The Enigma of Japanese Power (31 page)

In the middle of the nineteenth century, around the time when Japan was forced to open its ports to foreigners, Japanese laws were basically a means of enforcing a strict and detailed, government-dictated code of social behaviour and relationships. Thus Japanese legal practices, including the torture that was extensively practised to extract the confessions that were mandatory for a guilty verdict, were a cause of much initial friction with Westerners. They were also the reason why the Euro-American powers insisted on extraterritoriality for their subjects in the treaties of 1858 and subsequent years.

The major incentive for the Meiji oligarchy to include a constitution and legal codes in its overloaded agenda for catching up with the West was the refusal of foreigners to submit themselves to Japanese jurisdiction in the treaty ports. An almost undisguised Western contempt for Japanese legal practices aggravated the sense of inferiority and weakness felt by the new leadership. Meiji officialdom therefore worked hard to convince the Western powers that modern law was being introduced. When in 1890 Foreign Minister Aoki Shuzo proposed new treaties abolishing extraterritoriality, he informed the West that his government had been working to create reliable judges for nearly six years, and declared that, by the time the treaties went into effect another six years later, no foreigner would have to worry about being judged by incompetents.
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The leaders of the Restoration had improvised a haphazard arrangement based on ideas from the archaic Yoro code, which though introduced exactly 1,150 years earlier had never been officially supplanted by the rules of the Tokugawa shogunate. To update Japanese legal practice, it was decided first of all that the French civil code and all the other Napoleonic codes should be translated. Mitsukuri Rinsho, a twenty-three-year-old official enamoured of Western ideas, was given this horrendous task a year after the oligarchy had taken over. A noted Japanese legal scholar compares him to an architect who had to begin by making his own bricks,
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because he had to invent terms for concepts that were totally alien to Japanese thinking, without being able to consult either dictionary, legal commentary or foreign lawyer. It took this devoted man less than five years.

A French adviser to the government, Emile Gustave Boissonade de Fontarabie, drafted Japan’s first modern criminal code, which was promulgated in 1880. His own sense of the urgency of this project is apparent in his protest against torture, the continued use of which was evident from screams audible in the compound in which he had been given an office. A rivalry subsequently developed between those who pleaded for the adoption of French law and those who believed English law to be more suitable; but in the end the Prussian model and German
Rechtstaat
principles proved more attractive than either to a government that had by then consolidated its position, and the influence of a German legal adviser, Hermann Roesler, eclipsed that of Boissonade. By 1898, when Japan promulgated its first complete civil code, German influence had clearly outweighed the earlier flirtations with the more liberal English and French laws.

As should be very obvious at this point, nothing in their history encourages ordinary Japanese citizens to think that the law exists to protect them. Never adding up to a system based on rational, philosophical principles of justice, traditional Japanese law consisted of little more than lists of commands to be blindly obeyed by commoners. In practice the consequences of this were uneven. There seems to have been considerable room for leniency in the Heian period. But in the Muromachi period (1333–1568) a great deal of cruelty became common, and did not disappear until after the opening of the country. In the two and a half centuries of Tokugawa rule, the law was applied according to social status; townsmen and farmers could be cut down on the spot by a samurai if he found them rude or in other ways unmindful of their station in life – or, according to some sources, just to try out a new sword.

The Meiji reforms brought great relief, and many freedoms, by comparison with the days of the shogunate, even if the spirit of the imported letter of the law was largely missing. The promulgation of the Meiji constitution in 1889 was accompanied by fireworks, partying and panegyrics in the press. Yet neither this ‘gift from the emperor’ nor the other Western-inspired laws were to give the Japanese a sense of protection against arbitrary power. The constitution had been preceded in 1888 by debates on the ‘rights’ and ‘duties’ of the people. In the end, the people were finally given rights and freedom, but only on condition that they would never disturb the social order or violate laws that restricted those same rights and freedom.
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Once Japan’s power-holders were confronted with some of the logical consequences of their own imports, they reacted swiftly to make sure that the population and its intellectuals would not harbour the ‘wrong thoughts’. Yamagata Aritomo inveighed against reliance on the law in safeguarding society, supposing this to be a cause of many social problems. But at the same time Yamagata himself did not scruple to use the law freely ‘as a bulwark against politics’
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– meaning democratic, parliamentary, adversarial party politics. Law was rapidly being pressed into service as a major tool of the administrators.

