2008: Lay Judge System

Lay Judge

Candidates chosen for Japan’s new lay judge system: can imposed democracy foster real democracy?

At the end of November, almost 300,000 Japanese citizens received letters informing them that they may be called to judge their fellow citizens. After a series of mock trials starting last year, the letters marked one of the final steps in preparation for the “lay judge” system (裁判員制度) in Japan’s courts, set for full implementation in July 2009.

Japan once had a jury system similar to the United States, beginning in 1923 in the era of so-called “Taisho Democracy” until it was eliminated during World War II. Under the postwar judicial system, a panel of three professional judges hears serious criminal cases as the prosecutors and defense make their arguments. At the end of the proceedings, the judges make the decision on whether the defendant is guilty and also decide the sentence.

After the war, GHQ officials working on Japan’s constitution considered re-instituting the jury system but refrained at the insistence of the Japanese. The law contained a passage that a later introduction of a jury system would not be ruled out, however.

This history laid the groundwork for the conclusions of a 1999 government council on legal system reform, which advocated the passage of laws to create the lay judge system without the need to amend the Japanese constitution.

The new lay judge system will add six citizen judges (aka “lay judges”) to the mix for trials of serious crimes, such as murder and arson, heard in Japanese regional courts. The lay judges will be called to sit with the three professionals and participate actively in the proceedings, questioning witnesses from both sides and considering evidence. The professional judges will make judgments on the law, such as what evidence may be considered, and provide legal explanations to the lay judges, but the actual decision and sentencing will be made by a majority vote of all nine judges.

While on the whole, large-scale public participation in the court system marks a tentative step forward for Japanese jurisprudence, the lay judge system has been enormously controversial on many fronts, including a lack of justification or demand for the reform, the inability for defendants to refuse a trial by lay judges, to the wasteful spending of providing daily stipends for the lay judges.

Some of these criticisms are technical, but I think they mainly stem from the fact that the system was more or less foisted on the Japanese public from the top-down. Unlike Western countries, whose jury systems developed over centuries of conflict between rulers and the ruled, Japan’s lay judge system was invented over a matter of years among Tokyo elites, led by the Kasumigaseki offices of the courthouse bureaucracy.

A recent NHK special on the subject starkly revealed the public’s anger over the introduction of a system they had basically no say in creating. At one point during a live debate between experts and laypeople, one man accused the government of allowing itself to be reformed in reaction to US demands (the US seems to have taken an interest in some reforms proposed by the original panel, but the lay judge system itself appears 100% homegrown). A suggestion that the system be put on hold to allow for more public participation generated shouts of approval from almost everyone in the room.

The true negotiations over how this system will work appear to have taken place between the government, attorneys’ groups such as the Nichbenren, and US groups interested in Japan such as the Mansfield Foundation. Looking at the commentary at citizen media site JANJAN, a typical question raised is why the government is so intent on rushing ahead with this new system.

Underscoring the challenge of introducing democracy from the top down, a December 2006 opinion poll found that a full third of respondents would not want to serve as lay judges even if required by law.

To promote the new system, the government hired advertising giant Dentsu among others to position the system as a move forward for Japanese law. In a wide-ranging campaign, promotion of the jury system has manifested itself in a serial drama, a video game, and literally dozens of hastily drawn “image character” mascots. The profligate spending became a target for criticism in 2006, when the Supreme Court was found overpaying for ad agencies’ services and rigging town hall meetings with planted questions.

But despite the sloppy and dishonest promotion, could a jury system have come about any differently in modern Japan? Japan has been effectively a one-party state run by its bureaucratic class since the end of the War. The public, generally middle class, well-off, and treated justly, is generally so removed from the legal system as to have little interest in it at all. The development of the Internet as a forum for debate has given interested citizens a new voice, but so far its power has been limited.

All in all, I am hopeful that this system will prove a net positive. Despite the doubts of people such as those quoted by the New York Times who worry that harmony-loving Japan will simply go along with the prosecutors each time, I have confidence that most participants will take the task seriously. And every person chosen for jury duty will likely experience a serious wake-up call that national policy can affect their everyday lives.

