Debates on Japan Vol. 3 Issue 2
From the editors
Former Nissan and Renault CEO Carlos Ghosn made headlines in late December 2019 when he fled Japan for Lebanon after a long legal battle over multiple corruption allegations. Since he was first arrested in November 2018, Ghosn has denied the allegations and has portrayed himself as a victim of Japan's "hostage justice system". The Ghosn case has sparked debate about the Japanese judicial system as a whole, including whether it reflects Japanese values or is consistent with international law.
In the thirteenth issue of the Debating Japan newsletter series, the Chair of CSIS Japan invited Ms. Chiyo Kobayashi, co-founder of Washington CORE, and Mr. Brad Adams, Asia director at Human Rights Watch, to share their perspectives on the Japanese judicial system split.
Ja – Frau Chiyo Kobayashi
Co-Founder, Washington CORE
No - Mr Brad Adams
Asia Director, Human Rights Watch
Frau Chiyo Kobayashi
Co-Founder, Washington CORE
Like most legal systems around the world, the Japanese judicial system is tough but fair. The important thing is that it works as planned: keeping criminals off the streets and creating one of the safest nations in the world. Professor Bruce Aronson, formerly at Hitotsubashi University and now at the U.S. Asia Law Institute at New York University, wrote in a forthcoming article on the subject: "It's hard to call Japan's system a 'failure' when Japan has one of the lowest rates of crime, incarceration and gun ownership in the world."
I am neither a criminal lawyer nor a criminal justice expert, but having lived and worked in Japan and the United States for many years as a business and political expert, I believe it is time to shed some light on this subject.
Critics of the system will first say that defendants stand no chance of being found innocent when accused of a crime in Japan. I would argue that the infamous 99.3 percent conviction rate is misleading. The Japanese conviction rate must be viewed in the context of the overall Japanese judicial system. While Japan has an unusually high conviction rate, the presumption of innocence applies throughout the trial and sentencing. The high conviction rate is largely due to the practice of Japanese prosecutors, who accept cases only after careful consideration and then when they believe there is enough evidence to convict. According to data from the Japanese Ministry of Justice in 2018only 37 percent of arrest caseswere actually taken over by prosecutors. The high conviction rate therefore demonstrates the efficiency of the system.
Second, recent events have raised questions about whether the Japanese system allows for fair trials. In Japan, the accused are openly tried and their arguments and evidence are thoroughly heard. Judges are independent in making decisions and citizens trust them to present unbiased opinions. Aside from crime scene arrests, only judges can decide to arrest a person, and that decision is based on a number of factors, including the likelihood of a person fleeing. In principle, prosecutors are not allowed to arrest people accused of a criminal offense without the approval of a judge. Defendants can seek advice directly from their lawyers in a private setting, with no one else present. While defense attorneys are not allowed to be present during the interrogation process, the Japanese system reinforces the practice of recording interrogations, which are shared with the defense team upon request, to ensure that the interrogation is conducted properly and with dignity.
Third, despite what has been published in the international media, there is evidence of fairness in therecent Ghosn case. Japan treats everyone equally, regardless of social status or wealth. Contrary to Japanese social norms, it must have come as a great surprise to Mr Ghosn that he was not given special treatment because of his stature. Rather, he was granted the same level of access, rights and counseling as any other defendant under the Japanese system.
I believe that a country's criminal justice system reflects the values and societal needs of its citizens in a democratic society. Professor Frank Upham of New York University Law School told me that not only do most Japanese value a low crime rate, but they also believe that their criminal justice system is fair and just. All criminal justice systems are complex, and no single country can claim to have a perfect one. Japan has introduced several new measures that will improve an already effective system, including a lay judge system where ordinary citizens act as lay judges and cooperate with professional judges in criminal proceedings, a procuratorate agreement system for cooperation in investigations and trials, and more transparency in the interrogation process. The recent Ghosn incident has put the Japanese criminal justice system in the spotlight, giving Japan an opportunity to review and affirm the values of the system as it continues its efforts to create a better system as a whole.
Japan is pleased to host the 14th UN Summit on the Criminal Justice System in April. TheKyoto Congressis hosted by the Japanese Ministries of Justice and Foreign Affairs and brings together senior government officials from Justice Ministries and Attorneys General, as well as experts from around the world. A youth summit will be held prior to this event, bringing students to Kyoto to learn, discover, share notes, and compare the judicial systems of different countries. Japan will share some of its best practices while trying to learn from other countries. One area Japan is interested in is strengthening the rights of the accused. The summit will be timely, and as NYU Professor Aronson notes in his forthcoming article, "reasonable comparisons are more compelling and useful in reform efforts."
The Kyoto Congress will be an excellent opportunity to show that Japan is ready to take a leadership role in judicial practice. As host, Japan will facilitate debate and work to develop a framework for fair comparisons between nations while committing to improving its criminal justice system for a safer and more humane Japan and the world.