After the turn of the century, the economist Kawakami Hajime, who introduced Marxist theory into Japan, summed up the overall result:

individuals are not believed to exist for and of themselves as autonomous entities; only the state does. In Japan, state sovereignty is heaven-granted while individual rights are bestowed by the state. The state allows limited individual rights to the extent that they further the aims of the state. Thus, individual rights are always instruments of the state, not to be utilised for the aims of the individual. While in the West individual rights are thought to be granted by heaven and thus inalienable . . . respect for individual rights and individual identity in the West is inconceivable for the Japanese, just as Japanese respect of state sovereignty and the state is inconceivable for Westerners.
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Yet some Japanese obstinately took their cue from Western legal thinking. In 1937, shortly after the outbreak of war with China, a scholar contended that justice is

an objective spirit that transcends the reality of the state while providing the foundation for its existence. In other words, rather than a principle created by the state, justice is the fundamental principle that gives rise to the state. The state does not define justice; on the contrary, justice rules the state.
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The magazine issue in which these words appeared was immediately banned.

Other experiences of the first four and a half decades of this century – the hated Peace Preservation Laws of 1925 and 1928, the ‘thought police’, the partiality of judges, police and prosecutors – did nothing to familiarise the Japanese people with the idea of political rights. Such notions had to wait for the programme to ‘democratise’ Japan after its defeat in 1945. An important effort was then made to help ordinary citizens perceive their legal rights. But was it the great watershed in Japanese legal history that it is supposed to have been?

There can be no doubt that much has changed because of the intervention of the United States occupation. Few Japanese today are afraid to speak their mind. And there exists a fairly common idea that the government has, at the very least, an
obligation
to show benevolence. Benevolence is no longer something voluntarily bestowed on the nation by the emperor.

Nevertheless, the general view of law remains similar to what it was before 1945. On the whole, Japanese still think of law as an instrument of constraint used by the government to impose its will. Japanese officials are free to pick and choose among laws, using them to further their own causes. When law and bureaucratic policy appear to conflict, officialdom adjusts the law to the policy by newly ‘interpreting’ it.
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The wording of many laws has been left purposely vague to make such expediency easier. A Japanese scholar compares many laws passed in the Diet to contracts signed before being read.
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LDP Diet members have a stake in legislation favouring their pork-barrel clients; they are not in the business of scrutinising bills to determine whether these contribute to, or detract from, social justice. An education minister remarked in 1958, in connection with a law relating to efficiency ratings of teachers: ‘Anyone is free to interpret laws as they like, but as to this law, I want you to respect the view of the education minister.’
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He was not joking.

The professors of the law department of the University of Tokyo, the nearly exclusive breeding-ground for top administrators, appear to view the law as essentially an aid to administration. They still blindly accept the centuries-old premiss that the government is automatically superior to the people, believing that ‘by nature, the people cannot understand the political realm and therefore should not criticise the administration’s policies’.
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Conversely, laws are deemed legitimate by the populace only because they are administered by a class of people who have always had the right to do so, and not because they conform to any popular sense of justice. As it applies to the ordinary citizen, law is still ‘synonymous with pain or penalty’.
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Of course, Japan formally subscribes to international concepts of justice. But Japanese political habits have prevented these from becoming a truly living force. Human rights, democratic freedom and a new idea, the ‘right to peace’, are made much of, but as ideas remain vague and undefined. None has instilled sufficient conviction or been accompanied by sufficient political will to nurture explicit theories applicable to concrete political programmes.

Champions of disadvantaged groups may bandy arguments about ‘rights’, but my experience of such campaigns suggests that any satisfaction they may obtain results from tactics of intimidation and other kinds of pressure, not from a general concept of justice. Traditional attitudes, reinforced by contemporary practice, obstruct the establishment of an unambiguous concept of ‘rights’. The word
kenri
was introduced to convey this idea, and one of its two characters connotes impartiality. But a well-known Japanese legal scholar comments that ‘at the present time almost everyone disregards the sense of impartiality that the word implies. For the average Japanese this word conjures up something related to egoism.’
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This absence of a sense of ‘rights’ has many striking consequences. One, often lamented by foreigners, is the lack of civic courage among Japanese. Another is the manifest obstacle it poses to genuine internationalism. In no way does Japanese education, or any other element in the System, teach people that it is proper to stick out their necks on behalf of some causes. This attitude is clearly reflected in the ethic of submission of the salaryman world; and in Chapter 10 we will see how it is further reinforced by a powerful ideology of ‘Japaneseness’.

