Issues | LAW OF THE LAND

Much ado about retirement ages and Japan's politicized bureaucracy

by Colin P.A. Jones

CONTRIBUTING WRITER

Once expected to fill the role of Japan’s top prosecutor, Hiromu Kurokawa has resigned in disgrace after journalists were shocked to learn that he was a habitual gambler who had for years played mahjong for money with, er, journalists and even partook of this possibly criminal hobby when regular folks were in quarantine.

Before this convenient revelation, however, the shambolic efforts of the Abe government to keep him on the payroll past his statutory retirement age had managed to annoy a broad spectrum of society, drawing criticism even from kawaii pop singer Kyary Pamyu Pamyu, who I only know of otherwise for an annoying song about fake eyelashes that I downloaded drunk in the hope it would be prove amusing in an ironic way when I was sober (it has not).

Needless to say, prosecutorial retirement age is an odd thing for people to rally about, so this article will try to provide some background.

To talk of retirement, though, we must first talk of appointments. To do that we must look back on what may be one of the most significant yet obscure developments of early 21st century Japanese politics: the creation in 2014 of the Cabinet Personnel Bureau (CPB).

Previously the ministries and agencies comprising the unelected government enjoyed great autonomy over their internal personnel affairs. There were well-established career paths for those rising to the top in many of the ministries. For example, because the Ministry of Justice is actually run by prosecutors, the jimujikan (administrative vice minister) who in other ministries is usually the top dog, only ranks fourth in terms of seniority and pay grade. For decades almost all those rising to the real top slot — prosecutor general — have followed a well-trodden route that in its final stages progresses from head of the ministry’s Criminal Justice Bureau to jimujikan and then Tokyo high prosecutor, with a tenure in this last post often so short it seems like a mere waiting room until the prosecutor general reaches his statutory retirement age of 65. All other prosecutors must retire at 63 and most other public servants at 60 (a recent effort to raise this to 65 foundered due to the Kurokawa scandal).

Hiromu Kurokawa | KYODO
Hiromu Kurokawa | KYODO

For decades before the CPB existed, a ministry’s bureaucratic leaders had great autonomy in deciding who made it up the greasy pole. Cabinet ministers would come and go, likely having little time to get acquainted with personnel matters: More than two dozen different politicians have been Minister of Justice since 2000.

Now the CPB vets the appointment of senior bureaucrats to hundreds of top positions throughout government. Supposedly prosecutors are outside their remit, but all prosecutors are notionally appointed by the Minister of Justice, and those at the top, such as Kurokawa, are a special category of high official known as ninshōkan — those whose appointments are attested by the Emperor under the guidance of the Cabinet. To the extent the creation of the CPB is the result of a desire for the Cabinet to exercise greater political control over bureaucrat personnel decisions, it would be odd if they ignored prosecutors.

It is probably not a coincidence that accounts of government scandals arising since the CPB’s establishment increasingly feature sontaku, a previously obscure term describing inferiors preemptively acting to ingratiate themselves to those up the food chain. It was made famous by the Ministry of Finance’s 2016 no-bid sale of government land to a (then) friend of Abe at a sweetheart price.

So what of retirement ages? Mandatory retirement forces change on a powerful and privileged few who might prefer to exercise authority longer. This is counterbalanced by the protections from forcible retirement they enjoy before reaching that age.

The Abe government tried to keep Kurokawa on as a prosecutor past the statutory age of 63 so he could become prosecutor general when that post opened, first through an absurd “reinterpretation” of existing law, then through patently interventionist legislative proposals. Japanese people aren’t fools, however, and many saw the effort for what it was — a clumsy, transparent effort to keep someone safe at the top of the law enforcement pyramid; to stack the deck in favor of potentially perpetual incumbents through a more politicized criminal justice system. Even current and former prosecutors openly balked at this effort, which generated a written rebuke from an ex-prosecutor general who had helped take down former Prime Minister Kakuei Tanaka over 40 years ago.

