The Supreme Court’s rare apology this week to former leprosy patients for authorizing “special trials” outside standard courtrooms for criminally accused patients of the disease from the 1940s to the 1970s fails to delve into the question of whether the patients were given fair trials under the nation’s decades-long segregation policy that officially ended just 20 years ago. The top court belatedly admitted that it violated the law governing court procedures in rubber-stumping lower court requests for the patients’ trials — often held in isolated sanitariums to which the patients were confined. But its refusal to acknowledge that the special proceedings ran counter to the principle of open trials as guaranteed by the Constitution centers on technicalities and ignores the conditions in which the patients were placed under the policy.

Also known as the Hansen’s disease, leprosy is a chronic infectious disease whose symptoms include granulomas of the skin but it is only mildly contagious. Based on the misconception that it was contagious and incurable, the 1931 Leprosy Prevention Law confined the patients to government-run sanitariums. The segregation policy was maintained in the postwar version of the law — even though by the late 1940s an effective cure of the disease became widely available — until the law was repealed in 1996, all the while subjecting the patients and their families to social prejudice and discrimination.

A 2001 Kumamoto District Court ruling that acknowledged the unconstitutionality of the segregation policy at least since 1960 — when it was established that leprosy was a curable disease — prompted the government to offer an apology and the Diet to enact a law to compensate the former patients. But the judiciary has remained mum on its practice of holding criminal trials of patients in special settings — until it began its probe two years ago at the urging of a group of former patients, who charge that the trials were mostly held in effectively closed circumstances in violation of the constitutional principle of open trials.

According to its report released Monday, the Supreme Court allowed lower courts to hold such trials of the Hansen’s disease patients in 95 cases between 1948 and 1972 — mostly inside the sanitariums and medical prisons — based on a provision in the Court Law authorizing trials outside of standard courtrooms if the top court deems it necessary. A conference of top court justices in 1948 gave its secretariat the power to authorize special trials in cases involving Hansen’s disease patients, and the secretariat methodically approved lower courts requests as long as they were accompanied by diagnosis of the disease, the court said.

The top court report admitted that it should have screened each request for such trials by examining the conditions and the risk of infections of the patients and that its policy of uniformly approving the lower court requests on the grounds of the disease was “irrational and discriminatory,” at least after 1960, and violated the Court Law, which restricts the holding of trials outside courtrooms to truly inevitable circumstances. Such a practice exacerbated the social prejudice and discrimination against the Hansen’s disease patients and impaired their integrity and dignity, the report said, adding that the court “deeply regrets it and apologizes to the patients.”

However, the court refused to recognize that the special proceedings for the leprosy patients violated the principle of open trials — on the grounds that notices for the trials were posted on the bulletin boards and entrances to the sanitariums and other facilities used as the trial venue, and that no steps were confirmed to have been taken to bar spectators from the special courtrooms.

A panel of third-party experts commissioned by the Supreme Court itself to look into the matter begs to differ. In an opinion paper disclosed alongside the top court report, the panel said the question is whether the special proceedings for the Hansen’s disease patients were made as open to the public as in other criminal trials, and urged the top court to verify whether the proceedings were opened to spectators in practical terms.

The panel said that given that the sanitariums, where the patients were segregated and shut off from the rest of society — much less the special courtrooms set up inside such facilities — were hardly accessible for people at large, suspicions cannot be erased that the trial held in such settings violated the principle of open trials and were therefore unconstitutional. It seems clear that the top court’s own probe has not gone deep enough.

The Supreme Court’s probe does not touch on individual cases of the leprosy patients tried in the special settings — nor on whether or how the deliberations and the rulings on their case were influenced by the unusual proceedings. The top court’s reluctance to acknowledge the constitutional problems of the proceedings may come from its hesitancy to pave the way for reopening the cases tried under them. However, it only seems natural to doubt whether the accused were given fair trials if questions exist about the way the trials were held.

Former patients and their supporters cite the trial of a patient found guilty in a 1952 murder in Kumamoto Prefecture as a suspected case of wrongful conviction. In the case known as the Kikuchi incident for the area of the prefecture where the crime took place, the man pleaded innocent in the trial held inside a local sanitarium, but was sentenced to death — a ruling finalized in 1957, and he was executed in 1962. Subsequent accounts by an attendee show there were no spectators at his trial, where the judges, prosecutors and lawyers were dressed in white coats and rubber boots, with the judges wearing rubber gloves to handle deposition papers and using chopsticks to inspect the pieces of evidence. Criticism lingers that the man was effectively denied a fair deliberation of the charges against him.

The Supreme Court’s probe does not seem to answer such questions about the special proceedings for the criminally accused Hansen’s disease patients.

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