The distinctions I have hitherto made have often been explained in terms of a facile division between ‘Western individualism’ and an allegedly Asian readiness to sacrifice individual interests for the sake of the community. However, this is not a satisfactory perspective. With respect to legal awareness, a sense of political rights and civic courage, attitudes in Asian countries such as South Korea and the Philippines diverge very widely from those in Japan.

There was a short period in the early 1970s when four major court trials, started by leftist activist lawyers on behalf of pollution victims, suggested a development of revolutionary proportions.
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The success of this litigation and the intensive publicity that accompanied it made a large number of ordinary Japanese realise for the first time the possibility of using the courts for the articulation of grievances. It suddenly seemed that any group or person, even those without close ties to strong elements within the System, had access to a forum from which to influence major social decisions.
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The officials concerned reacted with alacrity. Amidst an acute sense that the administrators were losing control of society in one area, and that the tendency might spread to other spheres, decisive action was taken to ensure that successful litigation on such a scale would be a one-time-only affair. Laws and administrative directives were quickly introduced to return initiative from the hands of the judges back to the bureaucrats. Leftist lawyers had talked the pollution victims into going to court, so a campaign against a leftist-influenced association of lawyers and judges was intensified. Judges, as we will see later, were put under indirect but effective pressure to restrain their enthusiasm for the rights of pollution victims. In the smaller trials that followed the litigants had clearly much less chance of success than did the victorious trail-blazers.

The role of law in the System is most effectively minimised by keeping the number of lawyers and judges very small. Japan does not have enough legal professionals to support even a fraction of the litigation common to European countries, not to mention the United States.

Going to court to claim a right is therefore an option that a Japanese is never encouraged to consider. The number of civil suits per capita brought before the courts is roughly between one-twentieth and one-tenth of the figures for common-law countries.
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Virtually all cases of civil conflict are settled by conciliation, either out of court or before a judicial verdict is reached. This custom goes back at least to the Tokugawa period, when the authorities forced people to settle their differences by conciliation. A settlement out of court is satisfactory for many contemporary Japanese, but those who would prefer the less arbitrary judgement of a court are still given hardly any choice.

The common explanation for the persistence of this method is that it is consonant with an ancient and deeply rooted cultural concern with maintaining harmony. Litigation, by creating winners and losers, works against this ideal. Even lawyers and judges who are highly critical of contemporary Japanese justice tend to be convinced by such culturalist interpretations of this extraordinary – for an advanced industrial society – phenomenon.
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Yet there are good reasons to reject the culturalist explanation and, instead, view current judicial practice as a political legacy from the days when the Japanese were forced to settle by conciliation. The System prefers conciliation, and makes sure that it remains the preferred alternative to litigation. Relationships among Japanese groups – as distinct from the internal relationships among their members – tend to be anything but harmonious, and it is not easy to see why an individual would worry about disturbing ‘harmony’ with another individual who does not belong to the same social circle or is not a neighbour.
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In times when Japanese were given the opportunity to haul each other before a magistrate, as they were in the Kamakura period, they appear not to have been at all shy about it.
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Similarly, after the introduction of the modern legal system in the Meiji period, Japanese culture does not appear to have been as great an obstacle to litigation as it is said to be today. Another fact pointing, rather, to a political preference on the part of the System is that, as has been generally noticed, Japanese conciliation procedures almost always give the advantage to the more powerful disputant – thus helping maintain the status quo. A multitude of legal appeals taken to their logical or just conclusion might well break the System apart.

