Caught between hope and despair: an analysis of the Japanese criminal justice system.

• Author: Clack, Melissa

INTRODUCTION

While handcuffed, shackled, forced to excrete in their own clothes, personally bathed by the warden, sleep deprived, food deprived, bribed with cigarettes or food, and, in some cases, "accidentally" killed, a suspect in Japan is interrogated and the world is beginning to acknowledge that such procedures amount to a violation of human rights. (1) Adopted December 10, 1948, the Universal Declaration of Human Rights was the first international statement to use the term "human rights" and to recognize the right to be free from torture, arbitrary arrest, as well as the right to be presumed innocent until proven guilty. (2) Although the International community has concluded that suspects (3) should be commonly afforded particular rights, there are many disparities from country to country as to what rights are actually guaranteed. (4) Overall, industrialized nations afford more rights than do developing countries, with one exception. (5) Japan, unlike most industrialized nations, does not afford many of the same rights that Americans take for granted such as the rights to bail, to remain silent, and to counsel. (6) In fact, the Japanese legal system has come under grave attack by many human rights activists, including Amnesty International. (7) Although the Japanese criminal justice system still needs serious reform to provide greater protection to its accused, Japan should nevertheless also be lauded for its efforts thus far. Many activists often overlook the strides Japan has made toward reformation when demeaning Japan for the abundant abuse found within its criminal justice system. Furthermore, any analysis of the Japanese criminal justice system should consider the unique culture of Japan. (8) Imposing American or Western standards on the Japanese system would be futile because Japanese and Western cultures sharply conflict. If any reformation is to take place, it must fit within the Japanese culture and way of life.

The foregoing analysis is a study of the Japanese criminal justice system and the rights of suspects and the accused. The main focus of the analysis is centered on the lack of rights afforded suspects in Japan and the resulting human rights violations found within the Japanese criminal justice system. Part II explores the history of Japan and the development of Japanese law. Although Western culture has greatly influenced the Japanese legal system, Japan has developed a unique criminal justice system based on its unique culture. Part III analyzes the Japanese legal system as well as the rights afforded its criminal suspects. As a point of comparison, Japan is then compared to the American system and the rights afforded suspects in America. While Part IV is an appraisal of the Japanese system, Part V considers the rights of suspects and the accused in the International arena as well as the International reaction to the Japanese system. Part V also considers the founding of the International Criminal Court and how it may affect the recognition of acceptable practices. The International Criminal Court is the only international tribunal in which criminal procedures have been adopted. (9) Therefore, it is the only international tribunal that may be even remotely compared to an individual nation's criminal justice system. Part VI looks to the future of human rights and the impact of International pressures as well as the development of the International Criminal Court on the Japanese criminal justice system. Part VII calls for reformation of the Japanese criminal justice system. Although Japan has already begun some reform, further rectification is needed. In addition, any reformation must fit into the Japanese way of life. Finally, conclusions are drawn in Part VIII regarding the effectiveness of the Japanese legal system and the future of human rights in Japan.

Legal History

Scholars believe Japan has had some sort of a judicial system in place since the fourth century, but Japan's modern legal history consists of three main eras, which commence in the 17th century. (10) During the first stage, known as the Tokugawa/Edo phase, Japan established many of the traditional legal institutions employed today, including a primitive judicial system. (11) After the fall of the shogunate in 1867, an Emperor resurfaced as the controlling governmental entity known as the Meiji government. (12) The Meiji government appointed judges for criminal matters and in 1875 a Supreme Court of Justice was established. (13) It was during this time that torture was abolished as well as rendering an opinion "solely upon confession," which was a common practice. (14) In 1889, the Meiji Constitution was formed, which provided for a more formal court system with district courts, appellate courts, and local courts. (15) A year later, the Code of Criminal Investigation was reformed to become the Code of Criminal Procedure, and was modeled after the French Code of Criminal Procedure established by Napoleon. (16)