Adam RICHARDS
December 24, 2008

Adam Richards lives in Tokyo and is a founding member of the blog Mutantfrog Travelogue.

30 Responses

  1. Raoul Vaneigem Says:

    This is more what I want to be reading here.

    Thank you very much.

  2. Carl Says:

    Speaking of the Times, what is the deal with Norimitsu Onishi?

  3. Adamu Says:

    “What is the deal with…”

    Do we really have to get into that? It is easy to hate him (I might have even expressed some ire myself at times) but I think he is at least trying… I don’t really see much ill will, though I am may not be in a position to say since I have no real opinion about some of the hot-button issues he addresses.

    Anyway, I just hope my wife gets chosen to be on one of these lay judge panels. No luck so far, but that would be even more awesome than watching her vote in an election.

  4. LS Says:

    Underscoring the challenge of introducing democracy from the top down, a December 2006 opinion poll found that a full third of respondents would not want to serve as lay judges even if required by law.

    Proposed non-orientalist rewriting: Underscoring the challenges inherent in democracy, everybody fucking everywhere wants out of jury duty.

  5. Adamu Says:

    Forgive me if I believed the Japanese press for portraying this result as a challenge to the successful operating of the system.

    You are right that people getting out of jury duty is not unique to Japan, but at least in the US people support the need for juries. The striking lack of enthusiasm about this system in Japan really is reflective of the high-handed decision making process and bungled implementation.

    This can hardly be seen as an orientalist view, so the name-calling is completely unnecessary.

  6. LS Says:

    It’s my knee-jerk reaction to anything that smells like “these non-white people are incapable of democracy.”

    Forgive me.

  7. TheStrawMan Says:

    “everybody fucking everywhere wants out of jury duty.”

    Speak for yourself. Members of my family who have been called were happy to go. happy to be part of the democratic system, as would I be.

  8. LS Says:

    Hyperbole aside, people in charge of wrangling jurors in the US report that most people do ultimately respond to the “it’s your civic duty” thing (at least according to This American Life). But wouldn’t Japanese people, too, if presented with the idea that its their legal and social obligation? A newspaper poll reporting that some percentage still “wouldn’t want to” participate in a new social obligation adds little or no information. So it’s hardly something to hang the idea that “Japanese people just don’t like democracy” on, and the implicit claim that, because they lack that centuries-old tradition of antagonism between ruler and ruled (they’re so docile, don’t you know) that they’d really be better of if they’d just listen to us white dudes.

  9. Adamu Says:

    You are really barking up the wrong tree here. Who said the Japanese people don’t like democracy, and where did I say I have all the answers?

    It is simply a fact that this system has been imposed from the top down without much public participation. I guess if my name were Taro Suzuki you’d have an easier time reading what I have to say.

    I never said that there has never been antagonism between the ruler and the ruled in Japan. But it is true that this lay judge system came about in an environment of an entrenched bureaucracy that apparently wants to try a massive social experiment, not through a popular movement. All in all, I have to say I support this move because after 50 plus years of stunted democracy maybe social experiments are just what the doctor ordered. And guess what, I am actually supporting the ideas of “yellow dudes” in this case.

    Does the fact that results of the poll I cited do not deal a decisive blow to the lay judge system really cause the whole argument to crumble? I don’t think so.

    Basically, I have the exact same hope as you that this system will be successful. I even wrote as much in the original piece — “I have confidence that most participants will take the task (of serving as a lay judge) seriously.”

  10. LS Says:

    I have a tendency to be a bit flippant and sometimes it is an impediment to clarity. Sorry.

    I don’t have a problem with your points about the lay judge system, but I do with the base assumption included in your original post that the Japanese system is such a “stunted democracy.” To be clear, the political system there is clearly fucked. But to uncritically take the Western version of fucked “democracy” (the US system is just noisier, not less captured by non-democratic interests) as the standard against which to measure Japan is naive. Japan is “stunted,” in the final analysis, because it has not yet “grown” into something exactly like the West (and doesn’t seem likely to). This specious teleology — the West is the goal, Western Liberal democracy is the political end-state — and the generation of knowledge/power around it is Orientalism precisely. Ya’ll could be slightly more aware of this problem, given the fact that this is a blog — excuse me, a Web journal — about foreigners generating and reproducing knowledge about Japan.