The judiciary and bar are kept artificially minuscule by strict controls over entry into the legal profession. The Ministry of Justice is gatekeeper to the Legal Training and Research Institute (LTRI), through which all those aspiring to become judges, prosecutors or lawyers must pass. This institute offers two years of not particularly heavy training, and graduation is almost automatic for everyone who is considered politically sound. But the annual passing rate for entry into the school is extremely low, at roughly 2 per cent; 486 out of 23,855 candidates passed the entrance examination in 1985. In 1986 eighty of the successful candidates were taking the exam for the fifth time. The semi-official justification for this state of affairs is the small share of the national budget that goes to the judiciary.
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The widespread idea that the Japanese are reluctant to enter the legal profession is pure myth. As one specialist has pointed out, the number of Japanese, relative to the total population, who took the judicial examination in 1975 was slightly higher than the figure for Americans taking a bar examination. And since 74 per cent in the United States passed in that year, compared to 1.7 per cent in Japan, the desire to become a lawyer in Japan must actually be much stronger.
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The number of judges has not even doubled since 1890, whereas the population has more than trebled.
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The demand for more judicial personnel obviously exists. Japanese courts are so overloaded with cases that even the simplest take between two and three years to resolve at the district court level. A bigger case may take ten years, if there are appeals. Final decisions that come a quarter-century after a plaintiff or defendant first faced a judge are not unusual.

Finding a lawyer is no simple matter either, and their scarcity makes them expensive. As of 1986 a mere 13,161 lawyers had been admitted to the bar.
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This means that Japan has one lawyer per 9,294 people, as compared with one for 360 in the USA, 872 in Britain and 1,486 in West Germany.
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Even after court proceedings have started, the plaintiff is still under great pressure to switch to the conciliation procedure. The judge will almost always continue to plead for an out-of-court settlement on the grounds that it saves time and money. If plaintiffs insist on a clear decision from the court, they may he given to understand that because of their non-co-operation the case will most likely go against them. Judges themselves tend to believe that to choose to pursue a case through the legal process reflects an inferior moral attitude.
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Under such circumstances, it is not difficult to understand why very few Japanese will resort to litigation and stick it out to the end. If a Japanese does decide to go to court, more often than not his distrust of the legal process grows. A survey by the Japanese federation of bar associations, Nichibenren, revealed that people with experience of litigation thought that judges ‘do not know the reality of society’ and that during the proceedings they were not given a sufficient chance to state their case.
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Given the awesome power of the System to deprive the Japanese citizen almost completely of the means to litigate, it should come as no surprise that action taken by the private individual against the government is virtually unthinkable. The Supreme Court refuses to use the powers of review given it by the post-war constitution as a means of safeguarding democracy.
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In combination with the far-reaching formal powers of government agencies in pursuing broad social policy, this has had the effect of almost totally insulating bureaucratic activity from judicial review.
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When activists persist in countering administrative decisions with lawsuits, the officials perceive this as a ‘radical’, almost violent action, hampering national policy-making.
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The bureaucrats have ample opportunity to mould the judiciary via the entrance exams and training at the government-run LTRI. Trainees are carefully watched. Those considered suitable to serve as prosecutors receive special training that is kept secret from fellow trainees destined to become lawyers and judges. They are invited to the homes of highly placed prosecutors, and automatically hooked up to the
jinmyaku
of the seniors.
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One result is a tightly hierarchical procuracy that remains easily controllable from above.

Prospective judges are also carefully screened for their political predilections, and trainees who show sympathy with the liberal causes of the day are carefully weeded out. As for the lawyers, the LTRI does not create very self-confident ones. One authority has noted:

Japanese attorneys show no sentiment of independence worthy of their task before judges. The Japanese attorney lives in an environment where everyone thinks the government is good and where private initiative is disdained. Because of this he is obsessed by an inferiority complex when in court. Some attorneys address the judge with great deference, as if they were begging them to give judgment in their favour, and out of court they display an ill-founded mistrust of the judiciary.
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In fact, there appear to be good grounds for a certain degree of mistrust.

Socially instilled acceptance of the world as it is makes the Japanese relatively pliable in the hands of the judicial authorities. The judges themselves seem almost equally malleable, and have allowed their authority to slip from their grasp. Post-war judges are in theory independent of administrative control, and may be judged only by their colleagues. But the dividing line between judiciary and administration, so carefully drawn by the occupation authorities, was carefully undrawn once the occupation ended. Since then, the bureaucracy has crept up on the judges. Their fear of bureaucratic opinion, in connection with tenure and promotions, looms almost as large now as it did before the war.

