Showing posts with label Foreign Law. Show all posts
Showing posts with label Foreign Law. Show all posts

Sunday, 12 August 2012

The Anglo-American Jury and Japanese Criminal Justice


      The Japanese government is in the process of transforming the nation’s criminal procedure from its traditional system whereby a judge unilaterally determines verdict and sentence to a new system whereby such decisions are to be made by a collective of a judge and jury, or ‘Saiban-in.’ The new system, which will take effect in 2008, is believed by many to be a middle ground between the Franco-German juryless system and the Anglo-American system, in which a group of ordinary citizens determine the fate of a defendant without judicial interference. However, the proposed procedural change will without doubt render the jury powerless and continue the de-facto monopoly that judges have when it comes to making judgments in criminal cases, as they will retain tremendous influence over the decisions of the jury. The establishment of a working jury system has the potential to bring about numerous benefits for the Japanese government; assuring that the decisions rendered in criminal cases are made in accord with democratic precepts, encouraging civic participation in government, and restoring public trust in the judiciary. Accordingly, it would be advantageous for Japan if it were to wholeheartedly adopt the Anglo-American jury system so as to provide criminal defendants with a fair trial and to promote civil involvement in judicial proceedings.
A plethora of arguments can be made as to why it would be in the best interest of Japan to establish a jury-based system of criminal procedure. Decisions in Japanese criminal trials have traditionally been determined unilaterally by a judge, and many have been reluctant to modify this system. They cite foreign incidents such as the Rodney King case in the United States, where a jury found white police officers to be innocent of a clearly racially motivated heinous crime, to be evidence as to why Japan should not adopt a jury system. However, judges themselves are not any less prone to making mistakes than are juries. When single political actors are enthroned with the ability to make judicial decisions without substantial oversight, they are prone to lackadaisical or purposeful errors in judgment. Two prominent Japanese cases that evidence fallacious judicial decision-making are Government v. Akabori and Government v. Menda; wherein defendants were found guilty of committing murder and were sentenced to extensive prison sentences; only to be released on appeal after spending twenty-five years behind bars. (Wakulat, 2005, 1) These incidents threaten to propagate widespread public distrust of the Japanese criminal justice system and attest to the need for change. (Cho, 1998, 1)
In addition to blatant judicial error, the traditional arrangement of the Japanese criminal justice system is such that judges have tended to decide cases on paper before testimony is rendered. An inextricable bond exists between the judiciary and the prosecutor’s office and police departments. (Asahara, 2004, 1) This is evidenced by the fact that judges often accept law enforcement claims of a defendant’s “voluntary confession” without looking into whether the defendant was coerced into making an admission of guilt (Kiss, 1999, 2). Defendants, whom can be imprisoned for up to twenty-three days without access to attorney representation, are likely to make such confessions under duress; and the processes by which police officers extract them often goes unchecked. (Richardson, 2004, 1) In addition, Japanese judges have tended to trust prosecutors, effectively affixing a “rubber stamp” to their decisions without considering the potential for falsities (Kiss, 1999, 2). This in part has resulted in an unfathomable ninety-nine percent conviction rate of Japanese criminal defendants; which many see as evidence of improper procedure. (Wakulat, 2005, 1) The institution of a jury system will serve to increase scrutiny into the previously unsupervised methods of prosecutors and law enforcement officials. Also, the nature of jury participation affords the justice system with protections that insure that each criminal defendant is given a full and honest opportunity to defend themselves against allegations. The “laymen” that comprise juries do so only temporarily, and as such, are not subject to the scheduling or monetary constraints that have fostered in judges a need for maximizing efficiency and speed. A group of citizens working together to come to decisions as a jury would be perhaps less prone to missing important details, affording them a better appreciation of the facts surrounding a particular case. In addition, as a group of actors working together, jury members can serve an oversight function, and their very appearance will force the judiciary to follow proper procedure at all times. A transition to a jury system will likely serve to strengthen public confidence in an ailing criminal justice system and government.
Some say that the only characteristics juries share is common outrage, stereotypes, and uneducated judgment. In fact, the infamous Rodney King case also pointed out the impact that racial biases can have on the outcome of a jury trial. However, the homogeneity of Japanese society in terms of race, culture, religion and language may reduce the commonly perceived biases associated with jury trials in the West (Kiss, 1999, 7). Opponents of the jury system argue that it is fallacious to assume that a group of uneducated commoners can make well-informed judgments. However, as elite members of society, judges may find themselves distanced from the moirés and customs of the average citizen. By virtue of the scholastic rigor associated with joining the judiciary, judges can become disconnected from Japanese public opinion and sentiment, and are therefore less able to render judgments in accord with contemporaneous societal views. Judges must undergo extensive training and must pass the difficult National Legal Examination before attaining a judicial post, and in effect, their education serves to propagate in themselves elitist viewpoints that do not correspond with those of the general public. (Kiss, 1999, 2) On the other hand, the “ordinary people” that compose juries will render their decisions based on “common sense and human experience;” the knowledge more applicable to understanding the context within which criminal allegations arise (Belli, 1959, 180).
Also, the existence of a jury system encourages civic participation in government. Although many may feel as though their government operates as a foreign entity having little to do with one’s personal involvement, serving on a jury can give each citizen the opportunity to participate in the workings of their government in a truly meaningful way. Some scholars make the assertion that a jury system is a disguised form of “direct democracy,” where each citizen actively participates in the workings of their government. They argue that such a system was never intended to be instituted in Japan due to the obvious coordination process that such a system would propagate. Although the practice of establishing juries resembles “direct democracy” as it existed in Ancient Greece, the commitment each citizen is required to make to the process is limited. Unlike in Ancient Greece, citizens are not asked to vote on every issue that arises and at all times; but rather each individual will take part in the process within a small subset of the total number of cases and within limited amounts of time. In addition to educating the Japanese populace about the strictures of their legal system, serving on a jury will engrain in each participant feelings of interconnectedness to one’s country, thus instilling a sense of nationalism. The jury system will strengthen Japanese democracy and reinforce the notion of “popular sovereignty,” or the understanding that Japan is ruled by its people. (Richardson, 2004, 2) These measures may help restore public trust in the Japanese legal system. In addition to strengthening democracy at home; the establishment of a jury system in Japan may have the potential to encourage and advance the spread of democracy throughout all of Asia. (Myers, 2006, 1) In fact, the recently adopted changes in Japan have already spurned a “ripple effect” in Asia, as South Korea, the Philippines, and even China have begun to reexamine their existing judicial systems (Fukurai, 2005, 1). Clearly the affording of Japanese criminal defendants a jury has significant implications for the development of democracy both at home and abroad.
Japan is also well positioned and amenable to allowing for the change. During the period of Taisho Democracy, the Japanese government experimented with limited jury system whereby the jury was to provide nonbinding guidance to the judge, who would himself make final decisions. (Von Mehren, 1963, 22) Although this system was gradually eliminated with the onset of totalitarianism, the notion of serving on a jury has been accepted and ingrained into the socio-cultural framework of Japanese society. (Fukurai, 2005, 2) Also, in the latter half of the twentieth century, Japanese citizens have become more willing to bring their quarrels to trial than in the past, thus rendering citizen involvement in the court system less of a “foreign” activity (Kiss, 1999, 7). Given the advantages of the jury system discussed above and the mindset of the Japanese citizenry, the time for change is now.
It has thus been determined that Japan has the potential to benefit from restructuring its justice system so as to afford criminal defendants a jury of their peers. However, the recently established “mixed system” must be examined so as to determine its appropriateness given the Japanese socio-cultural context. This system, which is set to be adopted in 2008, will allow for decisions as to verdict and sentence to be made by a panel of six “Saiban-in,” or jury members, and three judges in cases when there is uncertainty as to guilt; and four “Saiban-in” and one judge in those cases where there is no substantial doubt as to guilt (Anderson, 2005, 233). By virtue of its very design, this system has the potential to bias the outcome of a case. The flaws of this system can be prominently seen if one considers the unique strictures of Japanese culture. As a collectivist society, the Japanese often maintain higher levels of trust and subservience to figures of authority than do those in the West. (Kiss, 1999, 5) This cultural difference makes it likely that in Japan, jury members would be unwilling to confront and disagree with judges of higher relative power and authority. In such a system, it would be more likely that jurors would yield to the opinions of judges in an effort to “maintain harmony” and to “avoid confrontation” (Kiss, 1999, 5). For these reasons, the mixed system is unwarranted, and its establishment will merely continue the de-facto monopoly judges have on decision-making power. If the Japanese government is serious about adopting the jury system it must consider instead the Anglo-American model, wherein decision-making capabilities are transferred in their entirety to a jury; absent of judicial interference. In this setup, jury members would be less inclined to yield to the decisions of co-equal jury members than in if they were working under the de-facto authority of a professional judge. (Kiss, 1999, 6) Only without judicial interference in the decision-making process of juries can the Japanese government insure that each criminal defendant is given a fair opportunity to defend himself, face judgment from an impartial point of view, and receive justice as due him.
In conclusion, Japan stands to greatly benefit from infusing a jury system into its criminal procedure. Juries can help to ensure that trials are conducted fairly; break the previously inextricable bond between judges, prosecutors, and police officers; and utilize their collective common sense to garner an understanding of the context surrounding cases so as to come to objective conclusions. The change can also serve to the benefit of the nation, as the newfound civic participation will allow each and every Japanese citizen to feel as though they play an important role in the decision-making processes of their country. This sentiment will encourage the advancement of democracy both at home and in neighboring countries as they bear witness to the benefits of the jury system. As explained in the foregoing arguments, the “mixed system” recently adopted by the Japanese Diet will promulgate a continuance of judicial authority and render the opinions of the jury meaningless. Ensuring that decisions are made fairly and democratically requires the institution of the Anglo-American jury system, whereby judges are to be removed from the decision-making process in their entirety. Without question, the establishment of a full-fledged jury system would serve to the advantage of Japan.