  11. statiq Says:

    Wasn’t this reform original intent to lower the absurdly high conviction rate?

    The objective being to give a chance to people that are actually innocent but still going through the process, just like in “I Just Didn’t Do It/それでもボクはやってない”.

  12. Adamu Says:

    LS:
    I understand your anger at orientalism and racism, but that doesn’t give you the right to attribute to me arguments I never made. Nowhere did I uncritically use the US or the west as a standard, nor did I mention anything about growth and development or imply that Japan is lacking in either. You are just reading too much into it. And really, is there a need to point out some kind of moral equivalency when talking about one country’s justice system? I find that to be just as counterproductive as reflexively using the West as a standard-bearer. Justice, loosely defined but well understood, should apply on its own terms, and deficiencies in another country should not lower the standards for Japan.

    I merely noted that jury systems, particularly in the US, originated from a centuries-old debate over the place of government in society, while the introduction of this system in Japan seemed especially hurried and decided outside of public scrutiny. Indeed, this fundamental change to the country’s justice system was implemented without a constitutional revision. My characterization of the US constitutional drafting process might gloss over the fact that the founders were themselves slave-owning elites who restricted political participation to landed white men, but I don’t see it as an uncritical praise of Western democracy.

    I will allow that my piece did not really flesh out the state of Japanese public discourse right now (my earlier Neojaponisme translation on the WaiWai scandal paints a much clearer picture of this). While long under the effective one-party rule of the right-wing, pro-Western, development-state LDP, the country also has a highly democratic constitution that allows for free public discourse and association. To state the obvious, there exists a public discourse in this country that must not be discounted. Indeed, the Internet has sparked something of a renaissance in public debate and public participation (see my earlier translation on the WaiWai scandal for one excellent example). But the introduction of the lay judge system does actually underscore that unelected bureaucrats had and exerted the power to put this system in place, and I see that as problematic.

    But it is Japan’s problem, and though my own beliefs about morality and justice were formed during my education that mostly took place in the US, I am looking at the situation in Japan and coming to conclusions based on the Japanese situation. I would actually agree with you that simplistic arguments that Japan needs to Westernize its legal system are basically unwelcome.

    But that said, you seem to reject both the notion of a westernized mind casting a critical eye on Japan AND any belief in liberal democracy, in which case we are at a stalemate. I am not a subscriber to neocon “End of History” type of theorizing, but I do think Japan, and myself as a resident here, would be better off with a more just legal system, not to mention a well-informed, politically active public.

    The most pernicious thing about amateur Edward Saids like yourself is your ability to see “subtext” in just about anything. You see one sentence and think you can induce all sorts of implications that just don’t exist. Your challenge is interesting enough but in the end you don’t know me or my writing and end up completely off base. I would recommend basing your comments on facts and the actual arguments presented and avoid engaging in gotcha tactics.

    Statiq:
    I really doubt it, since that would require authorities to admit that the current justice system is producing x percent unjust convictions. To use the movie example, accused train fondlers will not have the privilege of a lay judge trial.
    Apparently the conviction rate under the old jury system was lower but that could have been for a variety of reasons.
    Also, another reason I don’t think the system is intended to attack the 99% conviction rate is because as of now it only applies to very serious crimes such as murder and arson. Even if the system results in fewer convictions in those areas the effect on the overall total might be limited.

  13. Adamu Says:

    Oh, whoops. “To use the movie example, accused train fondlers will not have the privilege of a lay judge trial” should be the second to last sentence of that comment… my bad

  14. LS Says:

    I’ll cop to pernicious amateur Said, although I’d counter that there actually _is_ subtext in just about everything. And yeah, the whole “democracy has never existed anywhere” thing doesn’t usually go over to well.

