflected will also be examined, along with consideration of whether opinions about sentencing become divided.

"The mock trials were requested at various levels of the court by Society for Victims and the Judiciary representative Tadaari Katayama, who argued that it would be easy for the weight of sentences to change based on victims' behavior in court.

"Mock trials will be held at the Chiba District Court in late May, the Maebashi District Court in June, and the Tokyo District Court in July, amongst others."

By Mainichi Shimbun (4/29/2008), Link to article (last visited 4/29/2008)

Monday, April 28, 2008

Freedom of Expression and the Supreme Court

"The Supreme Court's Second Petit Bench on April 11 found three antiwar activists guilty of trespassing when they entered a housing compound of the Self-Defense Forces in Tachikawa, Tokyo, in January and February 2004 to distribute leaflets urging SDF personnel and their family members to oppose the deployment of SDF units to Iraq. The three were fined a total of ¥500,000. Because the ruling will intimidate people planning to distribute leaflets, an important means of expressing one's opinion, it could restrict the freedoms of speech and expression, cornerstones of democratic society.

"The three entered the partially fenced eight-building compound despite the presence of signs warning against entering without permission and placed the leaflets in the mailboxes of residential units. At that time, as now, public opinion was divided over the government's decision in December 2003 to dispatch SDF troops to Iraq. In January 2004, SDF members began arriving in Iraq. The investigative authorities' actions against the trio was unusual. After their arrest in February 2004, they were detained for 75 days. Amnesty International declared the three to be "prisoners of conscience."

"Public prosecutors demanded six months' imprisonment for them for trespassing. In December 2004, the Hachioji branch of the Tokyo District Court acquitted the trio, saying that although their actions constituted trespass, the degree of infringement on the residents' privacy was small and their violation was not grave enough to merit punishment. The branch also pointed out that the distribution of the leaflets falls into the category of political expression, which is guaranteed by the Constitution.

"But in December 2005, the Tokyo High Court found the trio guilty of trespassing and fined two of them ¥200,000 each and another ¥100,000. It said that the trio had no right to enter the compound and ignore the will of the compound's manager. It also said that the trio repeatedly distributed leaflets despite protests by residents, and therefore the damage suffered by the residents was not light.

"In a ruling supported by all three justices present, the Supreme Court's Second Petit Bench accepted that freedom of expression must be respected as an especially important right in a democratic society and that the defendants' acts of distributing political leaflets constituted exercise of the freedom of expression. But referring to Article 21, Section 1 of the Constitution, which says, "Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed," the petit bench said that it does not give an absolute and unlimited guarantee to the freedom of expression and instead allows necessary and rational restrictions on it for the sake of public welfare.

"The petit bench said that entering the housing compound against the will of its manager infringes on the manager's right to manage the compound. It noted that since the compound had signs prohibiting entrance by non-residents and the manager submitted a damage report to the police every time the defendants entered the compound, it could not be said that the defendants' infringement on the legal interests of the residents was extremely light. The Supreme Court said that a means of expressing one's thought cannot be allowed if it unjustly infringes on others' rights. Thus it upheld the high court's guilty sentences.

"The top court declared that the issue was not the constitutionality of punishing defendants in connection with what they express, but rather how they express it. What the court should realize, however, is that if it places stringent restrictions on methods of expression, the end result will be the suppression of expression itself. The justices should realize that residents who retrieve leaflets from their mailboxes do not have to meet the people who deliver them, and that if they do not like the leaflets they can simply throw them away.

"The ruling also pointed out that the compound is not a place for ordinary citizens to enter freely and said that the defendants infringed on the peace of the manager and residents. But it did not say what concrete damage was suffered by the manager and residents as a result of the defendants' actions.

"Although the ruling refers to the damage reports that the manager submitted to the police, it ignores the fact that the police assisted in preparing the reports. In fact, the police played an active role from the start. About two months before the arrest of the three, they reportedly asked the SDF to cooperate so that they could arrest those who delivered the leaflets on the spot. It is reported that the police later asked the SDF to submit damage reports and identify those who delivered the leaflets. According to the defendants, non-residents routinely enter the compound to deliver commercial leaflets, and the police have never taken action against them. It is therefore not unreasonable to believe that the police selectively targeted the activists. The Supreme Court regrettably chose to ignore this."