A sense of westernization began to develop initially as a result of borrowed laws, both from France as well as Germany. (17) Later, in 1854, trade treaties were formed under pressure from U.S. warships. (18) These treaties provided certain privileges for foreigners. (19) Japan viewed these treaties as a threat to their full sovereignty. (20) Therefore, the Emperor established a European legal order in order to modify the treaties. (21) In 1894, "the extraterritorial treatment of foreigners [by the treaties] was eliminated and the most-favored nation clause was based on the principle of reciprocity." (22) Following the modification of the treaties, the Meiji leaders believed that modern law could develop a strong economy and as a result, the Meiji Constitution of 1889 was formed. (23) It was intended "to encourage the citizens to live in harmony with each other." (24) Therefore, a system in equity rather than justice developed. (25)

After World War II, the United States helped the Japanese rebuild its shattered country. In the process, American and Anglo-American culture had a great influence on the development of the Japanese legal system. (26) Americans pushed Japanese leaders to change the Constitution, Code of Criminal Procedure, and organization of the courts. (27) The new laws were heavily influenced by Western culture and all contained provisions, which "fully guarantee fundamental human rights" including warrant requirements, terms regarding inadmissible evidence and hearsay, and the implementation of a trial based upon an adversary system. (28) After the changes were made, a new Supreme Court was established and the public prosecutor's office "held the main responsibility for investigation and exclusively supervised prosecution and pre-trial proceedings." (29) In fact, the Japanese prosecutor's office was once hailed as the "cornerstone of an inquisitorial system of law enforcement." (30)

Cultural Development

Because "western institutions were not copied faithfully" and the Japanese incorporated "Franco-Germano-American ingredients," the Japanese legal system developed much differently from that of the United States. (31) The unique Japanese culture also played a major role in the development of the criminal justice system. (32) For instance:

In the United States a person tends to be perceived by self and others as an individual actor whose identity and sense of self stand apart from the community, while in Japan a person is perceived by self and others as a contextual actor whose identity is, in substantial part, defined by social relationships. (33) Because of these differences, Japan ultimately developed many different rights including the rights of suspects and how the accused are treated. (34)

First and foremost, it is vital to understand the cultural differences between the United States and Japan. The differences are significant and any revision to be made to the Japanese criminal justice system must be achieved within the context of the Japanese culture.

The Japanese criminal justice system is thought to be a "family model." (35) It is based "both on love (similar to a parent's love for a child) and mutual respect." (36) For that reason, the primary aim of the Japanese criminal justice system is correction rather than strictly punishment. (37) Japanese officials hope to rehabilitate their criminals and allow the offenders to re-enter society and become a part of the "family" once again. (38) The Japanese "family model" is also an "inquisitive family" that keeps tabs on its members, especially when they become suspects. (39) Such a model leads to close community ties and moral responsibility, which is reflected not only in the Japanese societal structure, but also in its laws and criminal procedure. (40) In fact, the importance of rehabilitation and focus on familial ties is so strong that "the apprehension of offenders, their successful prosecution, proof of guilt, and procedural fairness are secondary to the pervasive concern for rehabilitation of offenders and their conformity to socially acceptable conduct." (41) The procedures Japan employs to force suspects to conform to Japanese society or to facilitate rehabilitation has come under grave attack by the international community. (42)

Because the Japanese community is remarkably closely-knit, its citizens find sanctions that distinguish themselves from the community to be morally reprehensible. (43) For example, "confessing, apologizing, and throwing himself upon the mercy of the authorities" is seen as firm punishment extracting repentance. (44) The citizen becomes eschewed from the rest of the community and is greatly ashamed. (45) Because of such moral considerations and tight community ties, the Japanese suspect is most likely to be submissive to authority. (46)

Moral considerations play a large role in the Japanese legal system. (47) These traditions and mores, based not on autonomy, but upon communal acceptance, have played...