Remember when Japan was roundly criticized abroad for failing to join a widely accepted international treaty and ignoring behavior that elsewhere in the world was a crime?
No, this column will not be about the Hague Convention and international child abduction. Anyway, that has been all sorted out. (OK, that was sarcasm, to be explained another day.) Today I am talking about the U.N. Convention against Transnational Organized Crime.
Never heard of it? According to the Abe administration, implementing the treaty is important enough to justify creating hundreds of new criminal offenses, most comprising an entirely new category, namely “planning the execution of a serious crime for a terrorist or other organized crime group.” Most writers are using the word “conspiracy,” not just because it describes the new crimes more concisely, but also as this whole endeavor is widely regarded as the repackaging of past government efforts to add conspiracy to law enforcement’s arsenal.
Anyway, the official rationale for what may prove to be this century’s most dramatic expansion of state coercive powers in Japan is that it is required in order for the nation to implement the U.N. Transnational Crime Convention. There is also a side order of “terrorism” and “Olympics” in case that leaves you hungry.
Ever since the Meiji Period (1868-1912), treaties and other countries have been used to justify laws the Japanese people neither want nor need, so there’s nothing new here. However, in this case there hasn’t been any serious effort to articulate concrete deficiencies in existing laws — such as bad guys who got away because of them — that will be remedied by the new ones. In fact, I read the convention in vain for mention of a requirement to criminalize conspiracy, other than in connection with money laundering.
The fact that a U.N. treaty is central to the justification for the new law might explain why the government seems particularly annoyed at concerns expressed by not one but two U.N. experts regarding the law’s potential for arbitrary use and infringement of civil liberties. (“Stupid United Nations: Why can’t they stick to certifying our World Heritage sites?”)
Under the new law, it will potentially be a separate offense for two or more people to plan (i.e., discuss) the commission of dozens of crimes already on the books. Some make sense if terrorism is the target: Conspiring to have possession of cluster bombs, land mines or biological weapons? Sure, lock ’em up! Planning to violate the Plant Variety and Seed Protection Act? Uh …
Some offenses have the potential to arise in a range of day-to-day affairs: conspiring to avoid consumption tax or favor some creditors over others — even directors “conspiring” to pay dividends in violation of a corporation’s charter may become a crime.
Remember, we are not talking about people actually committing the crime and seeing that proven in court; discussing or planning will itself be an offense.
Three reasons to be skeptical
According to the Ministry of Justice, these laws will never be used against the average citizen or group. Why? First, the conspiracy offenses will only apply when committed by organized crime groups. Second, the types of crimes that are covered are clearly listed. Third, for a conspiracy to be punishable, not only must there be planning, but action in furtherance of it.
In offering this explanation, the Justice Ministry is doubtless sincere. But so are people who post YouTube videos explaining how to train cats to use people toilets. Both sound great in theory and, with the right amount of mindfulness, may even work. But even the most obsessive compulsive cat person will find their program breaks down when they have 17 cats and only one toilet, which is probably closer to the real world of law enforcement.
“It will only apply to criminal organizations” is not very comforting given that, in connection with “the public order situation,” the NPA’s annual white paper regards the Japan Communist Party and populist demonstrations as worthy of special attention, lumped together with ultranationalists, hate groups and the remnants of the Aum Shinrikyo doomsday cult. The Justice Ministry’s own Public Security Intelligence Agency also openly refers to the JCP as one of many “organizations and forces that threaten to impact public safety.”
Once a group gets marked for this type of attention, it may not be hard to become a “criminal organization” — particularly if its members are conspiring to commit crimes! Of course, the “criminal organization” requirement will mean nobody in government can ever be guilty of conspiracy.
As for clear definition, the sheer length of the list of new offenses offers little comfort the law won’t become the 21st century version of the Peace Preservation Act, the 1925 statute used in prewar Japan to round up commies and other undesirables.
