Issues | LAW OF THE LAND

Jail in Japan for cannabis in Canada? Possible but unlikely

by Colin P.A. Jones

What do marijuana, Japan’s military and convicted-acquitted-accused-again suspected wife-murderer Kazuyoshi Miura have in common? The possibly problematic extraterritorial application of Japanese law.

The late Miura’s case seems to be the only one of the three where it has actually happened (so far). A Japanese businessman who traveled frequently to the U.S., Miura and his wife were attacked in 1981 in a Los Angeles parking lot by (he said) street thugs who shot him in the leg and his wife in the head.

Dramatically rushed back to Japan on a U.S. military jet, the wife lingered in a vegetative state for a year before dying, leaving Miura to collect the proceeds of a hefty life insurance policy. Then his porn-star lover gave a magazine interview indicating he may have procured his wife’s murder.

Miura was prosecuted for conspiring with an unidentified assailant and sentenced to life in prison. He spent years behind bars until on appeal he was miraculously acquitted on the grounds that circumstantial evidence alone without a known killer was insufficient evidence for a conspiracy-based murder conviction.

Set free, Miura busied himself suing numerous media outlets for defamation. It is thanks to him that handcuffs are now obscured with a mosaic in TV news about arrests, since in his lawsuits he asserted that by showing such footage he had been slanderously portrayed as a criminal.

On a 2008 trip to Saipan, Miura was arrested under a warrant from California on suspicion of murder and conspiracy to commit murder; the LAPD was still investigating his wife’s death. He was extradited to Los Angeles, where he apparently hung himself in jail.

Miura’s somewhat dodgy prosecution in Japan was possible because of the extraterritorial application of some of the nation’s criminal laws. Although the general principle is that crimes are only punishable if they take place within the national territory, Article 2 of the penal code makes a small category of offenses — plotting insurrection and counterfeiting Japanese currency or official documents — a crime (in Japan) when committed by anyone anywhere in the world.

Article 3 contains a longer list of offenses subject to punishment in Japan even if committed abroad by Japanese citizens, including serious crimes such as arson, rape, kidnapping and murder. This is how Miura was prosecuted in Japan for a crime that was committed in California. A 2002 incident where a Japanese sailor was allegedly murdered by a Filipino shipmate aboard a Japanese-owned and operated but Panamanian-flagged tanker in Taiwanese waters resulted in the addition of Article 3-2, which extends extraterritorial penal jurisdiction to certain crimes (including murder) committed anywhere in the world by non-Japanese if the victim is Japanese.

A military under civilian law

The extraterritorial application of the Japanese penal law is surprisingly relevant to the Self-Defense Forces, particularly now that the government seems increasingly eager to send them into harm’s way, including foreign deployments involving the wonderfully euphemistic term kaketsuke keigo — “rushing somewhere to protect it.” The delicate constitutional status of Japan’s military means there is no separate code of criminal justice for its personnel.

The underlying legal assumption has apparently long been that whatever shooting and blowing things up the SDF did would take place in the course of protecting Japanese territory, and thus be conducted in self-defense — as the name suggests. But the question of what happens if they do the same things abroad is increasingly becoming one that begs an answer.

The SDF Act specifically allows the use of military force subject to norms of international law, and only to the extent reasonably necessary given the circumstances. It also specifically permits the use of weapons by uniformed personnel, such as when they are dispatched to protect Japanese abroad, but still qualifies it by saying that the weapons cannot be used to harm people — unless articles 36 or 37 of the penal code apply.

These provisions allow “self-defense” or “averting present danger” to be used to justify conduct that would otherwise be subject to criminal penalties, such as killing or wounding other human beings. This may well be how the use of killing power by any military should be governed, and perhaps it will not be an issue if the SDF avoids killing a lot of people abroad and prosecutions are not brought even if it happens. Still, it seems pretty rudimentary as a legal regime.

