Japanese Moratorium on the Death Penalty

Mika Obara-Minnitt

• Publisher: Palgrave Macmillan
• Year: 2016
• Print ISBN: 9781137565303
• eBook ISBN: 9781137558220
• Topic: Social Sciences
• Subtopic: Japanese History
• Index: Social Sciences

Offering a timely reanalysis of the issue of Japan's capital punishment policy, this cutting edge volume considers the de facto moratorium periods in Japan's death penalty system and proposes an alternative analytical framework to examine the policy. Addressing how the Ministry of Justice in Japan justified capital punishment policy during the de facto moratorium periods from 1989 to 1993, from 2009 to 2010 and from 2010 to 2012, the author debates the misconceptions surrounding the significance of these moratoriums.

The book evidences the approach, rationale and evolution of Japan's Ministry of Justice in consistently justifying capital punishment policy during the different execution-free periods and provides a better understanding of the powerful unelected elite who actually drive the capital punishment system in Japan. Based on parliamentary proceedings, public opinion surveys and periodical reports by both international and domestic human rightsNGOs as well as interviews of government ministers, NGO staff, pro- and anti-death-penalty advocates, this text is key reading for those interested in Japan, its government, criminal justice system and policies on the death penalty and human rights.

© The Author(s) 2016

Mika Obara-MinnittJapanese Moratorium on the Death Penalty10.1057/978-1-137-55822-0_1

Begin Abstract

1. Introduction

Mika Obara-Minnitt¹

(1)

International Christian University, The Institute of Asian Cultural Studies, Tokyo, Japan

End Abstract

The number of states that retain capital punishment is declining, with more than two-thirds having abolished it in law or practice. ¹ International society has created a series of benchmarks for modern democracies regarding the abolition of capital punishment. These are represented by relevant covenants of the United Nations, ² and the acquis communautaire that states must conform to before they can be admitted into the European Union (EU). Given that states tend to adhere to international norms in order to be recognised as legitimate members of international society, ³ it may appear that it is in states’ interests to comply with the anti-death-penalty norm. Nonetheless, two industrialised democracies retain capital punishment against the international trend: the USA and Japan.

In the case of Japan, the government has consistently justified the retention and use of the death penalty on the basis of national law. However, the country has recently experienced a number of de facto moratorium periods on executions, for approximately one year from July 2009 to July 2010, one year and eight months from July 2010 to March 2012, and three years and four months from 1989 to 1993 (see Appendix A). This book addresses how the Ministry of Justice in Japan has justified capital punishment policy during these de facto moratorium periods. Examining the years before and after these periods, it seeks to examine the rhetoric and practice of the Ministry of Justice in its justification of capital punishment policy. The primary goal of this volume is to provide a better understanding of the elite-driven nature of the capital punishment system in Japan. It is concerned with three research questions: (1) Who are the real actors who get involved in capital punishment policy? (2) To what extent are domestic and cultural factors reflected in this process?; and (3) How was this policy justified by the Ministry of Justice during the execution-free periods?

1.1 Governmental Justification of Capital Punishment

The Ministry of Justice often cites five intertwined domestic factors in its official statements that justify the capital punishment system: (1) maintenance of legal order; (2) deterrent effect; (3) Japanese culture; (4) public opinion; and (5) victim satisfaction. ⁴ However, in-depth investigation of each claim provides alternative views. The government claims that capital punishment should take place as laid down in legal provisions in order to keep Japan hōchi kokka (a law-abiding country); capital punishment and the execution method used were declared constitutional by the Supreme Court on 12 March 1948; and hanging is stipulated by Article 11 of the Penal Code. However, the constitutionality and legality of the system are still controversial today. Whilst Article 31 of the Constitution of Japan stipulates that ‘No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law’, Article 36 of the Constitution provides that ‘[t]he infliction of torture by any public officer and cruel punishments are absolutely forbidden’. Moreover, whilst the responsibility of Ministers of Justice regarding the authorisation of execution orders is stipulated by Article 475 of the Code of Criminal Procedure, the legality and propriety of this provision have been debated amongst legal scholars.

Although governmental opinion polls indicate wide public support for the retention of capital punishment, based on a belief in its deterrent effect, the methodological defects of the survey questions have been pointed out by various scholars. ⁵ The government tends to proclaim that the capital punishment system has been retained in order to respect the feelings of the victims’ bereaved families and a social norm that treats death as a price worth paying for serious crimes. ⁶ Nonetheless, opposing opinions by the anti-death-penalty victim lobby have often not been reflected. Rather, it appears that it is (1) government officials’ recurring use of language, referencing Japanese culture, and (2) the media’s excessive focus on the pro-death-penalty victim lobby that have made the public believe that the capital punishment system is deeply embedded in Japanese culture and can deter crimes. By unpacking the real key actors involved in this policy, and by examining how they try to construct a dominant discourse on capital punishment that refers to domestic and cultural factors, this book will clarify the real motive of the Ministry of Justice in justifying retention of the capital punishment system even during execution-free periods.

