* Mitsuaki Sasaki is a professor in the Faculty of Law, Kobe Gakuin University, Hyogo, Japan.
Police investigation of under-14 juveniles in conflict with the law, and their detention in juvenile reformation/rehabilitation institutions highlight the move to amend again the 1949 Juvenile Law of Japan. The proposed amendment also allows the Probation Office that supervises the juveniles to apply with the Family Court for permission to send them to juvenile reformation/rehabilitation institutions in case they fail to follow rules. Finally, the proposed amendment introduces the court-appointed attendant system.
The draft amendment bill was submitted to the Diet(parliament) in March 2005.
These proposals drastically change the fundamental features of the current law. Investigation of cases involving juveniles under 14 years of age is vested under current law mainly in Child Guidance Centers, and sending them to juvenile reformation/rehabilitation institutions (Juvenile Training Schools) is prohibited.
The Japanese Penal Code sets the age of criminal responsibility (the age when a person is presumed to be able to recognize the significance and effect of crime and punishment) at 14 years or older. Treatment of cases of delinquent children under-14, therefore, is in accordance with educational and welfare perspectives. With the latest draft amendment, cases of under-14 juveniles come under the jurisdiction of the criminal investigation institution (the police) and correctional facility (Juvenile Training Center).
Welfare facilities are meant to work on the problems of children using the family-based approach. But children under supervision and probation (through the Juvenile Training Schools) would have to live within the society under threat of detention.
What sort of society vis-a vis our children are we trying to create through the draft amendment?
The Juvenile Law provides the framework and the means that the Japanese society should employ in handling children with problems (juvenile delinquents). It provides educational guidelines for children who slipped into the gaps of social life in school and the home. The law's basic principles are based on educational and welfare perspectives rather than the "criminal" approach. With the Family Court as the major implementing institution, which shows emphasis on judicial means in resolving problems involving children and family, the law subscribes to the view that protection of rights leads to security and development of the society. These principles are closely related to those contained in the Japanese Constitution and the Basic Law on Education (1945).
The investigation-judgment-treatment process under the law allows juvenile delinquents to recognize what they have done as well as what their victims have suffered, and requires them to sincerely reflect on their conduct. Punishment is possible under this scheme. But confronting oneself can be difficult for these juveniles. This juvenile justice process is called "protectionist" not because it simply means protecting the children but because it requires a large number of people including the society as a whole working continuously to prevent recurrence of delinquency.
The law provides the guideline in making the juveniles speak about what happened and find words of apology. In this context, creating opportunities to restart their lives, and finding the time to approach people affected by their action are critical.
More specific and substantive elaboration of these principles is provided by the Convention on the Rights of the Child and the various United Nations rules regarding juvenile justice and prevention of delinquency (UN Rules). These principles require the creation of opportunities for juveniles to face the facts in order for them to carefully understand, and overcome, their delinquency. These opportunities can be created through appropriate protection of their dignity and rights, by treating the children as subjects in the process of development, and by approaching them from educational and welfare perspectives.
Seemingly pressured by public alarm on the increasing number of violence in juvenile cases, the Juvenile Law went through considerable amendment in 2000. A close examination of the situation however does not show increase in the number of murders and aggravated robbery resulting in deaths. What were really needed were appropriate responses to cases particular to juvenile incidents. Instead of tackling the problems of the children, the amendment focused on the seriousness of the results of delinquency and created a new system of transferring cases under the Family Court of children who committed certain delinquencies to ordinary courts that follow criminal procedures. Involvement of prosecutors was introduced for the first time. The amendment brought nothing significant, and instead strengthened the punishment aspect of the law. Those who proposed the amendment argued that it was necessary to instil a sense of adherence to rules by children by placing the responsibility on them. But this argument turned out to be the precursor to the amendment of the Basic Law on Education which emphasizes patriotism and adherence to rules. Meanwhile, the opportunities for children to recognize their own rights remain deficient.
