ID :
59708
Sat, 05/09/2009 - 04:15
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https://oananews.org//node/59708
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FOCUS: Lay judge system to start May 21, but concerns abound+
TOKYO, May 8 Kyodo - For the first time since World War II, Japan will have ordinary citizens serve as judges in serious criminal cases in hopes of reforming a justice system criticized for being too abstruse and out of touch with popular sentiment.
The ''saiban-in (lay judge)'' system will shift the emphasis at trials to
courtroom exchanges and away from lengthy out-of-court perusal of investigative
records. But concerns and objections are casting a shadow over its prospects
ahead of the May 21 start date.
While the government has been promoting the lay judge system ever since it
passed into law in 2004, many people appear uncomfortable with the idea of
handing down a sentence, especially a death sentence, and some lawmakers are
planning to submit a last-minute bill to stop the system being implemented,
arguing that it could be unconstitutional.
''I can't even tell whether I am for or against the system because I don't
really understand why it was created and what it is for. I'm also not prepared
to hand down a death penalty,'' said Nao Kimura, a 21-year-old Sophia
University student who attended a recent symposium in Tokyo on the lay judge
issue.
In a lay judge trial, six citizens, randomly selected from among eligible
voters, will examine serious criminal cases, such as murder, together with
three professional judges at district courts and reach a verdict. Should they
find the defendant guilty, they will then determine the sentence. In that
sense, it is different from the jury system in such countries as the United
States and Britain, in which the jurors convict or acquit and judges determine
the sentence.
The lay judge system was proposed in June 2001 by a government judicial reform
panel, which concluded that by having ''the sound social common sense of the
public'' reflected more directly in judgments, public understanding and support
of the justice system will deepen.
Behind the move were calls from the business world in the 1990s to enhance the
role of the judiciary in settling disputes in an era of deregulation, and
question marks over the reliance on forced confessions obtained during
closed-door interrogations, highlighted by a number of guilty verdicts in
capital cases being overturned during retrials in the 1980s.
The lay judge system will be accompanied by a new ''pretrial arrangement
procedure,'' which aims to narrow down the arguments and evidence before going
to open trial to keep proceedings short so as to lessen the burden on lay
judges and make it easier for them to reach a verdict.
Other criminal procedures are also undergoing change, with interrogations now
being partially videotaped to ensure greater transparency of investigations --
something for which the Japan Federation of Bar Associations has been pushing.
''This is happening because legal experts started to think that they have to
make trials...more transparent, fair and speedy to accept lay judges,'' Satoru
Shinomiya, a lawyer who was involved in compiling the lay judge law, told the
symposium.
But some say that the current judicial process needs to be improved further
before the introduction of the lay judge system, while others argue that the
system violates the Constitution and that penalties to be imposed on lay judges
who breach the lifetime secrecy obligation are excessive.
''As I have a principle not to judge anyone, the system would deny my
(constitutionally guaranteed) freedom of thought and belief,'' a former junior
high school teacher, 67, told an anti-lay judge gathering in Tokyo late April,
publicly revealing his name and his listing as a judge candidate, although this
is banned under the law.
Referring to the punishment imposed on lay judges for leaking the process or
content of their deliberations -- up to six months in prison or 500,000 yen in
fines, he added, ''How can judicial reform be realized by keeping us silent?''
Such issues have also drawn the attention of a cross-party group, including
lawmakers of the ruling Liberal Democratic Party and the main opposition
Democratic Party of Japan, formed April 1 with the aim of reviewing the system.
Hisaoki Kamei, secretary general of the opposition People's New Party who
represents the group, said during a meeting of the group, ''Introducing a
system that no one appears to be happy with is the result of a flawed political
decision... And it is only the legislative body that can stop or review the
system.''
The group has argued that the threat of heavy punishments hanging over lay
judges who speak out could prevent them airing their concerns in instances when
they felt that the professional judges had erred in their guidance or distorted
deliberations. It also worries that a person's thoughts or principles may not
be accepted as reasons for turning down lay judge duty.
Citizens can refuse to participate in the lay judge system under certain
circumstances, including ''when aged 70 or above,'' or when a lay judge or
another party would undergo serious mental distress as a result. Religious
beliefs are expected to release people from duty, since serving as a lay judge
may involve handing down a death penalty.
Legal experts think that once the system starts, anti-lay judge lawyers may
resort to lawsuits to question its constitutionality.
Contrary to popular perception, this will not be the first time that ordinary
citizens have participated in trials.
A jury system was adopted in serious cases from 1928 to 1943 on the back of
democratic movements in Japan in the early 20th century. But the system was
scrapped, partly due to the rise of militarism, experts say.
But the fact that the system was abandoned in the past does not necessarily
mean, as some have suggested, that citizen-participation does not fit with the
Japanese national character, according to Masakazu Doi, a professor at the
Kyoto University Law School.
''Japanese people should be more confident about themselves. As we have decided
to adopt the system, we should seek to create one that can serve as a reference
for other countries,'' he said.
He also said that citizen participation in trials could result in the public
''seriously'' considering whether to retain capital punishment in Japan and
enable people to ''properly'' judge the issue.
The lay judge law stipulates that the government will review the system if
necessary three years after its introduction.
As the new system will be applied in cases for which indictments are filed on
May 21 or later, the first lay judge trial is expected to be held in late July
at the earliest, following the pretrial arrangement procedure.
