A Step in the Right Direction for Japan's Judicial Reform: Impact of the Justice System Reform Council (JSCR) Recommendations on Criminal Justice and Citizen Participation in Criminal, Civil, and Administrative Litigation

The reintroduction of the citizen participation system in criminal proceedings represented one of the fundamental changes to Japan’s legal structures and status quo, and this article examines such changes in lay participation and its effects in the area of criminal justice. Attorney Shunsuke Marushima who served as Senior Staff of the Secretariat in the JSRC declared that much of the reforms in criminal justice, especially with respect to prosecution and police procedures, were expected to go through dramatic and significant changes in their operational procedures because of popular participation in the administration of criminal justice in Japan. This suggests that a critical assessment of genuine effects of the council recommendation in the area of criminal justice can be best achieved in its relation to the operative and procedural impact of the twin systems of lay adjudication. Part II of this article first examines the two systems of lay adjudication in criminal proceedings, including the Saiban-in Seido (a quasi-jury system) and the revised Prosecution Review Commission (PRC). The Saiban-in panel that consists of three professional and six citizen judges adjudicates serious crimes committed in local communities, much like citizen participation in America’s petit-jury trials. The PRC, on the other hand, asks eleven randomly chosen Japanese citizens to examine the appropriateness of prosecutors’ non-indictment decisions, an adjudicative institution to which the U.S. has no juridical equivalence. While the former deals exclusively with the adjudication process of criminal matters in Japan, the latter has a greater potential to influence the decisions made by Japanese prosecutors. The strengths and weaknesses of each of these systems will be critically examined. Part III then proceeds to analyze the criminal justice process itself that has been significantly impacted with the introduction of the two lay adjudication systems. At the outset, the JSRC recommendation was apt to eliminate numerous causal factors behind criminal procedural anomalies that previously led to not only wrongful convictions but also violations of criminal defendants’ rights. For instance, the JSRC recommendation suggested ensuring greater transparency to the usually closed investigation and investigative processes, which in turn facilitated the deliberation of lay participants in Saiban-in trials. This article first examines how these problematic areas were impacted by the introduction of Saiban-in trials, as they were also discussed and debated by the JSRC members. These factors include: (1) the use of police detention centers as “substitute prisons” for interrogation; (2) limited access to counsel; (3) use of physical and psychological torture to extract forced confessions; (4) judicial complacency toward the use of confession documents obtained via dubious means; and (5) the lack of pretrial release for defendants. Part III will continue to examine other consequences of judicial reforms that will invariably affect citizens’ judicial capacities, including the implementation of: (1) pre-trial conference procedures; (2) new victim participation systems that were first introduced in 2008 and later incorporated into the Saiban-in trial; and (3) the National Public Defender System (Kokusen Bengo Seido) and the Japan Legal Support Center on Saiban-in trials. Part IV will shift my focus toward an evaluation of much broader socio-legal impacts of the new systems of lay adjudication on criminal procedure; I will consider if and to what extent these new structures expanded citizens’ ability to properly adjudicate crimes committed by an exclusive group of foreigners who have been historically protected under the rights of extraterritoriality, including the members of the U.S. Armed Forces stationed in Japan. The first Saiban-in trial of American military personnel took place in May 2010 in Okinawa. The JSRC proposal also allowed the PRC to enforce the criminal prosecution of formally called “untouchables,” namely powerful politicians, government bureaucrats, and business elites. The PRC’s decision on the forceful prosecution of military personnel also instigated a bi-lateral negotiation between the U.S. and Japanese governments on the new conditions of the Status of Forces of Agreement (SOFA), involving the right to exercise a proper jurisdiction over military accidents or crimes committed by armed personnel while on-duty. Finally, Part V explores the potential expansion and diffusion of Saiban-in trials into civil and administrative litigation. The JSRC has already suggested the possibility of incorporating citizen participation into certain classes of civil cases. And while the possible incorporation of Saiban-in into administrative litigation will also be explored here, the council has already recognized that administrative trials regarding disputes against governmental policies have been extremely difficult for citizens to adjudicate effectively. Yet the relevance of such analyses cannot be overstated, especially given the recent surge of civil and administrative lawsuits filed against the Tokyo Electric Power Company (TEPCO) and the Japanese government in the aftermath of the Fukushima nuclear disaster in March 2011. Active participation of citizens in the adjudication of civil and administrative disputes has the potential to ensure that the rights of victims in these types of cases are upheld and their remedies properly dispensed. For these categories of litigation, it is important to incorporate the people’s fair-minded perspectives and common sense judgments into the deliberation of such legal disputes. Lastly, Part VI will conclude with a reprisal of the overall impact of the JSRC recommendations on Japan’s legal landscape.