When it comes to judicial independence, you may first think of the United States' "Marbury v. Madison"; But the case I want to tell you about today, the first case of Japan's judicial independence, is a more judicial test than "Marbury v. Madison", because it has to choose between the death of the country and independence...
Source / Rule of Law Weekend
At 1:50 p.m. on May 11, 1891, Japanese policeman Tsuda Sanzo attempted to assassinate Russian Crown Prince Nikolai, who was visiting Japan. After that, the Japanese government, under diplomatic pressure, engaged in a tug-of-war with the local judiciary. In the end, the Japanese judiciary adhered to the bottom line of judicial independence. More than 120 years have passed since the Otsu assassination case, and its place in the history of Japanese justice cannot be underestimated.
On May 11, the 24th year of Meiji (1891 AD), in Otsu, Shiga Prefecture, Japan, thousands of heads were crowded, colorful flags fluttered, and flowers were displayed to welcome the arrival of distinguished state guests. The 23-year-old Russian Crown Prince Nikolai had just attended the groundbreaking ceremony of the Trans-Siberian Railway in Vladivostok when he visited Japan.
The Japanese government does not dare to slacken, and relations between the two countries have been tense and delicate for many years, and they are worried that they cannot improve. This God-given opportunity, the Japanese government decided to receive the highest standard, hoping to take this opportunity to turn enemies into friends.
The Japanese official specially sent more than 20 officials to the port of Nagasaki to wash the dust for Prince Nikolai. Merchant ships in the port are not allowed to berth, and the rest of the ships are required to fly the Russian flag as a sign of welcome. In order to protect the personal safety of the Crown Prince, the Japanese government has strengthened the police force and strictly guarded against it. Japanese Foreign Minister Shuzo Aoki and the Russian ambassador to Japan agreed that in the event of an assassination incident, the assassin would be sentenced to death in accordance with Article 116 of the Japanese Criminal Law for "inflicting harm to the imperial family."
Japanese police assassinate the Russian crown prince
On the same day, Crown Prince Nikolai and his party came to the small city of Otsu. After a courtesy visit, he sat in a rickshaw with the Greek prince Georgi and went sightseeing together.
At 1:50 p.m., a Japanese policeman suddenly went berserically and slashed at VIPs sitting in rickshaws. Crown Prince Nikolai received two blows to his right ear, and blood splattered everywhere.
Shocked, Nikolai quickly exclaimed: "You want to kill me? Come on! He covered his wound in pain and jumped out of the car to run for his life. The killer is in hot pursuit. At this moment, the Greek prince took out the bamboo cane he had just bought and chopped the murderer to the ground. The accompanying doctor was busy bandaging the crown prince Nikolai to stop the bleeding. Shocked, Nikolai was angry and terminated his visit to Japan and prepared to return home as soon as possible.
The sensational "Otsu assassination case" broke out, shocking the world. Emperor Meiji sent an imperial physician and later to the Russian warship moored in the port of Kobe to comfort Crown Prince Nikolai. The Japanese government also apologized to Russian officials through diplomatic channels, promising to severely punish the murderers and vent the Russian crown prince in accordance with the agreement between the two countries.
The whole of Japan is deeply afraid of Russia's retaliation and aggression against Japan. All schools were closed, and they gathered at shrines and temples to pray for the recovery of Crown Prince Nikolai. Kanayama Village in Yamagata Prefecture is forbidden to be named after the murderer's name, "Tsuda Sanzo".
On May 20, in order to calm the anger of the Russians, Yuko Hatakeyama, a woman from Chiba Prefecture in Japan, left an apology note in front of the Kyoto Prefectural Office and committed suicide by stabbing her throat, and the countrymen were known as "martyr women".
On the night of the crime, the Otsu District Court sent a pre-trial judge and prosecutor to interrogate the murderer. It turned out that the murderer Tsuda Sanzo was not a bystander, but a police officer in charge of the security of Crown Prince Nikolai and his party. Dissatisfied with Russia's long-standing threat to covet Japan's northern territories, he decided to take a desperate step to eliminate harm to the country in order to show his loyalty to the emperor.