Works Cited:

Anderson, Kent, and Emma Saint. "Japan's Quasi-Jury (Saiban-in) Law: an Annotated
Translation of the Act Concerning Participation of Lay Assessors in Criminal Trials." Asian-Pacific Law & Policy Journal 6 (2005): 233-283. JSTOR. JSTOR. Hofstra University, Hempstead. 30 Apr. 2007. Keyword: Japan and jury.

Asahara, Shoko. "Reform Reaches the Courts." The Economist 6 Mar. 2004: 16.
Academic Search Premier. EBSCO. Hofstra University, Hempstead. 30 Apr. 2007. Keyword: Japan and Jury.

Belli, Melvin M., and Danny R. Jones. Belli Looks At Life and Law in Japan. 1st ed. Vol.
1. Indianapolis: Howard W. Sams & Co., Inc., 1960. 180.

Cho, Kuk. “The Japanese "Prosecutorial Justice" and Its Limited Exclusionary Rule." The
Journal of Asian Law 12 (1998): 1. 30 Apr. 2007 <http://www.columbia.edu/cu/asiaweb/v12n1Cho.htm>.

Fukurai, Hiroshi. "Japanese Judicial Reforms and the Establishment of the Saiban-in
Seido (Quasi-Jury System) in Japan." Diss. University of California, Santa Cruz, 2005. Abstract. Comparative Analysis of Civic Legal Participation in Japan and the U.S. 1 (2005): 1-5.

Kiss, Lester W. "Reviving the Criminal Jury in Japan." Law and Contemporary Problems
62 (1999): 1-17. LexisNexis Academic. LexisNexis. Hofstra University, Hempstead. 30 Apr. 2007. Keyword: Japan and jury.

Myers, Bob. "Japan's New Jury System." Numenware. 18 Dec. 2006. 30 Apr. 2007
<http://www.numenware.com/article/551/>.

Richardson, Bennett. "In Reform Bid, Japan Opts for Trial by Jury." Christian Science
Monitor 4 June 2004. 30 Apr. 2007 <http://www.csmonitor.com/2004/0604/p06s02-woap.html>.

Von Mehren, Arthur Taylor, ed. Law in Japan: the Legal Order in a Changing Society.
1st ed. Vol. 1. Cambridge: Harvard UP, 1963. 22.

