An Analysis of a Lay Adjudication System and Open Judiciary: The New Japanese Lay Adjudication System

An Analysis of a Lay Adjudication System and Open Judiciary: The New Japanese Lay Adjudication System

Yumiko Kita (University of Sussex, UK)
DOI: 10.4018/978-1-5225-0717-8.ch005
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Abstract

This paper presents analyses of impacts of lay adjudicators' participation in criminal matters in Japan due to the introduction of the new lay adjudication system – the Citizen Judge System [Saiban-in Seido] – in 2009. Since the late twentieth century, the introduction of the lay adjudication system seems to have been in international movement democratising the criminal justice system. This paper is devoted to an evaluation of the new system in terms of the balance between the concepts of democracy and a fair trial with consideration of the citizen judge procedures and the role of the citizen judges. In view of the closed nature of the Japanese criminal procedures and secrecy in the citizen judge system, this study will point out the challenges which prevent the fulfilment of democratic values in the practice of the citizen judge system.
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Background: The Concept Of Open Justice, A Fair Trial, And Democracy

This section is organised in two main parts: firstly the overlapping principles between open justice, the right to a fair trial, and democracy in criminal procedures will be examined in terms of their balance; the other part will show the democratic values in a lay adjudication.

The principle of open justice requires that the courts ought to be open to the public including citizens and the media. On the one hand, the right to a fair trial is codified within the international and regional treaties such as Article 6 of the European Human Rights Convention which declares:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in interests of morals, public order or national security in a democratic society … (Section 1.)

In short, the ideal form of a fair trial will be that a judgement will be reached by impartial persons on the basis of reliable evidence fairly presented in open court (Powell, 1965, p.534). The right to a fair trial is structured by various principles such as open justice, due process, and procedural justice. A belief in due process values human rights, especially the rights of accused (Packer, 1964). All people should be equally bound by and entitled to participate, in some ways, in the administration of justice. A belief in procedural justice strongly enhances a litigant’s satisfaction by the fairness of legal procedures (Thibaut & Walker, 1975). In addition, a belief in open justice means that:

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