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| sparsha |
Posted
on 14-Mar-01 04:49 PM
FYI
Nepal Man's Conviction Puts Japanese Criminal System on Trial
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By Doug Struck
Washington Post Foreign Service
Sunday, December 31, 2000; Page A20
TOKYO -- She was a career woman by day, a respected economist with a good future in a big utility company. By night, she was a streetwalker driven by her own demons to methodically service four customers each evening, offering herself cheaply to foreign laborers in the neighborhood.
He was an illegal immigrant from Nepal, working in an Indian curry shop to send money home to a wife and two kids, like thousands of other foreigners. On occasion, the two met for a transaction that met their mutual needs.
But when Yasuko Watanabe was found strangled in a shabby vacant room in March 1997, police quickly arrested waiter Govinda Prasad Mainali for the "office lady murder." Some say too quickly -- the evidence seemed far from certain and Mainali vehemently protested his innocence.
The case became a major cause for human rights groups after the Tokyo District Court agreed with critics and acquitted Mainali in April, holding that the circumstantial evidence was flimsy.
But Mainali was not released. Instead, he was jailed to prevent him from leaving the country, an extraordinary act that legal critics say could not have happened to a Japanese citizen.
Prosecutors appealed the acquittal, and on Dec. 22, the Tokyo High Court summarily reversed the verdict without explanation and sentenced Mainali to life in prison. Mainali, 34, who had cleared out his jail cell expecting to leave for Nepal, was stunned.
"I didn't do it. God, help me," he cried.
His detention and overturned acquittal have unleashed a swell of criticism of the entire Japanese criminal system. In a society where public complaints are muted, criminal defense lawyers have been openly scathing in their assertion that the courts have failed to do their job.
They note that more than 99 percent of the criminal cases brought to court result in convictions. They say that the courts assume police and prosecutors bring them only defendants who are guilty, and they say judges ignore the American-model presumption of innocence for the defendant that is also a part of Japanese criminal law.
Furthermore, police operate with few safeguards against abuse. Confessions are neither recorded nor videotaped, but usually written out by police and signed by the suspect. Physical and mental pressure to confess are said to be routine. Suspects can be jailed and interrogated for 23 days without talking to a lawyer or to their families. Poor suspects often don't get a lawyer until they get to court.
"The system is rotten. The criminal courts are comatose; they do what the prosecutors tell them," said Katsuhiko Tsukuda, one of five lawyers who agreed to represent Mainali.
The lawyers raised complaints from the start, bringing an unusual civil suit to protest that they were not allowed access to their client. They won a rare judgment and a $3,300 award against the government.
"Lawyers cannot trust the criminal judges," said another attorney for Mainali, Hiroshi Kamiyama. "This was an extremely unjust verdict. Even though we don't have faith in the judges, I was shocked by this."
The lawyers plan to appeal to the Supreme Court, but say the system is stacked against them.
Defendants have "to be acquitted in lower court, and then acquitted again in the appeals court, and then acquitted again in the Supreme Court before they are freed," said Kamiyama.
Mainali's supporters say the police were under pressure to make an arrest because the victim's unusual background brought intense public interest in the case.
Watanabe, 39, had graduated near the top of her class in the tough economics school of Keio University. In an era of advancing women's rights, she was a single woman on a promising career path as an economist at Tokyo Electric Power Co., where her father had worked.
But each night after work, she inexplicably went to a sleazy district in Tokyo's Shibuya Ward of "love hotels" and bars. She donned a long hairpiece and a beige overcoat and put herself on sale, often standing with a can of beer and a snack from a convenience store.
She had regular customers who paid her as much as $500, but she also serviced the foreigners who lived in the area and had come to Japan to take construction work or menial jobs, often illegally. For them, she charged as little as $30, according to Shinichi Sano, an author who said he conducted hundreds of interviews for a book about Watanabe's murder.
She was not picky about her workplace, he said. She had sex in parked cars, public parks and abandoned buildings such as the one in which she was killed and robbed of $357.
Five days after her death, police arrested Mainali, who shared a nearby room with other Nepalese workers. They had no evidence to connect him directly to the crime. But they said he had a key to the room where the murder occurred, that a used condom had been found there that matched his semen and that a hair found at the scene matched his DNA.
Mainali initially denied knowing the woman, but eventually told police that he had a key to the room because they had had sex previously, and that the condom was from an earlier visit. Prosecutors admitted they could not prove when the condom was used, and acknowledged they had found hairs from at least one other unidentified person near Watanabe's body. They also said they could not explain how a train pass belonging to the woman was later found in a neighborhood far from Mainali's haunts.
"Because he first said he didn't know her, the police concluded Mainali was a liar and made him a prime suspect," said Sano. "What they did was outrageous. They would never do this to a Japanese, or even to a Caucasian. There is an element of racism against the Nepalese because they are colored persons."
Sano went to Nepal to interview other workers who were deported from Japan after the police investigation. He said they told him they were coerced, physically abused, and threatened so they would give statements against Mainali. Sano claims that one of the Nepalese workers now says Mainali was in a room with him the night of the murder.
In April, the Tokyo District Court delivered an unusual rebuff to prosecutors, saying their circumstantial evidence against Mainali was weak, and that the murder might have been committed by someone else. After his acquittal, Mainali was sent to Japanese immigration authorities to be deported for overstaying his visa. But prosecutors won a unique order from an appeals court to detain Mainali until they could appeal the acquittal. Such appeals by prosecutors are allowed in Japan.
"It's not possible, legally, to detain a person who has been acquitted, but they did it anyway," said Hideki Morihara, a coordinator in Japan for Amnesty International. "It's a breach of Japanese law and international law. If this kind of practice is allowed, it's quite dangerous."
The same judge who approved the detention order then presided over a three-judge panel that heard the appeal. Without hearing direct testimony nor any new proof, the panel ruled there was "sufficient evidence to prove the accused carried out this murder. . . . There are no reasonable grounds for doubt."
"I think this decision is bad for the image of Japan's legal system," said Toyo Atsumi, a law professor at Chuo University. "In the Japanese constitution, we have a provision that clearly bans double jeopardy. This case vacates the whole protection against double jeopardy."
The Tokyo prosecutors' office refused to discuss the case. Deputy Chief Prosecutor Kunitaro Saida said in a statement, "The verdict confirmed the assertion of the prosecutor and had fully clarified the truth of the case. We regard this as a fully justified and appropriate verdict."
Atsumi disagreed. "To me, it's ridiculous the court would make this decision," he said. "It is going to be very difficult for foreigners to understand this kind of thing. It's difficult for me to understand."
© 2000 The Washington Post Company
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| namita kiran-Thuene |
Posted
on 15-Mar-01 09:10 AM
I am aghast. I don't know much of the detail, but I do have to take the news in its face value. It sounds the fate of an innocent man was decided by an unjust system. What is the Nepali embassy doing? Any news about that? Or they are just celebrating the obligatory dashain, tihar, nepali new year and eating masu chiura?
Namita
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| sparsha |
Posted
on 15-Mar-01 01:17 PM
I am not aware of any constructive effort of the Nepalese Embassy in Tokyo. I seriously doubt that the embassy will ever came out to aid the Nepalese living there. Officially, I suppose, the embassy might want to keep itself at a considerable distance from those illegal Nepalese as if they are faceless people. It may be futile to expect any positive and effective help from that establishment (Embassy). I will in fact like to be proven wrong on this.
On one thing, however, the embassy will beat our expectation and that is if it is asked to beg for the money. What else a "Bhikhari" embassy can do?
sparsha
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| Biswo |
Posted
on 15-Mar-01 03:47 PM
Working illegally is not a crime in that it doesn't constitute
threat to any body else. Illegal workers are generally beneficial
to the host economy.Illegal workers are ,in fact, immigrant
workers who were termed illegal just because they don't have
necessary paperwork.
Mainali's case sounds fishy. But it is also true that the
awareness became possible only because Japan is a liberal and
democratic society. In Arab nations, such cases would have been
quietly expedited by beheading the immigrant.The recent data from
the ministry of labor showed that more than 400 Nepalese are known
to have died in Arab.
It is the incapacity of government, and it is obvious. Government
either doesn't know or doesn't want to know that countries like
Phillippines and Thailand provide legal services in Arab nations
to their (illegal) workers.We have hundreds of thousands of our
young men working out there, and we are just deserting them. It is
not a shame to work for living wherever opportunity exists.
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| sparsha |
Posted
on 15-Mar-01 08:29 PM
Biswo,
[You wrote "Working illegally is not a crime in that it doesn't constitute threat to any body else. Illegal workers are generally beneficial to the host economy. Illegal workers are ,in fact,immigrant workers who were termed illegal just because they don't have necessary paperwork." ]
Violation of an established law is illegal. I didn't understand what are you trying to say in the above quoted paragraph by writing"...just because...Many of us know what do those red words mean at the back of our I 94. May be illegal workers are in fact beneficial to the host economy but that does not automatically change the status to legal.
You furthur wrote ["But it is also true that the
awareness became possible only because Japan is a liberal and
democratic society. In Arab nations, such cases would have been
quietly expedited by beheading the immigrant.The recent data from
the ministry of labor showed that more than 400 Nepalese are known to have died in Arab. "]
Well, by reading the article on Mainali,I don't think what Japan is doing to Mainali qualifies it (or she) to be a liberal and democratic society. Compare to Arab Nations, may be so.
Yes, if it was an Arab nation he (Mainali) would have been murdered (or penalized by that nation's law). I agree. But still that does not mean what Japan is doing to him is fair.
Your words, again ["It is the incapacity of government, and it is obvious. Government
either doesn't know or doesn't want to know that countries like
Phillippines and Thailand provide legal services in Arab nations
to their (illegal) workers.We have hundreds of thousands of our
young men working out there, and we are just deserting them. It is
not a shame to work for living wherever opportunity exists."]
Our government does not want to know. Not long ago, Hindustan Times mentioned that Saudi Arabia beheaded some Indians on the charge of illegal drug traficking. Saudi Arabia was informing the Indian government about the penalty (beheading) only after executing it. So, I wonder what is the source of that number of 400 Nepalese who lost their lives in a BIRANO land. I suspect, in fact, the actual number may be higher much higher than we think. I am remembering words from swasthani...hajar jibro bhayeko shesha naga le pani barnan garna naskne charitrahin govt. is what we have, UNFORTUNATELY.
sparsha
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| Biswo |
Posted
on 15-Mar-01 11:25 PM
Dear Sparsha:
By crime, what I meant was actually 'Phaujdaari' crime. I don't
know how do they say phaujdaari in English. Believe me, I searched
for this, but didn't find.So, just wrote 'in that it doesn't
constitute threat to anybody' in explanation. My point is these
people deserve better treatment because they are beneficial to
host.Sorry about vagueness of language.
Of course, Mainali's case provides a contrary example, otherwise
Japan, as I know her, is pretty good society. People are very
compassionate, and hardworking. Illegal workers are allowed to go
to court to sue the owner also. I have a very close relative who
is in University of Tokyo doing his PhD, and he visited my place a
few months ago. He was pretty assertive about this. We have heard
plenty about mistreatment in Korea, Malaysia and Arab, but we have
heard very few of such mistreatments in Japan.
I understand how you feel about Mainali's case. Japan is
vulnerable to venality and distortion of police dept.Again, such
attitudes can be found in all nation.May be one incident that
happened in Chitwan some years ago(when I was in Shanghai) is
mentionable here:a pretty well off guy hit two Bihari immigrants
workers when he was driving motorbike under influence, and they
died instantly. However,since they were not Nepalese, police was
bribed, and the guy didn't have to spend even a day in jail. Dear
Sparsha, it was such an inhumane treatment of fellow humans and
it happened in our society, and believe it, nobody raised a word
against that misjudgement.I also remember another incident of 17
years ago, when a carpenter in our village (immigrant from Bihar)
was manhandled,bruised and sent to police chauki with his gory
body in the charge of larceny.A lot of people still believe he
was innocent.
My point is: we are also bad if we think of such incidences. May
be Japan is bad, she is giving all of us bad impression now, but
in general, I find them pretty nice.It is always fair to judge
people from all aspects.
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| sparsha |
Posted
on 16-Mar-01 09:23 AM
Shree Biswo,
I agree on almost everything, you wrote. May be Japan is much more compassionate, liberal and democratic compare to other nations including our own beloved Nepal. However, what some THEKEDAR of Japanese law are doing to Mainali is not something that can be overlooked. Frankly, I don't know if Mainali is guilty or innocent but I am upholding the notion of innocent until proven guilty.
Nepal is not a good example of a democratic, liberal and a just society. Court of law means Court of money, power and influence. Laws are there for source-forceless people, for others law is something featherweight funny matter. Again, all I am saying is just because we are bad does not mean Bad is good. Bad needs to be condemned regardless who is responsible for bad act. What do you say Biswo?
BTW, I was in Auburn few years back attending NASA (Nepalese Association in South East America?) gathering. I liked the place.
sparsha
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| Hom Raj |
Posted
on 16-Mar-01 10:09 AM
Bisow--ji:
Here is something on faujdari Vs Devani.
Civil law and Criminal law: Civil law is called “Devani” and Criminal Law is called “Faujdari” and sometimes people refer to this as “sarkarbadi.” Civil law tends to be public, rather than private, in nature. That is, according to American criminal justice system, “wrongs under civil law are settled between the parties, whereas, acts prohibited under criminal law are regulated as offense against the state.”
Another distinction between the two is that in civil case (Devani mudda), at least in America, the jury need only be convinced by a “preponderance” of the evidence, but in criminal case (Faujdari or sarkarbadi mudda), “proof beyond reasonable doubt” is required.
I hope this helps.
Hom Raj.
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| Biswo |
Posted
on 16-Mar-01 01:18 PM
Dear friends: Sparsha and Homraj ji:
Thanks for definitions, Homrajji.You see, our website serves good
purpose of disseminating knowledge.Something to be proud of, San!
Sparsha, Thanks for compliment about Auburn.It is actually a great
place to live. To tell you truth, I was not here at the time. I
started my class in 2000 January.
Mainaliji's case has been pretty sad. I agree with you that the
whole basis for this case is extorted and intimidated records
of police department. Police were looking for a scapegoat, and
they concocted it. Who can be easier target than a immigrant
waiter living in a neighborhood?I've heard the lady killed was a
prostitute herself.For some unfortunate reason, Nepalese are
known for drinking and shouting in a lot of places of the world.
So the police swiftly made this case.
My mentioning of the case of Chitwan was totally cathartic, I
guess now.I am long frustrated at the treatment of people in our
society.I think the story of Bihari people is very difficult to
write. Bihar has a population of more than 100 millions, and most
of them are really poor and they go to Nepal and Calcutta for
making livings.And it is natural for people in Nepal and Calcutta
to blame poors and helpless people for all crimes.It is a very
sad reality.Mainali was meted out the same kind of treatment that
those Biharis were meted out in Chitwan.
I am not sure what I wrote, I have a class now and I am writing
from lab, so excuse me for that.
Biswo
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