Commentary / Japan

Anti-conspiracy legislation fights terrorism and organized crime

by Makoto Ida

Special To The Japan Times

The recently enacted Act on Punishment of the Preparation of Acts of Terrorism and Other Organized Crimes, which took effect Tuesday, is aimed at having investigative authorities prevent organized crime before irreparable harm is done at an earlier stage, namely by making subject to punishment the stage in which acts of organized crime are being planned and prepared. This has major significance as the legislative action is in line with international standards and ideas about global standards.

A key feature of organized criminal groups today is that their activities cross national borders, necessitating joint international efforts to crack down on them. Even if Japan were not the target of an attack, it is possible that the planning and preparation for a serious crime in another country could take place in Japan. If Japan were to continue to have no regulations to deal with such crimes and be unable to cooperate with other countries, planning and preparation of drug-related crimes and terror attacks elsewhere could occur in our country without being restricted by law — potentially creating a loophole in international regulations.

The United Nations Convention against Transnational Organized Crime — of which Japan has yet to become a member — requires all participants to impose substantial punishment on such crimes at their early stages. More specifically, Article 5 of the convention requires all member states to establish as criminal offenses either or both of “agreeing to commit a serious crime” (crime of agreement) and “taking an active part in the general criminal activity of an organized criminal group” (crime of participation).

So far, Japan has lacked a regulation for a “crime of participation” under its criminal law system, and there were only a few crimes such as plotting an insurrection and a private war that correspond to the offense of “agreeing to commit a serious crime.” Therefore, the new legislation was indispensable to fulfill the obligation of the convention. Furthermore, all member countries of the OECD apart from Japan already have legislation that criminalize at least either the crime of agreement or the crime of participation.

The Act on Punishment of the Preparation of Acts of Terrorism and Other Organized Crimes, which was drawn up for Japan to conclude the convention, authorizes punishment at an early stage of organized crimes on a broad scale. Countries such as Germany and France already have regulatory legislation that is even more comprehensive. In Germany, investigation of such cases is possible through wiretapping of telephones and other communication devices and even with the help of bugging devices (though such procedures are subject to strict conditions).

In nations such as the United States and the United Kingdom, the crime of agreement is established as conspiracy, and the relevant crimes are not limited to the “crimes constituting an offense punishable by a maximum deprivation of liberty of at least four years or more serious penalty” defined by the U.N. convention.

On the other hand, the legislation enacted last month limits the offenses to crimes punishable by at least four years in jail and are “serious crimes” with a realistic prospect of “involvement of an organized criminal group.”

Moreover, “acts of preparation for implementation” (of a crime) in addition to “an act of planning” are both required for conviction. There are few countries that limit the scope of prosecution as strictly as Japan. When compared to other countries, the Japanese legislation, with its scope reduced to 277 specific crimes, can be considered to be highly restrained.

The amended law on the punishment of organized crimes further limits the scope of “groups” to which its conditions apply. It aims to snag only organized criminal groups that have a joint purpose of engaging in criminal activity as the basis for their organization. The criminal subject and elements of crime are also limited two-fold and three-fold.

In Diet deliberations, concerns and criticism were heard about the legislation, such as that it would lead to increased surveillance of civil society. There will certainly be increased investigation if punishment is authorized at an early stage in a crime. A prudent law is one that finds a balance by giving priority to the positive aspects while minimizing the negative aspects such as infringement of privacy.

In Japan’s Penal Code, there are already a considerable number of provisions that authorize punishment of serious crimes in their early stages. However, police authorities have been quite restrained in their execution of such provisions. Given that, examples put forward by people opposed to the legislation as its potential abuses are extreme and based on the assumption that police investigators are villains.

There is also criticism that the legislation violates people’s freedom of thought and is therefore unconstitutional. However, I have not heard of any such arguments made in countries such as Germany and France, where more comprehensive punishment is authorized at a very early stage of crimes. Such criticism of the legislation, whose scope is much more restricted than similar legal steps taken in other countries, is off the mark.

Makoto Ida is a professor at Chuo University Law School.