Wakulat, Rob. "Japan Looks to West for Judicial Reforms." The Foreigner: Japan Apr.
2005. 30 Apr. 2007 <http://www.theforeigner-japan.com/archives/200504/judicialreforms.htm>.

The Contribution of the Samurai to the Establishment of Modern Japan - Brian Safran

The Meiji Restoration that followed the collapse of the feudal order was an era in Japanese history in which Japan sought to abandon its traditional isolationist stance and modernize its economic and political systems, military capability and social order. The efforts undertaken by the Japanese government represent an attempt to shield the country from forces of Western imperialism by strengthening its position relative to Western powers.  The recognition of the distinctive ‘spirit’ of the samurai class fostered their successful reallocation into productive positions in government, agriculture, industry, and commerce and thus served as a major catalyst in allowing Japan to achieve the extensive socio-political modernization and sustained economic vitality that it desired during the Meiji Restoration.
The Japanese samurai emerged as a distinctive social class during the feudal era. The samurai were endowed with the ability to commit acts of violence against commoners who failed to adhere to societal norms, and maintained a monopoly on the bearing of arms; effectively serving to strengthen their power relative to others. (Norbeck, 1967, 8-9; Hayes, 2005, 13) Characterized by their unwavering might and prominent role in protecting the court aristocracy as “military specialists,” they developed their own unique identity and social construct (Ikegami, 1995, 47). In direct competition with the feudal aristocracy, they achieved and maintained their position in society by utilizing their power to subordinate and dominate those of lesser standing. (Ikegami, 1995, 49) The samurai differed from prior military men in ancient Japan by their professionalism both in terms of skill and in the realization of themselves as honorable professional warriors. (Hayes, 2005, 13) During the early stages of feudalism, this identity allowed many of them to enjoy comparable wealth to that of aristocratic society without requiring the attainment of the requisite status afforded them. (Ikegami, 1995, 47-48) Thus, the samurai had succeeded in utilizing their military prowess to escalate their position in society in early feudalistic Japan.
While it is without doubt that the early samurai possessed tremendous military capability, it was the manner in which they portrayed themselves that earned them their special place in history. At the height of their feudal prosperity, the samurai embodied an unwavering sense of self-discipline, loyalty and honor among its members that became recognized as the “spirit of the samurai” (Yamamura, 1968, 153). This ‘spirit’ permeated all actions of the samurai and became the code of ethics under which they not only fought, but lived. A samurai would rather sacrifice his own life than risk a violation of the bushido, or samurai moral code. (Ikegami, 1995, 278) The samurai sense of morality was highly regarded by the lords who capitalized on these qualities during the extensive period of relative peace during the Tokugawa period. A subsequent mutually amicable relationship arose that allowed for the incorporation of the samurai into bureaucratic, landlord-like positions highlighting their abilities. They were placed into administrative and public service posts and were rewarded with economic security as payment for their services (Black, 1975, 47).  For the first time in their history, the samurai were able to achieve recognition and economic self-sufficiency, as a result of their skills and ethical conduct off of the battlefield.
The highly regarded status enjoyed by the samurai was however temporary; challenged by the political and economic transformation experienced by Japan during the mid nineteenth century. Japan came to the realization that Western ideals and tactics threatened the continuance of Japanese independence and way of life, thus prompting the commencement of the Meiji Restoration and a newfound “commitment to social change and political modernization” (Hayes, 2005, 18). The gradual disintegration of the feudal system and the revitalization of imperial power with its concurrent industrialization and economic modernization served to adversely impact the samurai. (Gordon, 2000, 2) A shift from a predominately agricultural society to a commerce-based society destabilized the land-dependent samurai. This, coupled with a plethora of social reforms, resulted in their demotion and the accompanying revocation of their privileged ruling status while the nation was simultaneously undergoing the most miraculous transformation of its history. (Yanaga, 1955, 120; Ikegami, 1995, 360) The “Charter Oath” was declared by Emperor Mutsuhito of the Meiji regime, and it propagated a blending of social classes, encouraged Western learning in an effort to strengthen Japan’s militaristic capabilities, and thus prompted a reorganization of the military (Hayes, 2005, 18). The 1873 introduction of universal male conscription and the corollary increase in military spending reduced the aggregate competency of samurai warriors, who had lived through an extensive period of relative peace during the Tokugawa era and had been trained using outdated forms of armor and military tactics. (Black, 1975, 45-46; Berry, 2006, 227) As a result, the fate of the samurai had been in jeopardy. Thousands found themselves unemployed and facing poverty, having lost their rights to own land and property. (Black, 1975, 55) In short, the Meiji Restoration transformed Japanese society and established a new order in which the military skills of the samurai were no longer needed, and it served to relegate them to a civilian life with no prestige, power or economic security. (Yanaga, 1955, 124)
The samurai however were not ordinary citizens. Many were learned individuals and many had significant leadership abilities. (Hayes, 2005, 19) Their military training, ability to cope with hardships and selfless dedication coupled with their strict code of ethics served to distinguish them from the civilian population. (Yamamura, 1968, 145) Their sense of bushido portrayed their “honor as a cultural representation of their power and independence” (Ikegami, 1995, 34).  Internalization of these sentiments among the samurai evolved into a sense of autonomy and individuality whereby the individual was the “ultimate owner of his mind and soul” (Ikegami, 1995, 34). Their feudalistic origins, where they relied upon their lords for small stipends, endowed them with the merits of frugality and loyalty. (Norbeck, 1967, 20) During the Tokugawa period their position as landlords allowed for their accumulation of financial and administrative experience as well as entrepreneurial capability. (Gordon, 2000, 1) The samurai were far more than simple warriors whose time had past. Their attributes were of great value and their collective spirit eternal. Despite their setbacks, the ‘spirit of the samurai’ would propel them forward into an era of modernization and change.
