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No need to know the law, but you must obey it

Colin P.A. Jones tells us why it's hard to get clear answers when dealing with Japan's legal system

by Colin P.A. Jones

A few months ago I met with some Western diplomats who were looking for information about Japanese law — in particular, an answer to the question, “Is parental child abduction a crime?” As international child abduction has become an increasingly sore point between Japan and other countries, foreign envoys have been making concerted efforts to understand the issue from the Japanese side. Having been told repeatedly by their Japanese counterparts that it is not a crime, some diplomats may be confused by recent cases of non-Japanese parents being arrested, even convicted for “kidnapping” their own children. I don’t think I helped much, since my contribution was something along the lines of “Well, it probably depends on whether the authorities need it to be a crime.”

Of course, the very question “Is x a crime?” reflects a fairly Western view of the law as a well-defined set of rules, the parameters of which people can know in advance in order to conduct themselves accordingly. However, there is a Confucian saying that is sometimes interpreted as “The people do not need to know the law, but they should be made to obey it.” This adage was a watchword of the Tokugawa Shogunate, whose philosophy of government was based in part on neo-Confucian principles.

It is also a saying that could provide some insights into why it sometimes seems difficult to get a clear answer about what exactly the law is in modern Japan. I am not suggesting that Japanese police and prosecutors have Confucian platitudes hanging framed over their desks, but knowing the law is a source of power. Being able to say what the law means is an even greater one, particularly if you can do so without being challenged. In a way, clearly defined criminal laws bind authority as much as they bind the people, by limiting the situations in which authorities can act. Since law enforcement in Japan often seems directed primarily at “keeping the peace,” laws that are flexible are more likely to serve this goal.

For example, on the subject of abduction of a minor, Article 224 of Japan’s Penal Code says simply that: “A person who kidnaps a minor by force or enticement shall be punished by imprisonment with work for not less than 3 months but not more than 7 years.” Article 226, a human trafficking statute that has been used to convict foreigners for abducting their own children, just says: “A person who kidnaps another by force or enticement for the purpose of transporting another from one country to another country shall be punished by imprisonment with work for a definite term of not less than 2 years.”

Since neither of these is very specific, an American lawyer would probably try to learn how the terms “kidnap,” “force” and “enticement” had been interpreted in prior cases. However, in Japan there is a significant hurdle to doing so: Except for those cases published in official court reporter volumes or otherwise circulated, the judgments and other records of criminal cases are by law a type of state secret, maintained by the prosecutors (not the courts!) and unavailable to the public. “Protection of privacy” is the given reason, but it also has the effect of making it very difficult for scholars or other legal system outsiders to understand the criminal law with greater specificity.

But perhaps greater specificity is not needed, at least from the standpoint of law enforcement. Their perspective may be not so much “Was it a crime?” as “Was the peace disturbed?” If it is a case of Dad grabbing his kids on their way home from school, the answer is likely to be yes. If it is Mom taking the kids back to live with obachan, the answer is almost certainly no. The American lawyer might argue that from the standpoint of the real victim (the children whom the statutes are presumably intended to protect) the result may not be very different in the long run. But that would miss the perspective of the men with badges and guns, who probably have nothing to gain from arresting moms in such cases.

F urthermore, even if moms were guilty of a crime, under Article 248 of the Code of Criminal Procedure prosecutors have almost unlimited discretion not to prosecute someone based on their age, character or circumstances. This discretion is only limited by Japan’s system of prosecutorial review commissions, which can require that a decision not to prosecute be reconsidered (as recently happened in the ongoing funding scandal involving Democratic Party of Japan honcho Ichiro Ozawa).

Japan, like other countries, has any number of laws that are unknown, unenforced or otherwise subverted. For example, pedestrians are supposed to walk on the right side of the road on streets if there is no sidewalk, and riding a bicycle while using an umbrella is illegal. Pachinko is a form of gambling (illegal), Tokyo’s Kabukicho and other night spots are full of establishments where sex can be bought for money (illegal), and virtually no new love hotels have been built since a law regulating them was passed in the 1980s — those newer establishments that have (I hear) hourly room rates and rental maid costumes are “business hotels.”

The authorities and the people alike can probably live with this state of affairs if it preserves some sort of order. Yet it creates an environment in which people may habitually engage in behavior they think is perfectly normal (because everyone else is doing it) but which is actually a crime, for which they can be arrested and prosecuted if the authorities need a reason to do so.

Ever had a beer then hopped on your bicycle? You are drunk driving — a criminal offense. “Everyone’s doing it” is unlikely to be a defense, particularly if it leads to something else — a fight, an accident or some other disturbance of the peace (such as defeating the LDP as governing party and threatening to ax senior bureaucrats, as some might say in the case of Ozawa). What is a fair interpretation of the law is irrelevant once the issue becomes one of you vs. authority, because authority must win.

Foreign visitors to Japan often comment on how polite the Japanese people are, but little do they know that it is actually against the law to be rude. Under Article 231 of the Penal Code it is a crime to “insult another person in public.” It would be tempting to dismiss this as a quaint remnant of the Code’s Meiji roots (it was enacted in 1907 and written in classical Japanese until 1995). However, several years ago a man was arrested for calling a woman “fat” in a bar. He was also detained for 29 days for this infraction. Given that Japan’s Supreme Court has recently held that liability for criminal defamation may arise from anything posted on the Internet, Japanese people could conceivably soon become famous for being polite online too.

