KIKUTA Koichi

Address by Professor Kikuta Koichi
Translated by Gwen Vickers

FIRST DRAFT


Why is the death penalty not abolished in Japan?

I have been lecturing on and studying criminal studies at the Legal 
Department of Meiji University in Japan for some 30 years. One of my 
special areas is that consisting of juvenile law, the criminal law 
system and the treatment and rehabilitation of criminals. A fundamental 
issue which is common to all these topics and which I have always 
struggled with is the question of how to consider the human rights of 
all criminals including juvenile delinquents. The death penalty system 
is an extreme response to that question. I think that if one does not 
abolish the death penalty one cannot talk about the human rights of the 
convicted.  I have published numerous books in favour of the abolition 
of the death penalty and taken an active part in the citizen's movement 
against the death penalty in Japan for many years.

So, why is the death penalty not abolished in Japan? I think that, in 
addition to the primary factors, which Japan shares with other countries 
that retain the death penalty, there are some factors, which are 
particular to Japan.

(1)	The common factors can be divided into two groups. One of these 
relates to national opinion. A great number of Japanese people desire 
the maintenance of the death penalty now as ever, and the government 
considers that the abolition of the death penalty in Japan would 
therefore be premature. The other is the argument that the abolition of 
the death penalty cannot be permitted out of sympathy for the victims of 
crime. Both of these are mentioned in the [Fourth Government Declaration 
of the Statute on Human Rights (1988)] that was first ratified in 1979. 
However, both of them rest of shaky foundations, both in theory and in 
practice.

First of all, it is the essence of the Human Rights Statue that public 
opinion must be the foundation for the continuance of the death penalty. 
The Human Rights Commission has pointed out that the Japanese government 
does not understand the idea behind this treaty. At the same time, as is 
reported in detail in the other materials that we have widely 
distributed, the results of recent opinion polls carried out in Japan 
indicate that if the death penalty system was substituted by some 
alternative measure such as life imprisonment, the number of people who 
would support a "conditional abolition of the death penalty" (and who do 
not insist on the death penalty itself) make up more than half of those 
polled. Looking at this fact alone, it is evident that the government's 
reasoning for the retention of the death penalty as founded on people's 
opinion is out of touch with modern Japan.

Second, there is the argument which holds that the abolition of the 
death penalty cannot be allowed out of sympathy for the victims of 
crime, and I think this is the one and only justification for the death 
penalty in today's Japan. As I think you may know, in March 1995 the Ohm 
Pure Truth Sect engineered the Tokyo Underground Salin Incident that 
lead to many casualties including 11 fatalities. In the aftermath of 
this incident, public sympathy for victims of crime worked against the 
movement for the abolition of the death penalty. One certainly cannot 
deny that this incident represented a major drawback for the movement. 
But it is acknowledged internationally, and not only by criminal studies 
specialists that it is the obligation of modern society to find out how 
victim and assailant can live together. One cannot only think of the 
existence of the death penalty and our strategy towards victims as being 
in direct opposition to one another. At the very least, the experiences 
of the victims themselves are testament to the fact that use of the 
death penalty is not necessary to show sympathy for victims, and the 
existence of the death penalty does not heal the victims' feelings. An 
emphatic opposition to the death penalty on the part of the families of 
victims of crime is beginning to emerge. Mr Harada who is a member of 
our group visiting Europe at this time takes part energetically in the 
anti-death penalty movement and is travelling with us, although he is 
the surviving relative of a murder victim. As can be judged from this 
situation, the primary factors that support the continued existence of 
the death penalty are collapsing.

(2) So what about the special reasons for which the death penalty is not 
abolished in Japan today? In order to answer this, one must explain the 
particular background that exists in Japan. As you know, Japan is an 
imperial monarchy, and the Criminal Code provides that even if such acts 
do not lead to murder, acts which are designed to overturn the national 
structure such as insurrection or the bringing about of international 
conflict can be punished by the death penalty. This provision has not 
been used once since the war, but if the death penalty was abolished 
this provision would also have to be eliminated. However, this issue is 
one that goes to the heart of the national structure and I think this 
may be one of the obstacles to a discussion of the abolition of the 
death penalty. This point has never actually been raised in the death 
penalty discussions held by the Law Review Committee of the Ministry of 
Justice, a government consultative body. But in light of the resolution 
of this committee in favour of the preservation of the death penalty, I 
think it is an important factor.

In Japan, important national laws such as the Criminal Code are 
discussed as above, but the Criminal Code still exists in the form in 
which it was enacted in 1907. At the special sectional meeting of the 
Law Review Committee that recommended the revision of this law in 1970, 
it was resolved to retain the death penalty, and as a result of this the 
Ministry is still negative about abolishing the death penalty today. 
Recently there has appeared a tendency for important bills to be revised 
by the Legal Codes of the Diet rather than under the leadership of the 
government's administrative office. But nevertheless I expect that as 
long as an Agreement on the Abolition of the Death Penalty is not 
ratified, or the death penalty provision is not removed from the 
Criminal Code, progress on this matter in practical terms will be 
extremely difficult. I think that it is important to at least 
discontinue the use of the death penalty in practice, even if the 
relevant provision is not removed from the Criminal Code, and I am 
certain that this will be possible in the near future.

(3) It goes without saying that I am an advocate for the immediate 
abolition of the death penalty. I am aware that what other advocates of 
this abolition are proposing as a substitute is theoretically 
inconsistent and I know that many of the people in favour of this 
abolition are very passive. But at the moment in Japan twice-yearly 
executions are becoming a routine. Also, as I have already said, in 
addition to Japan's special circumstances, to insist on the immediate 
abolition of the death penalty is reasonable in theory but not in 
practice, and there is the danger of inviting a backlash. I think it is 
therefore necessary to urge for steps to be taken such as the 
commutation of all death sentences to sentences of life imprisonment, 
the reduction of the number of death sentences and a general stay of 
executions, at the same time as insisting on a complete abolition. This 
is something that the numerous developed nations that have abolished the 
death penalty have already experienced. At a review of the UN Committee 
for the Free Rights Covenant one member actually advocated the 
introduction of life sentencing as a move towards the abolition of the 
death penalty in Japan.

In 2000 when this suggestion was received, the party in power at the 
time began deliberately investigating the introduction of the life 
sentence.

One prisoner who is currently on death row has said, "In substituting 
the life sentence for the death penalty, it is more important to aim for 
the actual abolition of the death penalty in the near future, than its 
legal abolition in 100 years' time. Under a life sentence, even if one 
cannot go outside the prison walls for the rest of one's life, that is 
still a life." There is a Japanese proverb which says "make haste 
slowly". While praying for the abolition of the death penalty, I intend 
to work diligently towards the introduction of the life sentence in my 
country.