Issues | LAW OF THE LAND

With changes in emperors come amnesties, so who will benefit?

by Colin P.A. Jones

Contributing Writer

One convenient thing about Japanese law for those of us who are professors of it is that it is quite modern. Virtually all Japanese laws and institutions antedate the Meiji Restoration of 1868 and, of those, most have a 20th-century provenance. Compared to Anglo-American law with Magna Carta, bewigged barristers and centuries-old constitutional notions born from religious strife, Japan’s system is rather rational — in its own way — with few quaint vestiges of days gone by.

The imperial system is a noteworthy exception. The emperor plays an important — albeit symbolic — constitutional role, coming from a lineage of monarchs that has purportedly reigned (though not always ruled) since the dawn of history. This brings us to another comparatively old fixture of modern legal systems, one that is getting some attention in Japan with the recent succession to the throne of the nation’s 126th emperor, Naruhito: amnesties.

Dynastic successions are typically an occasion for widespread reprieves for offenders and the government is currently debating the scope of the amnesty to be granted in connection with Naruhito’s enthronement, with details expected to be firmed up in the fall.

Amnesties are a remnant of an age when the ability to pardon or commute the sentences of convicted criminals was a prerogative of the monarch, who was notionally the fount of justice. The British Empire was colonized in part through the exercise of this power: those sentenced to death (at a time when hanging was the punishment for just about everything), could hope to have their sentences commuted and instead be sent as convict labor to terrifying places like America or Australia.

In Japan, the imperial power of granting amnesties dates back at least to the Taika Reforms of 645, with other sources reporting them taking place upon the death of Emperor Kenzo in 487. Centuries later it was one of the many imperial prerogatives usurped by the Tokugawa shogunate. After the Meiji Restoration, the power reverted to the emperor and was formally enshrined in the Meiji Constitution. Imperial edicts were used to implement amnesties, including one that was granted in 1910 to “celebrate” the annexation of the Korean Peninsula.

The bureaucracy of the act

Under the current Constitution, amnesty powers remain notionally vested in the emperor, but are only exercised through substantive decisions by the Cabinet, in accordance with the Pardon Act. The act provides for a range of dispensations that can be granted: a complete vacating of a conviction, a reduction of a sentence, a suspension of punishment or the restoration of rights lost due to the conviction. These can be brought about either through a general amnesty, which sees a defined category of people granted relief through a Cabinet order, or through reprieves granted to specific persons.

Under the act, requests for individual pardons and other dispensations can be made at any time to the National Offenders Rehabilitation Commission. Data suggest the commission is a bit stingy with its magnanimity in such cases: in 2017, it granted just 23 reprieves from the 109 requests before it, and none of these was a full pardon or commutation of sentence.

This may reflect the fact that extensive specific reprieves have been granted on special occasion, often in conjunction with general amnesties. More than 150,000 people received a reprieve of some type in 1968 upon the 100th anniversary of the Meiji Restoration; around 50,000 in the year of Akihito’s marriage, 1959; 35,000 upon the return of Okinawa to Japanese sovereignty in 1972; and a whopping 12.7 million in two separate amnesties granted in 1989 and 1990 in connection with the death of Emperor Hirohito and the succession of Akihito to the throne. It has been a while, though: The last occasion on which widespread reprieves were granted was in 1993, when Naruhito got married, and then only in the form of specific pardons rather than a general amnesty.

The rarity of individual pardons outside the scope of special occasions may also reflect a basic facet of Japan’s criminal justice system: so long as you haven’t done something horrible and accept the inevitability of your guilt (even if you are innocent), the system will try to keep you out of prison, and if you do end up in prison it will try to get you out as soon as possible. Compared to the United States, the system is quite magnanimous — to the guilty.

This magnanimity presents an interesting contrast to the harsh system of pre-charging detention highlighted by Carlos Ghosn’s arrest. For those tried and convicted, suspended sentences are common, as is early release. Most custodial sentences involve laboring in a prison factory, which has the benefit of giving convicts employable skills. Information about criminal records is tightly controlled. Disclosing a person’s past conviction can be defamatory, even if it is true. The Ministry of Justice regards discrimination against ex-convicts to be a human rights issue worthy of special attention. (It runs the prisons and parole system, of course, so it is not a disinterested party.)