1.2 Research Background

Although studies on capital punishment in Japan have been conducted by scholars from different disciplines and from varied perspectives, ⁷ very few works have primarily focused on these periods, for two main reasons. ⁸ Firstly, capital punishment policy is characterised by confidentiality and secrecy, ⁹ which has made it challenging for activist groups or researchers to conduct empirical studies through access to pro-death-penalty actors, such as bureaucrats in the Ministry of Justice, or death row inmates. According to Kaga Otohiko, a former technical official at the Tokyo Detention Centre, ‘postwar democracy was valid in the 1950s’: researchers could interview death row inmates in person and publish their works freely. ¹⁰ Indeed, the issue of capital punishment was actively discussed within the Ministry of Justice. For example, the Keibatsu to Shakai Kairyō no Kai (Criminal Punishment and Social Reform Association) was founded in 1955 by staff at the Ministry of Justice, such as Masaki Ryo and Yoshikawa Eiji; and prison guards and detention centre custody officers also debated capital punishment passionately. ¹¹ They wrote to the newspaper stressing the importance of abolishing the system, and presented such ideas in the Diet as well. ¹²

However, after a tsūtatsu (circular) imposing restrictions on death row inmates’ communication was issued on 15 March 1963, ¹³ a secretive policy was employed regarding capital punishment policy and interviews with death row inmates also became impossible, with a few exceptions. ¹⁴ When Kaga published the book Shikeishū no Kioku (Memory of Death Row Inmates) in 1980, the Ministry of Justice accused him of disclosing some significant information that he would not have known if he did not work in the Ministry; and public prosecutors also denounced his action as against the Public Service Act. ¹⁵ Therefore, when the International Federation for Human Rights carried out its first investigation in 2001, delegates could only meet senior civil servants from the Ministry of Justice, and their requests for interviews with death row inmates were denied. ¹⁶ The Ministry of Justice was still not eager to engage with the issue when I approached them for an interview in 2011.

It is also important to note that the Japanese government does not conceive the de facto moratorium periods as political events to be examined academically, and the Ministry of Justice refuses any research-related investigation into these eras. In my interviews, two Ministry of Foreign Affairs (MOFA) officials, one of whom was previously in the Ministry of Justice, were reluctant to discuss these periods with a presumption that there existed ‘de facto moratorium periods’. ¹⁷ They stated that although there were execution-free periods, it was inappropriate to consider them as politically stable periods when bureaucrats refrained from authorising executions. ¹⁸

It is also worth mentioning that MOFA appeared to have another reason for not being eager to discuss the issue with a third party. According to a MOFA minister, MOFA is not in a position to express any independent opinion on capital punishment, and it only reproduces the policy of the particular Ministry that is in charge—the Ministry of Justice in this case—as a dominant voice of the Japanese government. ¹⁹ This supports the argument of Glenn D. Hook et al. that although MOFA is responsible for the day-to-day running of Japanese diplomatic policy and functions as Japan’s window upon the world, ‘its ability to direct and manipulate Japanese foreign policy is constrained by its own internal organizational limitations’. ²⁰

Questioning the existence of the de facto moratorium periods can be crucial to understand capital punishment policy in Japan. The Japanese government justifies capital punishment consistently on domestic, cultural and legal grounds. Executions tend to take place annually. However, since executions are sometimes postponed for years, some scholars and anti-death-penalty lobbyists tend to describe these periods as de facto moratorium periods. This volume will therefore investigate: (1) what the nature of the moratorium period is; (2) who tends to or tends not to call the execution-free period a de facto moratorium period; and (3) what factors tend to make an execution-free period look like a moratorium period.

1.3 Research Methodology

This book adopts a level-of-analysis approach that focuses on two main levels: the government and civil society. This is to capture the rich diversity and fluidity of institutional and social relationships amongst the actors. The main actors who will be examined at each level are: (1) officials and ministers in the Ministry of Justice and the Public Prosecutor’s Office, and Diet members; and (2) public opinion, and anti- and pro-death-penalty non-governmental organisations (NGOs)/advocates. What merits some attention is that the capital punishment system has been the province of a narrow elite in the Ministry of Justice and the Public Prosecutor’s Office, and the role that actors at civil society level can play in the context of these tightly knit institutional dynamics is limited. However, re-investigation of public opinion and the way in which the Japanese government strategically cites domestic factors for the justification of capital punishment can help illuminate the elite-driven nature of this policy. Similarly, although anti-death-penalty NGOs do not possess official status to get involved in capital punishment policy-making, it is beneficial to contrast their approach to capital punishment from human rights perspectives with the government’s approach that is based on the issue of law and order.

Focusing on these actors at two levels, most of the initial r...

Table of contents

• Cover
• Frontmatter
• 1. Introduction
• 2. The Two-Sided Triangle: Capital Punishment Policy Decision-Making—A Framework for Analysis
• 3. Governmental Justification for Capital Punishment and the De Facto Moratorium Periods Reconsidered
• 4. An Honourable Death? Governmental Justification for Capital Punishment 1980–1989
• 5. Conscience or Chaos?: Governmental Justification for Capital Punishment During the De Facto Moratorium Period 1989–1993
• 6. By Popular Demand: Governmental Justification for Capital Punishment 1993–2009
• 7. Democracy Inaction: Governmental Justification for Capital Punishment During the De Facto Moratorium Periods (2009–2010 and 2010–2012)
• 8. Conclusions: New Light in Old Rooms. Governmental Justification for Capital Punishment in Japan Reconsidered
• Backmatter