Kingpin win would delay charges

Constitution protects a sitting prime minister from prosecution

by Takahiro Fukada and Setsuko Kamiya

Now that Ichiro Ozawa has made it official and will run for president of the Democratic Party of Japan, a key question is whether he can be indicted over his alleged financial illegalities should he win and become prime minister.

Ozawa is facing an automatic indictment if an official judicial review panel, called the Committee for the Inquest of Prosecution, concludes for the second time that he should be charged with falsifying his political fund records. The long-running scandal has already seen three of Ozawa’s former aides indicted.

Experts are divided over how to interpret the relevant article in the Constitution on whether a Prime Minister Ozawa could be indicted, but basically agree that unless he consents, a prime minister can’t face criminal charges while serving the post.

Article 75 stipulates: “The Ministers of State, during their tenure of office, shall not be subject to legal action without the consent of the Prime Minister.”

According to Kazuyuki Takahashi, a constitutional law professor at Meiji University Law School, the clause is aimed at preventing an outside force, namely prosecutors, from intervening in government affairs.

Experts are divided over whether the term “Ministers of State” covers prime ministers, Takahashi said.

Article 66 of the Constitution says the Cabinet consists of the prime minister and “other” state ministers. While the prime minister can be considered a state minister, Takahashi pointed out that the prime minister may also be regarded as a special figure and the rest of the Cabinet as state ministers.

But in the end, regardless of whether a prime minister is defined as a state minister or not, a sitting prime minister who refuses to consent to charges is immune from prosecution, Takahashi said.

“The aim (of the clause) is to guarantee that the prime minister, while in office, will not be pressured by outside forces represented by the prosecutor’s office,” Takahashi said.

Attorney Tsukasa Sato, a professor emeritus of constitutional law at Kanagawa University, said Article 75 is intended to guarantee political stability.

“If Cabinet ministers were to get indicted all the time, the Cabinet wouldn’t be stable,” Sato said. “That will make all of Japan’s politics unstable.”

Meanwhile, Article 75 also upholds the right to take legal action against a state minister. Takahashi said this clause means ministers can be indicted after they leave the Cabinet.

Someone no longer holding the prime minister’s position can be indicted, he said.

Basically, both Takahashi and Sato said, the statute of limitation stops while a prime minister is in office. The clock starts ticking again when that person steps down. Thus, charges could be pressed later, they said.

The inquest committee is an independent judicial panel consisting of 11 citizens chosen at random from among registered voters.

Prosecutors in February decided, due to insufficient evidence, not to press charges against Ozawa for alleged false reporting by his political fund management body, Rikuzankai, in 2004 and 2005.

But regarding the reports, three former aides — Tomohiro Ishikawa, Takanori Okubo and Mitsutomo Ikeda — were charged for misreporting Rikuzankai’s money flow. The affair involves around ¥400 million that Ozawa loaned to Rikuzankai to buy land.

On April 27, Tokyo’s No. 5 Committee for the Inquest of Prosecution challenged the prosecutors’ decision and voted unanimously that Ozawa deserved to be indicted over the 2004 and 2005 reports.

But in May, prosecutors decided again not to indict him due to lack of evidence.

The No. 5 committee is expected to come to a decision by the end of October.

Should more than eight of the 11-member panel decide again that Ozawa deserves to face trial, the law stipulates he will automatically be indicted by a court-appointed lawyer serving in the role of prosecutor.

Meanwhile, the Tokyo No. 1 inquest committee, a separate group of 11 citizens, said in July that prosecutors erred in February by not indicting Ozawa over another false reporting case, this time for 2007.

The decision was in response to a complaint filed by a citizens’ group that accused Ozawa of neglecting to enter ¥550 million in political contributions to Rikuzankai. The inquest committee members said they believed Ozawa had a hand in concealing shady donations from Mizutani Construction Co. of Kuwana, Mie Prefecture.

The prosecutors reportedly plan to question Ozawa again on a voluntary basis over the 2007 case after the DPJ presidential election.