Problems have also arisen from the lack of extraterritorial effect of Japanese law in the context of Japan’s uniformed forces. In 2015 the SDF Act had to be amended specifically to make it a crime for SDF personnel abroad to engage in collective insubordination or to command forces without authority or in violation of orders — a worthwhile effort given that that was sort of how Japan got sucked into its disastrous war in China and then World War II. Thus, while the famous no-war provisions of Japan’s Constitution get all the attention, the extraterritorial applicability of the penal code and other laws is what leaves the nations officials and politicians grappling with more practical quandaries arising from the more assertive use of its military abroad.

Pot, Canada and Japanese law

Which brings us to marijuana. Under the penal code, Japanese people can be punished in Japan for some acts committed in a foreign country, even if they are not a crime in that country. Murder, rape and arson are crimes in most civilized countries, but the code also prohibits Japanese people from engaging in, among other things, criminal defamation and bigamy (and, oddly enough, the provision of abortion services) anywhere in the world. Free speech unrestrained by the threat of criminal liability and polygamy are actually allowed in some places but, for whatever reason, the Japanese government feels the need to ensure Japanese people act appropriately abroad, even if that means potentially throwing them in jail when they come back.

Through reference to the penal code, the Cannabis Control Act also applies to any Japanese national who merely receives or possesses marijuana anywhere in the world, and applies the same stiff penalties as apply for domestic violations: up to seven years hard labor. Canada’s recent legalization of marijuana thus appears to have caused Japanese officialdom to descend into a spiral of Fear that Japanese People Might Experience Unsanctioned Enjoyment of Life somewhere in the world.

Before the legalization even took effect, the Japanese consulate in Vancouver posted a reminder that Japan’s laws prohibited the possession or receipt of marijuana by Japanese people abroad: “Don’t do drugs, even legal ones” was the message. The notice is interesting because it ignores the fact that the prohibitions in the Cannabis Control Act are actually qualified by the words “without due cause,” though the Japanese is actually “midari ni,” which might be better translated as “without purpose” or “in a disorderly fashion.” Arguably, “because it’s legal” would satisfy this condition as to possession in Canada, but apparently not.

This qualifier is probably ignored because it is inconvenient for officials who just want to have simple yes/no prohibitions unburdened by the terrible burden of discretion. Just to be clear, police in Japan will bust your ass for possessing or even peeing positive for use of even a small amount of marijuana, and you can spend a long time in jail as a result. So you should definitely read the law that they do — without the qualifier, since they will be uninterested in whatever “due cause” you might want to assert.

In 2016, Masamitsu Yamamoto was prosecuted for possession of homegrown marijuana. He had advanced liver cancer and could legitimately argue that its use was the last resort for relieving his suffering where medicine had failed. If anyone had a “due cause” argument it was him, though the stronger claim was likely a constitutional one, since the national charter guarantees a right to life. Unfortunately, Yamamoto died before any judicial conclusions were reached on any of this, but I’m 100 percent certain he would have lost all the way up to the Supreme Court.

Anyway, medical marijuana has been legal in more places for much longer than the recreational kind. While there doesn’t seem to be any data, Japanese people who can do so have been going to places where it is available for some time now, just like they go to places like America for medical treatments and procedures that remain inexplicably verboten in Japan. I have never seen warnings about marijuana abroad, so why did Canada trigger the need for preemptive buzz-killing?

I don’t know. I am reasonably confident it doesn’t foreshadow the introduction of some new urine-sample-based entry procedure, particularly since it would only net Japanese offenders rather than foreigners, who are generally more convenient in the lawbreaker role. Customs inspections for flights from Canada will doubtless become more industrious, but that’s about it.

My guess is someone sitting at a desk simply felt a public duty to notify people of the legal risks of toking up in Canada. Presumably it would be extremely difficult to bring a prosecution in Japan for anyone actually doing so. Unless, of course, they made the mistake of writing about the use of marijuana in print or on social media, thereby fostering a doubtless unwelcome debate about a possibly outdated prohibition.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and primary author of “The Japanese Legal System” (West Academic Publishing, co-authored with Frank Ravitch). The views expressed are those of the author alone. Your comments and Community story ideas: community@japantimes.co.jp