By Editorial (4/27/2008), The Japan Times, Link to article (last visited 4/28/2008)

Friday, April 25, 2008

Pretrial Detention and Police Misconduct


Japan Federation of Bar Associations (JFBA) Statement on the Substitute Prison (Daiyo Kangoku) System. (4/11/2008)

Sunday, April 20, 2008

Administrative Reform and Amakudari Bill

"A draft bill will revamp the selection process for senior posts at independent administrative agencies, which have been criticized as hotbeds of corruption and wasteful spending and are targeted for drastic reforms, The Asahi Shimbun learned Friday.

"The bill, if passed, will also restrict the practice known as amakudari, in which elite central government bureaucrats land cushy post-retirement jobs in agencies once under their jurisdiction.

"The bill is also intended to reform and streamline the 101 agencies by increasing the Cabinet's involvement to ensure more efficient and open operations and taking away the power of the bureaucrats.

"Directors, auditors and other senior positions at the agencies have traditionally been former bureaucrats, whose appointments have been approved by a Cabinet minister.

"The bill to reform an existing law will allow members of the public to apply for the posts and be selected through an open recruitment system. Their appointments will require approval from the Cabinet.

"Moreover, the bill will ban agencies from sending their retired officials to private companies with business ties.

"Critics, however, doubt the amakudari practice will be completely eradicated under the new system.

"It has been the Cabinet's custom to skim over the proposals of individual ministries for appointments of high-ranking officials, including vice ministers, and to merely rubber-stamp its approval.

"The Cabinet will approve the draft bill possibly in the coming week. The government hopes to pass the legislation through the Diet so that it can take effect in 2010.

"Prime Minister Yasuo Fukuda views the independent agencies reform bill and the bill for bureaucratic reform, which has already been submitted to the Diet, as the two pillars of his administrative reform initiative.

"The operations of the 101 semi-government agencies, known as dokuho, are currently overseen by assessment panels under the ministries with jurisdiction. Panel members are appointed by each ministry.

"The current assessment system has been criticized as tantamount to a "peer review by colleagues" that has allowed nontransparent and often sloppy operations.

"For example, the now-defunct Japan Green Resources Agency was given an "A" grade, the second-highest on a five-point system, from the agricultural ministry despite its involvement in collusive bidding.

"The bill will create a single 18-member committee under the internal affairs ministry to monitor the operations of all 101 agencies.

"The assessment committee will have the authority to recommend to the ministers in charge to order improvements to agencies that are failing to achieve their goals.

"If the agencies refuse to comply with the committee's recommendation, the committee can ask the prime minister to take control and supervise the organizations."

By Akira Uchida (4/19/2008), Asahi Shimbun, Link to article (last visited 4/20/2008)

Friday, April 18, 2008

War in Iraq and the Constitution

"NAGOYA -- The transportation of U.S. soldiers engaged in the Iraq war by Air Self-Defense Force (ASDF) troops is unconstitutional, an appeal court ruled on Thursday.

""The ASDF's mission to transport U.S. soldiers in Iraq constitutes a violation of Clause 1, Article 9 of the Constitution that bans the use of force," Presiding Judge Kunio Aoyama said as he handed down the ruling.

"The Nagoya High Court is the first court that declared the ASDF's activities, based on the Law Concerning the Special Measures on Humanitarian and Reconstruction Assistance in Iraq, as unconstitutional.

"However, the court dismissed 1,122 plaintiffs' demands for 10,000 yen each in compensation or a ban on the deployment.

"The suit was launched by seven groups of 3,268 plaintiffs between 2004 and 2006.

"In their suit, the plaintiffs claimed that the government's deployment of Self-Defense Force personnel, including ASDF troops, to Iraq in 2004 under the special measures law contravenes war-renouncing Article 9 of the Constitution and infringes on their right to live in peace.

"The lower court dismissed their suit, and 1,122 of the plaintiffs filed an appeal in the Nagoya High Court.

"The government has withdrawn Ground Self-Defense Force troops from Iraq while the ASDF is continuing its mission. "

By Mainichi Shimbun (4/17/2008), Link to article (last visited 4/18/2008)

Thursday, April 17, 2008

Execution Broadcast

"TOKYO (Reuters) - A Japanese radio station will broadcast a 1955 tape of an execution in a special program next month, a rare move to raise public awareness as the government increases the frequency at which it hangs death row inmates.