Examples of seemingly strained applications of criminal statutes abound. There is the man who was prosecuted for “dangerous driving resulting in death” when two high school cyclists plowed into his illegally parked, unoccupied car; or the university researcher who was prosecuted for “assisting intellectual property infringement” by creating “Winny,” a popular file-sharing program. Another man was arrested for trademark infringement for creating a T-shirt design featuring a man holding a gun to a silhouette of the National Police Agency mascot. And another was arrested and detained for developing image processing software which, since it could be used to remove the mosaic used to protect viewers from the sight of genitalia, was deemed to be “distribution of obscene materials.” And perhaps the most recent case in the news was that of the low-level public servant prosecuted for distributing Communist Party literature in his own neighborhood during his free time (and you thought the Cold War ended 20 years ago?).

A common theme in most of the above cases is that police or prosecutors may have had an institutional reason for wanting to make an arrest. The man prosecuted for dangerously driving a car he was not even in had parked in an area where the police had been making a show of enforcing parking regulations. The man arrested for calling someone “fat” was a local politician, so who knows what issues he might have had with the local constabulary. A security hole in the Winny software resulted in several high-profile leaks of information from police and other government computers. And since a total of 170 police officers reportedly spent a month spying on the public servant putting copies of Akahata (Red Flag) in peoples’ mailboxes, he probably had to be prosecuted for something just so the entire effort didn’t end up being a complete waste of time and taxpayer money.

It is here that the role of criminal law in Japanese society can take a turn down a darker path: when it is used primarily to serve the interests of the authorities rather than the public good. Take the case of Tamaki Mitsui, a senior prosecutor who was arrested in 2002 for a trivial tax violation and for exchanging information with a Yakuza boss at an expensive dinner — the type of activity that is probably part of his job rather than a crime. Not coincidentally, the day he was arrested he was scheduled to give a TV interview regarding prosecutorial slush funds, a story he had already started to leak to the press. His arrest and the trivial grounds on which it was based were widely regarded as being a shabby effort by the prosecutors to protect their public image.

That law enforcement officials use the law to their own advantage — interpreted creatively if necessary — is hardly unique to Japan. Where Japan may differ from other countries, however, is that the legal system seems to lack institutions that act as a significant check on such usage. In the United States, for example, federal prosecutors have to convince a grand jury before they can indict anybody. The trial jury system in the United States and other common-law countries provides another opportunity for the citizenry to reject an unreasonable application of the law, or even an unreasonable law itself. In contrast, Japan’s prosecutorial review commissions only work in one direction — they cannot stop a prosecution. As for the country’s new lay judge system, almost none of the cases discussed above would be serious enough to be eligible for trial by lay judges.

As for the courts themselves, Japan’s famously high conviction rate — above 99 percent — is derived in part from judges ratifying virtually all prosecutorial decisions. Almost all of the cases discussed above resulted in guilty verdicts, at least at the initial trial. The insult conviction was ratified by the Supreme Court in 2006. Mitsui, the prosecutor, was found guilty and sentenced to actual prison time rather than the suspended sentence usually meted out for minor offenses. And while the developer of Winny and the public servant were both acquitted on appeal, by that time they had already arguably suffered far out of proportion to the gravity of their supposed crimes.

Thus, what the law actually is seems to be decided by anonymous bureaucrats rather than in the courts or through public debate. This means the law can suddenly change — not because of a court case or a statutory amendment, but because faceless officials decided it should be so.

For example, long-term Japan residents may remember the day when pubic hair suddenly “became legal.” Until 1991 any photographs showing pubic hair were deemed criminally obscene (though the Penal Code is not that specific). Then, with the publication of two “art books” by the famous photographer Kishin Shinoyama featuring nude shots of a famous actress and then-teen idol Rie Miyazawa, pubic hair was suddenly OK. (Miyazawa may have been 17 when her pictures were taken; if so, anyone who has a copy of her top-selling nudie book could be in possession of child pornography.) A boom in “hair nude” photography followed, and pubic hair has been “legal” ever since.

While pubic hair is OK now, graphic depictions of genitalia may still be deemed obscene, even in an artistic context. This was discovered when a book of Robert Mapplethorpe photos was confiscated by Japanese customs in 1999 because it contained pictures of male genitals. The book’s owner objected — the book was published in Japan, he was an employee of the publisher of the Japanese edition and had taken it on a business trip to the United States. It was also available in Japanese bookshops as well as the National Diet Library. Having staked its authority on banning its “import,” however, customs bureaucrats stood their ground. While losing at the initial trial, on appeal they were able to get the Tokyo High Court to agree that the book was obscene. The Supreme Court finally set things right by overturning the High Court, though it did so in 2008, by which time nobody may have cared any more. Taking pictures of naked women in a cemetery is also still a no-no, however, as Shinoyama found out last month when the Tokyo Summary Court fined him for doing just that back in 2008.

While it easy to be critical, other countries arguably have something to learn from Japan’s approach to law enforcement and its famously low rate of reported crime. One factor in this equation may be the respect the people have for the authorities that wield the law, as opposed to the black letter of the law itself. At the same time, however, according to Montesquieu, “liberty is the right to do what the law permits.” What does it mean, then, when what the law permits — whether it is taking your own children somewhere, rudeness or anything else — is unclear?

Colin P.A. Jones is a professor at Doshisha University Law School in Kyoto. Send comments to community@japantimes.co.jp