Preface: What This Morning’s News Reveals
In May 2026, a bill to reform Japan’s retrial system was finally submitted to the Diet. It represents a step toward what wrongfully convicted people and bar associations have long demanded: enshrining in statute the principle that prosecutorial appeals of retrial decisions should be, in principle, prohibited.
But a step is only a step.
Simply listing what the bill does not address reveals the depth of the problem. There is no legal obligation to disclose evidence. No provision to open retrial request hearings to the public. No organizational separation of the prosecution from the Ministry of Justice. No independent oversight body for judicial administration. And the most fundamental issue of all — the structural arrogance shared by judges, prosecutors, and the Ministry of Justice — is left entirely untouched.
“Change one law, put a lid on the essential problems.” This has been the recurring pattern of judicial reform in Japan. And it is happening again.
The First Problem: A Fundamental Misunderstanding of the Judge’s Role
A relay essay published on the Yokohama District Court’s website contained the following description by an active assistant judge, explaining the work of judges to middle school students:
“Judges impose penalties on those who have committed crimes and maintain public order in society.”
This is not merely unsettling in emotional terms. It is legally incorrect.
Maintaining public order is an administrative objective — the mission of police and prosecutors.
Article 2, Paragraph 1 of the Police Law states that police are charged with “the prevention, suppression and investigation of crimes, the apprehension of suspects, traffic enforcement, and other maintenance of public safety and order.” This is the mission assigned to administrative organs — police and prosecutors.
What, then, is the mission of a judge? Article 76, Paragraph 3 of the Constitution of Japan is unambiguous: “All judges shall be independent in the exercise of their conscience and shall be bound only by this Constitution and the laws.” Judges are bound by the Constitution and law — not by the administrative objective of maintaining public order.
Furthermore, Article 1 of the Code of Criminal Procedure states that its purpose is “to reveal the truth of criminal cases while fully achieving the maintenance of public welfare and the guarantee of the fundamental human rights of individuals, and to apply criminal law swiftly and appropriately.” The simultaneous fulfillment of both public welfare and the guarantee of fundamental human rights is the purpose of criminal procedure. The judge stands as a neutral arbiter maintaining this balance.
For a judge to tilt toward public order maintenance is to unilaterally destroy that balance.
The mission of a judge can be stated plainly:
To protect human rights. To ensure that the innocent are not punished.
This is not an emotional claim. It is the legal consequence of Articles 31 through 40 of the Constitution — the cluster of provisions guaranteeing due process.
The Second Problem: The Structural Pathology of Professional Arrogance
The conviction that one is thoroughly versed in the law is, in itself, legitimate. But the moment that conviction connects to the proposition “therefore our judgments are correct,” it becomes arrogance.
This arrogance is not a matter of individual character. It is a cognitive and institutional structure into which professional communities inevitably fall.
Through law school, through the bar examination, through appointment and career advancement within closed institutional hierarchies, the capacity to see the institution from outside it is systematically lost. Legal professionals translate facts into legal concepts, but in that process of translation, the reality of living human beings is abstracted away. The person processed through the language of “defendant,” “admissibility of evidence,” and “formation of judicial conviction” is simultaneously a human being who has spent 42 years in detention — a reality from which professionals are structurally distanced.
Former Tokyo High Court judge Yukio Shimomura put it this way: “Judges fundamentally belong to the side of law and order. Inside the heart of every judge there is a prosecutor.”
This observation is not about individual ethics. It describes something cultural and institutional. The “public order maintenance bias” shared within the judicial community cannot be corrected by individual self-awareness alone. A mechanism that institutionally enforces self-examination is necessary.
Here a comparison proves instructive.
The Emperor of Japan, at every occasion of accession or national act, invariably states that he acts “in accordance with the Constitution of Japan.” This is the embodiment of Article 99: “The Emperor or the Regent as well as Ministers of State, members of the Diet, judges, and all other public officials have the obligation to respect and uphold this Constitution.”
Why does His Majesty repeat these words every time? Not because he is a constitutional scholar. Rather, it embodies the principle that those who exercise power must explicitly confirm the basis of legitimacy for that power, every time they exercise it.
Why does the practice of “point-and-call” confirmation exist among train operators? It exists because of a well-documented cognitive phenomenon: the more expert a person becomes, the more prone they are to errors caused by automaticity and habituation. Just as “errors occur even when the operator knows better,” judges who fully know the Constitution can fall into the trap of public order bias — because internalizing knowledge and consciously confirming it at the moment of action are two entirely different things.
