The belief that the law should be applied fairly to all, regardless of nationality, received a setback last week from Japan’s judiciary. That is the reaction of people of good will to the rejection by the Tokyo High Court of the appeal filed over its earlier decision to allow continued police detention of a Nepalese man already acquitted of murder and robbery charges by the Tokyo District Court. The anomalous situation in which Mr. Govinda Prasad Mainali, a 33-year-old former restaurant employee, finds himself is particularly disturbing since the lower court cleared him more than three years after his arrest for allegedly killing a female employee of Tokyo Electric Power Co. and stealing 40,000 yen that belonged to her.

The district court felt that the evidence incriminating the suspect was outweighed by the many holes in the prosecution’s case. Dissatisfied with the ruling, zealous public prosecutors appealed to the Tokyo High Court for a retrial. That court then authorized Mr. Mainali’s further detention in response to the prosecutors’ request and has now rejected the appeal against their action filed by his lawyers. It is curious that the presiding judge last week felt “there are good reasons to suspect” that Mr. Mainali did commit the crimes with which he was originally charged when an earlier decision by a different judge of the same high court had turned down the request for detention following a similar rejection by the district court.

The judge in the earlier high-court refusal ruled there was no other choice unless circumstances justifying detention existed. Apparently he thought there were none. What caused his colleagues to rule differently? Mr. Mainali’s lawyers are right to try to learn the answer. The prosecutors argue that it would be impossible to go ahead with the necessary procedures in the event of a new trial if the suspect were no longer in Japan — Mr. Mainali was facing imminent deportation as a visa overstayer.

The high court appears to feel that his presence in this country must be assured until another judgment is reached. Its rulings are raising more questions than they answer, however, since under Japanese law a finding of not guilty means that no restrictions of residence can be imposed on a former suspect who has been cleared. No Japanese could be put in the same position as Mr. Mainali since the law clearly states that acquittal takes precedence over a warrant for detention. If the subject in this case were Japanese, he would be a free man. As a foreigner, Mr. Mainali is being subjected to judicial discrimination.

On the face of it, his difficulty stems from the fact that he has overstayed his visa. He entered Japan in 1994 as a tourist and has been facing imminent deportation by immigration authorities since that fact was discovered at the time of his arrest. The high court seems to have decided that an appeal by prosecutors should supersede the continuation of immigration-control procedures, but there is cause to question that reasoning. Mr. Mainali’s lawyers certainly think so. They say they will take their case to the Supreme Court if the high court turns down their appeal against continued detention.

The root of Mr. Mainali’s problem lies in the direct conflict between the Code of Criminal Procedure and the Immigration Control and Refugee Recognition Law. It is that disparity which allows this violation of rights guaranteed by the Constitution, on the unstated grounds that the subject in the case is non-Japanese. The conflict in the laws is reported to have first attracted the attention of judicial authorities 10 years ago. The disparity was cited in a Supreme Court decision of 1995, which tellingly pointed out that the criminal code was drawn up when cases involving foreigners suspected of serious crimes were rare.

That is no longer the case, yet no steps to resolve the conflict have been taken in the intervening years. With Japan’s entire criminal-justice system currently under review, this aspect must not continue to be overlooked. Impartial observers agree that Mr. Mainali, having been acquitted in a court of law, should be subject to deportation, not continued detention. The possibility of further trial procedures against him is a subject for consultation between the Japanese and Nepalese governments. That realistic solution is problematic, however, since the only country with which Japan now has a bilateral agreement for judicial cooperation is the United States.

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