For over 120 years, from the establishment of the modern judicial system in the early Meiji Era to the present day––except for a brief period in the early Showa Era––no system existed in Japan to allow public participation in criminal trial proceedings. The Japanese criminal justice system has been entrusted entirely to the hands of legal experts, namely, judges, public prosecutors, and attorneys.
However, based on the recommendations of the Justice System Reform Council, the government has made an epoch-making decision to introduce the system of public participation in criminal justice. This decision has been viewed as a legal reform as revolutionary as the establishment of the modern judicial system in the early Meiji Era and the constitutional overhaul in the aftermath of World War II, and such comparison is well-justified. Yet if we ask ourselves whether the criminal justice system in Japan was in fact unsustainable without public participation, the answer is “no.” A well-known scholar has stated that “the majority of the Japanese people, including criminal justice experts and the general public, did not believe that the criminal justice system was of a poor quality as compared with western developed countries, or was facing a crisis such as a serious breakdown, malfunction, or loss of public confidence, to provide strong pressure for reform.”
To understand the objectives behind the introduction of the new system, one must decipher the recommendations of the Justice System Reform Council. In these recommendations, the Council describes the “fundamental philosophy” for reform of the justice system, stating that “this Council has determined that the fundamental task for reform of the justice system is to define clearly what we must do to transform both the ‘spirit of the law and the rule of law into the flesh and blood of this country,’ so that they become the constitution of our country” and “what is necessary to realize, in the true sense, respect for individuals (Article 13 of the Constitution) and popular sovereignty (Article 1), on which the Constitution of Japan is based.” With respect to the significance of the series of political and administrative reforms in the 1990s, the Council states that “[w]hat commonly underlies these reforms is the will that each and every person will break out of the consciousness of being a governed object and will become a governing subject, with autonomy and bearing social responsibility, and that the people will participate in building a free and fair society in mutual cooperation.” The Council describes “the shape of Japanese society in the 21st century” as involving “a transformation in which the people will break out of viewing the government as the ruler (the authority) and instead will take heavy responsibility for governance themselves, and in which the government will convert itself into one that responds to such people.” The Council further states that “the courts (the judicial branch) shall be positioned as a pillar supporting ‘the space of the public good’ in parallel with the Diet and the Cabinet (the political branches).” The Council stresses that the public should play a role in the justice system, stating that “it is incumbent on the people that they support and deepen their understanding of the administration of justice by participating in certain trial procedures and becoming involved in various other ways.”
In essence, the Council considers that the central theme of the judicial reform is to help people shift their perception of themselves as being a governed object to a governing subject, and to recognize that the justice system belongs to them and that it is they who are ultimately responsible for supporting the system by becoming actively involved. The Council views the introduction of the system of public participation in trial proceedings as the only way to achieve those goals.
The points mentioned above are now embodied in Article 1 of the Act on the Participation of Citizens in Certain Criminal Proceedings, which provides that “this Act establishes the criminal trial system in which citizen judges selected from the general public participate in criminal trials with professional judges, in view of the fact that such participation will contribute to the furtherance of the public’s understanding of and confidence in the justice system.” |
(i) Citizen judges are selected at each district court. To give as many citizens a fair chance to participate, an Election Administration Commission selects by lot from its electoral register the requisite number of potential citizen judges, and sends the list of candidates to the district court. The district court uses the list to prepare its own list of candidates and notifies the individuals named in the list. Citizen judges will be selected from that list for each case. The court panel will in principle be composed of three (3) professional judges and six (6) citizen judges, although a smaller panel consisting of one (1) professional judge and four (4) citizen judges may hear a case where facts are undisputed.
(ii) Given the objectives of the introduction of the lay judge system, the cases of great public importance and interest will be tried under the new system, namely, (a) cases involving crimes punishable with death penalty or life imprisonment with or without work, and (b) cases which are prescribed to be heard and judged by a panel, excluding cases covered by (a), and which involve an intentional criminal act causing the death of another, such as dangerous driving causing death (paragraph 1 of Article 208-2 of the Penal Code) and other serious crime cases.
(iii) Professional judges and citizen judges will have equal authority to decide on the guilt or non-guilt of the accused, make a finding of fact pertaining to transfer to family court, apply laws and regulations, and determine a sentence. A decision will be made by a majority vote of the panel that includes the opinions of both professional and citizen judges. On the other hand, the professional judges alone will decide on the interpretation of laws and regulations and the question of procedures, which are highly technical and require prompt judgment.
(iv) The appeal system remains unchanged, and cases will continue to be handled by professional judges. |
According to the results of a recent public opinion survey, etc., the public awareness towards the lay judge system is increasing at least in numbers. However, only 15.5% of the public said they would actively participate in the system, and even including the less-enthusiastic individuals, who said they would participate in the system only as they were legally obligated to do so, the number of people who said they would participate in the system only amounted to 60%. The government is currently making all-out efforts to raise public awareness concerning the citizen judge system by the time of its implementation in May 2009.
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