"The tape, from a prison in Osaka, western Japan, includes voices from the condemned prisoner and a prison guard, and the sound of the rope stretching when the inmate was hanged, said Katsuhiko Shimizu at Nippon Cultural Broadcasting Inc, a private radio station.

"Educating the public about executions was becoming important before the start of a lay judge system next year in which citizens would help hand down verdicts and sentences for serious crimes together with professional judges, he said.

""Some people support executions from the standpoint of victims, while those opposed say human rights of death row inmates should be respected, but we can't form an opinion unless we really know what executions are about," said Shimizu, a programming supervisor.

"It is not clear when the inmate in the tape was hanged, and he will be introduced only by his initials.

"The 55-minute program will also include interviews with prison guards, public prosecutors and journalists who have covered executions.

"Japan executed four convicted murderers just last week, in line with Justice Minister Kunio Hatoyama's policy of reducing the number of prisoners on death row.

"The hangings brought to 10 the number of executions under Hatoyama, who took up his post last August, and came only two months after the last round of executions, an unusually short period in Japan. Opinion polls show most Japanese support capital punishment although human rights groups such as Amnesty International condemn the practice.

"The government began revealing names and details of those hanged from December in a new policy aimed at bolstering support for executions.

By Chisa Fujioka/Valerie Lee (Reuters, 4/16/2008), Link to article (last visited 4/17/2008)

Saturday, April 12, 2008

Cannabis Seeds, Internet Sales, and The Law

"A loophole in the drug laws has allowed a growing number of people to buy marijuana seeds on the Internet for cultivation.

"Last year, police confirmed 184 incidents of growing marijuana plants, more than four times the figure 10 years ago, according to the National Police Agency (NPA).

"The Cannabis Control Law bans people from growing marijuana plants, but has no clause outlawing the possession of seeds.

""It's possible for anyone to sell and buy marijuana seeds on the Internet without disclosing their identities. We fear that the number of businesses that sell such seeds will increase," a spokesman for Tokyo Customs said.

"Most of the Web sites that sell marijuana seeds correctly declare that possessing seeds is not illegal in itself. However, some warn that customers can possess marijuana seeds only for "ornamental purposes", and that those who possess seeds should prevent germination. However, many also sell instruction manuals on how to grow marijuana plants.

"Two former members of Kanto Gakuin University' s rugby club arrested last November for marijuana possession had bought seeds on the Internet, and grown the plants at their dormitory.

"The import of heat-treated seeds, which prevents germination, is permitted under the Customs Law as they are used in some spices and bird feed. About 1,000 tons of heat-treated marijuana seeds are imported from China and Canada each year.

"But following of a spate of incidents in which a large number of people have been arrested for growing marijuana plants, the Finance Ministry instructed customs offices across the country in January to crack down on those who are smuggling marijuana seeds that have not been heat-treated.

"Earlier this month, customs officers for the first time invoked the Customs Law clause banning imports of untreated marijuana seeds to apprehend a couple who attempted to smuggle 1,000 marijuana seeds from the Netherlands into Japan through Central Japan International Airport near Nagoya.

"However, customs officers pointed out that it is extremely difficult to distinguish between treated and untreated seeds."

By Mainichi Shimbun (4/12/2008), Link to article (last visited 4/12/2008)

Thursday, April 10, 2008

Justice Minister, Death Penalty, and Executions

"Four convicted murderers were executed Thursday, bringing the number of convicts hanged to 10 since Kunio Hatoyama became justice minister in August.

""I will continue to (sign execution orders) in a calm and orderly manner," Hatoyama told a news conference.

"There are now 104 inmates on death row whose death sentences have been finalized.

"Three inmates were executed in December and three others in February.

"With the four executions Thursday, the pace of death sentences being carried out under Hatoyama is faster than the rate under his predecessor, Jinen Nagase.

"Nagase signed execution orders for 10 inmates in three installments during his 11 months as justice minister. The 10 executions are a record under one justice minister since Japan resumed capital punishment 1993, after a hiatus of three years and four months.

"Hatoyama, an advocate of speeding up executions, sparked controversy in September by saying a justice minister's authorization should not be needed for carrying out an execution.

