Subcommittee on Guarantee of Fundamental Human Rights (Fifth Meeting)

Thursday, May 27, 2004

Meeting Agenda

Matters concerning the guarantee of fundamental human rights (rights during criminal proceedings, including issues of correctional policy, and the human rights of crime victims)

After a statement was heard from Professor TAGUCHI Morikazu concerning the above matters, questions were put to him. This was followed by free discussion among the members.

Informant

  • TAGUCHI Morikazu, Professor, Waseda University School of Law and Waseda Law School

Members who put questions to Prof. TAGUCHI

Main points of Prof. TAGUCHI's statement

1. The significance of constitutional norms concerning human rights in criminal proceedings

>> The Japanese Constitution has as many as ten articles relating to criminal proceedings—an unusually large number. We must take note of the weight that norms for criminal proceedings carry in the Constitution, including the process by which they were enacted.

>> A nation's provisions for the administration of criminal justice determine how it treats people in an extreme state and can be said to indicate its level of civilization. Thus, giving these provisions prominence in the national constitution is one approach.

>> Constitutional norms are inevitably abstract in nature. This is acceptable provided that they are interpreted in such a way as to ensure the internal consistency of the legal order.

>> In the future, an important issue will be the guarantee in criminal proceedings not only of "negative" human rights, i.e., ensuring that the state does not violate the human rights of suspects and other parties, but also of "positive" human rights, i.e., respecting the self-determination of suspects and other parties in concrete ways.

2. A more detailed look at human rights in criminal proceedings

[1] The human rights of suspects

>> I believe that the provisions of Article 31 on due process mean that when there is a conflict between investigating the facts of a case and the guarantee of fundamental human rights, due process should take precedence.

>> With regard to physical custody (Articles 33 and 34), there is some question as to the constitutionality of emergency arrests without a warrant (Article 210 of the Code of Criminal Procedure), but they can properly be construed as constitutional since they can be regarded as a case of reasonable arrest, of which one example, arrest while the offense is being committed, is given in the Constitution. Also, I regard the introduction of a system of public defenders for suspects in the recently enacted revisions of the Code of Criminal Procedure as a major step forward in giving legal weight to the spirit of Article 34's provision on the privilege of counsel.

>> With regard to search and seizure (Article 35), the Communications Interception Law (1999) lays down a very meticulous procedure. Also, bills currently before the Diet seek to revise the Criminal Code and other laws in order to improve the procedure for seizure of magnetic records of cyber or high-tech crimes, among other measures.

[2] The human rights of the accused

>> With regard to trials (Article 37), steps have been taken to introduce a lay judge system and to expedite trials, in part by revising the Code of Criminal Procedure. The requirement that the proceedings be "speedy" presupposes that the defendant must adequately understand their meaning.

>> In connection with the privilege against self-incrimination in Article 38, it would be well worth considering the introduction of a system of immunity from prosecution and a system of arraignment (in which a guilty plea would be sufficient basis for a conviction).

>> Some people question the constitutionality of the lay judge system in view of the "right of access to the courts" (Article 32). The Constitution is silent on the matter of public participation in the administration of justice, but in light of the spirit of popular sovereignty, the Constitution should probably be understood as anticipating a role for the public.

3. The human rights of persons convicted of a crime

>> I believe that the death penalty does not come under the heading of "cruel punishment," which is prohibited by Article 36. Nevertheless, it is to be hoped that it will be abolished in the future.

>> In regard to the enforcement of freedom-restricting penalties, I take a positive view of the general direction of reforms in the Correctional Policy Reform Committee's recommendations (December 2003). Also, we should maintain the spirit of "correctional policy for social rehabilitation," which aims to educate the convict, not to seek retribution.

4. The human rights of crime victims

>> The argument that, as one of the parties affected by a crime, the victim also has certain rights was introduced to Japan from about 1985 on, and "victimology" was widely discussed.

>> There are three points to consider with regard to the legal status of victims: (a) the need for victim protection; (b) participation by the victim in the proceedings; (c) redress for victims. Steps have been taken to improve these points in concrete ways, mainly by revising the relevant laws.

>> However, the idea of writing new provisions on the human rights of victims into the Constitution should be approached with caution. It would be better to seek restitution of damage by encouraging a settlement procedure outside the criminal process with Article 13 of the Constitution as a basis, and then to reflect the results of this in the criminal process.

5. Conclusion

>> Reforms such as the introduction of a lay judge system and a public defender system for suspects can be said to affect not only the administration of justice but the very nature or "constitution" of the nation.