  15. W. David MARX Says:

    South Korea and Taiwan have better actualized their own democracies than Japan has, so I don’t think this has anything to do with orientalism.

  16. M-Bone Says:

    “South Korea and Taiwan have better actualized their own democracies than Japan has”

    Do you mean just on the level of changing the ruling party?

    Taiwan does not have a jury system and South Korea is just bringing in the same type of system that Japan is. Lots of successful democracies like India and Israel also have no juries. I think that juries are a good idea myself, but I’m not sure that they should be used as a measure of democracy or of justice in international comparison. The Anglo-American juries are actually fairly unique – Germany, France, and Italy all have radically different systems, for example.

    On the issue of Orientalism – Now I know that Adam is not an Orientalist, but LS does make a reasonable (if confrontational) point. Orientalism is not about stereotyping all “Orientals” so it can be applied to Japan and not to South Korea and Taiwan.

    Orientalism, as an academic concept, is all about “power” (that’s Foucault’s power – not getting into what exactly that is). Basically, the US govt. call for “structural reform” in Japan can be criticised as classic Orientalism. There is the idea that Japan is too dominated by the state – that the government needs to get out of industry (preached since the 1970s and looking very ironic at present) and make radical changes to their system. A slate of reforms have been called for in the name of “freedom”, “democracy” and “global standards”. The call is for juries, allowing foreign insurance companies more access to the Japanese market, legal reform, etc. Basically the jury call (a reasonable one, I think) has been packaged with a whole bunch of neo-liberal (what they are called now) economic proposals for Japan since the late 1980s and is related to the very naked globalization agenda of successive American governments.

    Now… Adam didn’t say anything like that. I gather that his feelings are based on being in Japan and thinking that juries would be good in the environment that he lives in. While LS may be making a valid criticism of a US discourse, Adam is not participating in that discourse.

  17. Adamu Says:

    Problems of civil society, freedom, democracy and the rest of it face ALL societies, from Saudi Arabia to Iceland to Japan. How constraining it must be for those whose whole world consists of only two countries, Japan and the US! There is no one true way for all countries, but for those areas and issues we really care about it is worthwhile to debate them. True, there are those cynics in Washington who exploit the fact that their side won the war to push for reforms that may not be in Japan’s best interests, but a) right, I am not one of them, and b) however offensive, there mere existence of orientalism shouldn’t cause us to throw a tantrum and forget all other issues.

    See, I was not able to really pin down whether the idea for the actual jury/lay judge system actually originated from the US. Any sources you could share? From what I could gather, the actual reform panel was convened with US encouragement, not every idea was pre-determined, save for some key demands the US was making, such as for a FOIA law, increased maneuverability for foreign lawyers, more antitrust enforcement, etc. Of course, this negotiation process is shrouded in secrecy and guided by lobbyists in Washington, so even if it DID come from the US there may not be much in the way of official records proving as much.

  18. LS Says:

    Look, I don’t think Adam is some kind of racist person or someone pushing an Orientalist agenda, and I hope it didn’t seem like I was accusing him of this. Racism/orientalism isn’t really a property of individual people, anyway — it’s part of all of our worldviews. You don’t have to be racist (or even a member of a favored racial class) to have your words and thoughts shaped by racism, even your experience of reality. It’s not voluntary, and you don’t have to be trying to engage in it to perpetuate it. Pretty much everyone is somehow tinged by it, and of course this includes me. So, you know, don’t take it personal.

  19. M-Bone Says:

    That Orientalism scenario above – I have real doubts about it. I said that LS was making a “valid” point, but I’m not really gung ho about it. My main concern is this –

    The last 8 years have damaged the ability of the United States govt. to speak with authority on issues of human rights and, indeed, democracy. While Japan is still playing nice, we need only look at some of the reactions by China to see this in action (Tibet? What about Iraq? Religious freedom? What about Iraq? Sudan? What about Iraq?). This is an unfortunate situation that I believe Obama can clean up before long. It does, however, mean that the Orientalist paradigm can be applied to just about any speech act that the US is throwing over to Asia, the Middle East, Russia, etc. CAN be, not always should be.