The Meiji government of 1868 found itself facing the serious dilemma of having to reallocate the 1.8 million displaced samurai. (Harootunian, 1960, 433) The revitalization of Japan required a restructuring of the existing social system, and the changes led to the demotion and virtual annihilation of the samurai as a hereditary military class. (Harootunian, 1960, 433) But having a highly educated, dissatisfied group of people living in the throws of poverty was not conducive to Western ideals, and their frequent uprisings threatened the goals of the Restoration. (Black, 1975, 227) In addition, the government recognized the value of the political, administrative and literary accomplishments of the class to the furtherance of their own economic advancement, and as such absorbed the samurai into their new culture through the “samurai rehabilitation program” (Harootunian, 1960, 435). This program was primarily designed to assist the Meiji government in expanding its agricultural, commercial and industrial programs while secondarily providing a solution to the samurai problem (Hayes, 2005, 19). While there was some doubt as to whether or not the samurai would be able to assume their new role, most were able to adapt the characteristics that had allowed them to prosper during feudal times to their changing situation. The government assisted by enacting laws that provided the samurai with increased job opportunities in industries that fostered economic expansion. Many samurai found themselves financiers, managers and workers. (Harootunian, 1960, 434) A large number of ex-samurai were also assigned to wasteland reclamation projects where the government hoped to stimulate investment and enterprise among them while simultaneously providing them with income and housing. (Haratoonunian, 1960, 436) In an effort to expand their national banking facilities, the government established a mutually beneficial system whereby samurai pensions would be used as securities to allow for the development of bank branches. (Harootunian, 1960, 440)  Keeping with their pursuit of Western industrialization, the Meiji government enacted a capital loan program that granted funding to samurai who chose to invest in industry or commerce that resembled Western practices. (Harootunian, 1960, 442) Between 1876 and 1889, the number of samurai who owned businesses expanded rapidly. (Harootunian, 1960, 444)  Many samurai embraced their altered role in society because it afforded them a new “elite” status and its appeal to nationalism awakened the “sleeping spirit of the samurai” (Ikegami, 1995, 361). The motivations behind the samurai rehabilitation program maybe subject to challenge, but what is clear is that the program did allow an opportunity for many samurai to capitalize on their skills and “together with a growing merchant class, many of whom were themselves samurai, [were able to provide] the human resources that propelled the country politically and economically forward” (Hayes, 2005, 19).
The Meiji leaders engaged the samurai in industries in which they were most likely to reach their full potential. The samurai contributions that followed impacted all major aspects of the Meiji economy and accelerated its growth and development. (Harootunian, 1960, 444) While it can be argued that the samurai had no choice but to accept their fate and resign themselves to their new positions, it is the expertise that they brought and the spirit which they personified that heralded their position as major contributors. The knowledge of agriculture embedded in the samurai from their feudalistic upbringing, combined with their managerial skills allowed them to assist the government in cultivating thousands of acres of previously designated wasteland for commercial, investment and residential purposes. Upon the request of Kuroda Kiyotaka, the Minister of Colonization, the government established a program to develop these lands, and it was uniquely suited to the dual skills of the samurai employing both their peacetime agricultural and industrial skills and their wartime military capabilities. (Harootman, 1960, 439) These endeavors led to the recruitment of 7,500 samurai and the subsequent development of the formerly barren northern area of Hokkaido. (Harootunian, 1960, 444) The samurai were also credited with possessing “strong entrepreneurial spirit,” having channeled their medieval qualities of frugality and self-determination into an intense interest in money and profit; placing them in a position perfectly suited for “advancement of the new nation” (Yamamura, 1968, 145). It is often contended that the development of capitalism in Japan was a by-product of samurai business acumen and their ability to sacrifice self-interest for national interest. (Yamamura, 1968, 153) There were those who believed that the samurai were more suited than either the peasant or merchant class to assume the responsibilities of Western-type industrialization because they were not burdened by traditional business techniques and methods. (Haroootunian, 1960, 442) In fact, Godai Tomoatsu, the leading entrepreneur of the Meiji period was of samurai origin. (Brown, 2003, 1) What is undeniable is the multitude of samurai-owned businesses that arose during this period ranging from small companies to large corporations and their impact on promoting Japan’s modernization. (Harootunian, 1960, 444) Samurai influence was so significant that some interpretations of the modern banking system in Japan credit the samurai with its establishment. (Yamamura, 1967, 199) Samurai leadership abilities led to claims that they were “natural leaders” and that their “participation in government affairs brought to it a polished purity and virtue” (Harootunian, 1960, 433). Noteworthy among the many samurai to assume leadership positions in the Meiji government were Ito Hirobumi who went on to become the countries first prime minister; Okubo Toshimichi who led the revolution against the shogunate; and Saigo Takamori who later assumed command of the imperial army (Beasley, 1957, 91). The samurai of the Meiji Restoration had overcome the loss of their traditional infrastructure but had retained the attributes needed to become major contributors to Japanese expansion and revitalization.
The samurai were a valiant and noble group whose contributions to Japanese prosperity greatly exceeded their military prowess. Their skills in government, agriculture, industry and commerce have left an indelible mark on almost all aspects of the Meiji economy. Far greater than their materialistic contributions was the ‘samurai spirit’ which they embodied. Their code of honor permeated every aspect of their existence and integrated itself into the Japanese way of life. Reaching its height during the feudalistic period, the ‘samurai spirit’ became the propellant that allowed for their survival during the Meiji Restoration and for their emergence as a major contributor to the economic, political and social transformation of Japan. The samurai leave behind a legacy of tradition and legend and a ‘spirit’ that will forever be symbolic of the integrity and drive that characterized the successful Japanese transformation.

