|

When ‘Japanese only’ rules were OK, and other odd Supreme Court cases

by Colin P.A. Jones

Did that headline grab you? I hope so, because we really need to clickbait more of our online readers. How else are we supposed to get them to digest and discuss an article about Japanese Supreme Court cases?

Yes, reading about the court’s orotund rulings can be a tough slog, even for us professionals. But if you spend enough time sifting through the gravel pits of grandiloquent legalese you find the occasional gem. Today’s column will introduce some quirky things Japan’s top court has decided (including the case in the shameless teaser headline).

The case of the cat corpse and the night soil

First, my personal favorite: In 1992 the court had to decide whether putting a dead cat painted red in a fire chief’s desk drawer and dog feces in his coat pocket, “thereby hindering his ability to receive reports from his subordinate officials or perform the duty to decide various matters scheduled in the morning on that day,” constituted “force” for purposes of banging up the joker who did it for the crime of “forcible obstruction of business.” Of course it did: conviction upheld. Nice that they made that clear, though.

Stretching the letter of the law

Reading criminal cases makes you numb to the reliability with which Japanese courts find a way to arrive at a conviction or uphold one on appeal. Occasionally, though, a judge takes a stand for justice, the presumption of innocence and clarity of law.

This involves some effort. Supreme Court judgments are researched and initially drafted by subordinate research judges staffed to the court. Judges who want to write their own dissenting or concurring opinions, however, are on their own. Some former top jurists even report having their proposed separate opinions disdainfully returned by researchers, full of red-lining.

This is why it seems bizarre to see, in a case from Nov. 20, 2008, Judge Mutsuo Tahara writing an extended dissent from a judgment affirming the conviction of a man for the obscene act of “stalking a female customer at a shopping building and taking photographs of her buttocks in trousers with his cellular phone.” Available in all its glory on the court’s English website, his dissent includes a phrase rarely seen in Supreme Court jurisprudence: “I will examine the act of ‘looking at’ another person’s ‘buttocks,’ which precedes the act of taking a photograph of the same.”

Accepting that it “is true that the act of ‘looking at another person’s buttocks’ can be judged to be ‘obscene’ if it means ‘looking at’ the buttocks while putting one’s face close to them,” Takahara goes on to explain why simply taking bum snaps from a respectable distance does not constitute “obscenity.”

To be fair, police overreach through strained interpretation of the law is a problem everywhere. But it’s still odd to see this particular case being chosen as the place to draw that line.

In a similar vein, in 1978 the court took a stand against City Hall. A municipal authority had sought to shut down a “soapland” quasi-brothel by approving the construction of a playground nearby, which would then make operation of the soapland illegal (because … the children!). The court found this to be a tortious abuse of government power and the aggrieved plaintiff to be entitled to damages.

Abuse of power was also at issue in a 2002 case in which the court actually invalidated a village mayoral election. The incumbent mayor had used the powers of the office to prevent the town hall from issuing to a challenger a family registry extract, one of the documents required to apply to stand for election. Running unopposed, the incumbent won until the courts decided a do-over was required.

When doubt is unreasonable

A 2007 criminal case is sometimes cited for guidance as to what the “beyond a reasonable doubt” evidentiary standard for criminal convictions means. A man going through a messy divorce “made an explosive by connecting a considerable quantity of (chemicals) … with a detonating device consisting of an ignition heater, battery, etc., and putting it into a file case, and then putting this case into a nonstandard-size postal envelope.” He then mailed this to his mother-in-law.

The murder attempt failed and the man was caught and convicted. The Supreme Court’s opinion shows the fine level of detail Japanese courts (usually lower ones) feel necessary to put in their judgments. A week before the parcel was delivered, the man had “by using the computer situated at his residence, accessed and browsed internet websites that provide information on the methods for producing explosive substances … and methods for making detonating devices” and “purchased acetone and other chemicals … in the quantity that seems to have been used to produce the explosive.” There is also a long description of the stamps used, the color printer on which the address label had been printed, the postbox into which the package was dropped and so on. It almost reads as a manual on how not to send a letter bomb.