>> These reforms can be seen not so much as a movement from a state-centered to a people-centered system, but rather as a movement in which, through the democratization of state power, the people are becoming the subject of government instead of its object.

Main points of questions and comments to Prof. TAGUCHI

KURATA Masatoshi (Liberal Democratic Party)

>> In the revisions of the Code of Criminal Procedure enacted during the current session of the Diet, some progress was made in terms of the institutional framework by introducing a public defender system at the stage before a suspect is charged with a crime. However, there are still deficiencies, as the right to have counsel present during investigations was not recognized, and even audio recording of investigations was ruled out. I think that the right of a suspect or witness to have counsel present during questioning is essential if the ideals of the adversary system are to be realized. What are your views in this regard?

>> There is a problem in that, when a member of the American forces commits a crime, the U.S. authorities are reluctant to transfer custody of the suspect to their Japanese counterparts. The reason seems to be concerns arising from the fact that the right to have counsel present during interrogation is not recognized in Japan. In my view, the administration of criminal justice in Japan cannot be said to have reached world standards until this right, which is recognized in many countries, becomes law. Would you like to comment?


TSUJI Megumu (Democratic Party of Japan and Club of Independents)

>> Where criminal proceedings are concerned, the problem is not whether to revise the Constitution. The important question is to what extent criminal proceedings consistent with the Constitution's intent can actually be made a reality. In practice, a gradual relaxation of standards is occurring, as measured against the original intent of the Constitution; e.g., exceptions to the rule that hearsay evidence is not admissible are becoming more frequent. Shouldn't we be concerned about the institutional framework, and especially the growing gap that exists between the Constitution and its actual implementation?

>> In the current session, the Diet has passed the Law Concerning Criminal Trials with the Participation of Lay Judges and a revised Code of Criminal Procedure. Depending on how they are implemented, however, the new law and the revised Code could infringe the ideals of the Constitution. For example, if the system of pretrial proceedings created by the revised Code is implemented in such a way that the defense is required to reveal its trial strategy at the pretrial stage, this would infringe, among other things, the defendant's right to remain silent and the presumption of innocence, which places the burden of proof on the prosecution. I contend that we should either discuss the implementation of these laws in depth or take another look at the laws themselves.

>> I cannot altogether agree with the Judicial Reform Council's view that the people are becoming the subject of government rather than its object, because the true purpose of the Constitution is to protect human rights from state power. What are your thoughts on this point?


OTA Akihiro (New Komeito)

>> If we are to institutionalize the abolition of the death penalty, should explicit provision be made in the Constitution, or would it be sufficient to revise the Criminal Code, which is the relevant substantive law?

>> What are your thoughts regarding the fact that public opinion polls show a majority in favor of maintaining the death penalty, and also regarding the debate about establishing life imprisonment without parole as a substitute for the death penalty?

>> You commented that the Constitution is silent on a lay judge system, having no provisions either for or against, but you suggested that it anticipates a role for the public in the administration of justice in light of the principle of popular sovereignty. In that case, what do you think of adding provisions to the Constitution as a whole to reflect popular sovereignty in various areas?

>> Another issue related to the human rights of victims is the infringement of those rights by the news media. Recently, there have been controversial incidents such as the case in which publication of an issue of the magazine Shukan Bunshun was prevented by court injunction. What sort of restitution is possible when a person's human rights are violated by the media?

>> Further to Mr. KURATA's question about the right to have counsel present during interrogation, I would suggest that if the time limit on police detention poses a problem, the right to have counsel present could be granted for a limited period, e.g., for a certain part of the detention period. What do you think of this idea?


YAMAGUCHI Tomio (Japanese Communist Party)

>> The Constitution of Japan provides for criminal proceedings with a level of detail not seen in the constitutions of other countries. To understand this, I think it is important to take into account the historical background, namely, the gross violations of human rights that occurred under the Peace Preservation Law in the first half of the 20th century. Do you agree?

>> With regard to the revisions of the Code of Criminal Procedure, our party takes a positive view of the introduction of a system of public defenders for suspects, but we are nonetheless opposed to the revised law as it stands, due to a number of problematic points which could violate the rights of suspects and defenders, such as the prohibition on the use of disclosed evidence for purposes other than those specified. You pointed out that Article 34's provision on the privilege of counsel effectively includes a guarantee of defense activities, but do you think that the recent revision of the Code provides an adequate guarantee for a counsel's activities in defense of a suspect? Also, what points do you think need to be borne in mind in drawing up an adequate guarantee?