Works Cited:

Beasley, W G. "Councillors of Samurai Origin in the Early Meiji Government, 1868-9."
Bulletin of the School of Oriental and African Studies 20 (1957): 89-103.

Berry, Mary E. Japan in Print: Information and Nation in the Early Modern Period. 1st
ed. Vol. 1. London: University of California P, Ltd., 2006. 1-342.

Black, Cyril E. The Modernization of Japan and Russia: a Comparative Study. 1st ed.
Vol. 1. London: Collier Macmillan, 1975. 1-354.

Brown, Sidney D. "Nagaski in the Meiji Restoration: Choshu Loyalists and British Arms
and Merchants." Crossroads. 13 Dec. 2003. University of Wisconsin Oshkosh. 26 Mar. 2007 <http://www.uwosh.edu/faculty_staff/earns/meiji.html>.

Gordon, Bill. "Tokugawa Period's Influence on Meiji Restoration." Wesleyan University.
Feb. 2000. Wesleyan University. 17 Mar. 2007 <http://wgordon.web.wesleyan.edu/papers/jhist1.htm>.

Harootunian, Harry D. "The Economic Rehabilitation of the Samurai in the Early Meiji
Period." The Journal of Asian Studies 19 (1960): 433-444. Hofstra Online. JSTOR. Hofstra University, Hempstead. 17 Mar. 2007. Keyword: samurai and Meiji Restoration.

Hayes, Louis D. Introduction to Japanese Politics. 4th ed. Armonk: M.E. Sharpe, Inc.,
2005. 3-291.

Ikegami, Eiko. The Taming of the Samurai. 1st ed. Vol. 1. London: Harvard UP, 1995. 3-
378.

Norbeck, Edward. Changing Japan. 1st ed. Vol. 1. New York: Holt, Rinehart and
Winston, Inc., 1965. 1-79.

Yamamura, Kozo. "A Re-Examination of Entrepreneurship in Meiji Japan (1868-1912)."
The Economic History Review 1 (1968): 148-157. Hofstra Online. JSTOR. Hofstra University, Hempstead. 17 Mar. 2007. Keyword: samurai and Meiji Restoration.

Yamamura, Kozo. "The Role of the Samurai in the Development of Modern Banking in
Japan." The Journal of Economic History 27 (1967): 198-220. Hofstra Online. JSTOR. Hofstra University, Hempstead. 17 Mar. 2007. Keyword: samurai and Meiji Restoration.

Yanaga, Chitoshi. "Transition From Military to Bourgeois (Chonin) Society in Japan."
Oriens 8 (1955): 120-126. Hofstra Online. JSTOR. Hofstra University, Hempstead. 17 Mar. 2007. Keyword: samurai and Meiji Restoration.

Authoritarian Constitutionalism & the Rule of Law in China - Brian Safran


I.                   Introduction: The CCP and the Law

            In his 2009 policy paper entitled “The Party as Polity, The Communist Party, and the Chinese Constitutional State: A Theory of State Party Constitutionalism,” Larry Catá Backer analyzes the theory of constitutionalism in application to China. According to Catá Backer, constitutionalism is a theory which posits that “states ought to be organized to avoid tyranny or despotism by grounding state action in law and by limiting the reach of such lawful state action on the basis of values reflecting the values of the political collective” (Catá Backer 2009: 103). In his paper, he notes that China has developed what he refers to as a system of “authoritarian constitutionalism,” according to which the Communist Party itself “serves as the political collective from which constitutional norms are formulated, developed, defended and reviewed,” and which also “plays a role as constitutional source of values for the application as rule of law” (Catá Backer 2009: 157). Finally, he argues that the Communist Party “sits atop the state apparatus” and serves as the “sovereign collective,” or ultimate representative of the people (Catá Backer 2009: 157). Yet, what remains uncertain in Catá’s analysis is to what extent does the Communist Party have control over judicial outcomes? This paper will seek to examine competing claims over the powers of the Communist Party, and will analyze two divergent areas of Chinese law, including its systems of trade law and criminal law.
In recent years, China has embarked on an ambitious agenda that has resulted in legal reform of expansive scope and depth. Although once seen as a country devoid of law and marked by traditional notions of guanxi (关系), or a “system of interpersonal relationships” said to take precedence over the rule of law (China Strategic Research 2009: 1), China now has more laws on its books than any other country in the world (Inch 2010). Yet despite these reforms, scholars have noted that China still has a long way to go before it can claim to have a society built on the rule of law. Some have said that the creation of a Chinese system of rule of law is impossible in a system marked by the subordination of law to Communist Party policy and the lack of independence of the courts (Westin 2002: 2). In fact, it is often argued that the key function of the law to the Chinese government is “to order and regulate the exercise of government power” (Horsley 2006: 93). As of May 2009, approximately one-third of registered lawyers were party members, and almost all law firms had party committees, which allocated attorney remuneration based on loyalty to the party (McGregor 2010). In a 2009 pronouncement by the Party, it was said that judges must remain loyal “to the Party, the state, the masses and finally, the law,” in that order (McGregor 2010: 24). Furthermore, despite the establishment of a procedure in 2005 that made it possible for individuals to file petitions with the central government to challenge the legality of local regulations (Horsley: 2006), attempting to do so is said to be futile, as “the Party sits outside, and above the law” (McGregor 2010: 22), and that “[n]o legal obstacle is so great that the party cannot brush it aside” (McGregor 2010: 25).
Another significant problem said to be plaguing the court system is the incompetence of Chinese judges (Horsley 2006). In some respects, there have been signs of improvement. For instance, unlike in the past, where “judges were typically drawn from the ranks of the retired military” and “[a]ppointments were based more on political correctness than on relevant experience or legal knowledge,” today’s judges are “required to hold university degrees” and “pass a national unified bar exam,” as well as “participate in ongoing legal education programs” (Horsley 2006: 102). Yet, judges remain highly “susceptible to pressure” from the Communist Party, as it continues to control judicial salaries and court budgets (Hung 2002: 9); as well as judicial appointments and the personnel arrangements of the Courts (Inch 2010).

