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Japan’s Authoritarian Criminal Justice System

The systemic violations of human rights that are a feature of Japanese criminal justice received much international attention early this year with the tragic case of Iwao Hakamada. Hakamada was released from prison in late March, after a court found that the evidence that had been used in his conviction might have been  fabricated by the prosecution. Hakamada was arrested in 1966 and convicted in 1968, and has been on death row ever since. Now 78 years old, he is frail, of ill health, and appears to be suffering from mental disorders stemming from his prolonged detention and isolation.  The decision to releases him pending his retrial is in itself almost unheard of in Japan – most prisoners (death row or otherwise) remain incarcerated as the extremely slow machinery of Japanese justice lurches forward. It is not a given that Hakamada will stay free, either, as the prosecution has indicated it will continue to argue his guilt at a retrial. And while it is obviously a positive thing that he has been released, the fact remains that his entire life has been taken from him, by a system that breeds human rights violations and miscarriages of justice.

Death Row in Japan

Domestic human rights activists have jumped to use to the Hakamada case to illustrate the longstanding problem of the death penalty in Japan. Certainly, no matter what one’s views about the death penalty may be, it is impossible to argue that the situation in death row in Japan is anything but utterly inhumane.

Once on death row, the prisoner is in principle kept in solitary confinement indefinitely. Contact with the outside is heavily restricted, and the prisoner is essentially in complete isolation until his execution. He is only told of the date of his execution a couple of hours before he is taken to the gallows (literally, since in Japan executions are done by hanging), and therefore must eat every single meal not knowing if it will be his last.

In an insult to one’s intelligence, the Government argues that this isolation of death row prisoners is to “ensure their emotional stability.” Clearly this didn’t help in the case of Hakamada. The idea that the Japanese authorities care about the mental health of prisoners is in any case ludicrous, given that (in violation of Japanese law) even persons found to be mentally incompetent by the courts have been executed. Death row prisoners cannot see their own medical records, and independent medical specialists are barred access.

Nevertheless, the Hakamada case is less about the death penalty as such, as much as it is about the systemic rights violations that are an integral part of criminal justice in Japan. Japanese government officials insist with a straight face that legislation and practice in the country respects human rights, and point with pride to the astoundingly high conviction rate in criminal cases – over 99%. The reality is a regime that is heavily rigged in favour of law enforcement at the expense of the rights of criminal suspects, and a system that continuously churns out miscarriages of justice.

Substitute Prison – a Breeding Ground for Abuse

Japan operates one of the oldest remaining prison laws in the world. Adopted in 1909, the Prison Law provides for the “substitute prison” system – infamously known to human rights activists domestically and abroad by its Japanese name, daiyou kangoku. At the time, Japan was in the midst of rapid industrialisation, and did not have the wherewithal to build the kind of independent detention facilities that were required to ensure that criminal suspects were not abused by police officers. Daiyou kangoku was therefore provided as a stop gap measure – police were allowed to keep the suspect in their custody until Japan was able to build more facilities. Decades passed, and Japan became an industrial powerhouse – but the law was never changed, and daiyou kangoku became a permanent feature in Japanese criminal procedure.

On top of daiyou kangoku, Japanese law enforcement officials have pretty much free reign to detain persons for as long as they like before proceeding with indictment. The Criminal Procedure Law stipulates that a suspect can be detained for 72 hours (3 days) for questioning, before being brought by the prosecutor to a judge in a habeus corpus procedure. The judge may allow the suspect’s continued detention for an additional ten days for further questioning, at the end of which the prosecutor may request the judiciary for an additional, final ten days. It is virtually unheard of for the judge to refuse these extensions, meaning that, once arrested, a suspect will be in daiyou kangoku for more often than not the maximum of twenty three days. A system of bail before indictment does not exist in Japan – a problem in and of itself.

In reality, even these wanting judicial safeguards are routinely circumvented by law enforcement, through the simple tactic of bekken taiho – arrest, or re-arrest, for a different crime. The police arrest the person on a different or trumped up charge. At the end of the 23 days, the police rearrest him on another charge, keeping him in detention, and so the cycle goes on. Though evidence gathered through this method is prohibited in theory, and is at times struck down by the courts, law enforcement has been known to keep suspects in daiyou kangoku for months before indictment.

Lawyers are as a rule not present during the questioning of the detainee in daiyou kangoku, and can only visit the suspect outside of the questioning and provide advice. To make matters worse, the Criminal Procedure Law allows for law enforcement to restrict even these meetings if “necessary for the investigation”, a provision which has turned into a carte blanche for law enforcement to erect arbitrary obstacles or prevent access outright.  Requests by lawyers, if allowed at all, are often allowed only after some days, are routinely restricted to visits of fifteen minutes, and allowed only during normal working hours. Any correspondence between the detainee and his lawyer is opened and censored by the police. And all of this is only if one is lucky enough to have private representation – public defenders are prohibited outright from visiting suspects until indictement, i.e. during the entire period of daiyou kangoku.