    If memory serves me correctly, the first US calls for Japan to introduce juries came in the 1980s.

    The most common things that you will probably find online are frequent comments by US servicemen (including officers and spokesmen) that the Status of Forces Agreement is necessary because of Japan’s lack of jury trials. Some information on this in:

    http://www.tomdispatch.com/post/1112/chalmers_johnson_on_imperial_rights

    This article mentions (but does not prove) US gov. pressure on Japan and other countries to reform their legal systems and make them closer to the US model. I believe that Johnson wrote about this is far more detail about 15 years ago but am away from my resources right now and it does not seem like much of this stuff from that period is online.

    In print, I think that I read about this theme in Carl Goodman’s “The Rule of Law in Japan”. I understand that you may not be able to get this book easily so I will check the ref for you when I can.

    Interestingly, when I was looking into this, it seems that the conviction rate in US courts is 89% compared to 95% for Japan. The 99% rate is only for murder. For some reason, I thought that the US rate would be a lot lower.

    “so even if it DID come from the US there may not be much in the way of official records proving as much.”

    Yeah, that’s the problem. I couldn’t find something decisive in any online sources after a quick search. I’ll poke around in some Japanese sources and get back to you if I find any smoking guns. Some recent Japanese books that oppose the jury system have condemned it as an American imposition, but this strikes me as being something akin to people condemning the constitution for the same reason.

    I have a feeling, however, that after years and years, we will see documents come out from the Japanese side showing a direct US call for Japan to “shape up” its legal system.

    My hope is that this “origin” gets sidelined and another “origin” of Japanese juries / lay judges – calls from several leading lawyers and scholars from the 1980s – is put forward in order to help win over the Japanese public.

  20. M-Bone Says:

    Only indirectly related to this topic, but this is pretty messed up –

    http://media.www.kaleo.org/media/storage/paper872/news/2002/08/28/Editorials/American.Prison.Perks.An.Unneeded.Colonial.Vestige-2804504.shtml

  21. Aceface Says:

    “South Korea and Taiwan have better actualized their own democracies than Japan has, so I don’t think this has anything to do with orientalism.”

    Like busting the ex-president as soon as the new guy takes over?
    Don’t exactly think it’s the actualization of democracy for the better,but then,it’s just me.

  22. M-Bone Says:

    “better actualized their own democracies”

    Probably pointless to argue about what an actualized democracy is (Athens anyone?) as I’m sure that we all have different ideas (did anyone hear what happened in Canada? – the appointee by nepotism of the Queen of England basically prevented the opposition from forming a coalition that could have toppled the PM), but it is ironic that Japan blogs often use Korea as a “better” example while Korea blogs use Japan.

  23. Aceface Says:

    Yeah,but this pointless argument will never stop until americans understand how pointless it is…..

    Anyway here in Japan,it is the constitution that prevented the opposition from forming a coaliion,which helped long domination of LDP rules.
    Problem is this American built constitution is used as somekind of trip wire by the foreign countries and any attempt of revision is being portrayed as the revival of militarism thus the death of post war democracy.
    Naturally the liberals and the lefts are comtempt with the status quo,which leads to the unintentional consequece that the oppositions don’t actully try very hard to fight for the power.
    The oppositions see their raison d’eter in being the guardian of the constitution.And LDP can take advantage of this mindset by halting their urge of constitutional revision which ultimately means…not changing the system….

    In my opinion,no constitutional revisiuon,no two party democracy in Japan.

  24. W. David MARX Says:

    I think this is a BIG debate that will not be resolved here, and I think the Orientalism thing is being thrown out pretty arbitrarily (I mean, you could use it on every single post on this blog by the criteria offered above – IT PERMEATES ALL THOUGHTS!!!!), but the jury thing basically comes down to basic idea of whether the Japanese people are particularly interested in politics. In some twisted, glass-half-full way you could probably prove that the Japanese people are more political active and motivated than those pro-Obama yokels in America, but let’s play Occam’s Razor and say, passion is not a word I would link with political responsibility with Japan. Voting rates are high, but the wider culture avoids big political issues as near-taboo.