The pivot of bureaucratic control is an institution set up for an entirely different purpose: the General Secretariat of the Supreme Court. In the post-war arrangement, all courts were supposed to be autonomous. To guarantee this, judges were given power to decide on all matters pertaining to their own courts, and to help maintain this autonomy each court was provided with its own secretariat. The General Secretariat of the Supreme Court was itself meant to perform a similar task,
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while judicial administration at the highest level was put in the hands of the Conference of the Justices of the Supreme Court. The authority of the latter body has, however, gradually become perfunctory, and effective power has been transferred to the General Secretariat.
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At the lower levels, judges have been encouraged to leave miscellaneous matters of court administration to the ‘director’ of the court, on the grounds that this would leave them free to concentrate completely on judicial proceedings.
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In 1955 the Supreme Court revised the rules pertaining to lower courts in an effort to knit together the judicial administration of the entire country. As a result, the ultimate administrative authority of each court was entrusted to its ‘director’ and newly devised standing committees, controlled in turn by the General Secretariat of the Supreme Court. The latter body of bureaucrats now monitors the entire Japanese judiciary. The bureaucrats, rather than practising judges, control appointments, promotions, salaries and dismissals. The General Secretariat of the Supreme Court can monopolise all kinds of information and documents concerning the lower courts, and has steadily expanded its grip over the judiciary through its own regulations and selective staff appointments.
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It also has virtually complete control over the Legal Research and Training Institute.

This important shift of power was accomplished without much difficulty. The judges of the highest tribunal have been a poor match for the bureaucrats. Two-thirds of the fifteen Supreme Court judges are not career judges but, mostly,
amakudari
bureaucrats from various ministries; they serve relatively short terms, and remain fairly ignorant of judicial administrative matters.
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Many of the career judges educated under the old constitution returned to their benches after the war without changing their ideas. On the other hand, most prominent members of the General Secretariat of the Supreme Court in the early post-occupation period were dyed
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in-the-wool bureaucrats from the pre-war Ministry of Justice. They had fought against major structural changes in the immediate post-war years, but had been overruled by a combination of occupation authorities and democratically inclined judges from the pre-war Daishinin (Supreme Court).
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For some years considerable friction persisted between the reformist and traditionalist groups, but in 1950, when anti-leftist hardliner Tanaka Kotaro was installed as chief justice of the Supreme Court, the post-war judiciary was already taking on the shape it has today. By 1954 a person such as Ikeda Katsu, closely identified with pre-war ‘thought control’ measures and verdicts, could be appointed Supreme Court justice, a position he held for ten years. Ishida Kazuto, another pre-war jurist who had been important in prosecuting ‘thought crimes’ in the late 1930s and early 1940s, became chief justice in 1969.
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The General Secretariat of the Supreme Court represents the so-called ‘élite course’ of the judicial bureaucracy. A typical judicial bureaucrat begins as assistant judge in one of the six bureaux of the secretariat. Almost always, he will have graduated from the University of Tokyo or Kyoto; ideally he will have passed the entrance exam to the LTRI while still a student. Besides his
gakubatsu
(school clique), he will often have
keibatsu
ties,
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formed through marriage to, for example, the daughter of a top official in the secretariat or the prosecutors’ office. With such advantages the General Secretariat careerist is in a privileged position to reach the pinnacles of the Japanese judicial world.
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The officials of the pre-war Ministry of Justice have been gradually replaced by this élite, whose members tend to be appointed as administrative chiefs of district courts and directors of high courts. The career judges who account for one-third of the Supreme Court come from their ranks. In this manner the Japanese judiciary has gradually reverted to the pre-war system in which a privileged group of judicial bureaucrats held sway over practising judges. In response to criticism concerning that group’s lack of court experience, adjustments have been made so that it no longer totally monopolises the higher positions. Even so, in appointments to the Supreme Court experience at the secretariat still far outweighs practical judging experience.
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The Supreme Court has gained a reputation for overturning decisions against the government made by lower courts. It has also reversed decisions restraining police control of leftist demonstrations, and decisions granting the right to strike to government employees such as railway and postal workers. Strict secrecy has not been able to hide the fact that the Supreme Court sometimes instructs lower courts as to the kind of decision it expects them to make, for example in the areas of labour and medicine. In 1987 it was revealed that in December 1983 the Supreme Court had summoned judges involved in some forty flood-related suits in various parts of the country, and told them how it would decide in an upcoming verdict concerning government responsibility for river management.
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In ordinary criminal cases, the Supreme Court has demonstrated sensitivity to human rights ideals, but in cases involving the administration, or political controversy, it has a reputation for extreme passivity.
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