A government panel on judiciary reform produced an interim report in November that called for specific measures, such as creating law schools and tripling the annual crop of legal experts-to-be (those who pass the state law exam) to 3,000.
The Council on Judiciary Reform was created in July last year in response to concerns in business and other circles that deregulation and administrative reform could disrupt the economy unless the judicial system is bolstered. The general public also wants a more reliable justice system.
Japan’s justice system is admittedly less developed than those of other industrialized nations. For example, the nation has neither a jury system nor a council system (in which selected citizens share decision-making with judges). The need to introduce either system has been recognized, although which will be adopted remains to be seen.
Another shortcoming, which is peculiar to this nation, is the bureaucratic system of judges. The need to appoint judges from a pool that includes other legal experts, such as attorneys, law professors and prosecutors, has also been recognized. However, no decision has been made whether to scrap the current practice of appointing assistant judges from graduates of the Legal Training and Research Institute.
It is often pointed out that Japan has far fewer legal professionals than the United States and West European nations. While that is a major flaw in our justice system, the fundamental problem is a lack of civic participation, or a lack of judicial democracy. A case in point is the absence of either the jury or council system, which are widely practiced in the U.S. and Western Europe. The jury system did exist in Japan from 1928 to 1943, but it was not revived after the end of World War II, despite the national drive for democratization.
In a statement to the Supreme Court, the council says the jury system, if adopted, will impede effective functioning by the judiciary. Among the reasons given are: (1) the system would impose an undue burden on the people; (2) the courts, the prosecutor’s offices and the defense setup would have to be improved to conduct intensive deliberations; and (3) the penal code, the penal procedure law and the investigative structure, among other things, would have to be changed.
Referring to the U.S. jury system, the statement says it is widely accepted as a means of securing public confidence in the legitimacy of trials in a multiethnic society. The implication is that the U.S. needs the system for political reasons, but Japan does not because it is a homogeneous nation.
That is the same thing as saying justice should be left entirely to judges, and the public should accept whatever decisions they make. Citizens should be able to participate positively in trials. That is one way for them to realize their responsibilities to society and the state and to become more independent as individuals.
The jury system would also help the Japanese — who still have a strong sense of dependence on authority — to realize first hand that sovereignty rests with the people. In this sense, it can be said Japan is more in need of this system than the U.S., where democracy is already well established.
The Supreme Court reportedly is coming around to the view that the council system, not the jury system, can be introduced in Japan. The catch is that citizens will likely stay away from the council system, which involves joint deliberation with professional judges. In my view, the jury system should be adopted to encourage civic participation in court trials.
A democratic justice system also requires judges of higher quality. Many judges here, it is said, lack a proper understanding of social mores because judges generally follow a career track and remain within a narrow circle of professionals from the time they are appointed until their retirement.
The Tokyo District Court’s 1987 ruling on an antismoking suit illustrates the point. In the case, the plaintiff, a nonsmoker, demanded that the Japanese National Railways set up antismoking cars and pay compensation to him. The court rejected the demand, saying that smoking in the train was temporary and within tolerable limits, and that Japanese society was generally sympathetic to smokers.
Clearly, the ruling was in favor of smokers and imposed unilateral sacrifices on nonsmokers. Various smoking-related suits were filed in subsequent years, but all of them were rejected, all because of that outdated ruling. Two cases were settled out of court, but no compensation was paid. In the U.S., by contrast, high-profile tobacco trials have produced mind-boggling settlements and decisions worth tens of trillions of yen.
Needless to say, judges must pay close attention to what is happening in society and perform their duties to ensure that justice is delivered as expected by the people. Under the current closed system of judicial appointments, however, it is difficult to develop broad-minded and farsighted judges. The system should be abolished so judges can be appointed from all qualified legal professionals, including practicing lawyers.
Building a democratic justice system also requires a strengthening of administrative litigation. The number of administrative suits filed in Japan — about 1,200 annually — is only 1/250 of the number in Germany, 1/100 of that in France and 1/5 of that in South Korea.
One reason for this is that Japan has no courts specialized in administrative suits. Another is that the chance of a citizen winning a case is just 10 percent, compared with 70 percent for civil suits. The justice system is hardly playing its role as a counterweight to public administration.
The interim report makes no mention of administrative litigation. The hope is that the final report will include plans to improve this field from the citizens’ point of view.
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