Japan Law Geek

Oops.

It seems that Singaporean photographer, Leslie Kee, has just been arrested by Japanese police for violating Japan’s law against obscenity (わいせつ); or more specifically, Article 175 of the Criminal Code.

The penal provision stipulates that Kee may now be facing imprisonment of up to 2 years or a fine of not more than 2.5 million yen. Given that this was a for-profit venture (he was selling his book for 6000 yen – bargain!), it’s more than likely that he will be given a fine. I would be surprised if he (and especially the two employees of the book publisher) were to serve any time in prison for this.

As unfortunate as this is, it does serve as a good opportunity to shine a spotlight on the ironically perverse manner in which Japan defines obscenity, and enforces against it. Forget that the Japanese Constitution (drafted by Americans, let us not forget), provides at Article 21 that:

Article 21. Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
No censorship shall be maintained, nor shall the secrecy of any means of communication be violated.

It’s fairly explicit; pithy yet certain in its language. And yet, the Supreme Court seems unconcerned in upholding it in any meaningful way.

The most curious thing about this legal contradiction is the paradox that emerges from the juxtaposition also of this seemingly totalitarian penal code re: naughty rags with the abundance of soft-core porn in newspapers and magazines, and also the ease with which one can obtain borderline criminal material like the Rapeman comic. Perhaps the newly-minted Minister Tanigaki could take a look a reforming this archaic law… but we would be wise not to hold our breath.

For more reading, I suggest looking at the journal article, Obscenity, Pornography, and Law in Japan: Reconsidering Oshima’s In the Realm of the Senses, by James R. Alexander - it’s a nice (and relatively recent) introduction to the topic. Another, perhaps more relevant, article is Obscenity in Japan: Moral Guidance without Legal Guidance, by Amanda Dobbins.

Lets be honest – it you have been trying to keep tabs on the Minister of Justice, you (like me) will have experienced a profound and painful episode of whiplash. The year 2012 witnessed the rise (and inevitable fall) of six Ministers of Justice. With those numbers, you’re more likely to last longer as a prime minister; a jarring and sobering statistic.

And so it is that we welcome Sadakazu Tanigaki as the new official seat warmer; lets see how long he lasts.

During his inaugural press conference as the newly-minted Minister of Justice, there isn’t much that comes as much as a surprise. He lists the priorities of his tenure as making Japan the safest country in the world (really, as if it already isn’t!!). To accomplish this, he aims to support victims of crimes, fight against recidivism (by supporting their reintegration into society), and finally, always the crowd-pleaser, fight against organised crime.

Given the revolving door that is the Minister-ship, and reflecting on the vagueness of these completely immeasurable goals, it’s hard to muster much of feeling about him (or really, any of them). What is perhaps more interesting, though, is reading between the lines of his answers to the only two substantive questions (you lose, Asahi!).

Yomiuri asks him about his position on the death penalty; his response is predictably elusive, but he does seem to hint that he is uncomfortable with it, falling back into the safe zone of saying that he will respect the decision of the courts, and that capital punishment is reflective of social values. It’s hard to hold this against him given just how singularly minded the Japanese people are when it comes to government-sanctioned murder – something I reported on the last time I bothered to review a Minister of Justice.

NikoNiko asked him about the recording of interrogations, where again, he backs into the safe corner of not wanting to tie the hands of investigators, but assures the reporter that he will watch the situation carefully and make his decision as he goes.

Interesting to see what, if anything, he does, but I’m inclined to think that the bureaucracy will do what it wants to do, and he will just warm that seat until another cabinet reshuffle (probably within the next year).

Watch the press conference (below) and judge for yourself if you think he will have any influence over the behemoth that is the gyousei.

Excellent news today – there has been a decline in the number of murder indictments issued by Japanese prosecutors since the debut of the saibanin system (lay judge) in Japan. I predicted that this would happen, and sure enough, it has. The Japan Times reports that:

In 2006, 1,769 murder cases were handed over to prosecutors. Of them, 734, or 41 percent, led to indictments on the charge. Four years later, the rate dropped by 15 points to 26 percent, with only 424 cases out of 1,619 resulting in murder indictments.

Critics have argued on many occasions that the Japanese judiciary has long been a rubber stamp for the procuracy, leading to impossibly near-perfect conviction rates. Now that the saibanin have reported for work, the prosecutors have to think long and hard about the charges they bring before the court lest they start tarnishing their perfect record! I predict that there will be some fairly fundamental changes to the Japanese criminal justice system over the next 5 years.

