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In Japan: Pardon System Debated

The following is a guest post by Sayuri Umeda, a foreign law specialist who covers Japan and other countries in East and Southeast Asia. Sayuri has previously written posts for In Custodia Legis on various topics, including New Era, New Law Number, Holy Cow – Making Sense of Japanese Wagyu Cow Export RulesJapanese Criminal Legal System as Seen Through the Carlos Ghosn CaseDisciplining Judges for “Bad Tweets”Engagement under Japanese Law and Imperial House RulesIs the Sound of Children Actually Noise?, and many more.

The Japanese government issued a pardon order on October 22, 2019 (Cabinet Order No. 131 of 2019) and also notified special acceptance of requests for pardon (Kancho Jiko, Oct. 22, 2019) on the day of celebration of Emperor Naruhito’s enthronement. These are based on the Pardons Act (Act No. 20 of 1947, amended by Act No. 49 of 2013, arts 10 & 12). This is the tenth occasion that pardon orders were issued and/or requests for pardon were specially accepted under the current Constitution, Constitution of Japan, 1946, according to a chart provided by the National Diet Library publication (NDL).

Under article 16 of the previous Constitution, Constitution of the Empire of Japan, 1889, the Emperor had the power to pardon criminals. Historically, pardons have been issued on the occasions of Imperial successions and Imperial family matters, such as marriages of crown princes. Under article 73 of the current Constitution, the Cabinet has the power to pardon criminals. However, the Cabinet has issued pardons at occasions of Imperial family matters, in addition to occasions of national importance, such as the enforcement of the Peace Treaty after World War II (End of the Allied Occupation) in 1952 and the return of Okinawa (from the United States) in 1972.

Cabinet Order No. 131 of 2019

This pardon order restores certain criminals’ civil rights and/or qualifications early. People found guilty and fined over one or more minor offenses are subject to the pardon order. As of October 22, 2019, three years must have passed since the person(s) paid fines. If those people have received sentences of imprisonment for the same or separate crimes, the effect of those imprisonment sentences are not affected. Approximately 550,000 are subject to the pardon. The itemized ratio of crimes charged to those are: 65.2% for violations of the Road Traffic Act (driving without license, driving under the influence of alcohol, and others), 17.4% for bodily injury or death caused by negligent driving, 3.3% for assault or bodily injury, 2.6% for theft, and 11.4% for other crimes, including violations of election law.

Among them, persons who actually benefit from the pardon order are those who had their qualifications suspended or lost qualifications for professions or statuses due to receiving sentences of fines. For example, under the Medical Practitioners’ Act (Act No. 201 of 1948, as amended, arts. 4 & 7) or the Act on Public Health Nurses, Midwives, and Nurses (Act No. 203 of 1948, as amended, arts 9 & 14), authorities may revoke licenses of persons who were sentenced to fines and/or imprisonments. These persons cannot regain their licenses for five years from the revocation of those licenses. Other persons who benefit are those who were found guilty of violating the Public Offices Election Act (Act No. 100 of 1950, as amended) and fined. They are usually barred from running for public office and voting for five or ten years, according to article 252 of the Act. For these persons, the disqualification periods are shortened.

Special Acceptance of Requests For Pardon

A convicted person can request a pardon from the National Offenders Rehabilitation Commission through the correction facility, probation office, or prosecutor’s office any time after a certain period, depending on the punishment, according to article 6 of the Pardon Act Enforcement Ordinance (Ministry of Justice Ordinance 78 of 1947). This time, the Cabinet set special criteria for pardon and removed the time limitation for the requests for the limited time. Convicted criminals whose punishment of imprisonment or fine was suspended for a long time due to ill health or financial difficulties will be pardoned, if it is likely the situation will not change for a long time. The criminals must request a pardon and the Commission will decide on a case-by-case basis. Criminals can submit the requests for exemptions from the execution of sentences to a correction facility, probation office or prosecutor’s office until January 21, 2020.

Controversy

These pardons are not popular in Japan at this time. An opinion poll in early October 2019 (Q.10) found that 60.2% people opposed the planned pardon ordered on October 22, 2019.  24.8% people were for it. Articles in newspapers and other media pointed out the main problems of the pardon:

  • The nature of pardon is to change the judicial decisions by the political power;
  • People may feel that it is unfair because criminals who happened to be punished at certain times get special treatments; and
  • It is inappropriate that the Cabinet makes people who violated election law recover their rights to vote and to be elected because the Cabinet and ruling political party may have political motivation to do so.

News articles and other outlets analyzed that the government was not very positive on issuing the pardon at this time, but since the issuance of a pardon at an emperor’s enthronement has been a long tradition, cabinet members did not feel like they must stop it this time. Articles also speculated that, as a compromise, the Cabinet issued the pardon in which the number of persons who are subject to the pardon is large, but the actual benefit and/or effect of the pardon is minimal.

An expert in legal sociology pointed out that the system of pardon itself has reasons, such as:

  • It can correct wrong judgments by courts that may unavoidably happen in any system; and
  • When punishments are considered too harsh in later times, they can be corrected.

It appears that opposition is getting stronger to issuing a Cabinet order to pardon a large number of unspecified criminals. Another point is whether pardons must be issued at the occasions of Imperial successions and Imperial family matters. Most articles are calling for a review of such tradition.

Then Empress Michiko and Emperor Akihito of Japan with Librarian of Congress James Billington and Marjorie Billington talk with a Library of Congress staff member while viewing a display of collection materials (created/published: June 14, 1994 ), //hdl.loc.gov/loc.pnp/ppmsca.51794.

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