SAFEGUARDS SPURNED

Citizens routinely denied legal rights

by David Mcneill

The contrasts between constitutional provisions for crime suspects in Japan and their actual treatment are stark, say critics of the system.

“The Constitution provides strong protections, including the right to remain silent,” says Omiya Law School Professor Lawrence Repeta. “But in fact, some of the most important of these rights are disregarded.”

For instance, Article 34 says that “No person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel; nor shall he be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and in the presence of counsel.”

But, as the cases in the main accompanying story here show, these safeguards are interpreted by Japanese courts in a way that makes them virtually meaningless.

The provisions were drafted by the postwar Allied Occupation, with the goal of creating an “adversary system of justice” along American lines: Investigating and gathering evidence should be separated from considering evidence and deciding a case; judges should be removed from the investigating function; and prosecution and defense must enjoy equal opportunity to present evidence.

This reform was a radical change from the prewar system in which prosecutor and judge were not clearly separated, and defendants were seen more as part of an inquisitorial process than a neutral rehearsal of evidence and fact.

Says Repeta: “Many observers agree that what we have today bears a closer resemblance to the prewar system than the adversary system envisioned by the drafters of the Constitution. Judges question witnesses aggressively when they wish, and prosecutors play a dominant role, with defense lawyers typically in a minor role in trials.”

As is so often the case, rather than Japan “becoming more like us,” the rest of the world may be moving in the direction of Japan.

Conclusions drawn from silence

Judges in some countries, including Britain, can now draw conclusions from a defendant’s decision to remain silent, and since the attacks of Sept. 11, 2001, the initial detention time for “terrorism” suspects has been lengthening. Some politicians there, and the Attorney General, also want to scrap the cornerstone of common-law criminal justice — the right to jury trials in complicated cases.

So who will protect the suspect?

Well, in Japan it will be the police, according to new interrogation rules issued this week in the wake of the Kagoshima and Toyama cases. From April, detectives will be explicitly forbidden from striking, shaking or even touching someone in custody, or from using words “likely to embarrass or make a suspect feel uneasy,” harming their dignity or promising lighter treatment in return for a confession.

The new guidelines suggest that the impact of jury trials is already being felt: The police are “mindful,” says state broadcaster NHK, that juries who mistrust the police could undermine trials. But the monitoring will be internal, and the police are still refusing to cede a key demand from the Japan Federation of Bar Associations: The videotaping of interrogations.

“There is no change in a system where insiders check other insiders,” Hokkaido University Professor Yuji Shiratori told Kyodo News on Friday.