    In Korea and Taiwan, you can say that the public is extremely invested in the political structure and have brought the debate about their plural visions for the country into the political framework. Japan is different, maybe not “worse,” but the political subtlety does tend to unnerve those who believe that all culture should basically have some sort of “political” drive and question authority/conventions/power.

  25. M-Bone Says:

    “IT PERMEATES ALL THOUGHTS”

    LS’s posts can also be said to be Orientalist. By suggesting that Adamu’s writing should be limited in the themes he discusses because he is a non-Japanese living in Japan, LS homogenizes Japan’s discourse – one of the prime features of Orientalism.

    It is easy to use this type of sophistry for anything, the key is making sure that you do it for a reason, like Said’s politically responsible one.

    “In Korea and Taiwan, you can say that the public is extremely invested in the political structure”

    I have a feeling that it may look this way from a distance, but if we were actually reading as much Korean and Taiwanese material as we were Japanese (and watching TV), we would probably see things very different. With democracy, the cracks start to show when you look up close.

  26. Aceface Says:

    ”In Korea and Taiwan, you can say that the public is extremely invested in the political structure and have brought the debate about their plural visions for the country into the political framework. Japan is different”

    1)Japan is different since democratic elections have been held for more than half century.Not so in SK and Taiwan.
    And Japan is a representative democracy where prime minister is chosen from the majority in the diet,while these two are direct democracy in chosking president.
    It is undeniable that the latter gets more emotional response from the general public in choosing leaders.

    2)Both SK and Taiwan are divided nations where reunification with the other polity is the big national agenda that can mobilize emotinal masses to the streets with flags in their hands.You don’t see that in Japan except during the world cup game.

    3)Korea has very fragile party politics.Almost all of the leading party in the past were disbanded once the presidents step down.This is because Korean presidency is the imperial presidency.That’s why when the king falls,so shall all the king’s men.
    SK had started urban sucession from 1995.And it’s election of the regional leaders has been a mess.In the last election in 2006,one out of six were accused of breaking the electoral law.
    These happens partially because of the lack of modern political party that back up the candidates in the election,thus the candidates must singlehandly build up the voting machine which usually ends up in
    bribery.

    I know some people working for KBS,the equivalent of NHK in South Korea.When I was in Seoul in the spring of 2006,the chairman of KBS was a parachute executive appointed by the government coming from radical paper Hankyoreh,which was pretty much operating as the mouth-piece of the Roh Administration at the time.He was kicked out this year after conservative president,Lee Myong Bak took over and along with people I knew at KBS.

    Lee’s current spokesperson is Lee Dong Kwan,who was the senior editor of the third largest national daily,Donga-Ilbo until this year.
    Imagine Aso Taro bringing Watanabe Tsuneo out from executive room of the Yomiuri and post him to the cabinet minister,you get the idea.

    The fact is,there’s no national media that is independent from politics in South Korea.Which probably is the reason why Korean’s don’t hesitate using internet as the source of information compared to the Japanese who still has emotional attachment to the print media.

    This is why the public is more interested into politics,yet I reserve my judgement to say South Korean democracy the “better”.

    In case of Taiwan,the political game is played between Kuomingtang,the Chinese nationalist and Democratic Progressive Party,which is representing majority Taiwanese seeking independence.
    Because Taiwan had been ruled by the KMT for more than 50 years,Taiwanese establishment is dominated by decendents of the mainlanders who are KMT acolyte,plus Beijing frequently use threats of military interventions and economic sanctions to influence Taiwanese politics.
    Naturally, DPP leader and former Taiwanese president Chen Shui Bian had met constant sabotage from all sectors of the society in his eight years term and couldn’t use the exectuive power that are promised to the president by the constitution.He was also nearly assacinated in 2004 and currently under arrest for corruption during his presidency.

    That’s why I don’t adore Taiwanese democracy that much either.

  27. mozu Says:

    This brief article describes the varying reactions of religious organizations to the lay judge system.
    http://headlines.yahoo.co.jp/hl?a=20090111-00000008-yom-soci

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