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Dentsu may not escape with summary justice

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Special To The Japan Times

Last month, a Tokyo summary court judge ruled that advertising giant Dentsu would not get away with just paying a fine for violating the Labor Standards Act attributable to a culture of excessive overtime blamed for the death of several employees. The company will have to endure scrutiny of its employment practices in a public trial.

The judge’s refusal to accept the proffered summary indictment and fine reportedly came as a shock to the prosecutors who had both requested the abbreviated proceedings and declined to bring charges against any members of the company’s management (which, it is worth noting, included a board of directors whose members include a lawyer and the former top bureaucrat from the labor ministry). A formal trial will perhaps bring some semblance of justice to those harmed by its employment practices in a way that payment of a fine would not.

The Osaka summary court had previously issued similar rejections in other cases, indicating a possible trend toward greater judicial scrutiny of employment code violations. Perhaps this will also bring greater scrutiny to the usually obscure world of summary courts. Though perhaps “obscure” is not the right word; as in other countries, in numerical terms the majority of civil and criminal cases in Japan are resolved in the lowest tier of courts, largely out of the public eye (see table).

Japan’s 438 summary courts are ignored in most portrayals of trials and overlooked by much written about Japanese law in English. Perhaps they should get more attention. In addition to processing a large portion of the judiciary’s trial docket, they are also the source of most of the arrest, search, detention and other judicial warrants through which the criminal justice operates. Of the 492,783 warrants issued in 2015, almost 80 percent — 390,902 — came from summary courts.

Summary courts get short shrift in Japanese literature as well. I attribute this partially to a form of elitism underlying most accounts of the nation’s legal professions. People who pass Japan’s highly competitive national bar exam become lawyers, prosecutors and judges. This triumvirate of professions is referred to collectively as hōsō, a term sometimes translated wrongly as “lawyer” and misleadingly as “legal professional.” The key thing uniting the three professions is that, with some minor exceptions, virtually all hōsō have passed the national bar exam.

Judge and prosecutor hōsō pursue careers as elite members of their respective career bureaucracies. There is some circulation between the three professions; every year a few attorneys are appointed to the bench and at any given time approximately 150 hōsō judges are temporarily working as prosecutors to the Justice Ministry or other parts of the government (this includes a number who act as defense counsel in civil litigation against the state and then go back to being judges, just in case you thought “separation of powers” meant something). Most of the circulation, however, is one-way; hōsō prosecutors and judges become lawyers after retirement, which is mandatory at the ages of 63 or 65, respectively.

A hōsō judge will likely punch his or her career card at a summary court as part of their training. However, the real journeyman judgery is performed by a separate category of judges, literally called “summary court judges” in Japanese. These follow a different career path and work off of a different pay scale from the others. While some summary court judges may have passed the national bar exam, most have not and are thus excluded from the ranks of hōsō.

Summary court (and Supreme Court) judges have a higher retirement age than others — 70. Moreover, summary court judges may be appointed from the ranks of court and Justice Ministry employees who pass through a suitable vetting process; no national bar exam score is required. Until recently the mandatory retirement age for most national public servants (other than judges and prosecutors) was set at 60. This meant judicial and Justice Ministry employees appointed as summary court judges at or near retirement were good for at least another 10 years of well-compensated work (10 years being the constitutional term of appointment for all judges save those on the Supreme Court).

Appointing veteran court and prosecutorial workers as summary judges makes perfect sense. For a country with 127 million people and around 1,000 courts of various types, Japan has only 3,800 judges (800 of whom are summary court judges) and just 1,800 prosecutors and 900 assistant prosecutors. That the system is able to function at all without collapsing is because of the significant role played by employees of other types. In the courts, this includes judicial clerks and other types of legal system public sector workers who, over the course of a long career will acquire a significant understanding of court procedure, possibly the law. Nonetheless, the practice of appointing such people means that summary court judgeships are often a form of amakudari, a post-retirement sinecure for suitably pro-establishment members of legal system officialdom. It also means you need to be okay with summary court decisions being rendered mostly by men old enough to order the Blue Plate Special at Denny’s,

According to the bio provided by a lawyer friend, Kunihisa Ikegami, the summary court judge in the Dentsu case had a long distinguished career as a court employee before his appointment to the bench in 2005. Born in 1950, he is close to mandatory retirement age. In Japan courageous decisions such as his often seem to come from judges who have either decided they don’t mind dead-ending their careers for a principle, or don’t have much of a career left anyways.

Intentionally or not, the administration of Japan’s judicial resources by the administrative bureaucracy of the Supreme Court and the eight regional high courts results in cases in which the government has an interest — criminal trials, administrative and constitutional litigation — being heard by judges who usually rule in its favor. Those who acquit too many defendants, reject too many warrant requests, issue unconstitutionality rulings or otherwise frustrate government interests can find their careers through dead-end postings (such as a family court) that keep them safely away from anything affecting government. Since many summary courts judges have already had a career and spend their entire tenure in what most hōsō judges would likely consider dead-end postings anyways, the same dynamics do not apply.

The jurisdictional remit of summary courts means they hear few cases the government is likely to care about anyways. They can try civil cases (but not administrative ones) where the amount in dispute is ¥1.4 million or less. On the criminal side, they are limited to cases involving crimes punishable by fines, with exceptions allowing them to impose sentences of up to three years’ imprisonment for burglary, theft and other property crimes, gambling violations and offenses under the laws governing used goods sellers and pawn shops.

These exceptions suggest that summary courts are for the most part police courts. After traffic-related offenses, property crimes are what police deal with most statistically and used goods dealers and pawn shops are regulated by the police. Illegal gambling competes with the hugely lucrative “it’s not gambling wink wink” Pachinko business, also tightly regulated by cops. Summary courts do handle many criminal traffic death and injury cases, though as with some crimes, these can be resolved by police not through diligent investigations but by encouraging financial settlements with victims that enable offenders to reduce or even avoid criminal punishments.

Given their small population, real hōsō prosecutors probably rarely appear in summary courtrooms. A provision in the 70-year old Public Prosecutors Office Act addressing a supposedly temporary shortage in prosecutors still permits lower level prosecutorial administrators to handle most summary court prosecutions.

Which is probably fine; the courts apparently function mostly as conveyor belts for defendants who just want to get it over with in proceedings that don’t involve lawyers, judges or prosecutors who have passed the bar. For the great majority of cases involving a fine of ¥1 million or less (which includes many regulatory violations), a summary indictment such as that proffered in the Dentsu case can be used to convict and sentence a consenting defendant without any public proceedings. For the small number of cases that don’t fit this pattern, summary courts nonetheless offer similarly predictable results: of 6,590 cases that went to trial in them in 2015, just 12 ended in acquittals.

Companies such as Dentsu have an advantage over flesh and blood defendants in that they cannot be imprisoned or detained until they confess and show contrition. Prosecutors may have thus thought a summary indictment and fine were appropriate. It is unusual for regulatory violations to end up in criminal court anyways, since government institutions can impose financial pain on offending companies far greater than summary court fines through regulatory sanctions or simply refusing to do business with them (the latter having already happened to Dentsu).

And yet, prosecutors whose mandate purportedly includes caring about crime victims were at least tone deaf in trying to let Dentsu slide in a high profile case. Ironically, the strange dynamics of Japanese summary courts uncharacteristically worked against it and may see justice actually done.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.