A New Japan

Japan’s Creaking Legal System

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A New Japan

Japan’s Creaking Legal System

The sentencing of a former Osaka public prosecutor is a reminder of the problems facing Japan’s legal system.

The latest developments in the scandal over the Osaka District Public Prosecutor's Office evidence tampering case, a story that made headlines here late last year, are a reminder of the problems facing the Japanese legal system.

Former prosecutor Tsunehiko Maeda was sentenced last week to 18 months in prison for altering data on a floppy disk. It’s understandable if anyone missed the announcement given the inevitable attention that’s being focused on the aftermath of last month’s earthquake and tsunami. Still, the integrity of Japan's legal system is an issue that clearly needs to be addressed.

This latest legal scandal isn't the first to tar the reputation of the legal system. One particularly notable case, spanning 25 years, involved prosecutors (also from Osaka) relentlessly pursuing Etsuko Yamada, a teacher at a school for the mentally handicapped. Yamada was accused of killing one of two students found dead at the school, and the case led to an exchange of acquittals and appeals by the Osaka High Court and the prosecutors. Somehow, the prosecutors' recurring appeals were granted, something that’s in flagrant disregard of Article 39 of the Constitution, which protects against double jeopardy. Yamada was effectively a defendant for almost a quarter of a century.

Since that case, there have been numerous other examples of ineptitude within the Japanese legal system. Meanwhile, it hasn’t gone unnoticed among observers here and abroad that Japan has an unusually high conviction rate in criminal trials of about 99 percent.

One reason for some of the well-documented, questionable Japanese legal practices may be the ratio of lawyers to people. As noted by The Economist, there are over 4,500 people per lawyer in Japan, compared with the United States' 300. This burdening ratio, combined with Article 38’s evidence requirement over confessions, has apparently left some prosecutors feeling they have little choice but to engage in things like evidence tampering and coercion of false confessions to maintain high conviction rates. All this gives the feeling that the Japanese legal system is less concerned with justice than it is with menmoku wo tamotsu, or saving face.

There have been some efforts at reform, including a recent shift to a jury-like system called saiban-in in 2009. But unlike the US system, where the jury has the final say (barring certain circumstances, such as a rare judgment notwithstanding the verdict ruling,the current incarnation of saiban-in turns the final verdict into a collaboration between the judge and lay persons. Under the system, at least one judge still needs to agree with the verdict of the lay persons in order for the verdict to stand, meaning judges still have a significant say in the outcome of cases. As a result, the saiban-in system is quite different from trial by jury in common law jurisdictions, and it’s probably not accurate to refer to saiban-in as a jury system at all.

A lot of the problems can be chalked up to the fact that Japan maintains a civil law as opposed to common law legal system. Under the civil law system, it isn't unusual for public prosecutors to wield significant investigative power in addition to their powers of prosecution, thereby making things like evidence tampering possible.

So, is it simply unfair to try to directly compare the Japanese legal system with systems elsewhere? Maybe. But this still doesn't change the fact that there are serious issues that need to be tackled.

Hiroki Ogawa is a Yokohama-based writer.