Herr Brad Adams
Asia Director, Human Rights Watch
Thearrestby former Nissan and Renault boss Carlos Ghosn over allegations of corruption made headlines around the world. His subsequent dramatic flight from Tokyo to Lebanon is the stuff of a Hollywood blockbuster.
Innocent or guilty, his case has exposed deep flaws in Japan's criminal justice system. In the country's long-described "hostage justice" system, criminal suspects are often denied bail, interrogated without their lawyer present, and denied family visits. Japan's criminal procedure code, unique among advanced democracies, allows authorities to hold suspects without bail for 23 days -- and then repeat the process over and over again, adding new charges.
One way authorities play with the system is to compartmentalize crimes, bringing one charge based on the same facts and another later if the suspect has not yet confessed. For example, the charge of “detention in corpses” is often brought first, and then, 23 days later, murder or other more serious charges. When prosecutors decide not to press further charges, inmates who fail to confess are often denied bail by judges, who often reflexively side with the government, even when the issue is not violence or the government person is not at risk of absconding.
Prolonged detention can result in job loss, hardship for family members, including children, and social stigma, as many assume guilt if authorities have held the suspect for a long period of time . After being held "hostage" in prison for weeks or months, admitting a crime they did not commit seems like the best way to end their ordeal.
Human Rights Watch interviews conducted earlier this year show that many victims of the hostage justice system are poor and have suffered greatly. For example, in Osaka, a man was arrested for allegedly causing the death of a two-month-old child by rocking the baby in a manner that caused brain damage. Police had no direct evidence and no conclusive medical evidence that rocking or shaking the baby was the cause of death. The man and his wife were investigated for almost 10 months before the man was arrested. He remained in detention for nearly nine months and was told his wife would be prosecuted if he did not confess. He was eventually acquitted.
In Tokyo, a man with cancer has been charged with fraud. His family told Human Rights Watch that his health deteriorated while in detention because prison authorities refused to give him the medication his doctor prescribed or allow the doctor to assess his health. He was held for 156 days during which his request for medical bail was denied at least seven times. The man kept a meticulous diary of his deteriorating health. He died of cancer shortly after his release.
Sun-Dyu, a musician, was detained without bail for 10 months on suspicion of stealing 10,000 yen (about US$90) from a store, while Atsuko Muraki, a high-ranking bureaucrat, was jailed on suspicion of violating postal service laws was detained for four months. Both were eventually found not guilty.
Japanese lawyers and civil rights groups like thatJapanese Federation of Bar Associations, have been calling for reforms for a long time. In a January 2020 statement refuting allegations of injustice in the Ghosn case, the Justice Department released aquestions and answers, and asked, "Isn't it fair to describe the Japanese justice system as one of 'hostage justice'?" The answer wasNO: "On the contrary, the Japanese criminal justice system does not coerce confessions by unlawfully detaining suspects and defendants."
International Human Rights Lawguarantees a suspect the right "to communicate with legal counsel of his choice", which has been interpreted to mean immediate access to legal counsel without restrictions. TheUnited Nations statement of principles for the protection of all persons in any form of detention or detentionIt states: “The right of an arrested or detained person to be visited by his lawyer and to consult and communicate with him without delay or censorship and in full confidentiality may be suspended or restricted only in exceptional circumstances. . . when it is deemed essential by any judicial or other authority to maintain law and order.”
It's time for Japan to admit that its archaic system is coercive and unfair. The government should consult with the Bar Association and revise the system to bring it in line with international law. Detainees have the right to the presumption of innocence, a prompt and fair hearing on bail, and access to legal counsel, including during interrogation. The hostage justice system designed to extract confessions should go to the dustbin of history.
About the authors
CHIYO KOBAYASHIis co-founder of Washington CORE, a Bethesda, MD-based consulting firm that provides research and consulting services to globally-focused organizations in both the private and public sectors.
Brad Adams, executive director of Human Rights Watch's Asia division since 2002, oversees the organization's work on human rights issues in twenty countries, from Afghanistan to the Pacific. At Human Rights Watch, he has worked on a variety of issues including freedom of expression, protection of civil society and human rights defenders, counterterrorism, refugees, gender and religious discrimination, armed conflict and impunity. He has written for publications such as The New York Times, The Washington Post, The Guardian, Foreign Affairs, and The Wall Street Journal.
Before joining Human Rights Watch, Adams worked in Cambodia for five years as senior counsel for the Cambodian office of the United Nations High Commissioner for Human Rights and as legal adviser to the Human Rights Committee of the Cambodian Parliament, where he conducted human rights inquiries. Oversaw a judicial reform program and drafted and revised legislation. A former California legal aid attorney and founder of the Berkeley Community Law Center, Adams graduated from the University of California, Berkeley, Boalt Hall School of Law. He teaches International Human Rights Law and Practice at Berkeley Law School and is a member of the California Bar.
