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City Desk
10 December, 2007  
I agree with the man in charge

Following a series of radical reforms to their legal system the Japanese now face a crisis of confidence as they are asked to become jurors as part of an overhaul of the country’s creaking criminal justice regime

imageFrom our correspondent Jonathan Gadir *

As juries face mounting criticism in Australia, Japan is preparing for a revolution in its legal culture, with the introduction of a quasi-jury system in 2009.

Described as a unique cross between a common law jury and a European mixed court, the saiban-in or “lay assessors” system will involve six lay people sitting with three professional judges in serious criminal cases.

The introduction of the jury system comes as part of a package of radical reforms initiated by the recommendations of the Prime Minister’s Judicial Reform Council.

The council’s aim is the same as countless reform proposals put forward in Australia and Britain – a legal system that is more efficient, user-friendly and accessible for ordinary people.

Among the transformations have been the opening in April 2004 of 68 (and now 72) new graduate level law schools based on the American model.

This is seen as central to tackling the shortage of lawyers which contributes to the notorious delays in the Japanese legal system.

Japan has around one lawyer for every 5,790 people, compared with about one for every 363 people in Australia.

Until new exams were introduced recently, fewer than 1,500 people are allowed to get a practicing certificate every year – a 97 percent failure rate.

These figures sound more alarming than they actually are because they refer only to “fully-fledged” lawyers (bengoshi), something along the line barristers.

There are several other legal professions carrying arcane titles such as “judicial scrivener” that do a lot of the non-court advice and paperwork that would be done by solicitors in Australia.

The country’s legal system was created in the late 19th and early 20th centuries and largely modelled on German civil and criminal codes.

In fact there are six codes: the constitution, civil, criminal, commercial, civil procedure and criminal procedure.

A host of other modernisation measures already in place include the provision of court-appointed lawyers for suspects, a newly transparent process for how judges are appointed, and for the first time an intellectual property court.

Last year also saw the opening of a nation-wide network of Legal Support Centres (Houterasu), which provide legal information and free civil legal aid, along with crime victim support.

So what sparked this flurry of reform?

Those who have studied Japan and its legal system say the reforms have to be seen as part of the response to the sense of crisis that gripped the country during the prolonged economic slump of the 1990s.

Rapid social changes, including the role of women and the unravelling of the secure post-war employment system, have brought about demands for more accountability and openness in decision-making.

imageProponents of the saiban-in jury see it as an overdue response that will clear away the cobwebs from an unapproachable and intimidating legal system.

The Ministry of Justice has begun rolling out a public education campaign, complete with telemovies, posters, websites and mock trials across the country.

This is one of the posters promoting a movie explaining how “ordinary” people can now be part of the justice process.

Other observers are quite skeptical about juries and predict they simply won’t work in Japan.

Apart from criticisms that it will do little to address the problem of convictions based solely on confessions, police abuses and untrammeled power of prosecutors (conviction rates are 99.9 percent), critics say the new jury system is incompatible with Japanese culture.

There is a general reticence on the part of the Japanese to express their own opinions and the challenge to overcome that is all the greater when members of a lay jury are in the presence of professional judges.

One western commentator for an English language newspaper in Japan says the omakase (leave it to the person in charge) syndrome will make the system ineffective.

As an illustration of this, The New York Times’ Norimitsu Onishi reported earlier this year on one mock trial:

“When a silence stretched out and a judge prepared to call upon a juror, the room tensed up as if the jurors were students who had not done the reading… After it was all over, only a single juror said he wanted to serve on a real trial. The others said even the mock trial had left them stressed and overwhelmed.”

imageTheatre groups are also performing jury-based dramas such as Twelve Angry Men (pic) to help prepare citizens for their involvement as jurors.

Robert E. Precht, an American defence lawyer and jury expert who has been participating in the public education campaign in Japan was quoted by the NYT:

“I think people are seriously going to start panicking next year, as citizens actually face the very real possibility of being summoned, and then have to go into this very strange environment, speak in front of authority figures and actually be questioned about their own opinions… And I’m concerned that’s going to freak people out.”

There’s also concern that Japanese employment culture would be a major obstacle, although the saiban-in law prohibits employers from penalising employees who take time off for jury duty. However, paid leave is is a matter for the employer’s discretion.

Already a concerted push is underway to change the prevailing work norms with the Supreme Court sending judges to speak to companies and communities, while the Japan Federation of Bar Associations is encouraging member lawyers to talk about the system with clients.

According to the ANU’s Kent Anderson, one of Australia’s leading Japan law experts (who translated the saiban-in law into English), the least prepared group are the defence lawyers.

Indeed, the success of the system is partly riding on how well the defence lawyers can re-learn their trade and present arguments to lay juries that amount to real defences.

Currently, because of the near certainty of conviction, their role is mostly to plead mitigating factors in the sentencing phase of a trial. Provided there is an apology, sentences are often quite lenient and incarceration rates are low.

Anderson thinks at least some in the defence bar are looking forward to enacting “long suppressed Perry Mason fantasies”.

The man piloting the introduction of the new system, Councillor General of the Supreme Court, Judge Tomonao Onizawa told the magazine J@pan Inc that “the point of introducing the jury system into Japan is to take away the fear of the law”.

He is optimistic that it will also “empower” people more generally as citizens, even though it will take time to work.

“Japanese do have opinions,” he insists.

Anyone who knows how the country industrialised is aware that nobody does top-down modernisation and institutional reform better than Japan.

Allegedly unchangeable Japanese cultural traits have always managed to adjust. After all, this is a country that embraced modernisation and institutional reform a couple of generations ago – to dramatic effect.

*Jonathan Gadir is a journalist with a legal background who is a contributor to Justinian. He is studying Japanese and hopes to be fluent in the language by the next millennium.