Around the time of the amendment in 2000, efforts to examine the reality of children under the judicial process disappeared. Verification of the scientific grounds for the draft amendment gave way to swift response to public concerns on increasing juvenile violence. The tendency to solve social problems through "deterrence" (threat of strict punishment) has increased. The current draft amendment is trying to achieve the "satisfaction and security" of the society by treating children even if they are under 14 through judicial (criminal) rather than welfare procedures.
The Japanese society is, in fact, seeing the delinquency of children as problem arising from the nature of the children themselves, and making them liable for it. Considerations regarding the background of the children's problems, their education, and home environment, etc., have diminished. The society is less prepared to support children who are trying to get back on the right track.
Meanwhile, the monitoring body of the United Nations Convention on the Rights of the Child, the Committee on the Rights of the Child (Committee), issued its Concluding Observations on the Japanese government reports of 1998 and 2004. In the first Concluding Observations, the Committee indicated that an alternative method for detaining children should be considered, and called for a review of the Daiyou Kangoku (the practice of using police detention cells instead of facilities under the Ministry of Justice in detaining children). The Committee requested that the results of the review be included in the next report. In the examination of the report of 2004, however, the Japanese government gave almost no consideration to the previous Concluding Observations. The succeeding Concluding Observations expressed concern on the lowering of the age of criminal responsibility and lengthening of the detention period under the 2000 amendment. The Committee saw this as going against the requirements under the Convention and the UN Rules. It also pointed out that the juvenile criminal procedures are not "suitable for children." It recommended providing as well as ensuring access to support and legal assistance at all stages of the procedures. The Concluding Observations are not legally binding but, as a party to the Convention, Japan has a moral responsibility to respect them. They should be seen as opportunity to clarify the protection of rights within the Japanese juvenile justice system, and to confirm its principles. One wonders how the government views the Committee's call to reflect the contents of the Concluding Observations in the legislation.
Children's reaction may sometimes depend on adult behavior. They may simply follow adults or respond to please them. They sometimes have difficulty communicating what actually happened that constitute their delinquency. And sometimes, therefore, the resulting information given by them may be wrong. Who, where and how the children are approached become very important.
Taking the characteristics of children into consideration, police investigation of children as proposed by the draft amendment is structurally inappropriate. It should be noted that the police at present has already greatly increased its discretionary powers regarding juvenile delinquency since it investigates cases of juveniles who already have criminal responsibility under current law.
The society must carefully study and discuss these issues, including the increase on the "dependence on the use of force."
The draft amendment does not explain what limitations do the current "Protective Institutions" under the Child Welfare Law have, or how Juvenile Training Schools are better suited.
It is questionable whether the draft amendment will encourage people working in Child Guidance Centers, Family Courts, Juvenile Training Schools, and other institutions involved with juveniles in conflict with the law to be more involved with children.
It is more likely to rob people and organizations, who support children in difficult situations using welfare and educational approach, of their enthusiasm and interest.
Discussions on the protection of the rights of children are enriched by more public debate. The draft amendment, which ignores the UN Committee's recommendations, should therefore be discussed once more with special focus on these questions: for whose benefit and for what purpose such amendment should be made. This has to be done to halt the trend of people starting to be in despair at ever younger age.
For further information, please contact: Mitsuaki Sasaki, Faculty of Law, Kobe Gakuin University, 518 Arise, Ikawadani-cho, Nishi-ku, Kobe 651-2180 Japan; ph (8178) 974/1551|(main); fax (8178) 976/3702; e-mail:firstname.lastname@example.org
1. A system of providing government-funded attendants (lawyers) to juveniles under 18, who have committed crimes and are detained to face trials in the family court. These attendants assist the juveniles during the trial, as well as consult with them, their families and other relevant people.
2. Protective institutions are those established to protect children without guardians, abused children, and others in need of protection, excluding infants.