In June 2013 a woman — let’s call her Samarichan — found a golden retriever tied to a fence in Tokyo’s Inokashira Park. She did all the things decent people do in such situations: contacted the police and other authorities and sought the owner through social media, but to no avail. Meanwhile, the dog languished in the pound.
During her search, Samarichan learned the dog might also have been abandoned on a previous occasion. The deadline loomed for claiming the dog before authorities destroyed it, so she decided to take it home. This is no small thing in Japan, where many landlords do not allow pets, particularly large ones.
Samarichan named the dog “Meg,” not that having a name mattered, because to the law she was just lost property. Under the Civil Code, the finder of property can acquire ownership if the original owner does not appear within three months of reporting it. Unfortunately, just a few days before the deadline, the dog’s original owner (who we will call She Whose Dog Is Found Abandoned or SWDIFA for short) showed up.
SWDIFA explained the dog had actually been abandoned by her boyfriend, who also happened to be her boss at the time. If she had fought about the dog she might have lost both her job and prospects of marriage. (Ladies, if a man ever asks you to choose between him and your dog, take the dog.) She had broken up with him now, though, so could she have her dog back, please?
Samarichan was understandably reluctant to return Meg to a confirmed dog-dumper. The matter went to litigation and Samarichan lost, with the Tokyo High Court affirming SWDIFA’s ownership of and right to the return of the dog in April 2018, a decision that dismayed many dog lovers.
Tweeting into trouble
The above summary is based on press accounts. The judgments do not appear to have been published on the court website, which is a shame because it would be nice to know more about the suit that generated what may prove to be The Stupidest Judicial Disciplinary Hearing Ever. Over a tweet by a judge.
Kiichi Okagachi is a veteran judge at the Tokyo High Court who had nothing to do with the case. Uncharacteristically for the nation’s usually staid jurists, he is — was — an avid user of Twitter. While he did not identify himself as a judge, most who followed him knew he was, possibly helped by the fact that in his spare time he is also the author of a widely used series of litigation practice manuals.
Even though Twitter seems to be populated mostly by various species of primates howling in bewilderment at an infinite plain of dumpster fires, I started an account mainly to follow Okaguchi. He was a useful source of information about the legal system and had a wonderful sense of humor. A profile picture of himself naked but for a pair of underpants earned him the nickname “Judge White Briefs.”
He was unsparing in his sarcastic commentary about bad policies and the venality of bureaucrats and self-serving politicians, including the current prime minister. He was even critical of the judiciary, commenting on its complicity in the nation’s “always guilty” criminal justice system and, if recollection serves me correctly, pointing out mistakes on the Supreme Court’s website. I use the past tense because according to Okaguchi (whom I also follow on Facebook), his account was suddenly terminated by Twitter with no notice or explanation, eliminating a decade’s worth of posts on that platform.
It is of course creepy that Twitter would silence a well-known critic of the Japanese establishment with no explanation. (Note to Twitter: I stopped using my account shortly after Okaguchi’s was frozen. That such things can happen so capriciously suggest it is not a platform worth investing time in.) Okaguchi’s tweets have gotten him in trouble with both Twitter and his judicial bosses in the past. From 2014 to 2016 he was given oral cautions by the presiding judge of the Tokyo High Court (who is now on the Supreme Court) for posting inappropriate pictures on Twitter.
In March of this year he was in trouble again for tweeting a link to a judgment on the court’s official website that included a description of a horrific sexual assault and murder of a teenage girl. The victim’s family was offended and complained to the court that Okaguchi was making light of the crime. He apologized and was issued a formal written caution by his judicial boss.
However, since the courts reportedly have a policy of not publishing judgments in sex crime cases, the offending link arguably should never have been on the website in the first place. There have been no reports of disciplinary actions for that cock-up.