The appeal was grounded in the conviction being based only on circumstantial evidence, there having been no confession. Conceding the accused had in fact purchased the chemicals, his lawyer argued it had been used for other things. Also, it was possible that he didn’t purchase at least 10 of the 24 stamps used. And so forth.

The court wasn’t having it, declaring that the “beyond a reasonable doubt” standard did not mean that judges could not convict in the face of the possible existence of abstract alternatives or contrary facts.

He was asking for it, guv

The courts are more forgiving of police when they stray from the righteous path. In a 1997 case, the police had executed a search warrant on a residence and found illegal drugs. When presented with evidence of his guilt, the occupant said “Sonna aho na” (“That’s ridiculous”), which earned him a sound beating.

Considering whether the drugs should be excluded as evidence, the court acknowledged that “although the illegal acts by the police officials were committed at the scene of search, the violence occurred after the article of evidence was discovered and it was induced by the accused’s remarks.” Conviction upheld; apparently the beating was his fault too.

Guilty no matter what

A classic is the 1948 case where the court first ruled on the constitutionality of the death penalty. In a judgment containing the memorable phrase “the life of a single person is heavier than the Earth,” the court nonetheless upheld the appellant’s death sentence. At the time, the U.S. Occupation authorities were preparing to hang Hideki Tojo and other former Japanese leaders for war crimes, so any other conclusion would probably have been inconvenient.

A 1996 case affirmed a conviction for violating a proscription on the capture (hokaku) of birds using a bow and arrow (yumiya). The offender had used a “Western-style bow” (crossbow or yōkyūjū). As a former Dungeons & Dragons aficionada, I was disappointed by the lack of discussion into whether a crossbow was the same as a Japanese longbow. Instead, the court focused on whether you could still be guilty of “capturing” a bird if your arrow (I know, “bolt”) missed. Of course you could: conviction affirmed.

The court has been more discriminating when it comes to swords. Japan not only has famously stringent gun control, but tight sword control also. How tight? In a 1996 case, the court considered an appeal over a conviction for having a “cutting tool … for use at a traditional ritual of cutting food.” The court didn’t care that it was just a big cooking knife rather than a sword: conviction upheld.

Not all swords are created equal

The real discrimination came in the headline case, a 1990 case under the same law, which contains an exception allowing possession of swords (tōkenrui) that have cultural or artistic value and are registered with the authorities. The implementing regulations, however, only recognize Japanese swords (Nihontō) as eligible for registration.

The case was brought by someone seeking to register a Western saber. In a surprisingly long judgment (seven pages including a dissenting opinion) the Supreme Court declined to expand the exception to grubby Western swords. It explained that, after Japan’s defeat in World War II, Occupation authorities had sought to disarm the Japanese people completely. But the Japanese government had been able to wheedle an exception based on the aesthetic worth of Japanese swords, which are made using unique techniques that entitle them to special treatment as cultural artifacts in a way other swords are not. Two of the five judges dissented because the law itself clearly applied to all swords and the more restrictive implementing regulations should thus be invalid.

Forcing a confession

Finally, there is the only interesting civil case I have come across, a 2001 appellate judgment in a tort case brought by the developer of game software against a vendor of game-mod (modification) devices.

The software at issue was “a love simulation game in which the main character … becomes a student of a fictitious high school, selects his favorite schoolgirl from among the characters in the game and, with the aim of receiving a confession of love from this schoolgirl on the graduation day, steps up efforts through studying, incidents, events, etc., he experiences during three years, to develop his capabilities that deserve to receive a confession of love from his favorite schoolgirl. … The story is supposed to unfold based on the assumption that no schoolgirls appear until the values of the apparent parameters reach a certain level.”

The heinous game-mod devices ruined this wholesome game by making some schoolgirls appear prematurely and enabling players to skip straight to graduation and unfailingly reach “a level that is necessary to receive a confession of love from the player’s favorite schoolgirl.” Judgment for plaintiff upheld — without any creepy dissents. Who says there is no justice?

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Send your comments and Community story ideas to community@japantimes.co.jp.