The litany of violations that commonly take place while the detainee is in daiyou kangoku would befit places such as China, Turkey, or the Israeli occupied West Bank. Detainees are subject to extremely long (e.g. over twelve hours) questioning sessions, designed to wear them down. Sleep deprivation is common, as is the deprivation of adequate food, and suspects are often made to stand in uncomfortable positions for hours on end. Intimidation is the order of the day, with techniques such as repeated screaming in the detainee’s ears, and, though rarer, beatings have also been known to take place.

In response to public outcry, there have been moves towards video recording of questioning sessions, and the Democratic Party of Japan, which took power in 2009, also included a bill on recording in its manifesto. In 2010, yet another case of miscarriage of justice came to light, this time involving not a down and out, but one of the elite – a high-ranking official in the Ministry of Health. The fiasco lead to the creation of a government panel to discuss the subject of recording, leading to what seemed like light at the end of the tunnel. Nevertheless, the DIP bill was never submitted, the DIP was voted out in 2012, and limited trials of recording questioning sessions have gone nowhere, mainly because law enforcement has managed to limit the scope of the trials (e.g. only to the recording of one final Orwellian session when the suspect ceremoniously reads out the confession). And now, the panel established after the 2010 case looks set to recommend that any recording be at the discretion of the investigating officer – clearly defeating the entire purpose.

The entire philosophy of Japanese criminal investigation is based on an extremely paternalistic and authoritarian view of human relations. The detective, who is the father figure and the symbol of authority, sits with the perpetrator (the stubborn child) and convinces him to confess to his sins. It is only through this act of confession, so the idea goes, that the perpetrator can atone for his wrongdoing, and grow into becoming an upright member of the community. Detectives will often insist with all seriousness that they are genuinely doing the detainee a service by encouraging him to confess, that the questioning sessions need to be closed to the outside so that the detective and the detainee can “build trust”, and that they are helping him on his first step towards reform.

It is certainly open to question whether this view of human relations, very comfortable for the powerful, was ever valid (though it is certainly replicated throughout all facets of Japanese society). What is not open to question, however, is that it has lead to countless human rights abuses and miscarriages of justice.

International Criticism

Tireless advocacy by Japanese human rights activists has lead to increased international attention to this issue since the 1990s. Besides prominent international human rights NGOs, several UN human rights committees have expressed alarm, and there was a terse exchange at the review of Japan in 2013 by the UN Committee against Torture, with one of the members condemning Japan for practices resembling the Middle Ages, and the Japanese Ambassador screaming at the member to “shut up”. The Committee adopted conclusions reiterating its strong and longstanding concerns, regarding the “lack of safeguards in the Daiyo Kangoku system … the lack of effective judicial control over pre-trial detention in police cells and the lack of an independent and effective inspection and complaints mechanism”, as well as the lack of access to lawyers and other aspects.  Prime Minister Abe, when questioned about these conclusions during parliament, dismissed summarily the conclusions of the Committee, stating merely that they were not legally binding. This, of course, misses the point that an authoritative UN body has once again raised fundamental criticisms of Japanese practice – criticisms that, as a member of the international community, Japan should respond to in a serious manner.

This coming July, Japan will be reviewed by the Human Rights Committee, which monitors compliance with the International Covenant for Civil and Political Rights. No doubt Japanese criminal justice will be the subject of heavy criticism once again – and the spotlight will be on Abe and the government as to whether they will once again thumb their noses at international human rights law.

Unfortunately, things might even get worse.  The draft Constitution that Abe’s Liberal Democratic Party published in 2012 removes the existing term “under any circumstances” from the provision prohibiting torture. Coupled with blanket restrictions on human rights in general in the draft Constitution, this would suggest that, should the new constitution become law, torture could be justified when the executive sees fit – though with the state of affairs in Japan, this would arguably only be legalizing current practice.

It remains an open question as to whether the draft Constitution will be adopted. What is for sure is that, without fundamental reforms in criminal justice law and procedure, many more people like Hakamada lie waiting in the wings.

Saul Takahashi is a Japanese human rights lawyer and activist who started his career with Amnesty International in Tokyo. He received his LLM from Essex University, and until May 2014 was working in Occupied Palestine. Takahashi is the editor of Human Rights, Human Security and State Security: the Intersection, which will be published by Praeger Security International in 2014.

 

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