Judging Thy Neighbour

An exploration of how the lay judge system to be implemented in 2009 will affect Japanese society

By Peter Harris

Mr Murase is a section chief in a medium-sized Japanese company. He is married and has two children. Like many Japanese workers in his position, he is often required to stay late at the office or go out with superiors or clients to the neglect of his familial commitments. Until, one day, he receives a letter from the Supreme Court summoning him to act as a lay judge. Having initially decided to refuse the request he is encouraged by his wife and eldest daughter to seize the opportunity and let his subordinates in the office have a chance to get by on their own. In the process of the trial (of a man who, having been fired, decides to burn down the apartment building in which he lives) Mr Murase is exposed to a number of judicial and moral dilemmas, but is also able to spend more time at home with his family and learn to trust his inferiors to do their jobs by themselves.

This is the story of a public promotional DVD issued by the Supreme Court in order to try and educate citizens about the jury (or lay judge) system that will be implemented in Japan in 2009. Naturally, the drama in the DVD is somewhat contrived— the man in a wheelchair who asks if he will be able to get in and out of the courtroom, the girl who asks whether the fact that she left school at 15 prevents her from sitting on the jury, and Mr Murase’s eldest daughter’s regular use of the Supreme Court website to check facts and gain information about the system. However, given the nature and impact of the change that the jury system will have on Japanese society, it is highly understandable that the judiciary are putting a lot of effort into public education. Councillor General at the Supreme Court, Tomonao Onizawa told J@pan Inc that “the point of introducing the jury system into Japan is to take away the fear of the law and break down the barriers between the people and the judiciary.” One has only to look at the Supreme Court building, that conforms to my image of the Ministry of Truth in Orwell’s 1984, to see how Japanese citizens might feel intimidated by the institutions of the law.

Yet it was in this austere building that we met Judge Onizawa, who, in contrast to the architecture, is a beaming and genial man. Judge Onizawa firmly believes that the main point of the jury system is to bring the citizens into greater contact with the judiciary, as this will empower them to take greater control of their own destinies. He says that the basic objective is to, “let each individual shine…let them think by themselves…if we introduce this system people will have contact with the judiciary, know more about the judiciary, and their trust in the system will be greater.”

He accepts that it will take many years for the system to work effectively and for positive social benefits to be seen but, that it is beneficial for Japan, he is certain. Not only will it bring ordinary people into the judiciary but it will also put the spotlight on judges and lawyers, essentially making the system more transparent. Why then will it have taken until 2009 for Japan to have brought in the jury system?

Juries in Japan

Writing in the Wisconsin International Law Journal, Professor Matthew Wilson of Temple University, Japan Campus explains that although there was a jury system established during the Taisho Democracy era in the 1920s, “Most defendants waived their right to a jury trial because the jury could only determine factual matters and the accused could not appeal the jury’s factual determinations.”

After the war, the US administration in Japan looked at the judicial system and decided that the token jury system of the prewar era was so ineffective in terms of placing justice in the hands of the citizenry that they simply didn’t feel it was worth keeping. When asked about this decision, Professor Wilson told J@pan Inc, “It’s interesting that after the war most of the changes introduced were designed to give power to the people, but by getting rid of the jury system, power was actually taken away from them.” Rather, they focused on strengthening the judiciary so as to prevent it being dominated by government. To symbolize this equality the Supreme Court building was made with a tower on the top to ensure that it stretches to exactly the same height as the Diet building.

However, by the early 1950s, the window for making major sweeping changes to Japanese law and society had closed. Then, in the 1980s there were four cases of people who received capital punishment in which confessions were later revoked. This provoked much public debate about Japanese justice. In 1987, Chief Justice of the Supreme Court, Koichi Yaguchi, pushed for a feasibility study of jury system implementation in Japan. However, it was not until the economic downturn of the late 1990s that any concrete plans were made to bring in lay judges.

