Employer groundwork laid for lay judges

Key hurdle is ensuring absences don't put jobs, workplace in jeopardy

by Setsuko Kamiya

First of two parts

American employees of Toyota Motor Corp.’s U.S. operations are entitled to paid leave if they are called for jury duty. That is not the case for their Japanese counterparts here because no such trials exist in this country — yet.

But when the “saibanin” (lay judge) system begins in less than two years here, some 65,000 Toyota men and women with Japanese citizenship will be allowed to serve their new civic duty with paid leave from the automaker.

“We want to make sure our employees will know what to do when they receive a notice from the court,” an official at Toyota’s legal department said, estimating that around 100 employees will be summoned annually.

Under the lay judge system to begin by May 2009, six randomly chosen citizens will sit together with three professional judges on the bench in trials involving heinous crimes. The nine-member panel will determine the facts based on evidence presented by the prosecutors and defense, reach a verdict and, if necessary, hand down a sentence.

The new system aims to make trial proceedings more open and easier to understand for the average person and at the same time reflect various views from society in the decision-making process.

Although legal professionals are now actively trying to raise public awareness about the new system, one key hurdle is getting the workplace to agree to let employees serve as lay judges, or de facto jurors, because surveys have shown that work is a major reason people raise as their difficulties to serve as judges.

Unlike in the United States, for example, where jury trials are part of the nation’s fabric and rank and file citizens have long been aware of their responsibilities, Japan is essentially feeling its way and trying the tack of getting employers to put the word out.

The lay judge system law stipulates that employers cannot penalize employees who take time off for court duty. But it is up to employers to decide whether to give workers paid leave for the service, although courts will pay up to 10,000 yen per lay judge a day.

Legal authorities are now asking businesses to create an environment conducive to their employees serving in trials. The Supreme Court is sending judges nationwide to various companies and communities, while the Japan Federation of Bar Associations is encouraging member lawyers to talk about the system with clients.

Toyota’s decision is the fruit of the Justice Ministry’s grassroots promotional campaign to make all prosecutors — from the top to rank-and-file officials — go out and explain the system.

According to Toyota, in December 2005, former Prosecutor General Kunihiro Matsuo visited Hiroshi Okuda, chairman of the automaker at the time, and successfully solicited his support. Current Chairman Fujio Cho is also very supportive and has ordered the firm to take advantage of any opportunity to promote the new system.

“We see this as a social contribution to provide support in making society more familiar with the system,” the Toyota official said.

Toyota already has a regulation, in line with the Labor Standards Law, that gives paid leave for employees who need to provide existing official duties, including taking part in the prosecution revision committee or to appear in court as witnesses.

Lay judge duty could be considered as one such service, but the firm plans to create a new rule granting paid leave specifically for this role to raise awareness among employees, the official said.

Canon Inc. and Takashimaya Co. are among other corporations that also plan to grant paid leave to employees, claiming it is part of their social responsibility.

The Japan Trade Union Confederation (Rengo) has also raised the issue of paid leave for lay judge service during the “shunto” spring wage negotiations this year. This led Tokyo Electric Power Co. Union to confirm with management at the wage talks that Tepco employees will get paid leave when serving as lay judges.

Although large companies like Toyota and Canon can get by if personnel are absent, smaller firms have less flexibility.

Hidekazu Yoneda, 43, president of a mold manufacturer for plastic items such as cell phones and games in Tokyo’s Ota Ward, said he could probably adjust his schedule and participate if informed in advance. Running the six-employee firm, including himself, Yoneda said he is supportive of the new system because he never felt justice was being served when trials were presided over by only three judges.

But he is skeptical that cases can be tried in just three days, as has been officially estimated, in a nation where some criminal trials have dragged on for years.

“You need several days to design and make a product. How can you judge someone in just three days?” Yoneda asked. “That sounds impossible to me.”

Although willing to participate, he said his business would suffer greatly if he or his employees had to spend longer than three days attending a trial.

A survey by the Tokyo Chamber of Commerce and Industry in December found that about half of 848 small and midsize responding companies said the absence of employees would have a major negative impact on their businesses because they do not have replacements. Nearly 70 percent of the firms have fewer than 20 employees.

The chamber urged the Justice Ministry to consider waiving the lay judge requirement for people who work at companies with fewer than 50 employees.

“We don’t think our demand will be accepted as is, but we want authorities to understand the reality at small firms,” a TCCI official said.

Judge Tomonao Onizawa, councilor general at the Supreme Court’s general secretariat, said lay judges will be chosen on a case-by-case bases and consideration will be made regarding their employment situation and whether they have workplace replacements available to cover them.

“We can’t demand that people serve if that means they may go bankrupt,” Onizawa said. “But we want as many people as possible to participate.”

Part II: Mock trial provides look at judicial system’s future

For related stories:
FYI: Opening the courts to ordinary citizens