Similar resources
SOURCES ON THE JAPANESE JUDICIAL SYSTEM
Frequently asked questions about the Japanese criminal justice system, Ministry of Justice
TheJapanese judicial systemAndjudicial reform, Japan Association of Bar Associations
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Hannah Fodale is a Research Fellow in the Japan Chair at the Center for Strategic and International Studies, where she focuses on projects related to US-Japan relations and security in the Indo-Pacific region.
FAQs
Does Japan have a fair justice system? ›
Like most legal systems that exist around the world, the Japanese judicial system is tough but fair. Importantly, it works as designed: to keep criminals off the street and create one of the safest nations in the world.
What country has the fairest justice system? ›- Denmark. Denmark is a Scandinavian country due to its position on the Jutland Peninsula. ...
- Norway. With a solid judicial system that keeps the country's ruling powers in check, Norway has meager crime rates and no civil unrest. ...
- Finland. ...
- Sweden. ...
- Netherlands. ...
- Germany. ...
- New Zealand. ...
- Austria.
The modern Japanese legal system is based on the civil law system, following the model of 19th Century European legal systems, especially the legal codes of Germany and France. Japan established its legal system when imperial rule to Japan was restored in 1868 as part of the Meiji Restoration.
Why does Japan have a 99% conviction rate? ›It is said that the conviction rate in Japan is over 99%. The high conviction rate in Japan is not because of forced convictions, but because prosecutors prosecute cases after thoroughly examining whether a crime can be proven. It is the prosecutor who decides whether or not to prosecute a case.
Is Japan innocent until proven guilty? ›The legal system of Japan is based upon civil law. Under Japanese criminal law, the accused is innocent until proven guilty and the burden of proof rests with the prosecutor. The defendant must be given the benefit of the doubt.
Does Japan have equal rights? ›The Constitution prohibits discrimination of citizens on the basis of race, creed, gender, social status, or family origin; non-citizens are not protected from these forms of discrimination by the constitution nor the law as of 2014.
What country has the weakest justice system? ›Cameroon has one of the worst judicial system in the world, according to a report by the World Justice Project's Rule of Law Index, the foremost source of original and independent data on the rule of law worldwide. They scored an overall score of 0.35.
Where does US rank in justice system? ›The World Justice Project's 2022 Rule of Law Index ranks the U.S. 115th out of 140 countries on "accessibility and affordability of civil justice." This is a drop from the country's 108th place in 2020.
Which country has the slowest justice system? ›Overworked investigating judges and a lack of lawyers leads to inordinate delays in Bafang, Cameroon. Slate Afrique reports that the inmates of Bafang prison, in the west of Cameroon, are tired of waiting.
Is there gender equality in Japan? ›An advanced society in so many ways, Japan lags far behind on gender equality compared to other industrialized nations and its Asian neighbours. The country sits in 120th place out of 153 countries with a gender equality gap of 34.4%, according to the World Economic Forum.
How are criminals treated in Japan? ›
The different kinds of punishment for committing a crime in Japan are shown above, from the lightest punishment to the heaviest. These punishments are petty fines, detention, fines, confinement, imprisonment, and the death penalty. In practice, detention is rarely actually given as a punishment.
What happens if you commit a crime in Japan? ›If you violate local laws, even unknowingly, you may be arrested, imprisoned, or deported. If you are arrested in Japan, even for a minor offense, you may be held in detention without bail for several months or more during the investigation and legal proceedings.
Does Japan allow us felons? ›Those convicted of felonies in the United States often have difficulty entering other countries. Such countries as Australia, Canada, and Japan restrict access to travelers with criminal records.
What crime is committed most in Japan? ›The majority of crimes recorded in Japan are theft offenses. Among violent crimes, the most reported offenses are assaults and bodily injuries followed by rapes and homicides.
Why does Japan have such low crime rates? ›The cultural explanation is simplistic. Explaining low crime with culture is to say that collectivist traits like group-orientation, inclination towards harmony, and high self-control are why the Japanese do not murder, assault, and steal from each other as much as others in different countries.
Has Japan ever committed war crimes? ›The Empire of Japan committed war crimes in many Asian-Pacific countries during the period of Japanese imperialism, primarily during the Second Sino-Japanese and Pacific Wars. These incidents have been described as "the Asian Holocaust".
When did Japan apologize for war crimes? ›In October 2006, Prime Minister Shinzō Abe's apology was followed on the same day by a group of 80 Japanese lawmakers' visit to the Yasukuni Shrine which enshrines more than 1,000 convicted war criminals.