Institutionalizing a procedure by which judges confirm the constitutional basis of their actions before opening court, and prosecutors do so before filing charges, is not a matter of moral exhortation. It is a question of institutional design grounded in cognitive science.
The Third Problem: The Constitutional Contradictions of the Organizational Structure
Examining the structure of Japan’s judicial institutions reveals a fundamental contradiction.
The Public Prosecutors Office is an external bureau of the Ministry of Justice. The Ministry of Justice is an administrative organ subject to the direction and supervision of the Cabinet. This means that the prosecution, which exercises quasi-judicial functions, is placed under administrative authority.
Article 65 of the Constitution states that “executive power shall be vested in the Cabinet.” Article 76 states that “the whole judicial power is vested in a Supreme Court.” The prosecution is institutionally suspended between these two provisions. Article 14 of the Public Prosecutors Office Act further grants the Minister of Justice the power to direct the Prosecutor-General. The structural possibility that political power may influence investigations through prosecutorial appointments is thus preserved by law.
The courts, for their part, hold authority over judicial administration — judges’ personnel decisions, budgets, and rulemaking authority are monopolized by the judiciary itself. No mechanism for external oversight exists by design.
This structure generates three distinct pathologies.
First, administrative objectives (maintaining public order) and judicial objectives (due process, protection of human rights) coexist and intermingle within the same organizational hierarchy. Second, the Ministry of Justice, prosecution, and courts share a common legal professional culture, eliminating the capacity for mutual criticism. Third, the conviction rate exceeding 99.9% functions not as evidence of the precision of the justice system, but as proof that the system effectively treats indictment as a de facto verdict of guilt.
The case of Atsuko Muraki is a textbook example of this structural failure. Prosecutors fabricated evidence, the Ministry of Justice could not stop them, and the court failed to detect the fabrication at first instance. All three institutions fell into dysfunction within their respective professional arrogance. In the case of Iwao Hakamada, 42 years passed between his first retrial request and the actual commencement of retrial. This is not an exception. It is the predictable output of the existing structure.
The Fourth Problem: The “Local Optimization Trap” of the Retrial Bill
The current reform bill must be assessed with legal honesty.
Making prosecutorial appeals “in principle prohibited” is progress. But the standard for determining what constitutes “sufficient grounds” for exceptional appeals is not legally defined. The judgment is once again delegated to the prosecution itself, leaving open the possibility that practice will not change.
On evidence disclosure, the bill contains only an aspirational provision: that the scope of disclosure “must be handled with care so as not to become unduly narrow.” This is not a legally binding obligation.
The deeper problem is that partial reform, processed as “completed reform,” drains the political energy available for substantive change.
The introduction of the lay judge system in 2009 was celebrated as the “democratization of justice” — yet the conviction rate of 99.9% did not change. The same pattern is repeating itself.
What substantive reform requires is clear.
The legal obligation to disclose evidence. The opening of retrial request hearings to the public (a question of constitutional consistency with Article 37). The organizational separation of the prosecution from the Ministry of Justice. The establishment of an independent oversight body for judicial administration. The substantive realization of the unified legal profession. A mandatory system for investigating and publicly reporting confirmed wrongful conviction cases. And the institutionalization of constitutional confirmation procedures for judges and prosecutors.
None of these is contained in the current bill.
Conclusion: The Weight of “In Accordance with the Constitution of Japan”
Let me state the conclusion plainly, in legal terms.
Japan’s current judicial organizational structure systematically undermines — at the level of institutional design — the independence of judicial power under Article 76, the guarantees of due process under Articles 31 and following, and the obligation to respect and uphold the Constitution under Article 99. This is not a problem of individual cases. It is a fundamental defect in institutional design.
The submission of the retrial reform bill to the Diet is a step. But as long as that step only “opens the door a little wider” without “changing the structure that produces wrongful convictions,” the tragedy will repeat.
Every person involved in the administration of justice must confront, directly, the weight carried by the words the Emperor of Japan speaks every time he acts: “In accordance with the Constitution of Japan.”
It is not the depth of one’s legal knowledge but the habit of returning to first principles that guarantees the legitimacy of the exercise of power.
Judges, prosecutors, and the Ministry of Justice are not exceptions.
Jun Katanuma (潟沼 潤) — Simultaneous interpreter, translator, and student of law. Based in Kamakura.
officenatura / junkatanuma.com