New order in court

by Setsuko Kamiya

May 21, 2004, was an epoch-making day for Japan; it was the day the Diet passed a law to introduce a new criminal court system that will involve ordinary citizens in the administration of justice for the first time in postwar history.

The new saibanin (lay-judge) system is scheduled to be in operation by May 2009 to try serious offenses in District Courts.

At present, only legal professionals are involved in criminal trials at any of the three levels of criminal justice in Japan — in ascending order, District Courts, High Courts and the Supreme Court.

As the new system is still at the preparation stage, most people are hardly aware of its impending impact. But from the day when ordinary citizens begin to take part in trials, it will not only fundamentally change court procedure, but will also begin to influence the lives and mind-sets of the entire population.

In the United States, the United Kingdom, Australia and many other modern democracies, jurors randomly chosen from the public, with legal guidance from a judge, listen to the defense and prosecution cases and then deliver a guilty or not-guilty verdict (or sometimes no verdict, if they cannot agree), after which the judge hands down a sentence or acquittal. In contrast, in the new saibanin system, six lay judges will sit with three professional judges during trial proceedings, after which they will all jointly deliberate, come to a verdict and, if the verdict is guilty, determine the sentence.

This is similar to the so-called mixed-court system in France, Germany and Italy. But in those European countries, nonprofessional judges must serve long terms, sometimes spanning several years, and in Germany some citizen judges are selected from lists provided by political parties and local communities. In Japan, by contrast, the saibanin system will only require citizen-judges to serve for one case, and there will be no German-style lists.

When the new system is up and running in 2009, Japan will finally join some 80 other countries whose citizens play an active role in the administration of criminal justice, thereby helping to ensure fairness and transparency in its execution.

This will all be a far cry from the current Japanese criminal trial system, in which legal professionals administer justice through a series of opaque processes that are entirely alien to the average person. It’s also a system that is notoriously slow, with many cases taking several months and years before reaching a conclusion.

When lay participation is enacted, court procedures will have to become straightforward enough for the average citizen to understand and the whole process will have to be dramatically speeded up to take account of the realities of citizen judges’ work and home commitments.

To these ends — in accordance with the revised Criminal Procedure Law, due to take effect in November — legal professionals are currently hard at work devising the changes necessary to speed up trials and clarify procedures so that, by 2009, under their direction, saibanin-system trials will be able to begin running smoothly.

“There will be a drastic change in how trials will be run, and I assume that the impression people have of criminal trials will change a great deal,” said Judge Masahiro Hieda of the Criminal Affairs Bureau of the Supreme Court.

The new system will not, however, be the first time in Japanese history that citizens have played a role in criminal trials. For 15 years from 1928, a jury system was in operation, born out of the democratization movement that dominated the political scene at the beginning of the 20th century. But at that time, although jurors were chosen at random, only male taxpayers over 30 were eligible for selection. Also, even though the 12 jurors were required to relay their collective judgment to the judge, if the judge disagreed, he could simply dismiss them and start the trial all over again with a different jury. Above all, the system ran under the Meiji Constitution, which gave sovereignty to the Emperor.

After World War II, the current judicial system was put in place subject to the current Constitution, which now declares that “sovereignty resides with the people.” Then, in the early 1960s, a panel of legal experts spent two years considering possible alterations to the system to reflect social changes — but without reaching any conclusion.

Now, the proposed introduction of lay participation in criminal trials is part of a major judicial overhaul. This stems from a two-year consultation started in 1999 by a group set up by the government called the Judicial Reform Council. The council’s recommendations followed submissions not only from the legal profession, but also from others representing business and consumers — both sectors that had been calling for a speedier, more efficient judicial process in line with wider trends toward deregulation and globalization.

According to lawyer Satoru Shinomiya, a professor at Waseda Law School, unlike the fruitless two-year discussion in the 1960s, the reforms realized this time are being driven not solely by legal concerns, but by a conscious desire on the part of the Judicial Reform Council to make the legal system more accessible to the public, and to actualize a freer and fairer society.

In its final report published in 2001, the council made numerous suggestions to improve the quality of the judicial system, and to enhance public faith in it. These included for the first time establishing professional law schools in Japan as a means of rapidly raising the number and caliber of lawyers — a change already being put into practice.

At the same time, the report urged citizens to take more responsibility for their new role in the legal system in order to further move toward realizing a truly democratic society.

As Shozo Fujita, a senior member of the panel designing the changes in court procedures at the Supreme Public Prosecutor’s Office, observed, citizens’ participation in the judicial process is in step with the times.

“We are increasingly seeing cases where citizens are trying to check things directly,” Fujita said. “For example, more people are demanding that the authorities disclose information they hold, and they are also asking private corporations to make their business activities transparent. I suppose they feel the same way about the justice system, and that is why we need to make every effort to ensure the system takes root.”

Lawyer Shinomiya, who was a member of the team that devised the saibanin system after the council’s final report, shared Fujita’s view, noting that the changes afoot are evidence that Japanese society is maturing.

“Japanese have not been given the chance to participate in the justice system, despite the fact that this is a democratic state,” he said. “But now, the missing piece of the jigsaw puzzle of Japanese democracy is finally in place.”

Shinomiya also believes that their experience in court will change people’s views and attitudes toward society. “And that,” he said, “will certainly change people’s thoughts when they go to vote.”

Perhaps largely unaware of what is happening, however, the Japanese public at present appears less than ecstatic about the new judicial dawn about to break. Indeed, an NHK poll in January found that 64 percent of respondents did not want to participate in the courts as saibanin.

Legal professionals, though, remain optimistic.

“I can understand that people don’t want to do it, because it’s a heavy thing to pass judgment on a person,” Judge Hieda of the Supreme Court said. “But when we all put our heads together, use our common sense and decide, I believe we can reach the right decisions. And people will understand that it’s a fulfilling task.”

Lawyer Shinomiya agrees. “It’s not a problem if people participate unwillingly at first. The important thing is that, when the trial is over, they are content to have participated in decision-making about something they have nothing to do with,” he said. “To make them feel that way is the responsibility of professionals.”