Illustration by Mike Sparrow

At the time the economy had stagnated and the banking industry was in crisis. The cries for deregulation and greater transparency could no longer be ignored. As Professor Wilson explains, there was a feeling that the “system needed to be looked at as a whole” and this job fell to the Justice Reform Council (JRC) that was set up in July 1999 and “came up with landmark plans—it just turned the legal system upside down.” As well as the jury system, acting on the recommendations of the JRC, the Diet built more law schools and revised the criminal and civil codes. They reduced the cost of filing a claim against someone and made it easier to get access to information. The jury system was another logical step in this wave of legal reforms. The form it will take however, is in many ways unique.

After much painful debate and lobbying from the bar association, the Supreme Court and other interested parties, from May 1 2009 all serious criminal cases will be tried in front of a panel consisting of six lay judges and three professionals. The panel will be responsible for deciding the guilt or innocence of the defendant as well as sentencing. Unlike in many Western countries, all judges will be able to ask witnesses questions. Lay judges will be able to receive up to JPY10,000 compensation a day. While they are not allowed to mention specific details of the case or talk to the media, they are encouraged to talk to their family, friends and co-workers about their experiences as a lay judge.

According to Professor Wilson’s article, “If the new jury trial system would have been in effect between 2003 and 2005, over 3,000 criminal cases at the district court level would have been subject to trial each year.” It is expected that once the new system is in place roughly 10,000 Japanese citizens will experience life as a lay judge in the first year after the change.

Social compatability

Ideologically, a jury system fits in well with Western liberal democracy. Robert Precht, a US defense lawyer, is a strong advocate of the current developments in Japan. Having defended one of the suspects in the aftermath of the 1993 World Trade Center bombing, Precht has witnessed firsthand the ability of a jury to act as a check on political power, media spin and other obstructions to justice. He has been in Japan talking to academics, lawyers and judges about the coming changes, because he sees them as not just benefiting Japanese citizens but also as having a positive effect on society at the global level: “Japan, in terms of expressing its views diplomatically, in terms of having a more active citizenry to put demands on government, I think there are dividends for the international community.” The example he gives is in healthcare—he argues that treatments that are available to patients in other countries, from the US to Thailand, are not available to patients in Japan because of the regulation process, and crucially, this is the case because of an absence of lobby groups and non-profit organizations. For him, Japan has a very “underdeveloped civil society.” He believes that people are not making their voices heard and that the jury system will empower citizens to hold the state accountable for its failures.

A first criticism of this view might be that there are actually many lobby groups in Japan, it’s just that they tend to be focused on issues such as maintaining Japanese sovereignty over disputed territories or limiting the liberties of resident foreigners. However, this does highlight a need for at least a more balanced civil society, if not an expanded one. There are others who are more cynical or pessimistic about the potential of the jury system to foster more grassroots democratic practices. The most common and damning criticism appears to be that reforms will not actually make any difference. A Japanese junior high school teacher confided, “Even if we have lay judges, I don’t trust the police and the judiciary in Japan—they will do what they want to do anyway.” Taking it one step further, Shunkichi Takayama, a defense lawyer who has led a campaign against the new system argues that it will actually legitimize corrupt practices by making the people puppets—the powerful interest groups will just be using citizens as a veil for their actions.

The Supreme Court of Japan; Orwell’s Ministry of Truth?

Precht’s response to such criticism is that of course nothing will happen immediately, but that at least by having regular citizens involved in the process, lawyers and the police will be forced to be more transparent. Indeed, it has been alleged that Japanese police often force confessions and the 99.9% conviction rate may indicate that the decision to condemn has been made in advance of the trial—if there are corrupt practices, the presence of outsiders will make it harder to get away with them.