II. Trade & The Role of International Law

Despite the forgoing claims, there is reason to believe that the Communist Party’s grip on power is not absolute. One evolving area of the law which demonstrates the limits of the power of the Communist Party is trade law and policy. In 2001, China was permitted to join the World Trade Organization, or WTO, after a fifteen-year-long accession process that required deep reforms to China’s political, economic, and legal systems in exchange for it to be permitted to avail itself of the many benefits of membership in the WTO system (Rumbaugh 2004: 4). The WTO is an international body tasked with administering the rules of trade between nations, providing a forum for trade negotiations, and handling trade disputes and monitoring national trade policies (Kobayashi 2007). Previously known as the General Agreement on Tariffs and Trade (GATT) and limited in its scope to trade in goods, a fully-functioning, multifaceted World Trade Organization subsumed the GATT at the conclusion of the Uruguay Round of trade negotiations in 1995 (Jackson 1997). The WTO introduced agreements on trade in services and intellectual property, and provided for the creation of a fully-functioning organization, and a more procedurally-sound, binding system of dispute resolution (Jackson 1997).
When it comes to trade law and policy, membership in the WTO was predicated on China agreeing to undertake a series of legal reforms and consenting to the application of the entire body of WTO substantive principles and regulations. Among these were requirements that China substantially reduce its imposition of tariffs, or taxes imposed upon imports; and that China provide for fair trade by putting an end to its practice of subsidizing its domestic industries or permitting the “dumping” of its products on other markets through the use of predatory pricing (Hu 2001: 101). China also consented to the non-discrimination principles embodied in the GATT agreement, including “national treatment,” which mandates that “treatment for foreign products be no worse than that for like domestic products” (Hu 2001: 101), and the “most-favored-nation” obligation, which requires “each contracting party to grant to every other contracting party the most favorable treatment that it grants to any other country with respect to imports and exports of products” (Jackson 1997: 157). With respect to its commercial relations, China’s Accession Agreement ultimately involved over six hundred commitments; at least ten percent of which were determined to require China to “enact, repeal, or modify” trade-related laws, policies and regulations (Westin 2002: 3).
Yet, the reforms that China was required to undertake went far beyond substantive economic policy. Among these were obligations to provide for “transparency,” “judicial review,” and the “uniform enforcement of laws” (Westin 2002: 2). With respect to transparency, China agreed to publish its trade regulations (Kobayashi 2007: 5) and “provide a reasonable period of public comment before implementing them” (Westin 2002: 4). Regarding judicial review, China agreed to mandate that the “central government…address areas where WTO [law] is violated and provide a meaningful remedy” (Kobayashi 2007: 5). China also agreed to “establish or designate tribunals to promptly review trade-related actions of administrative agencies” (Westin 2002: 4). As to uniform enforcement, China agreed to apply trade-related laws and regulations “uniformly throughout China” and provide for a complaint procedure whereby “individuals and enterprises can bring complaints to China’s national authorities about cases of nonuniform application of the trade regime” (Westin 2002: 4). Finally, and perhaps most significantly, membership in the WTO required China to consent to becoming subject to the jurisdiction of the Dispute Settlement Body, an international body capable of adjudicating disputes over WTO rules and enforcing decisions against China’s own will (Hu 2001).
It is of course, one thing to agree to a series of obligations and quite another to actually put those agreements into practice. To what extent has China followed through with its WTO commitments? For one, China began to make positive rule of law changes to its domestic legal system in advance of its securing membership to the WTO, as demonstrated by the 1999 amendment to its Constitution, which recognized for the first time that “[t]he People’s Republic of China shall be governed according to the law and shall be built into a socialist country based upon the rule of law” (Chow 2003: 78). By the end of 2002, China had already revised fourteen of its laws and thirty-seven administrative regulations, annulled twelve administrative regulations, suspended thirty-four relevant documents, and changed more than one-thousand departmental rules to comport with WTO obligations (Zou 2006: 89).  By 2003, China had lowered its tariff rates, eliminated non-tariff measures, and relaxed limitations on foreign investment (China Daily 2003). As a result of China’s having undertaken domestic reforms permitting increased market access, its total trade vis-à-vis the rest of the world more than doubled from $509.8 billion in 2001, to $1.2 trillion in 2004 (Winn 2005).
Furthermore, the key legal institutions in China have become increasingly accessible and transparent (Horsley 2006). Draft legislation is now made available on the Internet for public comment, and public hearings are increasingly being held on proposed legislation believed to be of public concern (Horsley 2006).  Additionally, as of 2006, Chinese citizens were permitted to “audit” all legislative proceedings; rendering them open to the public (Horsley 2006: 96). In June 2004, the Standing Committee of the National People’s Congress established a special office under its Legislative Affairs Commission, which was made responsible for reviewing all central and local government regulations and legal interpretations in an effort to harmonize legal process throughout the country (Wang 2007). In January 2007, the government was set to approve China’s first-ever national, administrative “freedom of information” ordinance, a measure believed to be a precondition for the creation of an information access law (Horsley 2006: 101).
            As noted, membership in the WTO has also subjected China to a binding system of dispute resolution. Scholars have pointed out that China was initially reluctant to make use of the WTO’s dispute settlement system upon its joining. As a result, in the first four cases in which China was either sued or was threatened to be sued, China chose to “keep a low profile” and settle its disputes outside of the WTO framework (H. Gao 2007: 369). As of 2007, China was brought into the dispute settlement process as a respondent five times (H. Gao 2007: 372). Each of these cases demonstrates the erosion of the power of the Communist Party and the strengthening of the rule of law through the actions of the international community.
One such case involved a 2004 dispute brought by the United States in which it was alleged that China was levying its domestic exporters of integrated circuits with lower value-added tax rates than those imposed upon importers, which if shown to be true, would constitute a violation of WTO substantive rules (H. Gao 2007: 374). In the end, the Chinese decided to settle the matter without resort to formal dispute settlement procedures. As part of this settlement, the Chinese government agreed to immediately issue a “notice to revoke” the measure complained of. In October 2005, the United States announced that the terms of the agreement had been successfully implemented by China, and the dispute was rendered closed (WTO Dispute DS309).
Another claim against China was brought in 2006 by the European Union, the United States and Canada alleging that China was unjustly discriminating against imports of automobile parts (Bown 2008: 36). Upon review by a panel of the Dispute Settlement Body, it was determined that China’s measures constituted violations of its WTO obligations, and recommended that China bring the measures in question into conformity with its obligations within a reasonable period of time (WTO Dispute DS339). The Chinese government subsequently sought to appeal a portion of the adverse findings through WTO procedures, but in December 2008, the Appellate Body largely upheld the findings of the dispute panel, and once again urged China to bring its measures into compliance (WTO Dispute DS339). Faced with the threat of retaliatory trade sanctions, representatives of the Chinese government notified the WTO Dispute Settlement Body of its intention to put an end to its discriminatory measures concerning automobile parts, and China’s General Administration on Customs issued a “joint decree” with other relevant agencies putting an end to the discriminatory practices (WTO Dispute DS339). The Chinese government ultimately declared itself to be in compliance with the Dispute Settlement Body’s recommendations as of September 2009 (WTO Dispute DS339).
More recently, a number of disputes have been filed against China by the U.S. and other WTO members, among which was a 2007 case brought by the U.S. alleging that China was unjustly invoking measures restricting the importation of audiovisual entertainment products, including films, videocassettes, DVDs, sound recordings and other written materials. (WTO Dispute DS363) In August 2009, a panel of the Dispute Settlement Body completed its review, and found China to be in violation of several of its WTO obligations for its failure to protect the rights of foreign businesses seeking to operate in China, including most significantly the prohibition on import quotas under Article XI of the General Agreement on Trade and Tariffs, and provisions under the General Agreement on Trade in Services mandating that treatment of imported distribution services be no less favorable than the treatment of domestic distribution services (WTO Dispute DS363). China subsequently appealed the findings of the panel to the WTO’s Appellate Body, which in December 2009 circulated its report which substantially upheld the panel’s original findings (WTO Dispute DS363). In February 2010, China announced that it would bring its policy into compliance with the Appellate Body’s report, and both the United States and China have agreed on a reasonable timeline for it to do so, and the deadline for compliance has been set for March 2011 (WTO Dispute DS363).
The resolution of each of these representative disputes indicates the extent to which China, and by extension, its Communist Party leadership no longer exercises absolute sovereignty with respect to trade policy. Despite the fact that the measures called into question by other WTO members in the sampling of disputes cited above were those which, if permitted to continue, would support Chinese domestic industries and thus, Chinese Communist Party interests, the actions of the international community and the threat of WTO sanctions ultimately persuaded the Chinese government to agree to withdraw the measures in question in the face of the possibility of retaliatory trade sanctions.

