“The people are so law-abiding” is a common Western trope about Japan. It is mostly true, of course, but it probably also helps that information about who has broken the law is kept tightly under wraps.
The front end of the nation’s criminal justice system gets a lot of bad press due to a penchant for prolonged pre-charge detention periods with limited access to counsel that help generate conviction rates well above 90%. However, once you submit to authority and demonstrate suitable contrition things improve greatly. Suspended sentences are common and even if you are sent to prison, the system generally tries to get you out as soon as possible.
After fines, the most common punishment meted out is imprisonment with labor. This reflects the rehabilitative focus of Japanese prisons. The idea is that working in prison factories gives convicts structure and skills to make them more employable after release.
A human rights problem
Getting a job can still be a challenge though. Employment applications don’t ask about prior convictions (as is common in the U.S.), but until recently the standard Japanese resume format includes a column for shōbatsu – awards and punishments. Courts have held that the latter means the criminal kind. So theoretically you are required to disclose a criminal record. It shouldn’t matter, though: Employment discrimination against those who have them is considered a significant human rights issue by the Justice Ministry. Thanks to 2017 amendments to the nation’s data privacy statute, criminal records are now a category of personal data subject to restrictions on collection.
Even before this change, though, discrimination was rendered more difficult by the simple expedient of it being very difficult to find or use information about a person’s criminal past. This is in stark contrast to the United States, where background checks are routine, criminal convictions and records of court proceedings are typically a matter of public record, and having one can seriously impact one’s ability to get a job, rent a home, borrow money or conduct countless other business or social transactions.
Although the Japanese Constitution mandates open courts, this does not extend to criminal court records, which are controlled by prosecutors. Judgments in criminal cases that are published are anonymized, and it can be actionable defamation to disclose a person’s criminal past, even if is factually true.
It is generally not possible to get criminal background checks in Japan. The police can issue a document confirming the lack of a criminal background tied to fingerprint records, but typically only if requested by foreign authorities for specific reasons, such as a visa application.
The right to be forgotten — maybe
News organizations often publish stories about arrests and convictions. Since most end up on the internet, Japanese courts have grappled with claims of a “right to be forgotten” — basically to have the results of a name search delinked from online articles in which the name appears. A 2017 Supreme Court ruling provides guidance to the effect that such a right may exist for stories for past convictions or arrests, but it depends on the situation.
This is not to say criminal records are irrelevant, of course. Rather, access and use has long been limited to government actors, but even then on a need-to-know basis. Police and prosecutors investigating suspects need to know about criminal histories. In the world of criminal law and procedure, past offenses may impact decisions about detention, bail, whether to suspend punishment and other sentencing decisions. Political rights are also impacted: those serving prison sentences cannot vote or stand for election until their sentence is complete. In the case of certain violations by public officials, disenfranchisement may continue after other punishments have been completed. And a criminal conviction may affect your eligibility for official honors awarded by the emperor, or result in the loss of those already conferred.
A criminal record is also potentially an impediment under several hundred regulatory and licensing statutes, which vary in detail and scope. For some, only violations of a particular regulatory statute are disqualifying. For example, telecom regulators may refuse to accept applications to register a telecom business from those who have been punished for violating specific telecommunications-related statutes.
Others are broader and seek to exclude people of “bad character” from certain activities. For example, convictions resulting in even a penal fine disqualify one from obtaining a doctor’s license, while those resulting in any imprisonment disqualify one from being a lawyer or a patent attorney. Such impediments are not necessarily permanent, particularly for minor infractions. The impact of some may fade with the end of time, and there are periodic amnesties and communications.
All of this means that there needs to be a system of keeping track of individual criminal records so the government can apply all these laws properly. In Japan there are actually two overlapping systems.
Two systems, no laws
The first is administered by prosecutors and dates back to an 1882 law that is no longer in force. Indeed, one of the fascinating things about criminal records in Japan is that they are administered through systems having almost no statutory foundation. The prosecutorial system is based largely on prosecutorial rules and directives.
The system administered by prosecutors itself consists of two components. Records of virtually all crimes are maintained at the public prosecutor’s office corresponding to the geographical location of the court which generated the conviction. There is also a centralized database accessible from Public Prosecutor’s Offices around the country. However, not all records are entered into it. Exclusions include traffic offenses (which account for a significant proportion of crime in Japan) and offenses committed by corporations.
The second system of criminal records is the hanzainin meibo (“list of criminals”). Each city, town or village maintains such a list, which is linked to the koseki (family registry) system. If an offender has their koseki registered in a municipality, that is also where their criminal history is recorded.
This system also seems to exist without any underlying statutory foundations. Instead it is rooted in municipal rules and directives – some dating back to the Taisho Era (1912-1926) — issued by a ministry that no longer exists: the Home Ministry, which once controlled the police and local government until it was dismantled during the postwar Allied Occupation.
The hanzainin meibo is compiled based on information from prosecutors. Essentially, if a criminal record is of the type that is recorded in the prosecutors database (not all are, as noted above), a copy is also sent to the relevant municipality.
It is then up to the municipal mayors to administer the system, and municipalities bear the brunt of dealing with requests from other authorities seeking to confirm whether a person registered there is free of a criminal background that might disqualify them from something. This role must be exercised with great care: there was a 1981 Supreme Court case upholding a damage award against a mayor for negligent criminal background disclosure.
The hanzainin meibo only works for people with family registries whose records have been shared by prosecutors. For corporate or foreign offenders, referrals must be made to prosecutors. The same is true for records of traffic-related offenses.
The hanzainin meibo requires an ongoing dialogue between prosecutors and municipal authorities, since only the former can keep track of changes in offender’s status as he or she works her way through the criminal justice system. Prison sentences are completed, suspended sentences vacated, and so forth, and all of these developments must be recorded.
It all seems to work well, despite the ramshackle foundations. The great concern for privacy of criminal records that long predates its enshrinement in data privacy rules seems enlightened and magnanimous. Perhaps it is, and it doubtless helps many with a troubled past survive in a culture famous for “hammering nails which stick out.”
Still, the right to privacy of criminal records is not guaranteed by the Constitution, but was largely created by courts at the expense of rights that are, such as freedom of the press. Moreover, fighting anti-convict employment discrimination, operating the prisons, overseeing parole and rehabilitating foreign offenders are all within the mandate of the same organization: the Justice Ministry, which has numerous interdependencies with the judiciary. Thus magnanimity and secrecy may simply be a reflection of efforts to efficiently administer a bureaucratic domain (with little legislative oversight).
Given the solicitude long shown for privacy of criminal records, it also seems ironic that the preferred enforcement tool for bureaucrats when criminal sanctions are lacking seems to have become public naming and shaming. This has been the threat directed at potential violators of quarantine rules and lockdown “requests,” but was already a part of the arsenal of officialdom well before the pandemic. So much for privacy.
Meanwhile, in the seemingly unrelated realm of prefectural ordinances, there is a separate universe of rules requiring Japanese people to actively discriminate against those tainted by past or present yakuza affiliations, or even more vaguely defined “anti-social forces.” This may be good policy too, but it nonetheless demonstrates that logical consistency and jurisdictional boundaries are not always compatible.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and co-author of “The Japanese Legal System” and “The Japanese Legal System in a Nutshell.”
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