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Can justice possibly ‘flower’ in Japan’s new courts?

by Roger Pulvers

A new poster at subway stations in Tokyo shows a smiling young woman confidently clutching her handbag along with the slogan: “About the time I turn 20, the courts will change. I guess both the law and the courts will become more familiar then.”

That poster heralds the arrival, in 2009, of Japan’s judge-and-jury system.

Until now, cases brought to court in Japan have been exclusively decided by professional judges. From 2009, however, a jury of six citizens and three professional judges will deliver verdicts and hand down sentences, marking a significant change in Japanese people’s civic responsibilities.

I am quite sure the new system will function smoothly on the surface, with employers ensuring their staff will be able to fulfill their duties. But I have very deep reservations about whether Japanese people themselves will be up to the task of formulating, expressing and asserting their own opinions in such a situation.

Instead of “Twelve Angry Men” (the acclaimed 1957 film by Sidney Lumet), you might just end up with “Six Timid Sheep.” Decision-making in any country is bound up in its society’s dynamics. The emphasis in Japan is overwhelmingly on the group.

Allow me to explain my reservations.

For many years I was a loyal member of the PTAs in the Japanese schools my children attended. One PTA meeting in particular stands out in my memory. We were planning a picnic for child-ren and parents. Time, place and food had been decided on, but the sticky question of what kind of cups to take along had bogged the meeting down. Some PTA members were pitching for disposable paper cups, while others argued for reusable plastic ones. I kid you not when I say that discussion on this “vital” issue went on for over 90 minutes.

I never said a word at those meetings — which made me very popular. If, as the Japanese say, iwanu ga hana (“the flower is in the silence”), then I was a florist’s dream.

Reservations go deep

Finally, the head of the PTA, the only other male besides me, proclaimed, “OK, we’ve discussed it enough. I think we should have plastic cups.” And that was that. Everybody was pleased. After all, hadn’t the question been openly debated? The important thing was that everyone had a feeling that the process was fair. Thereafter, the decision should be left to the person in charge.

It isn’t such a big jump from the PTA meeting to the jury. Hence my reservations about ordinary Japanese citizens fulfilling their civic duties go deep, for the following reasons.

1. Would individuals who entertained a different notion from the group really stick to their guns? Could a member of a jury really stand their ground and buck other members’ feelings, insisting their opinion was correct? It is hard enough to do this in a business or academic meeting, where the participants are colleagues, as Japanese people generally do not react well to forceful dissenters.

2. Lay people in any society tend to defer to experts, and this is doubly true of Japan. People here, with their neo-Confucian attitudes to hierarchies, are humble toward and respectful of learning and experience. If the judges all felt that someone was guilty, would lay jurors, convinced of their own opinion, really be able to counter their authority?

3. Would professional judges yield to the opinions of ordinary citizens with no legal background? Would they truly respect their views to the extent that they would allow their own views to be overriden?

4. Would men, particularly older men, yield to the opinions of women, particularly younger women, in a situation where there was a clash of opinions? Conversely, would Japanese women really persevere with their view of a case in the face of opposition from male jurors or judges, given that women in Japan who are self-assertive are generally, but unfortunately, not admired?

5. Consensus is the key to group dynamics in Japan. Those who appear to be disturbing it must have great fortitude and personal conviction to persist. Harmony in any group situation is the sought-after Japanese virtue. This has many wonderful advantages, not least that it keeps the society civil and peaceful. But there is a price to pay for this civility, and that is the sacrifice of individual freedom. It is a price that Japanese people, in most circumstances, are happy and willing to pay — and if that includes the possible sacrifice of a defendant in a trial, I fear that many Japanese on a jury would consider it unavoidable. The desire for harmony within the group of nine could override the fate of the lone defendant.

Wear humility on your sleeve

Japanese people are wary of individuals with strong opinions who appear “too articulate” in defense of those opinions. If you feel strongly about something here, you are best to play it down, hum and haw your way through your argument, act ultra-modest and wear your humility conspicuously on your sleeve.

Modesty on a grandiose scale in Japan especially spews from the officious mouths of politicians, whose flowery, seemingly self-abasing language frequently extends to verbal flourishes that are linguistically archaic. (A surfeit of modesty in Japan is a sure sign of conceit.)

But, starting in 2009, can we expect ordinary jurors to be as clever as politicians at putting forth their views in slick, self-deprecating cliches? Hardly. They may say their peace, but they will most likely turn all docile in the face of opposition.

The judge-and-jury system is coming, and when it does, the trappings of a new jurisprudence will be set in place. But such institutions are only as robust as the attitudes of the society practicing them.

In a society where deference to professionals, elders and, often grudgingly, to self-assertive males, rules the day, how can previously powerless citizens, suddenly empowered, find a way to express themselves civilly, democratically and forcefully? Then, even if they do, will the eventual decision be made by the top person anyway?

The members of my PTA were satisfied, because they had gone through the motions of decision-making. They were relieved when the decision to take plastic cups on the picnic was made for them, thus absolving them of the responsibility if that decision turned out to be the wrong one.

You won’t find many flowers in a country where virtually all the individual blooms choose to bow down in a strong wind.