… And Justice For All: One, Covering the Courts
Apart from scholars, few Westerners have forayed into the easily accessible realm of the Japanese courtroom. Whatever the reason, to ignore the Japanese courts is to neglect a fascinating juncture of culture and society.
The Japanese court system comprises three tiers: the Supreme Court, high courts and district courts.
Important cases are first tried in district courts. Most civil cases are decided by (choutei) mediated settlements. In criminal cases, plea bargaining is prohibited and the conviction rate is a staggering (99.9 percent, according to Outline of Criminal Justice in Japan, Housoukai, 1999).
This contrasts sharply with the United States, where the national average is approximately 80 percent. In Japan, any court decision – criminal or civil – may be appealed.
THE PREMISES
If you are covering a big case in either Tokyo or Osaka, the proceedings will mostly likely occur in one of the two large courtrooms (大法廷). The courtroom doors open 15 minutes before the hearing. These rooms contain 96 seats, many of which are reserved for the press. If your paper belongs to the kisha club, you are entitled to a reserved seat. Otherwise, you may have to participate in a lottery along with the general public. Cameras and recording equipment are absolutely prohibited inside, and photography is usually prohibited anywhere inside the building.
The courthouses in Tokyo and Osaka are huge, so it’s helpful to know the courtroom number ahead of time. But even if you don’t, information regarding all cases is readily available in the building’s lobby. Clipboards listing the proceedings for the day are separated into minji (civil) and keiji (criminal) cases. If you cannot read Japanese, there are court officials or guards in the lobbies who can help if given a basic description of the case. The information listed on the clipboard is also posted on a signboard outside the courtroom. In criminal cases, the accused’s name(s), the alleged crimes, the starting and finishing times of the proceedings and the names of the judges are listed. In civil cases, the signboard will show the names of both parties and the content of the dispute.
COMMENCEMENT OF PROCEEDINGS
When the judges enter, everyone stands and exchanges bows. In a criminal case, the prosecution and defense sit facing each other below the dais. The prosecution will be seated on the side room that is accessible by the so called “inner door.”
The number of defense attorneys can vary greatly according to the severity of the case. A case of any significance will have at least two. During the high court proceedings of the Kabutoyama case in Osaka in 1999, extra chairs were brought in to seat all 19 attorneys. For the state, one or two prosecutors is the standard fare. If there are more than two, it is certainly a sign that the prosecution is trying to convey a message to the judges that “we want this one.”
In a criminal case, the defendant, if in custody of the state (i.e., not on bail), will be led into the courtroom by two guards, hands cuffed to a thick leather belt and leashed around the waist by a rope. This animalistic treatment of the accused in a modern developed country must be seen to be believed.
JUDGES
Minor cases are presided over by a single judge, but cases of significance, civil or criminal, have a three-judge panel. The chief judge (saibancho) sits in the center. The judge sitting to his right (migi-saibankan) is the next-highest in seniority, and the judge to the left (hidari-saibankan) carries less status. The judges often leave the courtroom for short periods to discuss matters among themselves.
The process for becoming a judge has long been under fire and is due for drastic change. The first step is to pass the extremely difficult national bar exam (shihou shiken), one of the world’s most competitive exams. In 2003, 1,183 out of 32,000 applicants (3.7 percent) passed. The second step is a year-and-a-half apprenticeship under the auspices of the Supreme Court. Step three is voluntary selection to become an attorney, a prosecutor or a judge. This voluntary selection is not 100 percent guaranteed, and some wannabe judges do get turned down, but such denials are few in number.
Japan is probably one of the few countries in the world the majority of whose judges have never practiced as attorneys or prosecutors. Foreign observers of Japanese courts are often stunned to see obochan (boyish) men with bad haircuts and grimaces of perplexity and fear sitting up on the bench.
CONFERRING WITH THE PLAYERS: GETTING COMMENTS
No matter the case, attorneys are almost willing to offer comments to the press on either civil or criminal cases. Prosecutors are often available, though their remarks tend to be laconic and formulaic.
Judges belong to a different category. Traditionally, their lives have been strictly regulated. They receive personal transportation to and from the courthouse. Going out with colleagues or staff directly from work is prohibited unless paperwork is submitted long in advance. Judges are prohibited from speaking about cases in progress, and most avoid the press and public limelight. Some have welcomed Western scholars into their chambers, but interviews with the press are extremely rare.
Major courthouses have kisha clubs. The major dailies and the Kyodo wire service will have cubicles inside the courthouses. After decisions on significant cases, attorneys assemble, often with the litigants, and speak to the press. Meetings in the kisha clubs can also be attended by those interested in the decision. In large-scale or well-publicized cases, the meeting may very well take place outside the kisha club in a nearby local building.
HANNIN-SHI: PRESUMED GUILTY
No aspect of the Japanese press has drawn more criticism than its coverage of crime. Almost all newspapers, regardless of individual political stances, assume that suspects are guilty until proven innocent. In Japanese, this doctrine is called hanninshi (犯人視): crucifixion of the suspect. The Japanese public has a ravenous appetite for crime, which the press is always eager to feed.
Crime reportage has several cultural and economic functions in Japanese society. It creates headlines, which sell newspapers. It induces fear and reinforces reliance on authority – of whom the newspapers assume rightful membership. Crime also provides an object for derision – an ijime – for the release of stress accumulated in a top-heavy hierarchical society.
While the mechanics of the Japanese courts resemble those in the West in many ways, the outcomes often digress quite radically. As mentioned above, Japanese judges see themselves less as arbiters of justice than agents of social control.
One veteran of legal systems both East and West is American attorney Cynthia Worthington. Worthington and two other foreign colleagues were plaintiffs in a well-publicized suit against the Prefectural University of Kumamoto. The three sought job reinstatement claiming unfair dismissal. Strongly committed to obtaining justice in Japan, Worthington was coldly realistic about succeeding.
“Our lawyer told us Japanese courts are notoriously reluctant to make any ruling that disturbs the status quo or challenges administrative power structures,” she says. “Moreover, they are hostile to individual assertions of their rights according to law. Even favorable rulings come after five to 10 years of piecemeal hearings, are often unenforceable, and damage awards are negligible.”
The modus operandi of civil law in Japan can be reduced to four Chinese characters which appear in calligraphic scrolls decorating many courtrooms throughout the country: (依訴求和) “Bringing suit, seeking wa.”
It is clear, then, that from a comparative perspective, civil law is not meant to safeguard the rights of the individual, nor is it a conduit to justice. The ideal solution to any dispute is conciliation – wakai, literally, a division of harmony.
While conservative forces may argue that this system served the state well during the early stages of Japan’s phenomenal economic growth, it is clearly out of date with the needs of a modern civil society. Legal reform has evolved from being a mere buzzword into a strong social force. Reporting on the Japanese courts has
and will certainly continue to be an important and intriguing endeavor for all journalists. ❶