According to a Kyodo News estimate in April, one out of 5,590 eligible voters
would be picked to serve as citizen judges.
==Kyodo
The ''saiban-in (lay judge)'' system will shift the emphasis at trials to
courtroom exchanges and away from lengthy out-of-court perusal of investigative
records. But concerns and objections are casting a shadow over its prospects
ahead of the May 21 start date.
While the government has been promoting the lay judge system ever since it
passed into law in 2004, many people appear uncomfortable with the idea of
handing down a sentence, especially a death sentence, and some lawmakers are
planning to submit a last-minute bill to stop the system being implemented,
arguing that it could be unconstitutional.
''I can't even tell whether I am for or against the system because I don't
really understand why it was created and what it is for. I'm also not prepared
to hand down a death penalty,'' said Nao Kimura, a 21-year-old Sophia
University student who attended a recent symposium in Tokyo on the lay judge
issue.
In a lay judge trial, six citizens, randomly selected from among eligible
voters, will examine serious criminal cases, such as murder, together with
three professional judges at district courts and reach a verdict. Should they
find the defendant guilty, they will then determine the sentence. In that
sense, it is different from the jury system in such countries as the United
States and Britain, in which the jurors convict or acquit and judges determine
the sentence.
The lay judge system was proposed in June 2001 by a government judicial reform
panel, which concluded that by having ''the sound social common sense of the
public'' reflected more directly in judgments, public understanding and support
of the justice system will deepen.
Behind the move were calls from the business world in the 1990s to enhance the
role of the judiciary in settling disputes in an era of deregulation, and
question marks over the reliance on forced confessions obtained during
closed-door interrogations, highlighted by a number of guilty verdicts in
capital cases being overturned during retrials in the 1980s.
The lay judge system will be accompanied by a new ''pretrial arrangement
procedure,'' which aims to narrow down the arguments and evidence before going
to open trial to keep proceedings short so as to lessen the burden on lay
judges and make it easier for them to reach a verdict.
Other criminal procedures are also undergoing change, with interrogations now
being partially videotaped to ensure greater transparency of investigations --
something for which the Japan Federation of Bar Associations has been pushing.
''This is happening because legal experts started to think that they have to
make trials...more transparent, fair and speedy to accept lay judges,'' Satoru
Shinomiya, a lawyer who was involved in compiling the lay judge law, told the
symposium.
But some say that the current judicial process needs to be improved further
before the introduction of the lay judge system, while others argue that the
system violates the Constitution and that penalties to be imposed on lay judges
who breach the lifetime secrecy obligation are excessive.
''As I have a principle not to judge anyone, the system would deny my
(constitutionally guaranteed) freedom of thought and belief,'' a former junior
high school teacher, 67, told an anti-lay judge gathering in Tokyo late April,
publicly revealing his name and his listing as a judge candidate, although this
is banned under the law.
Referring to the punishment imposed on lay judges for leaking the process or
content of their deliberations -- up to six months in prison or 500,000 yen in
fines, he added, ''How can judicial reform be realized by keeping us silent?''
Such issues have also drawn the attention of a cross-party group, including
lawmakers of the ruling Liberal Democratic Party and the main opposition
Democratic Party of Japan, formed April 1 with the aim of reviewing the system.
Hisaoki Kamei, secretary general of the opposition People's New Party who
represents the group, said during a meeting of the group, ''Introducing a
system that no one appears to be happy with is the result of a flawed political
decision... And it is only the legislative body that can stop or review the
system.''
The group has argued that the threat of heavy punishments hanging over lay
judges who speak out could prevent them airing their concerns in instances when
they felt that the professional judges had erred in their guidance or distorted
deliberations. It also worries that a person's thoughts or principles may not
be accepted as reasons for turning down lay judge duty.
Citizens can refuse to participate in the lay judge system under certain
circumstances, including ''when aged 70 or above,'' or when a lay judge or
another party would undergo serious mental distress as a result. Religious
beliefs are expected to release people from duty, since serving as a lay judge
may involve handing down a death penalty.
Legal experts think that once the system starts, anti-lay judge lawyers may
resort to lawsuits to question its constitutionality.
Contrary to popular perception, this will not be the first time that ordinary
citizens have participated in trials.
A jury system was adopted in serious cases from 1928 to 1943 on the back of
democratic movements in Japan in the early 20th century. But the system was
scrapped, partly due to the rise of militarism, experts say.
But the fact that the system was abandoned in the past does not necessarily
mean, as some have suggested, that citizen-participation does not fit with the
Japanese national character, according to Masakazu Doi, a professor at the
Kyoto University Law School.
''Japanese people should be more confident about themselves. As we have decided
to adopt the system, we should seek to create one that can serve as a reference
for other countries,'' he said.
He also said that citizen participation in trials could result in the public
''seriously'' considering whether to retain capital punishment in Japan and
enable people to ''properly'' judge the issue.
The lay judge law stipulates that the government will review the system if
necessary three years after its introduction.
As the new system will be applied in cases for which indictments are filed on
May 21 or later, the first lay judge trial is expected to be held in late July
at the earliest, following the pretrial arrangement procedure.
According to a Kyodo News estimate in April, one out of 5,590 eligible voters
would be picked to serve as citizen judges.
==Kyodo
