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When open minds fight closed courts in Japan

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Special To The Japan Times

On Nov. 28, 2016, the Nagoya High Court overturned the acquittal of Hiroto Fujii, mayor of the Gifu city of Minokamo, sentencing him to 18 months imprisonment with labor, suspended for three years. Elected in 2013 at the age of 28, he remains Japan’s youngest mayor.

Fujii ran as an independent, defeating an candidate backed by the Liberal Democratic Party who was twice his age. He joined the LDP shortly after winning, but they expelled him the same day he was arrested for allegedly taking bribes from a businessman in connection with the installation of a school water system. It should be disheartening — but not surprising — that the party which rules the country apparently equates being arrested with being guilty.

The principal evidence against Fujii was testimony from the businessman who allegedly bribed him. Conveniently for prosecutors, he had already been arrested and convicted for the bribery and an unrelated fraud, a crime that literally involves lying to people. Finding the witness lacking in credibility and his account of sneaking cash to Fujii implausible, the Nagoya District Court acquitted the young mayor.

On appeal by prosecutors, the high court managed to decide that the convicted fraudster was more credible than either the mayor or the witness whose testimony supported his innocence. Not only that, the esteemed high court judges supposedly made this evaluation based solely on the record of the lower court proceedings. They did hear testimony from the fraudster, but this turned out to have been tainted (and thus unusable) because he had inexplicably received a copy of the district court’s decision. This meant he and prosecutors had months to iron out discrepancies before testifying again to the high court, which, supposedly unaffected by this testimony, nonetheless found him credible based just on the record of the lower court proceedings. The high court never bothered to hear testimony from the mayor and his witness before essentially deciding both were lying.

The citizens of Minokamo apparently have a different view; Fujii was re-elected mayor in May. He ran unopposed, so popular despite his conviction that apparently no other parties thought it worth standing opposition candidates. Now on appeal before the Supreme Court, his case offers a cautionary tale for young people who challenge Japan’s wrinkly-faced establishment. It is also a sad reminder of how low one should set expectations of the nation’s criminal justice system. This is not just because of the result at the high court, but because the process started with a judge rubber-stamping a democratically elected sitting mayor’s arrest and prolonged detention, the latter on the farcical grounds that he was a flight risk. In just a few days an astounding 40 percent of Minokamo voters signed a petition calling for him to be released on bail.

Just as with all trials, Fujii’s was about competing narratives — his and the prosecutors’. Judges are supposed to balance the evidence and decide which is true. Yet apart from the testimony and other evidence submitted in the courtroom, at a higher level there is also a separate narrative playing out about whether trials themselves are being conducted fairly. Authoritarian institutions and marketing executives both appreciate that controlling narratives such as these is critical.

Judicial efforts to control the narrative played out in a shocking fashion in Fujii’s case. By law, the judgment of a court in a criminal case must be read to the defendant in open court, though it may take several days from being requested for a formal written judgment to be delivered to the defendant and his lawyers. In high-profile cases, however, courts have a practice of issuing a summary of the judgment to the media so they can report on it immediately.

In Fujii’s case, accredited media were given a 60-page “summary” of the high court’s decision the day it was rendered. At the same time, the same court refused to give Fujii’s counsel the same summary — that was for the media only. The defendant and his lawyers were supposed to wait until the official judgment was ready. This left them (and the government of Minokamo) to field questions from journalists who were better equipped with information about the judgment than they were. Control of information is a source of power — both to criticize and prevent criticism. Japanese courts — like all government institutions — know this very well.

Which brings me to why we should all be sorry to see Lawrence Repeta leaving Japan.


Larry is a friend of mine and was, until recently, a law professor at Meiji University. Had you been sitting in the public seats at the Nagoya High Court when it reversed Fujii’s acquittal, you could have pulled out a memo pad and — like Fujii’s lawyers — frantically tried to take notes as the judgment was read out. If you had done so, you would owe a debt of gratitude to Larry Repeta.

