I was recently interviewed by ABC News, the Australian public broadcaster. I was asked my view on Japan’s death penalty policy and some of this interview will be live in Australia today, the 10th Oct 2014, World Day Against the Death Penalty.
There are 125 death row inmates in Japan (as of 24 August 2014) and I was asked in one of their questions why these inmates are not executed automatically. I raised the issue of ‘institutional ambivalence’ in response. Although there are legal provisions regarding schedules of executions, they are often a mere advisory provision (kunji kitei) as a former Minister of Justice, Eda Satsuki, contends. As a post-interview reflection, I will elaborate more on this here.
According to Article 475 (1) of the Code of Criminal Procedure, ‘Execution of the death penalty shall be ordered by the Minister of Justice. Article 475 (2) provides more details and requires the Minister to do this ‘within six months from the date when the judgment becomes final and binding’ although this excludes the period that applications or requests for a retrial or pardon are being made. In other words, Article 475 (2) ‘grants the Minister broad discretion to extend this period almost indefinitely depending on various factors, such as requests for a retrial or pardon’ (The Advocates for Human Rights 2012:7).
In the Legal Affairs Committees on 9 March and 9 August 2011, Eda posed a fundamental question over the responsibility of Ministers of Justice regarding authorisation of executions: why must the death penalty be authorised by the Minister of Justice whilst other criminal affairs are dealt with by administrative officers through administrative procedures? Eda suggested that the reason for final decisions regarding executions being left to Ministers of Justice was presumably that they had in their position to consider the domestic and international trend comprehensively; and it was not right for them to authorise executions mechanically.
Bureaucrats in the Ministry of Justice tend to argue that non-authorisation can create ‘unfairness’ amongst death row inmates and their families, and amongst the bereaved families of the victims, especially when a pro-death-penalty Minister takes over from one who is opposed to the death penalty (Yomiuri, 21 September 2009). However, it is necessary for the Ministry of Justice to be extraordinarily careful with decisions that relate to matters of life or death especially after the bitter lesson of the Hakamada Iwao case.
Matsushima Midori was appointed on 3 September 2014 as a new Minister of Justice. She has commented that she is aware of her ‘duty’ to authorise executions and is ‘ready’ to do so. Japan does not appear to be willing or able to mark the abolition or de facto moratorium of the death penalty in the near future.
Advocates for Human Rights (2012) ‘JAPAN: Fourteenth Session of the Working Group on the Universal Periodic Review, Human Rights Council, 22 October – 5 November 2012’, Available at: http://www.theadvocatesforhumanrights.org/uploads/japan_upr_2012_death_penalty_submission_the_advocates_wcadp.pdf
Eda, S. (2011a) The 177th Legal Affairs Committee of the House of Representatives, 9 March 2011.
_____(2011b) The 177th Legal Affairs Committee of the House of Representatives, 9 August 2011.
Yomiuri (2009), ‘Shikei’ Dounaru, Haishi Ronja, Chiba Houshou Shuunin de’, 21 September 2009.