"Three of the four men hanged Thursday were executed within four years after their death sentences were finalized.

"During the 10 years through 2007, the average period between a finalized death sentence and the execution was about eight years.

"According to Justice Ministry officials, the four murderers executed Thursday were: Katsuyoshi Nakamoto, 64; Masaharu Nakamura, 61; Masahito Sakamoto, 41; and Kaoru Okashita, 61.

"Nakamoto and Nakamura were hanged at the Osaka Detention House, while Sakamoto and Okashita were put to death at the Tokyo Detention House.

"Nakamoto was convicted of murdering a jewelry dealer and his wife in Izumi, Osaka Prefecture, and stealing cash and jewels in 1982.

"Nakamura killed a homeless man and a former co-worker in Shiga Prefecture in 1989 for money and other purposes. He also severed their bodies and dumped their body parts.

"Sakamoto forced a female high school student into his car and strangled her in Gunma Prefecture in 2002. He also phoned her parents demanding ransom money while pretending the girl was still alive.

"Okashita strangled the owner of an apartment building in Tokyo's Suginami Ward in 1989 with an accomplice. Later, he shot the accomplice to death and pretended that his cohort was the one who had murdered the apartment building owner."

By Asahi Shimbun (4/10/2008), Link to article (last visited 4/10/2008)

Tuesday, April 8, 2008

Constitution Reform and Public Opinion

"Constitutional revision is supported by 42.5 percent of people and opposed by 43.1 percent, indicating there is a small majority opposed to reform for the first time since 1993, according to a recent Yomiuri Shimbun opinion survey.

"However, 71 percent of respondents said the political parties should be more active in discussing revision of the Constitution, with more than 70 percent saying there were some articles that should be amended or provisions that should be added to the supreme law. The survey results indicate that a growing number of people feel it is increasingly difficult to deal with today's problems under the current Constitution, which was enacted 61 years ago.

"The survey was conducted on March 15 and 16 as part of the "Japanese" survey series by The Yomiuri Shimbun.

"According to Yomiuri Shimbun opinion polls on the top law that have been conducted since 1981, pro-revision respondents have outnumbered reform opponents since 1993. However, in the latest survey, the percentage of respondents supporting constitutional reform dropped by 3.7 percentage points from last year, while anti-revision respondents increased by 4 percentage points.

"The latest results apparently reflect dissatisfaction among the public over the sudden resignation of former Prime Minister Shinzo Abe, who strongly supported revising the top law, as well as over the prevailing political deadlock, in which the government sees no prospect of passing important bills through the Diet, because the House of Councillors is dominated by opposition parties.

"In a multiple-answer question concerning why they support revising the Constitution, 45 percent of pro-revision respondents said the current Constitution could not deal with new issues such as Japan's contribution to the international peace.

"For respondents opposing constitutional change, 53 percent said it was because Japan should be proud of the pacifist nature of the Constitution.

"Asked which provisions should be amended or what kind of provisions should be added to the top law, again with multiple answers allowed, 27 percent said Japan should be allowed to have its own military for self-defense, followed by the addition of "a right to live in a good environment" (25 percent) and amendments of provisions concerning the roles of central government and local governments (22 percent).

"Meanwhile, 46 percent said it was necessary to establish a permanent law governing overseas deployment of SDF units, exceeding the 42 percent who said no such law was needed."

By Yomiuri Shimbun(4/8/2008), Link to article (last visited 4/8/2008)

Monday, April 7, 2008

Gender Identity Disorder and Law Reform

"The ruling parties likely will relax the legal requirements for people with gender identity disorder to alter their officially registered sex, ministry sources said Saturday.

"Under the current law on the family registration of people with the disorder, a clause stipulates that people who already have children are not allowed to change their registered gender.

"The opposition Democratic Party of Japan has also said the clause should be reconsidered. If the ruling and opposition parties reach a consensus on the issue, a suprapartisan group of lawmakers likely will submit a bill to revise the law during the current Diet session.

"The original law passed the Diet in a free vote in July 2003, reflecting increasing social acceptance of the disorder. However, some lawmakers claimed that legally registering a woman as a father or a man as a mother would probably cause confusion in a family and be harmful for the welfare of a child.

"As a result, the clause that only allows those without children to change their sex was added.

