The Constitution of Japan [Part 8] Personal Liberty (Physical Liberty) — The Shield of 'Due Process' Protecting Individuals from Unjust Detention by the State [15-Part Series]

[Part 8] Personal Liberty (Physical Liberty) — The Shield of 'Due Process' Protecting Individuals from Unjust Detention by the State

In the previous lecture, we learned about the freedom of economic activity. However, no matter how economically wealthy one may be, if one is unreasonably arrested, imprisoned, or tortured by the state, it is impossible to lead a human life.

In Part 8, we will learn about the freedom regarding our 'bodies,' that is, 'personal liberty (physical liberty).' This is a right that can be called the very starting point of modern constitutionalism. In the era of absolute monarchy, those in power would nonchalantly commit atrocities, arresting people they disliked without evidence, locking them in dark dungeons, and repeatedly torturing them until they confessed.

To ensure that such abuse of power is never permitted again, the Constitution of Japan establishes extremely precise and strict rules from Article 31 to Article 40. These are also called the 'iron rules of criminal procedure,' and they define the strict process of 'what procedures must be followed' for the state to deprive citizens of their liberty. Today, we will delve into these, focusing on 'due process,' which is the cornerstone of criminal procedure.

1. Guarantee of Due Process (Article 31) — The Core of the Rule of Law

The grand principle that guarantees personal liberty is Article 31 of the Constitution.

This is called the 'guarantee of due process.' This is the principle that 'when the state carries out serious measures such as depriving citizens of their liberty or life, it must not be an arbitrary exercise of power, but must be based on a 'just law' determined in advance by the Diet, and must follow 'fair procedures.'

Is it okay as long as there is a law?

Caution is required here. 'Procedure established by law' in Article 31 does not simply mean that there is a 'law formally created by the Diet.' If the Diet were to create a law that says 'arrest and execute people we dislike,' it would be following 'legal procedures,' but it would clearly be unconstitutional as it violates the spirit of Article 31 of the Constitution. The Supreme Court interprets that this 'procedure established by law' must include 'the content of proper procedure (fairness).' This is the idea that the content of the procedure itself must be just in light of the ideals of modern democracy.

2. 'Warrant Requirement' in Arrest, Search, and Seizure (Articles 33 and 35)

It is not permitted for the police to suddenly arrest someone on the street or search someone's home without a warrant. Articles 33 and 35 of the Constitution strictly limit these actions.

This is called the 'warrant requirement.' It is a mechanism where, before exercising the massive coercive power of the police, a 'judge' in a neutral and fair position must check in advance whether 'there is a just cause for this arrest or search (is there evidence?)' and issue a 'warrant,' which is a permit.

The only breakwater to stop the runaway of power is that 'a judge checks before exercising power,' rather than the police (administration) making arrests for their own convenience and reporting to the court after the fact.

3. Rights of Suspects and Defendants and Prevention of 'False Accusations'

If one is unfortunately suspected by the police and subjected to interrogation, the citizen is far too powerless. The 'weapons' to protect that powerless individual from state violence are stipulated in Articles 34 through 40 of the Constitution.

① Right to Silence (Article 38)

Even if a police officer presses you, saying, 'You're the culprit, aren't you? Confess!', citizens have the 'freedom to remain silent (right against self-incrimination).' Furthermore, one will not be treated disadvantageously for choosing not to speak. This is an absolute right to prevent the police from extracting forced confessions through torture or similar means and creating wrongful convictions. It rejects the old idea that 'confession is the king of evidence' in criminal trials and stipulates that no confession shall be admitted as evidence if there is doubt that it was made voluntarily (Article 38, Paragraph 2).

(2) Right to the assistance of counsel (Article 34)

A person who has been arrested cannot stand up against the state's massive investigation alone. That is precisely why the right to receive help from a lawyer, who is a legal expert, is guaranteed. Even if one does not have the money to hire a lawyer, a 'public defender system' is in place where the state arranges counsel.

(3) Right to claim criminal compensation (Article 40)

What happens if someone is wrongly arrested and detained for a long period, or serves time after being convicted in court, only for it to be revealed later that they were actually innocent? The state must compensate for the damage caused by depriving an innocent person of their liberty. This is the 'right to claim criminal compensation.' The recognition that 'a wrongful conviction is a grave human rights violation by the state' lies here.

4. Optimization of Criminal Procedure — Contemporary Challenges

The history of criminal procedure is also a 'history of the fight against wrongful convictions.' In the past, harsh interrogations (forced confessions) by the police led to wrongful convictions in many cases. Therefore, 'visualization of interrogations (recording and filming)' has now become mandatory under the Code of Criminal Procedure.