After the assassination, relations between Japan and Russia fell to a freezing point, and war was on the verge of breaking out. The Tsar threatened that if Japan could not give a satisfactory answer, it would not hesitate to fight each other.
The executive and judicial tug-of-war
In order to maintain relations between Japan and Russia, Japanese Prime Minister Masayoshi Matsukata convened an emergency cabinet meeting, at which it was agreed to execute the criminal Tsuda Sanzo for the "great crime of rebellion", and the Japanese side assumed the responsibility of the government under international law, and at the same time informed the former prime minister and current president of the Senate of the decision of the cabinet, Ito Hirofumi, and others.
The Grand Court of Japan's highest judicial organ quickly formed a special court to hear the "Otsu case." However, serious differences soon arose between the judiciary and the administrative organs, which advocated strictness, speed, and heaviness, on how to apply criminal law.
The Japanese cabinet argued that the case involved diplomatic relations between Japan and Russia, that Russia could start a war at any time, and that there had already been a secret treaty between the two countries, that a heavy sentence must be imposed. Kojima Yuken, who has newly assumed the post of president of the Grand Senate, pointed out that Article 116 of Japan's Penal Code stipulates that anyone who harms the emperor, empress, crown prince and other members of the imperial family shall be sentenced to death without distinction as soon as possible. This crime of inflicting harm on the imperial family, commonly known as the crime of great rebellion, applies only to protecting the personal safety of members of the Japanese imperial family, not to foreign royal family members visiting Japan, whose status is no different from that of ordinary Japanese nationals.
According to the principle of criminalization of crimes in modern criminal law, no crime without express provisions of the law, and no punishment without express provisions of the law, criminal law is the most taboo analogy, and rashly expands interpretation, which will shake the foundation of criminal law. In this case, the defendant can only be sentenced to life imprisonment for ordinary attempted homicide. Moreover, the Meiji Constitution stipulates that the government must fully abide by the law and must not play with the law in the palm of your hands.
The Japanese administration did not agree, and Prime Minister Masayoshi Matsukata personally went out to meet with President Yuken Kojima to express his opinion, and at the same time put pressure on the seven presiding judges. The majority of the judges, under strong pressure, wavered and agreed to respect the Japanese cabinet's claim for heavy sentences.
The president of the Grand Senate, Yuken Kojima, is well aware that although the Meiji Constitution promulgated two years ago stipulates the principle of judicial independence, Japan's executive power is monopolized, and the judicial power that is not deeply rooted may be stillborn at any time. He expressed his stakes to the seven judges, hoping to uphold the final bottom line of judicial independence. He encouraged the judge: "Since there is no express provision in the law, the death penalty cannot be summarily imposed. We should stand up for principles and refuse to give in to political pressure. Lords, defend the independence of the judiciary, and who else will I give up? ”
When the Japanese government heard the news, it immediately sent Minister of Internal Affairs Saigo Yudo and Minister of Justice Yamada Hideyoshi to join forces to lobby the judge. Unexpectedly, seven judges refused to meet with administrative officials before trial, citing judicial independence.
On May 25, Japanese Attorney General Miyoshi and Justice Minister Hideyoshi Yamada jointly issued an edict stipulating that Article 116 of the Criminal Law can be expanded and interpreted. Kojima responded that Article 3 of the General Provisions of the Criminal Law stipulates the principle of prohibiting the retroactivity of laws in black and white, and there is no doubt that the new edict cannot be applied to the "Otsu" case.
The aftermath of the shocking verdict rippled
Can the Japanese judiciary really insist on independent trials without fear? On May 27, 1891, the verdict was rendered. Under heavy pressure, the Special Trial Chamber of the Japanese Grand Court resolutely ruled that the defendant Tsuda Sanzo had committed attempted murder under Article 292 of the Criminal Law and sentenced him to hard labor for life.