Japan’s penal code provides for six categories of punishment: death, imprisonment with labor, imprisonment without labor, misdemeanor imprisonment, fines and petty fines. Confiscation of property is an ancillary punishment sometimes meted out in conjunction with others.

The Reiwa amnesty

Death sentences are controversial but rare and can take decades to confirm and carry out. Some past amnesties have seen death sentences commuted to imprisonment, but the coming Reiwa amnesty is expected to be limited to reprieves for minor offenders. Iwao Hakamada, who spent decades on death row before being released in 2014 due to DNA evidence that cast doubts on his original conviction, has reportedly applied for a reprieve, but is not expected to get one (how can they give him a reprieve if they still aren’t sure he is guilty yet, may be the logic). The large number of hangings in 2018 — 15, including 13 Aum Shinrikyo cult members who perpetrated the 1994 and 1995 sarin gas attacks is thought to reflect a desire to “clean house” before the occasion of a new emperor made executions politically difficult.

Imprisonment with labor is the most common punishment for crimes of any severity. Many of those sentenced to imprisonment without labor reportedly end up working anyway (what else are you going to do in prison?). Prison sentences are usually for a fixed term, but the next most serious punishment after death is “imprisonment without defined term.” This is sometimes translated incorrectly as “life imprisonment,” but a convict laboring under such a sentence can hope to be released in a couple of decades if he behaves well. Hope apparently makes prisons a lot easier to manage: Japanese prison guards are unarmed.

The amounts of the fines provided for under the penal code are often surprisingly small, typically in the range of ¥100,000 to ¥1,000,000. Much larger penalties are possible in the world of antitrust or financial laws, possibly because they will be paid by companies. If you are a mere human and can’t (or don’t want to) pay your fine, you can also work it off by laboring in a low security prison.

If you do not have the good fortune of being a corporation, any sentence other than a petty fine or misdemeanor imprisonment will give you a criminal record. Even if you never spend a day in prison, this can have all sorts of negative ramifications in other aspects of your life. Under hundreds of statutes, a criminal conviction can disqualify you from all sorts of roles in government or business, such as lawyer, teacher or board membership for companies in certain regulated industries (and if you are a foreign resident you have to check that “yes” box on the re-entry form). These impediments often expire with the passage of time, but still affect a surprisingly large number of people. Moreover, violations of electoral laws result in the loss of the right to vote and stand for office.

Most of the millions who benefited from the 1989 amnesty did so through the removal of post-conviction impediments. This included about 15,000 who had lost their political rights. In fact, to the extent amnesties have made the news at all, it seems to have involved grumbling about their use to rehabilitate naughty politicians, particularly if the amnesty is followed immediately by an election. The amnesty granted in 1956 to celebrate Japan joining the United Nations was devoted almost exclusively to rehabilitating electoral offenders.

Similar public sentiments may prevent the rehabilitation of misbehaving bureaucrats. The administrative punishments imposed on officials may be wiped clean in connection with an amnesty under a separate law passed in 1952, the year the Allied Occupation formally ended and Japan regained its sovereignty. Since countless officials had been purged or sanctioned under pressure from Americans either early in the Occupation because they were considered fascist warmongers, or near its end because they were anti-war communists, restoring their honor sort of made sense at the time. Today, to use this law to cut the malefactors of Kasumigaseki any slack would be politically tone deaf.

But if the amnesty happens in the fall as expected, it will be after the summer elections, so perhaps tone deafness won’t matter. Wartime Cabinet member and former bureaucrat Nobusuke Kishi was accused of war crimes and purged from public life during the occupation but had his political rights restored in the 1952 amnesty and won a Diet seat in an election the following year, eventually becoming prime minister in 1957. His grandson, Shinzo Abe is prime minister today in thanks part to that political legacy. He may thus have a different perspective on the merit of amnesties from that of the public at large.

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.

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