This is just what law enforcement authorities in Japan can do before an arrest. After the arrest, a prosecutor can ask a judge to detain a suspect for almost three weeks before they even decide to prosecute. This is not pretrial detention, but pre-charge detention. The suspect is not a defendant on trial, so protections they would expect do not attach. If necessary, three weeks of detention can effectively be extended into months through subsequent arrests for different offences, each of which resets the clock.
The arrest–detention cycle can in this way be used to punish almost anyone without ever putting them on trial. Depending on the crime, it can be used to punish people more severely than when they are convicted. In March 2017 activist Hiroshi Yamajiro was released on bail after five months in detention for allegedly cutting a barbed wire fence and other minor charges — some of which he contests — in connection with anti-base protests in Okinawa. Normally such offences would attract a fine or a short term in jail at worst.
Japanese courts famously convict 99.9 per cent of defendants in criminal trials, but less known is their indispensable role in a system of pre-trial punishment and coercion. That a judge must approve pretrial detentions is small comfort. Statistically they will almost certainly accede to a prosecutor’s reasoning that suspects may flee justice or tamper with evidence. In 2014, a judge in Nagoya issued a warrant in a minor bribery case that resulted in the detention for weeks of a democratically-elected, sitting mayor of a regional city on the absurd grounds that he was a flight risk. That the ability to have almost anyone detained might be useful to less scrupulous police officers — or honest ones just doggedly following their hunch — should be obvious.
In June 2017, Japan’s ruling party and its allies used procedural sleight of hand to ram through a bill that added almost 300 categories of conspiracy offences to the nation’s criminal laws. Seeking to pass the law before the expiry of the Diet session, the usual formality of voting on it in committee was skipped at the House of Representatives, and it was instead put directly to a vote by the full chamber. The frightening prospect is that the same attitude to following procedure shown in the course of making the law will also apply to its enforcement.
Henceforth, not only will it be against the law to engage in tax evasion, trademark infringement, forging documents, or any number of regulatory or corporate offenses, but also merely to discuss such activities and take acts in furtherance of plans. Of course, the combination of planning a crime and taking a step in furtherance of that plan is how conspiracy already works under Anglo–American criminal law. In the Japanese context, however, the real issue will likely be the degree to which the mere suspicion of conspiracy can serve as a pretext for intrusive and coercive police behavior and offer greater scope for de-facto punishment without trial.
Enacted as a set of amendments to the nation’s anti-organised crime and money laundering act, these conspiracy offences will supposedly only apply when committed by ‘organised criminal groups’. Yet this is amorphously defined. When questioned during the legislative process, the Minister and Deputy Minister of Justice could not give consistent answers as to whether the law could be used to implicate ‘regular’ people. By its nature, conspiracy is based on communication between two or more people — ‘planning’. With such communications now criminalised, the powers of Japanese law enforcement to intrude into the private spheres of the populace — inquiries into what they thought and said — may be vastly expanded. Thought crime does not need to a crime for it to be policed, and punished.
Here it is worth remembering that in 2003, literally the day after an incumbent Liberal Democratic Party prefectural assemblyman lost an election to an independent challenger, the Kagoshima prefectural police began questioning, arresting and detaining the winner and those around him for vote buying. Some were coerced into confessing about meetings and exchanges of cash that never took place. Eleven were prosecuted, mostly middle-aged or elderly working class people. All were ultimately acquitted but only after collectively suffering years of imprisonment and emotional torture. This abuse of power against multiple innocent people was possible even without a conspiracy offense.
The use of this new tool will probably expand slowly and gradually, becoming normalised in stages so most people only vaguely appreciate how it becomes increasingly difficult to discuss certain subjects either publicly or in private. Providers of social media and other communications tools will become increasingly conservative about potentially facilitating conspiratorial interactions.
Going forward, the challenge for Japanese civil society will be being able to discuss — or challenge — what will prove to be the inevitable use of conspiracy arrests to impose and maintain an increasingly static public order. Conspiracy cases will be developed by well-intentioned police and righteous prosecutors convinced that they are right. The persistent inability of Japanese political and legal institutions to institutionalise effective mechanisms for doubting and challenging official narratives will enable the emergence of an increasingly authoritarian state, without any of the well-intentioned people involved intending that result.
Colin P.A. Jones is a Professor at the Doshisha Law School, Doshisha University, Kyoto.
With these new laws, don’t be surprised if the Japanese prisons/jails suddenly become overcrowded and will remain that way for decades. The prison system has enough problems with an aging prison population just like the rest of the Japan. Japan will become like the USA – one vast prison where people can’t go anywhere in the country without worrying about being picked up by the police on anything and everything whether real or imaginary no matter how small the offense is.