…[A] senior official in the Supreme Public Prosecutor’s Office rejected this assessment but did not offer a better explanation. “It’s unlikely prosecutors are adopting lighter charges because of the launch of the lay judge system,” the official said, adding the reason behind the drop in murder indictments remains unknown.

Uh huh… To be fair, the counter-point to the above is impressively argued by David T. Johnson in “The Japanese Way of Justice: Prosecuting Crime in Japan”. Strongly recommended reading.

See also

• 死刑か否か「先例と比較を」　裁判員裁判向け最高裁報告

I have no idea why, but it looks like the next month is going to be all about the criminal justice system for the Nichibenren – they have a number of events focusing on what is called 取調べ可視化（録音・録画） which broadly refers as the recording of interrogations. Can’t wait!

1. 市民集会「えん罪は密室で作られる」～映画監督とえん罪被害者が語る取調べ～
日時 ２０１２年３月１５日（木）　１８時～２０時（１７時３０分開場）

http://www.nichibenren.or.jp/event/year/2012/120315.html

NB: The above event is going to be held tomorrow!!

2. 国際シンポジウムin東京「世界の捜査官が語る取調べの可視化―可視化で捜査実務は変わったのか」
日時 ２０１２年４月４日（水）１３時～１７時（１２時３０分開場）

http://www.nichibenren.or.jp/event/year/2012/120404.html

3. 国際シンポジウムin大阪 世界の取調べの潮流と、「それでも可視化やってない」日本の現状 ～周防正行監督・内外専門家と語る取調べの可視化～
日時 ２０１２年４月５日（木）１５時～２１時

http://www.nichibenren.or.jp/event/year/2012/120405_2.html

4. 国際シンポジウムin広島「イギリス・中国　海外の専門家が語る取調べの可視化―可視化で捜査実務は変わったのか」
日時 ２０１２年４月６日（金）１３時３０分～１６時

http://www.nichibenren.or.jp/event/year/2012/120406.html

In preparation for these events, I’d recommend the following books – half of which were written by the panelists!

I would also recommend checking out それでも僕はやっていない – a brilliant film that explores many of the failings in the Japanese criminal justice system! Trailer below!

Here is a unique idea – let’s review a human being for a change… the Minister of Justice, Mr Toshio Ogawa.

There is, of course, a knack to passing judgment on someone else which, coincidentally, appears to be part of the new Justice Minister’s job description. According to the (at least) the title of the Japan Times, Ogawa “feels signing off on hangings just part of job description“. This is misleading though, because he does go on to explain in the interview that “I don’t really want to do it, but that is one of the justice minister’s job descriptions. With 130 inmates on death row and public opinion showing 85 percent of Japanese support the death sentence, it is inexcusable not to sign off on executions“.

Fair point. Although I am vehemently opposed to capital punishment, any Japanese Justice Minister would be in a difficult position when it comes to signing off on an execution. A 2009 Survey found that 85.8% were supported the death penalty. Read more…

Japanese news sources are reporting that Toshiaki Hikiji, who is accused of hitting and injuring (and in one case killing) 12 people in the Hiroshima-based Mazda complex in 2010, has pleaded guilty to having caused the injuries of 8 of the 12, but has pleaded that he is innocent in respect of the remaining three, of which one had been killed.

Apparently, counsel for Hikiji have argued during the trial that he was insane at the time of the incident. This, of course, relies on Article 39(1) of the Penal Code, which states that “[a]n act of insanity is not punishable.”

The verdict is scheduled for 9 March 2012. Watch this space!

I recall that the Japanese news outlets made a point of drawing parallels between this incident and the senseless Akihabara massacre in 2008, and the nodding heads on the panel discussion shows all agreed that both incidents were attributable to the hikikomori ”phenomenon”. Ultimately, not much eventuated; but it did lead to me reading Shutting Out the Sun: How Japan Created Its Own Lost Generation - a study into the “phenomenon” by Michael Zielenziger. While I disagree with much of his over-simplified characterizations about Japan, he does present the interesting thesis that the hikikomori is a manifestation of Japanese cultural ideosyncrasies. Worth a read.

[Sources]

• Partial guilty plea in Mazda rampage trial (Japan Times / Kyodo)
• はねた行為「９人目以降認めぬ」　マツダ工場暴走で被告 (Asahi Shimbun)

The Ministry of Justice has uploaded the full text of the 2011 White Paper on Crime in Japanese (sadly, the English versions of the White Papers are limited to those up to 2009).

I will post more after reviewing the data.