KYOTO - When Japan came out of its centuries of isolation in the latter half of the 19th century, legal system reform was a matter of some urgency. The Western countries that had forced the nation out of its shell did so through so-called “unequal treaties” that rendered their nationals immune from the jurisdiction of Japanese courts. Their reasons included a reluctance to subject their citizens to the strange and seemingly cruel or, if you prefer a more neutral term, “different,” manner in which the Confucian Samurai codes of the Edo Period dealt with offenders.
This history may give rise to a sense of deja vu, at least on the part of Western executives contemplating how whatever holiday plans ex-Nissan Chairman Carlos Ghosn had made came to be replaced with a prolonged sojourn in an isolated, unheated detention facility. That he and his fellow board member Greg Kelly were detained for weeks after being arrested for the unusual charge of filing incorrect reports about his compensation with financial regulators, together with the selective nature of their arrests (why just them?), have been questioned by the business and legal communities, both Western and Japanese.
That on Dec. 10 the prosecutors announced they would be initiating prosecution for the incorrect filing only indicates that their prolonged detention and interrogation failed to develop evidence of the more serious offenses that the leak campaign accompanying the initial arrest implied had taken place.
Having already made the shocking nature of Japan’s “hostage-based” system of pre-charge detention and interrogation top news around the world, Japan’s leaders can next look forward to the case of Ghosn and Kelly putting the entire Japanese criminal trial process on the global stage for a prolonged period of time.
No pressure for reform
Several Western journalists who contacted me about the case asked whether there is popular pressure to reform the criminal justice process. This seems to assume Japanese people have ever felt involved in the lawmaking process. Most of them probably think an arrest means someone has done something wrong and don’t care what happens after that.
In any case, leaving whatever high-minded statements of principle may accompany their enactment, most laws in Japan are made by, and thus for, the people who administer them. The Code of Criminal Procedure, which governs the process from investigation, arrest and detention through to trials and appeals, is administered by the Justice Ministry.
Since 2000, more than two dozen different Diet members have been justice minister, leaving one to wonder how much they are able to accomplish. In reality the ministry is run by prosecutors, who fill most of its key posts. This includes not only the directorship of its Criminal Affairs Bureau but also its Human Rights Bureau, which does an admirable job of portraying human rights to the nation in a way that involves nothing that could happen in a prison or criminal trial. In fact, the prior bureau head of the human rights bureau is apparently now in charge of the corrections bureau, which oversees the nation’s prisons.
While the top official at the Justice Ministry is ostensibly the administrative vice minister — as is the case in most other ministries — in reality he is inferior both in terms of seniority and pay grade after the prosecutor general and several other top prosecutors. Prosecutors have a higher mandatory retirement age than regular public servants and, unlike most other senior bureaucrats (including administrative vice ministers), their uppermost ranks are appointed through a process that involves attestation by the Emperor. The Emperor has no discretion in the process, so it is largely a formality, but still one that seems to have significant cachet in the Japanese governmental context and may add a whiff of “infallibility” to the status of those so anointed.
Amending the Code of Criminal Procedure in a way prosecutors, and thus the Justice Ministry, find inconvenient would be tremendously difficult, if not impossible, absent tremendous public pressure to do so. The 2016 amendments — which among other things created the new plea bargain system that has featured in the case of Ghosn and Kelly — were partially driven in response to highly publicized incidents of prosecutorial misconduct and well-known cases of erroneous convictions. Yet by some accounts this process ended up being co-opted by the criminal justice establishment.
The draft amendments were deliberated by a working group of a Justice Ministry legislative council whose members included film director Masayuki Suo. His 2007 movie “I Just Didn’t Do It” offered a stark depiction of the detention-based criminal justice system as experienced by a young man accused of fondling a woman on a crowded train (it was inspired by a real case). He wrote a book about his experience with a title that was a play on that of his movie, roughly translated as “I just kept fighting at committee meetings.”
While it may seem progressive to put a person like Suo on such a legislative committee, it is actually a common strategy for ministry committees to include a few outsiders to ensure it appears representative, while ensuring that enough pro-ministry members are present to get the proposed law through in the desired form. In his conclusion, Suo expresses doubts about whether the committee process was even democratic and writes of frustration at participating in a body established as a response to misconduct by the same type of people as those administering the deliberative process. Small wonder then that its focus gradually shifted from preventing abusive processes to changing the law in a way helpful to prosecutors, including the introduction of plea bargains (the amendments did result in introduction of a requirement that some interrogations be recorded, a result Suo seems to have regarded as a compromise as part of a gradual process of change).