Western commentators often point out that the system won’t work in Japan because of the vertical nature of society and the Japanese fear of self-expression, particularly in front of people they perceive to be their social superiors. For example, Robert M Bloom in a 2005 paper from Boston College Law School, points to the “hierarchical nature of Japanese culture” and “the ideal of harmony ingrained in the Japanese culture” that prompt him to question “how many jurors will take a position and risk the wrath of the group?” In response Judge Onizawa exclaims that “Japanese do have opinions!” and believes that the system is needed to allow these to be expressed and listened to as much as it is necessary for the people to get to know the judicial institutions. For him it is up to the judge to show leadership and be able to create an environment where people don’t feel intimidated and to encourage an atmosphere of constructive debate. He and Precht would agree that the bottom line is that the clock cannot be turned back: it is up to the judiciary and citizens alike to make the system a success.

Practical conundrums

If the moral and ideological debate isn’t thorny enough, the practical alterations and adjustments that need to be made before 2009 are seemingly endless. For one, existent courtrooms are simply not big enough to house a nine-person panel and will have to be extended. Then there are the questions of jury duty against personal or work obligations. Will employees get compensation? Will employers get compensation? Will daycare centers be available for parents to leave their children? What about psychological counselling for service in traumatic cases? All are very pertinent questions but to be fair, Japan, having studied jury systems of other countries, has been able to plan very carefully for such issues and while many questions still remain, there is a very good chance that once the teething problems have been resolved, there will be structures in place to facilitate the system as in any other country. The Supreme Court is vocal about its concerns and it will be a struggle between them and the Diet to tweak the system into shape.

One of the more complicated practical difficulties to be surmounted surrounds the right to refuse lay judge service and, for want of a better phrase, the jury is still out on this one. According to Professor Wilson there were initially some who were pushing for custodial penalties to be introduced for those who refused jury duty without a valid excuse, but this was rejected in favour of lighter punishments. Those wishing to withdraw will be evaluated on a case by case basis, with the objective that anyone for whom it would cause a significant financial loss or render their family life precarious, an exemption would be possible. The educational materials, including the DVD mentioned at the start of this article, tackle this issue extensively and there is no reason to think that this will be any more of a difficult practica problem than it is in other countries. What might be different is the number of people who would like to refuse.

One Japanese office worker told us that she believes many will try to refuse because they fear for their safety, particularly in yakuza (organized crime) cases. The popular perception is that gangsters have greater powers than the police. She said that if judges want people to embrace the opportunity to participate as a lay judge, there need to be strong messages sent out by the police that they can protect people from recriminations. Others could be inclined to refuse simply because of the newness of the system and more still because they imagine a trial to be emotionally draining. This will make striking a balance between empathy for citizens’ concerns and the need to compel people to serve their turn a tough labor. The Supreme Court has so far staged over 500 mock-trials in order to address some of these issues, but according to Japanese newspapers the majority of people do not want to sit as lay judges. Reports of mock-trials range from the sublime to ridiculous with stories of long drawn out silences to allegations that the Asahi Shimbun was paying people to attend.

The verdict

When we asked Robert Precht what he thought of the apathetic or pessimistic mood of the majority of Japanese to the incoming changes, he was unsurprised: “if there was a vote about whether or not to have the jury system now, it would be voted against.” However, he is firm in his belief that over time society, business and the institutions of state will adjust to the system and that overall the lay judge system will be a massively positive step for Japan.

Having looked at some of the criticism and practical issues involved, it is still hard to disagree and say that the lay judge system will be a negative. The greatest danger may be that the system fails to make any impact, and it simply forces corrupt officials to take greater precautions and confirms people’s existing doubts about the judiciary.

The British intellectual and writer G.K. Chesterton, known for his often cynical and ‘common sense’ views, found the experience of serving on a jury one which led him to a rare contemplation on the virtues of the system. He wrote in The Twelve Men (1909) that:

“Our civilization has decided, and very justly decided that determining the guilt or innocence of men is a thing too important to be trusted to trained men…When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up specialists. But when it wishes anything done which is really serious it collects twelve of the ordinary men standing around.”

One hopes that the unique Japanese system of six lay judges and three professionals is an even worthier decision.JI