Finally, the “action in furtherance” requirement will almost certainly prove meaningless, if mundane acts can be shown in hindsight to have been part of a criminal scheme. Trivial things already serve as a pretext for arrest: Earlier this year three men were arrested for sharing the costs of a rental van used for anti-nuclear tours. Why? For “operating an unlicensed taxi service.” If conspiracy had been a separate crime here, they could have been nicked merely for reserving the van (an act in furtherance).
Devil is in the detention
Some might argue Japan is just adding crimes that have long been part of Anglo-American law to its own arsenal. This is true, but the real issue is not any individual offense, but how they are prosecuted.
Criminal procedure is deeply political and each country has a different historical experience with the use of prosecutions as a political weapon. Virtually everything Americans take for granted as basic rights in the criminal process — the right of an accused to know the nature of the charges against them, to the assistance of counsel, to cross-examine hostile witnesses — under English common law were initially only accorded to defendants in treason cases. Treason was easy to allege and difficult to rebut if the charge was “someone unnamed has alleged you said threatening things about the king,” and punished horrifically — perfect for taking out rival courtiers.
Anglo-American criminal procedure thus reflects centuries of painful constitutional evolution towards minimizing the ability to use criminal prosecutions to crush political enemies. Japan has had a very different evolution, with power-sharing, turn-taking and near-constant one-party rule in the postwar period having made brazenly partisan prosecutions of leading politicians rare (though they do happen). What political use of the criminal justice system has taken place has instead focused on smothering dissent from government outsiders: arresting communists, labor organizers and student and community activists, often for trivial offenses.
Moreover, Japanese criminal procedure lacks arraignment proceedings — an initial hearing where an arrested suspect learns of the charges against him or her and can start preparing a defense with the assistance of counsel. Instead, the first time a person who has been arrested in Japan may see a judge is if a prosecutor asks one to issue a warrant to detain him in order to facilitate further investigations of the alleged crime. Judges grant such warrants in over 96 percent of cases based mainly on the prosecutor’s say-so and a presumption of guilt.
Through renewals and other techniques, law enforcement can detain suspects for weeks, sometimes longer, before deciding whether to prosecute. During this period they can question suspects from dawn until dusk, with limited access to a lawyer. (“You can’t talk to your client until we have finished questioning him” is literally the logic of the code of criminal procedure here.) Moreover, although a suspect may be arrested for one crime, it may be a pretext for investigating another, leading to further arrests that restart the detention clock.
Thus, without conspiracy being added to the mix, Japanese law enforcement authorities already have broad powers to punish people they don’t like without ever putting them on trial. A few days or weeks in jail may not seem like much, but think how quickly your life would be ruined if you suddenly disappeared, unable to contact anyone, pay your bills or go to work? All that is required to mete out this punishment is a pretext for an arrest.
The Constitution prohibits arrests except for crimes in progress or pursuant to an arrest warrant. In fiscal 2015 Japan’s courts rejected only 62 of 100,880 requests for such warrants. Conspiracy will thus add countless new pretexts to arrest and punish almost anyone. Already complicit in this system, the judiciary cannot be expected to check abuses.
The incredibly coercive nature of pre-charge detention creates an environment where suspects may be eager to agree with whatever version of events police want. Offering confessions or statements implicating other suspects — even if misleading or untrue — may be the fastest way of escaping the punishment already being administered. The Constitution prohibits convictions based solely on confessions but is silent as to those based on testimony of a single witness. Should they choose to, police and prosecutors may soon be able to use the dark, secret confines of interrogation chambers to manufacture conspiracies by turning average citizens into witnesses against each other based solely on allegations of conversations and mundane acts.
By vastly expanding the universe of possible crimes, the ability of law enforcement to conduct surveillance of “suspects” will also be enhanced. Wiretaps require warrants, but these will also be rubber-stamped by courts. The broad scope of conspiracy crimes means the bar for starting investigations and conducting less intrusive surveillance activities will also be effectively lowered.
In his 1753 “Commentaries on the Laws of England,” Sir William Blackstone categorized conspiracy as a “crime against public justice” and wrote specifically of conspiracies “to indict an innocent man of felony falsely and maliciously.” Japan’s version of the crime will no doubt be used to protect public order; hopefully the cost to public justice will not be too great.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.
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