>> Do you think that the constitutional basis for the human rights of victims can be found in Article 13? Also, are Article 25 and related provisions part of the basis for your argument?

>> In December 1989, the UN General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Could you please describe the international trend regarding the death penalty?


TERUYA Kantoku (Social Democratic Party)

>> According to a Yomiuri Shimbun opinion poll on the lay judge system (in the May 27, 2004 issue), while half the public favors its introduction, close to 70 percent do not want to serve as lay judges. The main reasons cited are "I am not confident of being able to correctly judge someone's guilt or innocence," and "I feel reluctant to pass judgment on someone." I would like to hear your reaction to these findings.

>> By forcing members of the public to judge others against their will, and by imposing strict confidentiality backed by criminal penalties, the lay judge system creates a new duty of the people with no constitutional basis, and some critics say that it violates Articles 13, 18, 19, and 21. I would like to hear your views on this question.


MATSUNO Hirokazu (Liberal Democratic Party)

>> In Japan, the names of suspects are published in the news media before they have been charged with any crime, which means that even if they are later proved innocent, irreparable damage has already been done. Also, sometimes the media investigate the background of a person convicted of a crime, but in both instances it is questionable whether the coverage is justified by the public's right to know. I would like to hear your views on these questions.

>> In the United States, measures are taken to publish addresses and other information relating to habitual sex offenders who are likely to offend again after they have completed a prison term and been released. How do you think a balance should be struck between the human rights of persons who have served their sentence and the need for crime prevention measures?


KANETA Seiichi (Democratic Party of Japan and Club of Independents)

>> You said that while the death penalty cannot be called unconstitutional, we should consider abolishing it. I would like to hear your opinion on this issue in a little more depth.

>> The Diet Members' League for the Abolition of the Death Penalty has drawn up proposals with three key points: (a) the creation of an effective life sentence with no possibility of parole; (b) the establishment in each House of an ad hoc commission on the maintenance or abolition of the death penalty, charged with reaching a final conclusion within about three years; (c) a moratorium on executions while debate continues in these commissions. I would like to hear your comments on these proposals.

>> I think that Japan is lagging behind internationally with regard to guaranteeing the human rights of victims. Could you explain the main points to be considered in addressing the human rights of victims?


TANAHASHI Yasufumi (Liberal Democratic Party)

>> From the viewpoint of the human rights of suspects, it is essential that investigations be transparent to ensure due process in criminal cases. On the other hand, the work of investigation has become more difficult recently, as the long-standing Japanese belief that those who have committed a crime should confess their guilt is on the wane, and unless we strengthen investigators' powers, including their ability to conduct undercover operations, we risk undermining the public's confidence by giving the impression that criminals get off scot-free. Accordingly, in thinking about human rights in criminal proceedings, as I see it, from the viewpoint of the human rights of the public as a whole, we will not be providing a guarantee of human rights in the true sense unless we strengthen investigators' powers while also ensuring that investigations are transparent. Would you like to comment?

>> I am in favor of maintaining the death penalty. There is a wide range of opinion on this subject, but the most important thing is the public's understanding of the essential meaning of punishment. I cannot argue with the public sentiment that asks simply why someone with no respect for the life of another human being should be entitled to claim respect for his or her own life. I believe that the aspect of retribution is an important part of the essential nature of punishment. What are your thoughts in this regard?

Main points of comments by members in the free discussion (in order of presentation)

MURAKOSHI Hirotami (Democratic Party of Japan and Club of Independents)

>> The lay judge system can be seen as a positive step in terms of making the administration of justice more open. However, if it is being introduced merely because judges are out of touch with citizens' attitudes, that goal should be addressed by in-service training. I agree with Prof. TAGUCHI's view that it is meaningless to give precedence to the institutional framework and change the format if this is not accompanied by substantive change. In-service training for judges is also important to guard against this danger.


TANAHASHI Yasufumi (Liberal Democratic Party)

>> The essence of the administration of justice is independence and fairness, and democratic controls have been put in place, such as popular review of Supreme Court justices and impeachment trials. However, in my view, the Constitution does not require an extensive public role in the administration of justice. We should approach the introduction of the lay judge system in terms of maintaining the fairness of the courts by incorporating the judgment of members of the public into the results of trials, as the judiciary is sometimes said to be rather out of step with popular sentiment.