"However, people with the disorder have called for the clause to be scrapped, saying that, typically, those who apply to change their registered gender have undergone sex-change surgery, so the change in the official registration itself has little impact on the welfare of the children."

By Yomiuri Shimbun (4/7/2008), Link to article (last visited 4/7/2008)

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Friday, April 4, 2008

The Jury System in Pre-War Japan

"As the clock ticks down to the advent of Japan's new "citizen judge" system next year, it may come as a surprise to learn the nation experimented with a jury system more than half a century ago.

"As part of ongoing judiciary reforms, the new citizen judge system will require ordinary people to join professional judges in debating serious criminal cases and handing down sentences. It will differ considerably from the old jury system.

"Japan's jury system was introduced 80 years ago, in 1928. The system lasted just 15 years until the middle of World War II.

"Resembling judicial proceedings used in United States, the old system involved a panel of 12 citizens who handed their verdict of guilty or not guilty to a judge. The judge would then decide on the sentence.

"The jury system handled 484 cases until it was terminated in 1943 amid the intensifying wartime fighting.

"Jurors were required to be male taxpayers at least 30 years old and able to read and write.

"In contrast, the new citizen judge system will involve six randomly chosen voters of either sex who will join three professional judges in deciding the outcome and sentences in serious criminal cases.

"While there is no modern precedence here for such a system, old newspaper reports of Japan's earliest jury trials may shed light on how things could play out.

"The country's first jury trial was in December 1928 at the Tokyo District Court. A 21-year-old woman was accused of attempted arson in an alleged plot to collect insurance.

"The banner headline of The Asahi Shimbun's Dec. 18 evening issue was: "Imperial capital's first jury trial opens amid tension."

"The story described how the jury was selected. Thirty-six men were summoned, of whom 32, aged 33 to 54, presented themselves at court. That group was whittled down to the final 12 jurors by the defense and prosecutors.

"The next day, an article described the jurors. One was a soba shop worker who became teary-eyed as he watched the accused weep as her father testified that he had cried all night upon hearing of her arrest.

"An article in the Asahi's Dec. 22 evening edition described the gallery's reaction when the judge was asked to repeat a passage from the confession by the accused.

""Two members of the jury stood up and asked, 'We'd like you to read that part again because it was unclear,' causing murmurs in the packed gallery," the article said.

"Key to the trial was whether the defendant's confession had been voluntary. In the end, the jury found her not guilty.

"The biggest difference between the old system and the new citizen judge system is that under the old system, the jurors' private information--such as their name, occupation and home addresses --was made public during the trial. Newspaper articles at the time described one juror as being the first to the court, and another as "asking sharp questions, showing a personality that likely reflected his occupation."

"Under the new system, however, jurors' names and other data will be kept under wraps until the trial is over. Even after the trial ends, personal information will not be disclosed without consent of the citizen judge.

"The old newspaper reports also indicated that jurors serving at the Tokyo District Court were housed in accommodations adjacent to the court in the Kasumigaseki district. They were banned from reading newspaper reports on the trials they were involved in.

"But under the new system, citizen judges will be allowed to return to their homes every day during the trial.

"That means they will likely read and watch media reports on the trials. However, they will be bound to secrecy about what is discussed during the deliberation process, just as previous jurors were.

"Under the old jury law, jurors were fined up to 1,000 yen if they broke this rule--at a time when the starting salary for a bank employee with a university degree was 70 yen a month.

"Starting next year, a citizen judge caught leaking details about judicial discussions will face fines of up to 500,000 yen or six months in prison.

"Lawyer Toshiaki Manabe has examined old media reports on a jury trial held at the Yokohama District Court under the old system.

""The old articles carried the names and occupation of the jurors, which concerns me. As a lawyer, I worry about citizen judges becoming the targets of crimes," Manabe said.

"He also supports greater re-examination of issues that will emerge under the citizen judge system, such as how judges should discuss cases, percentages of cases in which the accused is found not guilty and the obligation for citizen judges to keep silent on the content of such discussions.

"This is important, he said, given the fact that the old jury system ended after such a brief duration.

""It is up to the media reporting on the citizen judge system to create an environment that will allow such re-examinations," Manabe said."

By Kanako Ida (4/4/2008), Asahi Shimbun, Link to article (last visited 4/4/2008)