Japan’s Supreme Court finds lay participation in criminal trials constitutional

On November 16, 2011 Japan’s Supreme Court ruled that the country’s new “saiban’in” system of citizen participation in serious criminal trials was constitutional. Issued unanimously by all fifteen of the court’s judges sitting en banc as a Grand Bench, this ruling effectively eliminates any constitutional doubts about the system which may have lingered after it commenced operations in May of 2009.

The saiban’in system, often called the “lay judge” system in English, adds six randomly-chosen lay judges to the panel of three professional judges which Japanese courts have traditionally used for trying serious criminal offenses (the law also allows for a court comprised of one professional and four lay judges for cases when there are no significant factual issues). The lay judges sit with the professional judges during the trial and have the opportunity to question witnesses. After the trial is over the lay judges deliberate with the professional judges to reach a verdict and decide upon sentencing in the event of a conviction.

The role of the lay judges is limited to helping evaluate the facts and decide upon punishment – questions of law and legal interpretation are left to the three professional judges (since all interactions between the professional and lay judges are conducted in secret, so this aspect of the system’s function remains murky). Verdicts are reached through a majority which must include at least one professional judge.

The appellant in the case was a Philippine woman who was sentenced by the new system to a hefty prison sentence for drug smuggling. In her appeal a number of claims were made including that the lay judge system violated the constitution, including the Article 32 right to access to the courts, the Article 37 right to a trial by an impartial tribunal and the due process requirements of Article 31. These claims are tied to claims under Chapter VI of the constitution (the section dealing with the judicial branch) including Article 76, which requires judges to be independent and prohibits special courts, and Article 80 which requires judges of inferior courts to be appointed by the cabinet for a period of ten years. Distilled to its essentials, the appellant’s principal argument appears to have been that since lay judges do not meet the criteria mandated by the constitution for judges exercising the judicial power yet are in a position to influence those professional judges who do, the procedural requirements imposed by the constitution on criminal trials have not been met.

The Supreme Court rejected these arguments, referring to the widespread use of civic participation schemes in the criminal justice systems of other countries as well as the principals of popular sovereignty underlying the Japanese constitution. Drawing an interesting distinction between the pre-war Meiji constitution which gave Japanese people the right to a trial by a judge, and the current constitution which speaks in terms of trials by a court, the grand bench essentially declared that a system of civic participation in which professional judges played a leading role would not violate the constitution.

That the Supreme Court would find the lay judge system to be constitutional was utterly predictable, one suspects even to counsel for the appellant. The Supreme Court as a bureaucracy having spent several years engaged in an extensive PR campaign promoting the new system prior to its commencement, it was simply impossible that the Supreme Court as a court would decide otherwise. For this reason, perhaps, the judgment appears a bit circular in places – the system was designed to be constitutional, therefore it is constitutional.

Since the court’s conclusion in this case was never in doubt, the real significance of this decision may lie elsewhere; in considering whether Japan’s Supreme Court is as conservative as it is often described. Since the court has often used restrictive rules on standing and resolutions of cases on narrow grounds to block rights-based claims or otherwise avoid politically controversial rulings in the past, to characterize it as politically conservative is probably not incorrect. However the ruling in the lay judge case suggests that the court is not judicially conservative in situations where its own interests may be served by an expansive ruling.

This observation is based on the fact that, in addition to considering and rejecting the appellant’s arguments relating to due process and court composition as described above, the Supreme Court also went so far as to deal with one of her other claims: that service as a lay judge constituted a form of involuntary servitude prohibited by Article 18.

Noting the various features of the system intended to both prevent it from being too burdensome on citizens and providing suitable flexibility to allow them to be excused from service, the court declared that service as a lay judge did not constitute servitude. Yet, it would seem that this argument could just as easily have been rejected on the grounds that the appellant, not herself having been required to act as a lay judge, lacked the standing to make the Article 18 challenge. That the Supreme Court nonetheless took the opportunity to address the merits of the argument and thereby forestall the possibility of future claims by lay judge candidates objecting to service may be an interesting example of an effort in judicial efficiency, but can probably not be characterized as a “conservative” exercise of judicial power.

–Colin P.A. Jones, Doshisha University Law School