JFIR Commentary

September 28, 2018

Discussion regarding the Death Penalty


and Article 9 of the Constitution of Japan

By SHINODA Hideaki

On July 6, some of the leading members of the Aum Shinrikyo cult were executed, and it was widely reported by press. I remember vividly that the Tokyo subway sarin gas attack in 1995 attracted immense press coverage in Europe as I was studying in England then. So people in Europe should even now retain their memories of the attack. At the news of their execution, some EU member countries expressed their sympathies to the victims, their objection to the Japanese death penalty, and criticized the very act of execution. What I found strange about the way Japanese media covered the news was that the headline read “the largest execution in the post-war period, shocking the world / some criticizes it’s inhumane.” In fact, the ‘world’ here should be ‘European countries.’ On the other hand, on July 6, the same day we had the raining disaster and the execution of Aum Shinrikyo members, the murder suspect of Linh, a Vietnamese school girl in Japan, was sentenced to “indefinate imprisonment.” Then, Linh’s parents, Vietnamese, has launched a signature campaign in a bid to pass the death penalty on the suspect. We could not say that Europe is “the world,” while Vietnam and Japan are not.

It is true that the death penalty has been abolished in most of the countries in the world. There are also countries still have it as law, but feel to abolish it, that it has not been exercised. Despite such, it still depends on countries outside the Europe. There is no likeliness that the death penalty would be banned among Islamic countries. I support the death penalty personally, just like the average Japanese people, but this doesn’t make us we are against the ‘world.’ It is not an issue the world is easily divided in black and white. In Europe, abolishment of the death penalty is a standard. Do I dislike Europeans for that? No. I get along with them, Europe is livable, and now it is more prospered than Japan. They have power. Europe dominated the Best 8 at the FIFA World Cup. This was possible due to their generous immigration policy and liberal society they have. Sharing of the value is the origin of strength that the integrated Europe has. I am not the supporter of abolishing the death penalty, but I am a member of Amnesty International. It is idiotic to undermine Amnesty’s wonderful activities just by looking at their opinion against the death penalty. It is also idiotic if the supporter of the death penalty look down on the opinion of those who are not. There must not be an easy division of black and white on an issue that takes away somebody’s life. The abolishment of the death penalty is actually replacing it with the life imprisonment. The philosophy of what Europe means the abolishment of the death penalty is that the prisoner charged with the death penalty should be punished by the life imprisonment instead. I think, honestly, it is a difficult question to answer which is better.

The problem is that the structure of the discussion is not understood well in Japan. Has the ‘legal experts’ community’ in Japan been paying the effort to deepen the discussion? Don’t they think the ‘world’ is for abolishing the death penalty but Japan isn’t, yet themselves (‘legal experts’ community’) are with the ‘world’? Aren’t they trying to lead the discussion to the stories like Japanese constitution was established based on French Revolution, the constitution’s protectionists are with the ‘world,’ so the revisionists are the return of Nazism? There is no life imprisonment in Japan. Because of that, there are major inconsistency as widely known. The prisoner charged for indefinite imprisonment would be released on parole after 30 years or so of serving. On theory, indefinite imprisonment is sentenced with a possibility that the sentenced prisoner would be corrected, but practically as the legal custom, those who murdered one person will be sentenced to indefinite imprisonment but not death penalty. The ‘common sense’ of the ‘legal experts’ community’ in Japan differentiates the indefinite imprisonment from the death penalty only based on the number whether the murderer killed one person, or two or more. Frankly speaking, this does not seem like a good custom.

This is the same ‘common sense’ of the ‘legal experts’ community’ when it comes to the Article 9 of the Constitution of Japan. It is nothing special, people in the same circle discuss and decide the custom, punish those who does not belong or leave that by unfair treatment of job allocation, and those who are in power stay in power through such scheme by maintaining the structure in the legal or academic industry. Although in reality, there’s such custom, and it is rather difficult to abolish the death penalty in Japan. It would show a major change if life imprisonment was introduced. Not only the indefinite imprisonment, but also the death penalty will be reduced. It would practically decrease the death sentence before abolishing the death penalty. If so, why not act to introduce the life imprisonment to begin with, step by step, rather than calling for abolishing the death penalty? In fact, their attitude regarding the Art. 9 of Japanese Constitution is the same. It should, based on the ‘common sense of the public opinion,’ be administrated in accordance with the purpose of the Constitution, or revised to determine the interpretation, not abolishing it. In short, allow the use of self-defense and administrate the constitution, or determine the interpretation, in accordance with the international law that clarifies the actor is legal to do so. ‘Common sense’ of the ‘legal experts’ community,’ however, will not function in such way, and will not tolerate such flexibility. If not ‘the constitutional protectionist,’ they will immediately denounce and will not listen at all by labeling ‘recurrence of Nazis,’ ‘affinity to Hitler,’ ‘revival of pre-war era,’ ‘the path once we have been through,’ in other words calling it ‘militarist,’ ‘third-class Muneki Minoda,’ or perhaps ‘America’s servant.’ I wish the legal experts would lead and transform the society where they would say “I respectfully disagree.”

(This is the English translation of an article written by SHINODA Hideaki, Professor at Tokyo University of Foreign Studies Graduate School, which originally appeared on the e-forum “Hyakka-Seiho (Hundred Flowers in Full Bloom)” of JFIR on July 12, 2018.)