As soon as the verdict was issued, the independence of the judiciary from the executive power began to appear. Foreign Minister Aoki Shuzo, Minister of Internal Affairs Saigo Yumichi, and Justice Minister Yamada Hideyoshi announced their resignations one after another because of their interference in the judicial incident.
And Russia, which had a tough attitude in advance, suffered from the decline of national strength and the serious lack of preparations for war, so it could only swallow the bitter fruit, under the pretext that Crown Prince Nikolai was not seriously injured, the Japanese emperor personally visited, and the Japanese government sincerely apologized many times, and the big things were reduced to small and small things to small things.
Later generations praised Kojima as the patron saint of Japanese justice and laid the foundation for Japan's judicial independence. Japan, which holds high the banner of judicial independence, took advantage of the situation to revise unequal treaties with many countries such as Britain, France, and the United States. This case has a more far-reaching impact on the final liberation of Japan's judicial power from the domination and control of the executive power, and the implementation of the checks and balances of the separation of powers introduced by the Meiji Constitution.
However, some scholars have pointed out that according to Japan's Criminal Procedure Law, this case should have been tried by the Otsu District Court where the case occurred, but it was tried by a special trial chamber composed of the Supreme Court, which is inconsistent with the law. The president of the Grand Court, Kojima Yuken, did not personally participate in the trial, but issued a ruling to the presiding judge, and there is also a big gap between him and the essence judge of judicial independence.
As for the assassin Tsuda Sanzo himself, he was imprisoned in Kushiro Prison in Hokkaido, where he died of illness on September 29 of the same year. The cause of death is acute pneumonia, which is highly suspected, and some people still believe that it may be a government murder.
Four years after the Otsu case, the assassination case that shook the world again occurred in Japan, and the assassination of Li Hongzhang, a heavy minister of the Qing Dynasty, was taken away from Ma Guan. The assassin Hantaro Oyama hit Li Hongzhang with a pistol, causing him facial injuries. Emperor Meiji was furious, and issued an edict "Strictly guard against it." Prime Minister Ito Hirobumi sent a special envoy to demand that the prisoners be sentenced to death. However, Judge Tsuruoka Takuro of the Yamaguchi District Court in charge of the trial still "risked the world's condemnation" and sentenced the prisoner to life imprisonment in accordance with the law.
The secret to the success of the rule of law in Japan
Under the long rule of the shogunate, the Japanese people were accustomed to autocracy, and they were obedient to the government's orders, and did not know what their rights and obligations were. Why has the Japanese judiciary been so successful in such a short period of time?
After the Meiji Restoration, Japan embarked on a rapid march-style modernization development, completely westernized, and imported advanced technology, weapons, culture, especially legal ideas and systems from the West.
According to scholar Oza Jumai, from 1869 to 1889, Japan translated more than 500 Western legal works. A large number of famous legal works have been adapted into primary and secondary school textbooks, and the ideas of rights, autonomy and autonomy are deeply rooted in the hearts of the people.
In 1871, Japan established the Ministry of Justice, the Tokyo Court in the same year, and the Grand Court in 1875. In 1880, the Japanese criminal law, which refers to the French Penal Code, was the first to establish the principle of criminalization and abolish the vague "not to be a crime" in the old law.
In 1889, Emperor Meiji promulgated the Meiji Constitution, the first constitution in Japanese history, introduced the Administrative Judgment Law and the Spokesperson's Rule, the predecessor of the Lawyers' Law, in 1890, implemented the Japanese Civil Code, and the Meiji Commercial Code was born the following year.
Former Japanese Prime Minister Shigeru Yoshida recalled fondly in his book "A Century of Turbulent History" that Judge Otsu did what they thought was right with pride in Japan as a country ruled by law and full of independent spirit. The independence of the judiciary that had been laid down had finally come to fruition.
Time flies, and the "Otsu case" is more than 120 years old. The Japanese legal people represented by Kojima Yuken did what they should do, cut off the crowd, and roared lions.
——This case is included in Shizuko Natsuki, translated by Li Hao: An Unfortunate Encounter with a Pistol: The Story of Japanese Justice, Peking University Press, February 2017