>> In thinking about the case for abolishing the death penalty, we must recognize the fact that an increasing number of people, especially young people, are willing to commit a crime because they are not daunted by the prospect of spending some time in jail. Given this state of affairs, which has the greater deterrent effect, a definite term of imprisonment or the death sentence? In my view, this question requires careful debate; we should not be too quick to conclude that the deterrent effect of the death penalty is no different from that of a fixed term of imprisonment.


YAMAGUCHI Tomio (Japanese Communist Party)

>> We should continue to be mindful of the historical background which led to the Constitution's provisions for criminal proceedings having a level of detail that is not seen in other countries, rather than viewing it as a thing of the past.

>> It is not enough just to enact a constitution; in the six decades since it was enacted, the present Constitution has been given concrete form by an accumulation of case law, practice, and academic theory. In this regard, there are many points which need to be improved in order to conform to the constitutional norms; e.g., the excessive emphasis placed on confessions, the detention of suspects for long periods, and the restrictions on a suspect's right of private access to a legal representative. Listening to the question and answer session today, I felt the need to formulate measures for the human rights of suspects, defendants, and victims, while keeping in view events as they occur, in order to give the constitutional norms greater practical effect.

>> I take a positive view of the lay judge system, but at the same time, as we heard when Mr. TERUYA quoted the opinion poll results, a great many problems remain to be solved. As the legislative branch, we must work to bring about the system's implementation.


KANETA Seiichi (Democratic Party of Japan and Club of Independents)

>> There is a divergence of opinion as to whether the death penalty should be maintained or abolished, taking into account its deterrent effect, the possibility of wrongful convictions, and so on. That is why the Diet Members' League for the Abolition of the Death Penalty has called for the establishment of an ad hoc commission in each House to debate the issue thoroughly. I hope I have made this point clear.


FUNADA Hajime (Liberal Democratic Party)

>> We must be fully aware of the historical background and the enactment process which together account for the fact that the Constitution's provisions for criminal proceedings have a level of detail not seen in other countries.

>> I found Prof. TAGUCHI's comments on the concept of "negative" and "positive" human rights very thought-provoking. I think it is worth studying the idea of incorporating a system like arraignment, which is one of the "positive human rights," into the Constitution.

>> In a 1999 opinion poll on abolition of the death penalty, although immediate abolition did not have the support of the majority, 38 percent answered that the death penalty could be abolished in the future if the situation changed. Taking this into account, I think we need to watch what happens to these figures in the future. We certainly should not take a fixed position on this issue.


TERUYA Kantoku (Social Democratic Party)

>> Today's session has convinced me that there is no need to revise the Constitution in connection with criminal proceedings. Instead, I would question whether the existing provisions are being faithfully implemented.

>> Looking at the opinion poll on the lay judge system, I get the feeling that many members of the public have misgivings about forcing people against their will to pass judgment on others, and I think that the system quite possibly violates Articles 13, 18, 19, and 21.

>> Moreover, the lay judge system does nothing to overcome or remedy the problems in the existing criminal justice system and its implementation. On the contrary, I believe that the system violates Articles 31, 32, and 37, in that the court is able to make a finding of facts constituting an offense and to issue a punishment through a process that is simplified and speeded up by further suppressing the defendant's right to a defense and right to counsel.


TSUJI Megumu (Democratic Party of Japan and Club of Independents)

>> It seems to me that the thinking behind judicial reform was put very clearly by Prof. SATO Koji, chairman of the Judicial Reform Council, when he said that "it makes the people the subject of government rather than its object." I feel very uneasy about this, however, because what it means is that, in the name of reform, the guarantee of the people's "freedom from the state"—the very essence of the Constitution—is being transformed and the people are being made one with the state.


KURATA Masatoshi (Liberal Democratic Party)

>> It would be possible to have a system in which the defendant can choose between trial by lay judges and trial by professional judges only. I think we should consider this possibility while watching developments over the five years until the law comes into effect.

>> When I was young, I was against the death penalty, but as I grew older I came to favor retaining it, while understanding that, ideally, abolition would be preferable. Considering how my own position has changed, there was much food for thought in Prof. TAGUCHI's comment that "One approach to the question is to focus less on the essential nature of punishment and more on its function, and it would surely be appropriate to abolish the death penalty once we have reached a level at which social order can be maintained without it."


NAKAYAMA Taro, Chairman of the Commission

>> As Prof. TAGUCHI began by commenting, "My image of the Research Commission on the Constitution was that it spent all its time discussing Article 9," I was reminded that it is important to increase public awareness of the fact that the Commission is conducting broad and comprehensive research on the Constitution.