Close judiciary-justice ties
In addition to having great control over legislation within its domain, it is worth remembering that in the prewar system the Justice Ministry also administered the courts. The separation of powers mandated by the current charter would seem to make this a thing of the past, but under the surface things are not so clear. Now the Supreme Court has its own organizational structure for administering the judiciary, yet relationships between the courts and the Justice Ministry remain extremely close. Although it often helps to think of the Supreme Court as another ministry, in one key respect it is not: It is not represented in the Cabinet. It is thus dependent on the Justice Ministry to do so on matters such as its budget and laws relating to the compensation of judges and other court personnel. The Justice Ministry also controls the appointment to various post-retirement sinecures, such as lucrative posts like public notaries, which are available to judges who the Justice Ministry views favorably.
On a more basic level, there are also well-established personnel exchanges between the courts and the ministry. At any given time, a small but significant number of Japan’s career judges are on secondment to the Justice Ministry or other ministries, after having first been appointed as prosecutors and act as defense counsel for the government and may even participate in drafting or vetting legislation. Such postings are often a sign of a successful judicial career and, in fact, the head of the Justice Ministry’s Civil Affairs Bureau is usually a judge on secondment (most prosecutors lack the depth of experience in civil trials that judges develop).
The post is considered one key stepping stone in a judicial career that can lead to a seat on the Supreme Court. The exchange goes both ways, with prosecutors being seconded to the courts, though the practice of having them actually act as judges was reportedly terminated earlier this decade.
The close personal relationships and institutional co-dependencies between the Justice Ministry and the courts would seem an obvious factor in the nation’s 99.9 percent conviction rate, not to mention the general ease with which judges accommodate prosecutors with detention warrants and other dispositions. Judges have their own career paths determined in part by annual personnel reviews based on opaque factors and conducted by judicial administrators who are already deeply embedded in the Justice Ministry-Supreme Court judicial system complex. One indicator of this is that those judges who end up on the Supreme Court tend to have spent more time in nonjudicial roles, including as administrators and terms at the Justice Ministry.
Given this close relationship, it is not surprising that judicially enabled prolonged pre-charge detention, frequent refusal of release on bail for defendants who challenge charges when they are brought and numerous aspects of how the criminal justice system is operated suggest the courts are generally willing to give prosecutors, rather than suspects and defendants, the benefit of the doubt. This is manifested in other subtle ways. I have seen Japanese lawyers complaining on Twitter about judges calling defendants by their names without the honorific “san” and wondering how there can be a presumption of innocence behind such rudeness?
A ‘sentencing factory’
Japan’s criminal justice system thus seems to function mainly as a sentencing factory, with prosecutors being highly certain about the end product (a conviction) and judges essentially conducting a quality control inspection (acquittals reflecting a rejection rate many factory managers would find enviable) before deciding where the goods (convicts) should be shipped and for how long. This is even more apparent once appeals are taken into account, since many of the small number of acquittals generated at initial trials are overturned on appeal and replaced by convictions.
In fairness, Japan is a very safe place and this result is achieved with a remarkably small number of judges and prosecutors for a nation of 125 million people (about 3,800 and 1,900, respectively). A good proportion of those who do get arrested and put on trial are probably guilty of something. Furthermore, the nation’s 99.9 percent conviction rate reflects in part the absence of a general plea bargain system, meaning many trials consist of defendants throwing themselves on the mercy of the court in a trial that is entirely about sentencing.
The system thus seems to function rationally, at least from the perspective of the people charged with generating these results. That most of them seem like well-intentioned people wanting to do good makes the harsh detention regime and grim predictability seem all the more incongruous.
There has already been some pushback from prosecutors about the inappropriateness of criticizing Japan’s criminal justice system over the Ghosn case just because it is different from other countries. This is a good and valid point, particularly given the comparative state of public safety in other developed, supposedly more enlightened nations.
Thus, in closing it should be noted that almost everything I know about Japan’s criminal justice system is based on writings by or conversations with Japanese lawyers and scholars, including ex-judges and prosecutors. No amount of foreign criticism could even come close to the degree of well-informed bitterness with which some of them discuss the subject.
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto.