On March 15, Japan’s Supreme Court issued an important decision in a case arising under the Hague Convention on child abduction. Except it wasn’t about the convention, but about habeas corpus. Most press accounts have characterized the ruling as ordering that a child brought to Japan by his mother be returned to the United States, but it’s a bit more complicated.

A pitfall of comparative law is the ease with which familiar-sounding terminology can mislead. “Habeas corpus” is a prime example.

Latin for “produce the body,” habeas corpus is a centuries-old judicial procedure that in the Anglo-American system formed the bedrock of human rights law before the concept of human rights existed. A person subjected to arbitrary, unlawful detention could petition a court to issue a writ of habeas corpus. If the writ was issued, the detainer had to bring the detainee to court and explain the grounds for detention. If the detention was found to be unlawful, the detainee was immediately set free.

In England, habeas corpus led to a number of famous court decisions, such as the 1670 judgment establishing that jurors cannot be punished for their verdict, or the one in a 1772 that said nobody on English soil could be a slave. In the United States, habeas corpus was one of the few provisions about human rights contained in the U.S. Constitution before the Bill of Rights was added. In 2008 it was used to challenge the prolonged detentions without trial of terrorist suspects by the U.S. military at Guantanamo Bay.

Whittling down habeas corpus

Japan also has habeas corpus. Its Habeas Corpus Act was passed in 1948, specifically to give life to the ideals of the freshly minted Japanese Constitution by providing rapid and easy judicial relief for unlawful deprivations of liberty. Depressingly, the legislative history of the act reveals complaints about the old system — police using pretexts to detain suspects for long periods of time, coerced confessions, judges not protecting people’s liberty and so forth — that are similar to those made about the Japanese criminal justice system today.

The Supreme Court immediately used its power to create procedural rules to neuter habeas corpus. One rule it made required courts to reject petitions if there were “any other adequate means whereby relief may be obtained,” unless “it is evident that relief cannot be obtained within reasonable time.” With this, “rapid and easy” relief were excised from the law.

At the time, Japan’s entire code of criminal procedure was also revised to make it consistent with the numerous new constitutional guarantees of personal liberty and procedural justice. So perhaps the court’s thinking was that the procedural protections of the code would make habeas corpus unnecessary in most cases.

Yet seven decades later, the former head of school operator Moritomo Gakuen, Yasunori Kagoike, and his wife have been detained incommunicado for eight months without being put on trial. Ostensibly charged with fraudulently receiving public subsidies, their judicial renditioning is believed by some to be a way to prevent him from disclosing any embarrassing information about dealings with Prime Minister Shinzo Abe and his wife. By now, Japanese judges would have approved his prolonged detention multiple times. The Kagoikes’ treatment is not unusual, but habeas corpus is noticeably absent from discussions about him or any of the numerous famous so-called enzai cases — those where suspects were convicted and imprisoned for crimes based on questionable evidence or coerced confessions.

So, it is technically correct to say Japan has habeas corpus. It is also correct to describe the text of the law as providing prompt judicial remedies for unlawful detentions. In fact, habeas corpus offers a wonderful example of how you can state two factually accurate things about the Japanese legal system and still completely mislead your audience.

Old remedy gets second life

The Supreme Court also changed the law through a rule requiring detentions to be “conspicuously unlawful” in order to be eligible for habeas corpus relief. This was significant: “Minor” abuses by police or procedural violations by prosecutors or other judges would not be subjected to scrutiny through a habeas corpus hearing, because the petitions would be rejected for lack of conspicuousness.

It also meant that in the rare case that a petition was granted, the hearing held as a result would be meaningless. Why? Because by granting the petition, the court had already decided the detention was conspicuously unlawful — no bothersome arguing of facts and law in a courtroom for us, please!

The Supreme Court rules created numerous escape hatches for judges to allow even serious deprivations of freedom to continue. Under the rules, a court can grant a remedy other than immediate freedom — for a conspicuously unlawful detention! Another rule says that a petition cannot be brought over the objection of a detainee’s freely expressed objections.

Habeas corpus never became the tool for protecting the Japanese people from the state as originally intended. Instead, for several decades it took on an odd second life as an occasional player in custody battles, becoming the means by which estranged parents sought to recover detained children. Courts used habeas corpus proceedings to decide which parent was “better” and should thus raise the children while their divorce was sorted out.

In a 1993 ruling, however, the Supreme Court decided that even in this narrow context habeas corpus was being overused, and henceforth most disputes of this type should be resolved through the less adversarial proceedings of Japan’s family courts, whose specialized personnel had more suitable expertise. This may have had some logic, but if left parents of abducted children with no real remedies, since family court orders involving children — whether about visitation or transferring them from one parent to another — generally have limited enforceability. Habeas corpus had the advantage that failing to bring the detainee (i.e., the child) to court as ordered subjected the detaining person (parent) to the possibility of criminal penalties.

Since 1993, habeas corpus has served as a remedy that might be available after all others at family court have been exhausted. It certainly has not been a “rapid and easy” remedy, since the “conspicuously unlawful” threshold in the Supreme Court was satisfied only after a recalcitrant parent had steadfastly and repeatedly refused to comply with previous court orders. And an order to bring the child to the court meant that whatever hearing the court was supposed to hold was meaningless, since the fact that it was being held meant the result was a foregone conclusion.

‘Conspicuously unlawful’ case

Last month’s Supreme Court ruling concerned a dispute between a Japanese mother and father living in the U.S. Their marriage failing, the mother unilaterally brought the child back to Japan in January 2016. In July of that year, the father sought a return order from the Tokyo Family Court, which was granted in September.

The mother refused to comply, so civil enforcement under Japan’s Hague Convention implementation act was attempted in May 2017. This involved court enforcement officers going to the mother’s residence and seeking to take custody of the child.

The mother continued her resistance, and the enforcement officer had to forcibly enter through the second-floor window and … tried to convince her and the child to cooperate. The mother obstinately clung to the child under a blanket. The enforcement officer gave up and the effort was deemed unsuccessful. This is as far as civil enforcement will get you in a child custody case in Japan.

Finally we get to habeas corpus: A petition to bring the child to court was filed with the Kanazawa Branch of the Nagoya High Court. The court appeared to have done all the things Japanese courts did before the nation joined the Hague Convention — finding conveniently that the child was happy in Japan despite having been born in and spent the first decade of his life in the U.S., and that he didn’t like his dad. Since the child was freely expressing his objections to the petition and given his age and the circumstances, his “detention” by Mom wasn’t deemed to be conspicuously unlawful. Petition denied.

To its credit, not only did the Supreme Court find the lower court in error, it even acknowledged the possibility that children unilaterally deprived of contact with one parent might express views unduly influenced by the other, abducting parent. It questioned whether the child was freely expressing his will, and further noted that in international cases such as these, children face the added burdens of dealing with different cultures and languages and, if they are dual nationals, possibly ultimately a choice in nationality. The court also made a clear ruling that absent special circumstances, failure to comply with a return order under the Hague Convention should be considered “conspicuously unlawful” for the purposes of granting habeas corpus relief.

All good stuff, but the end result was to remand the case back to the lower court so that it could procure the child’s presence in the courtroom and consider the matter further. Given that 18 months has passed since the child’s return was ordered, you have to wonder if that court appearance will actually happen.

Moreover, given that as far back as 2003 the Supreme Court upheld the conviction for international kidnapping of a foreign father trying to remove his child from Japan, it seems odd that it has taken the court so long to conclude that abductions going the other way might be “conspicuously unlawful.”

Habeas corpus could have been used to remedy child abductions to Japan long before the nation signed the Hague Convention. The real problem has always been the judiciary’s lack of willingness to take action. Perhaps this decision is a harbinger of long-overdue change.

With EU ambassadors to Japan earlier this month issuing a joint demarche to the Minister of Justice about the continuing lack of enforcement of laws and court orders intended to preserve contact between divorcing parents, it can’t have come too soon.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone.

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