The scandal surrounding Kurokawa has drawn protests from citizens groups in Tokyo, some of which have filed complaints against the former prosecutor. | KYODO
The scandal surrounding Kurokawa has drawn protests from citizens groups in Tokyo, some of which have filed complaints against the former prosecutor. | KYODO

This brings us to a conundrum. Article 75 of the Constitution says ministers of state may not be prosecuted without the prime minister’s consent, but is silent about the prime minister himself. Is he immune from justice while in office, except in the unlikely event he consents to be charged? As Tanaka’s involvement in the Lockheed bribery scandal shows, it is not a hypothetical question either. Institutionally, prosecutors take great pride in having taken him down, though he wasn’t indicted until 1976, well after he had resigned from office. Article 75 was thus not an issue then, but it raised its head again during the brief interregnum of non-LDP rule when the first of several hapless Democratic Party of Japan prime ministers, Yukio Hatoyama, took office in 2009 under the cloud of a political fundraising scandal.

Hatoyama was gone within a year, but the issue came up yet again when it looked like DPJ elder Ichiro Ozawa — a vocal critic of bureaucratic interests — might become prime minister. Conveniently, he was also dogged by allegations of fundraising improprieties. In the summer of 2010, an obliging Yomiuri Shimbun helped prosecutors share their view that, if charges were brought against Ozawa by a prosecutorial review commission — the secretive bodies of randomly chosen citizens who review and occasionally overrule decisions not to prosecute — the consent of the prime minister would not be needed to proceed. Then, by an amazing coincidence, a forced prosecution is exactly what happened. Possibly influenced by a report from prosecutors saying, essentially, “we don’t think this shady corrupt politician should be prosecuted, wink wink” prosecution was brought against Ozawa for campaign finance infractions. He was acquitted but never became prime minister, so perhaps it was “mission accomplished” for the prosecutors.

Since the LDP regained the cockpit in 2012, there has been a strange silence about Article 75, which is odd since the Abe years have not exactly been scandal-free. In May this year a criminal complaint signed by hundreds of lawyers and alleging political finance and electoral law violations by the prime minister was presented to prosecutors in Tokyo, and quickly rejected on procedural grounds. I express no views on the merits of these allegations, but given Abe’s declining popularity, perhaps he will be gone before Article 75 needs to be discussed. The silence has been interesting nonetheless.

People stand in front of the parliament building in Tokyo on May 15 to protest a bill pushed by the ruling coalition that would extend the retirement age for prosecutors. | KYODO
People stand in front of the parliament building in Tokyo on May 15 to protest a bill pushed by the ruling coalition that would extend the retirement age for prosecutors. | KYODO

The use of the criminal justice as a political tool is a basic concern in any government. Article 75 protects current administrations from politicized prosecutions. Given that the Cabinet is supposed to be running things, use by whom is the key question, one which brings us back to the subject of retirement ages for prosecutors, a small cadre of elite bureaucrats who have not only a total monopoly on bringing prosecutions, but a largely unfettered discretion to not do so.

It is easy to decry the second-rate machinations of Abe’s world to subjugate prosecutors to partisan politics and subsequent third-rate justifications. Yet, Japan is supposed to be a democracy, with three constitutionally mandated branches of government, two of them elected. Constitutionally the Cabinet administers the civil service. Why shouldn’t the prime minister — the head of the administrative branch — and his Cabinet decide who gets to run the ministries? Political appointments are the norm in the United States, including of U.S. attorneys, the top federal prosecutor in each judicial district. The U.S. may not have much to offer in terms of governance models these days, but Abe is not trying to do anything unprecedented either.

If Japanese prosecutors should not have to answer to elected politicians, who have they been answering to all this time? To read their own PR suggests they consider themselves a special class; juristic Brahmin answering to no one, so righteous in imposing the law on others, they do not need it for themselves. In reality, as Kurokawa’s gambling habits demonstrate, they are probably just as human as everyone else. Perhaps prosecutors and other senior bureaucrats have enjoyed the privileged status of being a self-defining, unregulated and unelected fourth branch of government for so long, both they and the Japanese people find it shocking that this state of affairs should change. Maybe it should. Or perhaps it just needs to be advocated more persuasively.

While the government’s efforts to fiddle with prosecutorial retirements may have been stopped by public outcry and revelations about Kurokawa’s behavior, the increased politicization of prosecutors and the bureaucracy as a whole will likely prove a lasting legacy of the Abe years. For better or worse, it might even leave Japan more democratic. Hopefully people will vote accordingly.

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