However, challenges still remain. One of these is the issue of 'substitute prisons' (using detention centers as substitute facilities), where suspects are kept in police detention cells for long periods (up to 23 days) after arrest and before indictment. This has been criticized both domestically and internationally as 'hostage justice' (not releasing suspects unless they confess), and its consistency with the due process guaranteed by the Constitution is constantly being questioned.

Furthermore, due to the recent development of IT technology, 'digital evidence' such as smartphone data and communication logs has become crucial. The question of how far and in what way investigative agencies can collect and analyze this is a cutting-edge theme of the modern era, where personal liberty and the right to privacy (Article 13) intersect.

Summary of Part 8

Let's look back at the key points of today's lecture.

1. Due Process (Article 31): For the state to deprive citizens of life or liberty, proper and fair procedures based on law are essential.

2. Warrant Requirement (Articles 33 and 35): A 'warrant' issued in advance by a neutral judge is required for police arrests and searches. This is wisdom to prevent the runaway of power in advance.

3. Rights in Criminal Procedure:

   • Right to Silence (Article 38): Not being forced to make statements against oneself. A fortress to prevent forced confessions.

   • Assistance of Counsel (Article 34): Help from experts to counter state investigations.

   • Criminal Compensation (Article 40): The state's obligation to compensate for wrongful arrests, etc.

4. Personal liberty is protected by 'procedural guarantees' to prevent wrongful convictions. Strict brakes called due process are always required for the exercise of coercive power by the state.

Criminal procedure is a place where an 'overwhelming imbalance of power' between the state and the individual is created. The rules of criminal procedure set by the Constitution are the final fortress to correct that imbalance as much as possible and prevent innocent people from having their lives destroyed by the hands of the state.

Next time, in Part 9, we will learn about 'social rights' such as the 'right to life,' 'right to receive an education,' and 'fundamental labor rights,' as well as the 'right to participate in politics' that we use to engage in politics. We will move on to the concept of 'beneficiary rights,' where we not only are protected by the state but also actively utilize the functions of the state.social rights and the right to participate in politics that we use to engage in politics.

[Final Exam] (Part 8 Review Questions, 5 Questions Total)

This is a final exam to check your understanding of today's lecture. Rights in criminal procedure are extremely important for civil service exams and the like, so please confirm the logic for each one.

[Question 1] What is the principle called that states that when the state carries out serious dispositions such as depriving citizens of life or liberty, it must follow proper procedures decided in advance by the Diet, rather than exercising arbitrary power?

[Question 2] What is the principle called that requires a neutral judge to check in advance whether there is a suspicion of a crime and issue a permit before police or others can conduct an arrest or search?

[Question 3] What is the right guaranteed by Article 38, Paragraph 1 of the Constitution, which protects against being forced to make statements that are disadvantageous to oneself, called?

[Question 4] What is the system (Article 40) called in which the state compensates a suspect or defendant for damages caused by long-term detention when it is determined in a criminal trial that they are innocent?

[Question 5] In criminal proceedings, why is the right of a suspect to have the assistance of a lawyer guaranteed? Explain briefly using the word 'imbalance' to describe the power dynamic between the investigative authorities and the suspect.

[Final Exam: Answers and Detailed Explanations]

[Question 1: Answer] Guarantee of Due Process

[Explanation] This is the 'grand principle' of personal liberty established by Article 31 of the Constitution. Unless the procedure is proper, state coercion is not permitted, even if the substance is just. The fairness of the procedure is the condition for state power to maintain its legitimacy in a democratic nation.

[Question 2: Answer] Warrant Principle

[Explanation] While the police are 'professionals at investigation,' there is a danger that they may resort to excessive measures in their zeal. Therefore, the purpose of the warrant principle is to prevent such excesses by having a third party—a neutral judge not involved in the investigation—check the situation. Arrests or searches that ignore this are considered seriously illegal, such as having their evidence excluded.

[Question 3: Answer] Right to Silence

[Explanation] This is a right to eliminate temptations from the police, such as 'we will lighten your sentence if you confess,' or forced confessions through torture. The act of 'not speaking' itself is an exercise of a constitutional right and can never be used as evidence of guilt. This is one of the most important defensive measures reached in criminal proceedings to prevent wrongful convictions.

[Question 4: Answer] Right to Claim Criminal Compensation

[Explanation] The fact that 'an innocent person was put in jail for a long time' is a serious, irreparable human rights violation by the state. Although it cannot be compensated for with money, Article 40 of the Constitution declares that the state has a responsibility to compensate for the damages.

[Question 5: Answer] Because an overwhelming power imbalance exists between the investigative authorities and the suspect.

[Explanation] A suspect who must face the entire organization and power of the state—the police and prosecutors—alone is far too powerless. A 'defense attorney' is an expert who corrects this inequality and enables equal debate. Criminal proceedings without a defense attorney allow state power to run unchecked and make a fair trial impossible.

This concludes the lecture for Part 8. Thank you for your hard work.