Editorials

Japan's first-ever plea bargain

A plea bargain agreed on between a Yokohama-based power plant maker and Tokyo prosecution investigators — over suspected bribery of a civil servant in Thailand in connection with a contract with a local electricity firm to build a power plant there — may test the effectiveness of the system launched just last month as a new tool in the fight against organized crime. The deal has resulted in the indictment of three former executives of the company. It needs to be scrutinized whether the deal, in which the prosecutors reportedly promised not to pin criminal responsibility on the company in return for its cooperation in the investigation of its employees allegedly involved in bribing the Thai official, is in line with the system’s stated purpose.

Under the new plea bargain system, a suspect or defendant in a criminal case offers to cooperate with investigators by testifying or providing evidence against a third party — likely an accomplice — and prosecutors promise leniency in return. The government has said the program will be effective against organized crime. Whereas in the past it was often difficult for investigators to reach the higher echelons of an organization involved in a crime even when they arrest its lower-ranking members who engage in the criminal acts, a plea bargain supposedly will make it easier for investigators to obtain information that incriminates the organization’s leaders who ordered the acts.

Mitsubishi Hitachi Power Systems Ltd. (MHPS), a major power generation equipment maker created in an integration of the thermal power generation business of Mitsubishi Heavy Industries Ltd. and Hitachi Ltd., won an order in 2013 to build a power plant in Thailand. But the company was reportedly alerted in a whistleblower’s report that as the firm unloaded the plant equipment and materials at a Thai port in 2015, a local official pointed out possible violations of a local permit — and the HMPS employees in charge paid tens of millions of yen to the official to move the process along.

Under the law to prevent unfair competitive practices, an individual can face up to five years in prison and/or a maximum fine of ¥5 million for bribing an official of a foreign government, while a company can be punished with a fine of ¥300 million or less. Only four such criminal cases have been established since the provision was launched in a 1998 amendment to the law, partly due to the difficulties in investigating such cases, which requires collecting testimony and evidence in other countries. In the investigation of such cases, either the company or its individual employees can be a party to a plea bargain deal.

MHPS is believed to have entered the talks with prosecutors over the plea bargain — the first time it has been implemented since the system was introduced in June as part of reform of the criminal justice system — after an in-house probe concluded that the relevant law was violated in handing the bribe to the Thai official. Under the deal, the company reportedly promised to cooperate with the prosecutors’ investigation into its employees, in return for the prosecutors not taking criminal action against the company itself. MHPS apparently needed to avoid being charged. A guilty verdict for the company would have damaged its trustworthiness at home and overseas, possibly making it difficult to bid for major international business projects.

When negotiating a plea bargain, suspects or defendants make an offer to the prosecutors as to how they can cooperate with the investigation, and prosecutors, after they have examined the credibility of the offer through back-up investigations, will explain to the other party what favorable treatment can be expected. Lawyers representing the suspects or defendants will attend the process, and the subsequent deal will be written down on paper to be signed by the three parties.

That the deal was reached indicates that the interests of the prosecutors and the company matched. However, that alone will not guarantee the whole picture of the alleged crime will be revealed. A plea bargain deal like this — in which the company will escape prosecution as an organization by cooperating with investigators’ efforts to establish their case against its employees — might result in allowing an organization to evade its own criminal responsibility by laying the blame on its members.

The prosecution investigators on Friday reportedly indicted three former MHPS executives, without arresting them, on a charge that they paid ¥39 million in the suspected bribery. The employee directly involved in handing the bribes to the Thai official was reportedly not among those charged.