Author: Colin P.A. Jones, Doshisha Law School
Under the Police Duties Execution Act, Japanese police are empowered to ask anyone acting strangely or suspected of a crime to ‘voluntarily’ answer questions or accompany them to a police facility. They can also conduct ‘voluntary’ searches of person and possessions, and even demand the ‘voluntary’ proffering of urine samples. The law says police may not compel suspects to cooperate, but judges have been forgiving of aggressive police behavior.
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.