Do you have the right to remain silent in Japan? ›Your right to remain silent is guaranteed by the Constitution of Japan, however, in reality, it may reinforce the suspicion in the mind of the investigator and can be used as a reason for prolonging the detention. The important thing to remember is that a false confession is dangerous.
Does Japan have a lot of freedom? ›Property rights are generally respected. People are free to establish private businesses, although Japan's economy is heavily regulated. While personal social freedoms are mostly protected, there are some limitations.
Is it illegal to discriminate in Japan? ›The Japanese constitution promulgated in 1946 had a list of fundamental human rights, including the guarantee of equality under the law and prohibition of discrimination on the grounds of race, creed, sex, social status or family origin (Art.
Why is Japan not gender equal? ›
Japan has not followed the trend of other countries — even those not considered 'advanced democracies' — in closing the gender gap. Japan's poor GGI ranking is due to women holding low status positions in the workforce and the underrepresentation of women in politics.
Which country has best justice system? ›Denmark, Norway, and Finland topped the World Justice Project (WJP) Rule of Law Index 2021.
Which country has best rule of law? ›The top-ranked country in the WJP Rule of Law Index 2022 is Denmark, followed by Norway (2), Finland (3), Sweden (4), the Netherlands (5), and Germany (6).
What is wrong with the justice system in America? ›Currently, the criminal justice system's three largest issues are police retention and recruitment, lack of resource parity between prosecution and public defenders, and its public perception. Currently, police recruitment and retention is arguably the largest problem facing the criminal justice system.
Where does Canada's justice system rank in the world? ›...
| Global Rank | 20 / 47 |
|---|---|
| Income Rank | 12 / 14 |
Prosecutors are the most powerful officials in the American criminal justice system. The decisions they make, particularly the charging and plea-bargaining decisions, control the operation of the system and often predetermine the outcome of criminal cases.
Why is the US justice system good? ›The criminal justice system is designed to deliver “justice for all.” This means protecting the innocent, convicting criminals, and providing a fair justice process to help keep order across the country. In other words, it keeps our citizens safe.
Does Japan have a fair government? ›Elected officials are free to govern without interference, though senior civil servants have some influence over policy. The prevalence of corruption in government is relatively low, media coverage of political corruption scandals is widespread and vigorous, and officials who are implicated face criminal prosecution.
Is there gender inequality in Japan? ›An advanced society in so many ways, Japan lags far behind on gender equality compared to other industrialized nations and its Asian neighbours. The country sits in 120th place out of 153 countries with a gender equality gap of 34.4%, according to the World Economic Forum.
Are there discrimination laws in Japan? ›The Japanese constitution promulgated in 1946 had a list of fundamental human rights, including the guarantee of equality under the law and prohibition of discrimination on the grounds of race, creed, sex, social status or family origin (Art.
How stable is the Japanese government? ›
Japan has now established itself as a stable democracy with the second largest economy in the Free World, accounting for about 10 percent of the Free World's gross national product.
What type of government is Japan right now? ›| Government of Japan 日本国政府 | |
|---|---|
| Seal of the Government | |
| Polity type | Unitary parliamentary constitutional monarchy |
| Constitution | Constitution of Japan |
| Formation | 1885 |
7 (Jiji Press)--Income inequality is widening among young Japanese people aged between 25 and 34, with more young couples earning less than 5 million yen a year going childless, a government reported showed Monday.
Does Japan support feminism? ›Feminism in Japan began with women's rights movements that date back to antiquity. The movement started to gain momentum after Western thinking was brought into Japan during the Meiji Restoration in 1868. Japanese feminism differs from Western feminism in the sense that less emphasis is on individual autonomy.
Why is Japan so low on gender equality? ›Japan has not followed the trend of other countries — even those not considered 'advanced democracies' — in closing the gender gap. Japan's poor GGI ranking is due to women holding low status positions in the workforce and the underrepresentation of women in politics.
Why is Japan's gender gap so big? ›Gender-segregated career tracks are largely to blame for the country's gender inequality in the rate of promotion to managerial positions. In Japan, there is a managerial career track (sogo shoku) and a dead-end clerical track (ippan shoku). This track system is strongly associated with gender.
What human rights are violated in Japan? ›Significant human rights issues included credible reports of: significant barriers to accessing reproductive health; and crimes involving violence or threats of violence targeting persons with disabilities, members of national/racial/ethnic minority groups, or indigenous peoples.
What is the biggest problem in Japan? ›Everybody knows Japan is in crisis. The biggest problems it faces – sinking economy, aging society, sinking birthrate, radiation, unpopular and seemingly powerless government – present an overwhelming challenge and possibly an existential threat.
How much freedom do Japanese citizens have? ›In addition, the later constitution guarantees freedom of thought and conscience; academic freedom; the prohibition of discrimination based on race, creed, social status, or family origin; and a number of what could be called welfare rights: the right to "minimum standards of wholesome and cultured living"; the right ...