III. Chinese Criminal Law and the Continuance of Communist Party Controls

            Despite the reforms achieved in the area of trade law, some have noted that China still has a long way to go before it can claim to have a society built on the rule of law. (McGregor 2010) One area of the law which demonstrates the extent to which the Communist Party maintains a grip on power is criminal law. With respect to criminal law, China does not belong to any international organization such as the World Trade Organization which would act to place limitations on the Communist Party’s ability to exercise power. In fact, China has actively shunned any efforts on the part of the international community to gain its willingness to consent to it becoming a state party to the International Criminal Court, or ICC. When the Rome Statute authorizing the creation of the ICC was ratified in 1998, China was one of only seven countries in the world that refrained from joining. (Findlay 2010: 3) In refusing to ratify the ICC Statute, China has focused on the centrality of criminal justice to its sovereignty (Gao 2007). Among the reasons given for its refusal to become party to the statute were concerns that the ICC would have supranational authority to determine whether individual states are “willing and able to conduct proper trials of its own nations;” the criminalization of “crimes against humanity,” the definition of which was not limited to those crimes committed during wartime, and the inclusion of the “crime of aggression” in the ICC statute, which it was believed might have the potential to be used against Chinese authorities for political ends (Findlay 2010: 3). It should also be noted that China has signed but has refused to ratify the International Covenant on Civil and Political Rights, or ICCPR (Human Rights Watch 2009: 34). The ICCPR, to which China is not bound, sets forth a number of principles which afford protections of due process under international law to those that are accused of crimes, including that “[n]o one shall be subjected to arbitrary arrest or detention” and that “[n]o one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law” (ICCPR Article 9). Given the absence of an effective mechanism by which the international community can exert supranational authority over China’s criminal law, the Chinese Community Party maintains a stronghold on criminal justice processes.
            The Chinese criminal justice system operates with little regard to due process, and its design effectively permits the Communist Party to intervene as it pleases. Criminal law in China is said to be “marked by long periods of investigatory detention, a high rate of confessions and administrative penalties that are tantamount to incarceration without trial” (Belkin 2000:  61). To that end, criminal defendants lack the “right to refuse interrogation, enjoy no presumption of innocence, and have no right to confront their accusers or compel the presence of witnesses to testify in their defense” (Belkin 2000: 61). In certain circumstances, the police have chosen to hold individuals in custody without charging them with crimes solely in an effort to “avoid protests and other instances of social unrest” (CECC 2007: 37).
Access to counsel is said to be “extremely limited” during the pre-trial phases of criminal cases, and the rights of the accused to proffer a defense is limited by the absence of procedures which would provide for discovery. (Belkin 2000: 61) In fact, as of 2004, only one in every three criminal defendants had access to representation by counsel. (CECC 2007: 47) Contributing to the inability of the accused to receive adequate representation by counsel is the fact that defense attorneys are often intimidated by threats of prosecution under statutes that provide for criminal liability for “evidence fabrication” (CECC 2007: 48). In certain circumstances where the “vague and elastic” concept of “state secrets” is implicated, the accused may find that they must attain prior approval from those investigating him or her before he or she can hire an attorney (Belkin 2000: 78). Cases which proceed under the “state secrets” doctrine are conducted in secret, and are therefore immune from public scrutiny and inspection (CECC 2007: 83). Once a case proceeds to trial, prosecutors must meet a low burden of proof by showing only that “the facts and circumstances of the crime are clear,” that “the evidence is reliable and sufficient,” and that “the charge and the nature of the crime is correctly determined” (Berkin 2000: 79). As of 2007, it was widely reported that many continue to be “arbitrarily detained and convicted, and torture remains widespread” (CECC 2007: 34).
In addition the limited nature of due process protections afforded to the accused, the substantive penalties issued in China are said to be “extremely harsh” (Belkin 2000: 83). In fact, Chinese law authorizes the death penalty as a permissible sentence for sixty-five crimes, which not only include murder and rape, but also include narcotics trafficking, financial fraud, and embezzlement (Lu 2008: 4). According to the Dui Hua Foundation, almost 100,000 individuals were executed by the Chinese government between 1997 and 2007, which accounts for over ninety-five percent of all executions carried out worldwide (CECC 2007: 53). Although in recent years, the Chinese government has taken measures to curtail the imposition of the death penalty by implementing measures which have sought to reserve the death penalty for an "extremely small number of extremely serious and extremely vile criminals posing a grievous threat to society” (Scott 2009: 5), as of 2009, Amnesty International has confirmed that China executes “more people than the rest of the world put together” (Amnesty International 2010). Through the operation of the criminal law and the existence of the death penalty as a permissible sentence coupled with the ability of the Communist Party to intervene in cases as it pleases renders the Party capable of compelling the Chinese people to succumb to its demands.
The Chinese criminal justice system is said to have its roots in “Confucian communitarian ideology and communist philosophy,” which has traditionally emphasized the usage of non-legal mechanisms for preventing crime (Findlay 2010: 4). Although China introduced criminal codes under the Tang and Qing Dynasties, and has since gradually adopted more modern criminal laws culminating with the 1979 Criminal Law and Criminal Procedural Law, aspects of its traditional focus on conflict resolution methods outside of the legal system still persist (Findlay 2010: 5). In fact, police have the authority to call upon administrative procedures and send an individual to a laojiao (劳教), or labor camp, for up to three years even before the commencement of any judicial proceeding through a process known as “reeducation through labor” (Belkin 2000: 68). As of 2005, it was estimated that as many as five hundred thousand individuals are held in such administrative labor camps throughout China (CECC 2007: 40). Similarly, public and state security officials are said to “regularly authorize mass security sweeps” which involve the utilization of various forms of administrative detention, house arrest, and surveillance in an effort to “harass and control” the Chinese citizenry (CECC 2007: 37). Ultimately, the criminal justice system in China is designed to first “protect…the socialist order,” and only secondarily to protect “people’s rights” (Findlay 2010: 5).