When I first observed a Japanese criminal trial, courthouses had signs on the walls saying “Taking notes prohibited.” This didn’t apply to everyone, though: Journalists accredited to the court’s “press club” could do so, but other observers could not. Press clubs are an omnipresent narrative control device in Japan; journos who write anything too critical of the institution can have their accreditation revoked, losing access to precious information. Members of the general public are not subject to this sort of control.

Larry first came to Japan in the early 1980s as a young lawyer and researcher. He encountered the ban on note-taking when trying to observe the trial of a bubble-era stock promoter for tax fraud. Repeated requests to the presiding judge for permission were rejected without explanation. Aided by the Japan Civil Liberties Union, he brought suit on the grounds that the prohibition on note-taking violated the Japanese Constitution’s guarantee of open courts, freedom of expression and equal protection. To a young American-trained lawyer, it seemed so obvious.

As so often seems to be the case in Japanese constitutional litigation, Larry won by losing, with all but one of the Supreme Court’s 15 judges acknowledging that “note-taking by spectators in the courtroom is worth respecting and should not be hindered without due reasons,” although such behavior was nonetheless subject to “restrict(ions) or prohibit(ions) if it interferes even slightly with the administration of the fair and smooth trial proceedings in the courtroom.”

Declining to find any clear constitutional violation (and, in my view, fudging on equal protection by simply declaring it reasonable to give journalists special privileges), the court rejected his appeal while at the same time declaring that permitting note-taking should be the rule rather than the exception. This was driven home when the Supreme Court’s General Secretariat issued a directive to courts throughout the country to permit note-taking by spectators. That the court’s administrators are able to issue edicts to judges about how to conduct trials is one of the lesser-known but vaguely disturbing aspects of Japan’s judicial system.

Nonetheless, Larry’s case wrought change, though not through law but through narrative, by establishing a high-profile negative story about closed courts — Larry embarrassed the judiciary into submission. In this respect it probably helped that he was a conspicuous Westerner, though it would be nice if more Japanese people had been — still are — embarrassed that it took a foreigner to care enough to fight for this right.

Despite the technical result, Larry’s case was regarded as a great victory. It is one of the basic precedents studied by Japanese law students. Thanks to his efforts, research on trial practice and citizen monitoring of judicial behavior is easier, and an entire new genre of nonfiction exists — books based on watching trials, and more recently court-watching bloggers. Larry is rightfully a folk hero among progressives, civil libertarians and others who care about informational justice, a field he has devoted himself to since becoming an academic. He has also published countless articles on Japanese law (including a book chapter for which I was co-author).


Retired from his teaching position in Japan, Larry returns to Seattle, where he graduated from law school and once practiced as a lawyer. Before his departure we caught up over beer in Kyoto. Asked to reflect on what had changed in the 35 years since he first started asking questions about Japan’s criminal justice system, his response was: “The saiban’in (lay judge) system has been introduced and there have been some other changes, but the fundamental rules have not changed, and they are the rules of an authoritarian system where the presumption of innocence is denied.”

The defendant in the trial where he had tried to take notes was ultimately acquitted of the principal charge yet ended up being detained for over two years during the course of a trial that lasted four. Prolonged deprivations of freedom regardless of guilt or innocence remain a foundation of the criminal justice system.

We discussed the case of Okinawan anti-base activist Hiroji Yamashiro, recently released on bail after five months’ pre-trial detention for relatively minor charges. I asked about right-wing criticism about Yamashiro’s activities being too unruly and aggressive. Larry’s response was: “Without civil disobedience in America, where would African-Americans be today?” This may seem very American, but all too often in Japan the expectation — unspoken requirement — that people be polite and obedient can be the opening for all sorts of rights-infringement scenarios, whether involving government use of land or questioning by police.

In any case, at Yamashiro’s trial people will be able to watch, take notes and debate their own evaluations of the evidence against him. For that, thank you again, Larry Repeta.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Send your comments and story ideas to community@japantimes.co.jp.