Shame is the punishment

Raymond Whitaker on the ways of Japanese justice
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The Independent Online
A British resident of Tokyo was surprised, a few evenings after his car was broken into, to find a young Japanese man at his door. The man bowed deeply and handed over an exquisitely-wrapped box. An accompanying policeman explained that the young man had confessed his crime and was making amends. The box held a traditional offering of cake, which, as the victim wryly remarked, "did not cost as much as getting the car window replaced".

It was an unusual insight for a foreigner into the peculiarities of Japanese justice, which will come under unprecedented scrutiny this week, when one of the most shocking criminal cases in the country's history gets under way. Shoko Asahara, the plump, bearded messiah of the Aum Shinri Kyo sect, is charged with masterminding the nerve gas attack on the Tokyo subway last year, which killed 12 people, poisoned thousands of others and left the Japanese public, already stunned by the Kobe earthquake a few weeks earlier, in a state of near-distraction.

That Mr Asahara will be convicted is scarcely in doubt: 99 per cent of all Japanese criminal trials end in a guilty verdict, not least because nine out of 10 defendants confess. Japanese justice proceeds with extreme caution and hesitancy. The reason is that potent factor in Japanese society: shame. Being arrested is regarded as so shameful that anyone taken into custody without subsequent charge, or who is later acquitted, has a claim for compensation from the government. So suspects are rarely detained until prosecutors are almost certain that a case will stick. "People are presumed innocent until proven guilty, just as in Britain," said Hiroshi Goto, an attorney at the Justice Ministry, "but simply to be indicted is a social punishment, so we don't launch 50-50 cases."

Under Japan's legal system, prosecutors have wide discretion. "Even if they are sure of a suspect's guilt, they consider his personality, background and reasons for committing the crime before deciding whether to go to court," said Mr Goto. "They only indict those they consider deserve punishment." This explains why the police, as in the case of the British resident's car, often sort things out themselves.

The safeguards against arbitrary arrest also explain what, to the rest of the world, was a puzzle: the length of time it took the authorities to arrest any of the Aum leaders after the gas attack, let alone charge them.

"In the Aum case, there were so many incidents in which they were involved, and they all had to be investigated," said Mr Goto. "The Japanese system draws a clear line between the investigation stage and the indictments." Others, however, have a simpler explanation: that the Japanese police are as painstakingly slow, bureaucratic and ill-equipped as the rest of the state apparatus to cope with the completely unexpected, such as the Kobe earthquake as well as the sarin gas attack. Neighbourhood policemen are exceptionally efficient at catching minor offenders, but the Aum affair appeared to overwhelm the national police service.

There was probably never any question, though, that Mr Asahara would go to trial, and by Japanese standards his case is being pursued with exceptional speed - civil suits can take up to 20 years. "Compared to Europe or the US, the legal profession is very small," said Katsumi Chiba, a Supreme Court judge. "Japanese people don't like disputes or conflict, and generally go to law as a last resort."

But critics view it the other way round: because there are so few lawyers, and cases take so long, people would rather seek some other form of arbitration. The doorstep offering is common in civil cases too, when companies accused of liability for an injury or a defective product often send a representative with a bag of cash to settle the matter.

Every year, about 20,000 people take the fiendishly difficult bar exam. Only 700 pass, usually after years of trying; this year the Ministry of Justice agreed to raise the figure to 1,000. Future judges, lawyers and prosecutors then undergo two years of training together before their paths diverge. This helps to foster a common outlook, which may be another reason for the 99 per cent conviction rate. It could explain why none of the country's small band of defence lawyers wanted to represent Mr Asahara.

Eventually, the Tokyo district court ordered certain lawyers to defend the guru. Who most of them are is unknown because, in an arrangement unthinkable elsewhere, the press agreed not to name them, partly for their safety, but also because the association might bring shame on their families.

The shame factor would have one more role to play if the cult leader is sentenced to death. In Japan the family of the accused is not informed until after the execution has been carried out, allegedly to spare them public humiliation. Despite frequent criticism of this practice, no change is contemplated.