            Outside of the limitations placed on the rights of the accused and the sentences imposed upon them, the criminal justice system is constructed within a hierarchy which places the Communist Party at its helm. The Communist Party is said to exercise influence over criminal justice mechanisms through its influence on a variety of matters, including “ideology, policy and personnel matters,” and even in some circumstances, its direct involvement in “deciding the outcome of particular cases” (Peerenboom 2008: 13). It is said that so-called “party committees of political and legal affairs exist at all levels of government,” and that such committees are dominated by leaders of the Public Security Bureau, which is tasked with investigating crimes, as well as chief judges and chief prosecutors (Belkin 2000: 67).  The role of the Communist Party at the top of the judicial hierarchy is further demonstrated by a 2003 resolution issued by the Communist Party’s Central Committee, which noted that “public security work must proceed under the Party’s absolute leadership” (CECC 2007: 46). Furthermore, a 2006 communiqué issued at the sixth plenum of the Central Committee outlined the introduction of a policy which would seek to enhance public and state security by sending police forces into local communities in an effort to “safeguard stability” and build a “harmonious society” (CECC 2007: 46).
Crimes in China are prosecuted by the so-called “People’s Procuratorate,” which operates under the direct authority of the National People’s Congress and its Standing Committee (Belkin 2000: 65). Based on the fact that such limited procedural protections are afforded to criminal defendants, the People’s Procuratorate maintains a conviction rate which exceeds ninety-nine percent. (CECC 2007: 51) Yet the role of the People’s Procuratorate is not limited to the mere prosecution of crimes. Instead, its leadership is vested with the authority to issue technically non-binding interpretations of the law, which in actuality have tremendous impact upon the interpretation of Chinese criminal law, as the language embodied has a tendency to be “vague” and open to interpretation (Belkin 2000: 66). These vague provisions include such crimes as “disturbance of public order” and “endangering state security” (CECC 2007: 3). The reach of the leadership of the Communist Party is strengthened by the fact that China operates a uniform system of criminal justice through its maintaining of a single criminal code and criminal procedure law applicable throughout the country (Belkin 2000: 64). The extensive grip on power possessed by the Communist Party over Chinese criminal justice is further evidenced by the fact that as of 2006, the sentences of imprisonment for at least five hundred individuals accused of the crime of being a “counterrevolutionary” were still serving sentences of imprisonment, despite the fact that the crime was technically eliminated from China’s law books in 1997 (CECC 2007: 5), and by the fact that it is Communist Party leaders who remain responsible for determining the sanctions of police officers accused of having abused their powers (CECC 2007: 43).
            Cases which clearly demonstrate the extent to which the Communist Party exercises its power through the criminal justice system are those brought against human rights defenders. One widely-publicized case was that brought against Liu Xiaobo (刘晓波). In December 2009, Liu was convicted of the charge “inciting subversion of state power” for his having published articles that expressed his “dissatisfaction with the political and socialist system of [China’s] people’s democratic dictatorship” (HRIC 2009). Additionally, Liu was alleged to have played a leading role in drafting “Charter 08,” an essay calling for the abolishment of the “one-party monopolization of ruling privileges” and for the establishment of a constitutional democracy in China (HRIC 2009). Ultimately, an eleven-year sentence of imprisonment was levied against Liu (HRIC 2009). Given the fact that a penal statute is in effect in China which permits courts to hold individuals accountable for merely publishing material which the Communist Party finds threatening indicates the extensive grip on power the Communist Party retains over the legal system in China, and its ability to manipulate the law through the operation of the criminal justice system.

IV. Conclusion

            The forgoing analysis suggests that Chinese domestic law is not above politics, and that the Communist Party maintains a powerful force in the Chinese legal system despite efforts taken to modernize that system. As pointed out by Larry Catá Backer in “The Party as Polity, The Communist Party, and the Chinese Constitutional State: A Theory of State Party Constitutionalism,” China has indeed established a unique form of “authoritarian constitutionalism” which places the Chinese Communist Party at the helm of its legal system. Yet at the same time, it should be noted that the development of international law has served to quell the extent to which the Chinese Communist Party can exercise an exclusive right to shape and mold Chinese law. China’s membership in the World Trade Organization has demonstrated that the Communist Party has found itself incapable of instituting trade-related policies which would embolden its economic position if doing so would violate its WTO obligations. Yet, in the case of criminal law, the Communist Party maintains a stronghold on power. Marked by the non-existence of an international body such as the ICC or a treaty such as the ICCPR which would place limits on China’s justice system, its lack of due process protections for the accused, the levying of harsh penalties, and the existence a hierarchical structure of policymaking and adjudication of individual cases which places the Communist Party at its peak, the criminal justice system in China maintains within the control of the Party. Giving this analysis, it appears that only with the establishment of supranational bodies capable of enforcing international law, such as the Dispute Settlement Body of the World Trade Organization, will the Chinese Communist Party find the scope of its powers limited.

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