Thanks for a thorough, albeit very worrisome, analysis of the mechanics of how these laws could be applied in the coming years. Now I understand more clearly why some people have objected to their passage in the Diet.
I had always suspected that the judiciary was nowhere near as independent in Japan as it is in other countries. But I am still surprised to read of a 99.9% conviction rate. And to learn of the extent to which judges go along with pretrial detention practices, etc.
The manner in which these laws were passed is consistent with the perception of PM Abe’s arrogant use, if not abuse, of the 2/3 majority he has in the Diet. This author also portrays a frightening scenario of where the country could be under his wish to make Japan ‘a beautiful country’ again. Sounds very much like the way things were in the Meiji, Taisho, and early Showa years leading up to the war which began in 1937 in China, spread through SE Asia, and then against the USA.
I believe that we always have to put things into context. Japan’s conviction rate may indeed be 99.9 percent. The next thing to be asked would be, then, how many people are convicted every year in Japan? I do not have an annual figure for this but the Internet tells me that total number of people incarcerated in Japan is currently around 65,000. How many people are incarcerated in America now? Around 2,200,000, according to the Internet. This figure sounds a bit large even after taking into account the difference in Japan and America’ s population (Japan 126 million, America 321 million). Richard, if anyone follows your logic, it would be America, not Japan, that is going to wage the Second Asia Pacific War (though I think this is totally ridiculous).
Thanks, Daiki, for your response to my comments. The American system of ‘justice’ is certainly sorely lacking. A good book about it is The New Jim Crow by Michelle Alexander. But that is not the topic of this piece.
I did not mean to imply that these laws will lead to Japan starting another Asia Pacific War. I agree that the USA might do this nowadays. Or possibly N Korea or China.
What I meant was that these laws could be used to shut down open, public discussion of issues in the press and other places in the country. Those were the dynamics by which the government established and maintained its power in the late 19th and early 20th centuries.
Thanks for a very enlightening explanation of this law and it’s role in the ever decreasing freedom of people in Japan.
Trademark violation? Looks like Abe and Co. just made Comiket/ Comic Market planning a conspiracy. All those fanzines/ doujinshi exist in a don’t ask don’t tell grey zone. ONE publisher complaint and the entire volunteer crew is in jeapardy, neh?
Well, there goes Cool Japan. phht!
“Japanese courts famously convict 99.9 per cent of defendants in criminal trials.”
Trotting out this hoary cliche does not inspire confidence in the quality of this article. It has been reported that the conviction rate in US federal courts is almost the same.
http://justicedenied.org/wordpress/archives/3190
For a somewhat dated but still largely valid discussion of the high conviction rate in Japan, see
Why is the Japanese Conviction Rate so High?
J. Mark Ramseyer and Eric B. Rasmusen
The Journal of Legal Studies
Vol. 30, No. 1 (January 2001), pp. 53-88
Other articles on the subject show that the conviction rate in state courts is also very high, especially if you are black or poor.
The extensive use of plea bargaining in the US also means that many are pressured into a guilty plea without ever having a proper trial.
There are certainly problems and dangers in the Japanese system but citing statistics of questionable merit do not enhance an article on this subject.
Hi Earl
Thanks for bringing in a comparative focus. As you point out the conviction rate is very high in other places as well, though I am not sure why you think that of all the possible comparatives the United States might be most relevant, particularly given the added complexity of even trying to compare a complex federal system to a country like Japan having a unitary system of law and courts. Moreover, I am not sure anyone is suggesting that the combination of conspiracy charges, plea bargains and ridiculous overcharging that is a feature of the US system might be a useful reference point for anything (are you?).
Japan’s 99.9% conviction rate does indeed include a large number of cases that in other systems would have been resolved through plea bargains, and Japan itself is moving to a plea bargain system (a prospect some Japanese lawyers find frightening in combination with the new conspiracy offenses). For the approximately 10% of cases where the charges (rather than just sentencing) are at issue the conviction rate is a more comforting 97.5%, though simplistic statistical comparisons of things like conviction rates have their limits both because of how they are calculated and how prosecutors decide whether to bring charges or not.
For future reference, East Asia Forum pieces have a 900 word limit. Given more space I would typically caution readers about assuming too much about the 99.9% conviction rate (so am grateful for you to raising it here). But the piece is more focused on what can be done to impose defacto punish people before a prosecution is even brought, and in that context that fact that if a prosecution IS brought, a conviction is a near certainty seems relevant regardless of the provenance of the statistic let alone what happens elsewhere in the world.