In May of this year, Okaguchi posted a link to an article about the case of Meg the dog, with a mildly acerbic summation of what it was about. SWDIFA took offense and complained to the court. This was apparently the straw that broke the camel’s back; the Tokyo High Court leapt into action and petitioned the Supreme Court to subject Okaguchi to a formal disciplinary hearing.
Top-dog court to decide
Japanese judges enjoy great job security. This is intended to ensure they can make decisions without fear of offending powerful people.
Article 79 of Japan’s Constitution says that judges may only be removed by public impeachment, a rare event that takes place in a special court established within the Diet. The judicial impeachment committee has already conducted an investigation of Okaguchi’s behavior, but decided not take action; some have speculated about a compact between the ruling Liberal Democratic Party and the Supreme Court to refrain from impeachment in exchange for assurances that the court will deal with him.
The constitutional protection of judicial employment includes an important proviso: “unless judicially declared mentally or physically incompetent to perform official duties.” In addition, Article 79 says that “no disciplinary action against judges shall be administered by any executive organ or agency.” This means there is nothing to prevent judicial authorities themselves — the administrative arm of the Supreme Court — from taking disciplinary action short of removal.
An obscure law, the Judicial Status Act, establishes the procedures for both removing judges for incapacity and imposing punishments for misbehavior. In the latter case, the possible punishments are either an admonition or a nonpenal fine of up to ¥10,000. Since Okaguchi is a high court judge, the Supreme Court will be the court of first and final instance, with the proceedings being held before a panel of five of its judges on Sept. 11. All this over a tweet about a dog.
In reality, the proceedings doubtless reflect the cumulative displeasure of the judicial overlords about Okaguchi’s after-hours social-network ruminations. But he has already been disciplined for prior transgressions, so the procedural formalities will probably have to focus on him vexing an unsympathetic dog owner over a trial he had nothing to do with.
The nail that stands up
Some might reasonably argue that Okaguchi has demeaned his office, and that such behavior would be unacceptable of judges in most countries, let alone Japan. Freedom of expression is fine, but shouldn’t judges strive to maintain an image of neutrality and decorum?
This may be so, but nothing in Japanese law or judicial rules clearly restrict judges in their ability to exercise their constitutional rights of freedom of expression outside the scope of their official duties. Creating restraints on fundamental rights by merely assuming they should exist would be a horrible precedent, particularly if it were done by the nation’s top jurists.
My take is that Okaguchi’s case is an inevitable byproduct of a profession too full of itself to trouble itself with a formal code of conduct. One of the interesting things about legal professional responsibility — a mandatory course at Japanese law schools — is that the subject is mostly about lawyers and based on the detailed code of conduct prepared by the Japan Federation of Bar Associations.
By contrast, the rules for judges and prosecutors (neither of whom are members of any bar association) are sparse and vague. There seems to be an unspoken, elitist view that those refined and clever enough to be anointed to the heady role of deciding what other people are doing wrong just naturally know how to behave. After all, clearly defined rules are bothersome things that can sometimes be used against you.
Anyway, whatever the judicial leadership ends up doing with Okaguchi, it will probably just end up further embarrassing the nation’s generally stuffy and self-important judicial branch through bad publicity. Silenced on Twitter, Okaguchi has established a blog exclusively for his disciplinary trial, ostensibly for the benefit of researchers. According to him, in just a few weeks it has had a quarter-million page views. Formal judicial disciplinary proceedings are rare and, until now, have been opaque. Okaguchi has posted regular updates, including uploading his own pleadings, in which he claims he was threatened with firing if he didn’t quit using Twitter.
Of course, unless he is impeached, they can’t actually fire him. Japanese judges are appointed for a series of 10-year terms, so at worst they will have to wait until his current term expires in 2024, when they can simply not put him up for reappointment. He professes to be unsuited to private practice, but plenty of law firms would doubtless happily hire him.
Hopefully, though, he can continue poking the establishment in the eye from within for a few more years at least. Judges who challenge authority are a rarity in Japan, and it would be a shame to see him gone.
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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