The dark corners of Japanese justice

  
The Carlos Ghosn case shines a light into the dark corners of Japanese justice

The former Nissan boss is right to point the finger at a legal system that the UN has described as ‘medieval’

The Guardian, 8 January 2020 

by Jeff Kingston, director of Asian studies at Temple University Japan and APP member

In a long and detailed press conference on Wednesday, Carlos Ghosn – former head of the Renault-Nissan-Mitsubishi alliance, who made a dramatic escape from his house arrest in Japan last month – came out with guns blazing.

Speaking in Beirut, he alleged that former Nissan colleagues and prosecutors were co-conspirators in a plot to oust him in order to prevent a closer merger with Renault. Ghosn denied the allegations against him, which include under-reporting his income and misusing company funds, and said that he was mistreated while in solitary confinement. This included interrogations that lasted for up to eight hours a day without a lawyer present. The presumption of guilt, and the pressure placed on him by Japanese prosecutors to confess, convinced him that there was no chance of a fair trial. And so he fled.

Given his brash demeanour and immense wealth, Ghosn is not a sympathetic character. Indeed, he may well be guilty of financial misconduct. But he is right to shine a light into the dark corners of Japan’s justice system. Anyone familiar with the Japanese justice system would know that Ghosn’s allegations are not far-fetched.

In Japan, laws are used as weapons against targeted people and not applied equally. One example of this is the “hostage justice” (hitojichi-shiho) system. Hostage justice boils down to the accused remaining in custody until they incriminate themselves by signing a confession. Often this is drawn up by prosecutors who browbeat the accused without defence counsel. Knowing that the playing field is tilted in favour of the prosecutors and that they could spend a very long time in jail even before going to court, many innocent defendants confess. Ghosn spent more than 120 days in detention.

In the late 1980s, a once high-flying company president called Hiromasa Ezoe was accused of bribery. Despite extreme pressure to confess, Ezoe defied prosecuting authorities by pleading not guilty. Over a decade of judicial purgatory later, he was effectively exonerated by receiving a suspended three-year sentence in 2003. In 2010 he published a book, Where is the Justice?, a savage indictment of a system in which the presumption of innocence is abandoned and defendants are railroaded. Ghosn may well have wanted to avoid this fate.

In Japan, the accused can be held for 23 days without charge – this is almost indefinitely renewable as judges normally give prosecutors the benefit of the doubt. In April 2019, more than 1,000 lawyers and scholars submitted a petition to the justice ministry demanding an end to this antediluvian system. The Japan Federation of Bar Associations has also long lobbied against it.

The 2019 petition doesn’t mince its words, asserting that the “long-term detention in the Carlos Ghosn case has triggered surprise and criticism overseas, leading to doubts about Japan’s integrity as a democratic nation that guarantees human rights”.

Japan’s hostage justice, interrogation procedures barring lawyers and arbitrary denial of family contact are out of step with many other democracies and international law. The UN Human Rights committee has called on Japan to reform its criminal justice system to allow for the presence of defence counsel, while a UN committee against torture called Japan’s criminal justice system “medieval”.

In recent years, the media has exposed many cases of prosecutors’ abuse of power, inventing, misinterpreting or ignoring exonerating evidence in an attempt to maintain the dubious distinction of a 99% conviction rate. Recognising the problem, the justice ministry has since the 2000s introduced piecemeal reforms to reduce dependence on confessions and allowing some videotaping of interrogations. Even so, the system remains stacked against defendants.

While Ghosn managed a dramatic escape, ordinary Japanese citizens remain vulnerable to a judicial system that draws sharp criticism from domestic civil society organisations, lawyers’ federations and the media. The vested interests are scrambling to defend this system, but it’s high time to end the era of Japanese prosecutors running amok and trampling on civil liberties.

Japan's Hostage Justice

 Abashiri Prison Museum

FORMER NISSAN CHAIRMAN ILLUSTRATES JAPAN’S NIGHTMARE CRIMINAL JUSTICE SYSTEM

By Jeff Kingston, Director of Asian studies at Temple University Japan, APP member and author of Japan (Polity History) and Contemporary Japan: History, Politics, and Social Change since the 1980s.

First appeared in the The Daily Caller, June 4, 2019

As G20 world leaders gather in Japan, they might spare a moment contemplating the fate of former Nissan Chairman Carlos Ghosn. His arrest has sent a chill through the international business community because his ongoing ‘prosecution’ by a steady drip of orchestrated media leaks smacks of bias. The prosecutors with the connivance of Nissan executives are trying the case in the court of public opinion, vilifying Ghosn and sending a strong message that he is guilty and stands little chance of being exonerated.

Too much face has been invested in taking him down to let some lawyer get him off. But how much face has been lost in the charade of his perp walk in handcuffs with the media fortuitously on hand as he was led off his private jet when he arrived in Japan? And then the farce of granting bail, re-arrest and now more severe bail conditions that prevent Ghosn from any contact with his wife?

This case illustrates how the Japan, Inc. of cozy insider networks is circling the wagons to prevent a merger with Renault, Nissan’s partner and majority stakeholder. Destroying Ghosn is the collateral damage of protectionism Japanese style.

Many foreign executives are heading for the exits, and now a summons from Tokyo to overseas managers gives them a sense of what life must have been like for KGB operatives during the Cold War when Moscow called them back for consultations. Just ask Ghosn’s close advisor Greg Kelly who was lured back to Tokyo under false pretenses and then arrested.

Ghosn may indeed be guilty but surely its time the prosecution proves its case in court because the longer this spectacle drags on the more damage is done to Japan’s reputation. It’s very hard to generate public sympathy for white collar suspects, but the Japanese prosecutors have managed to do so.

Some argue that Japan is showing its peers how to go after the big shots who almost always seem to skate free, but why this particular man at this particular time? It’s not as if there hasn’t been a cascade of Japanese corporate scandals in recent years, but none of these Japanese executives have been subject to hostage justice. We are told that they didn’t enrich themselves like Ghosn is alleged to have done, but clearly they were fudging data and covering up misconduct not because they were selfless corporate samurai, but were keen to protect their jobs, promotions and perks.

Japan’s system of hostage justice looks more like the rule by law than the rule of law, meaning laws are used as weapons against targeted people and not applied equally to everyone. Hostage justice boils down to the accused remaining in custody without defense counsel during questioning until they incriminate themselves by signing a confession. Many defendants buckle to the pressure and confess knowing their rights and freedom are hostage to the whim of prosecutors.

The Japan Federation of Bar Associations has long lobbied against hostage justice (hitojichi-shiho) because it is a hotbed of prosecutorial abuses. The JFBA criticizes the reliance on confessions and points out that many of them are coerced, leading to numerous miscarriages of justice. In April over one thousand lawyers and scholars submitted a petition to the Justice Ministry demanding an end to this antediluvian system. The petition doesn’t mince words, asserting, “The long-term detention in the Carlos Ghosn case has triggered surprise and criticism overseas, leading to doubts about Japan’s integrity as a democratic nation that guarantees human rights.”

The murky bribery case of Hiromasa Ezoe, the former chairman of Recruit, is instructive. Ezoe kept a diary while in detention in 1989 that became the basis for his 2010 book “Where is the Justice?” It is a nightmarish tale about life inside the maws of Japan’s judicial system. Badgered repeatedly during 113 days of detention, he claims prosecutors threatened they would arrest his friends and colleagues if he did not confess and so he did.

In 2003, Ezoe was given a suspended three-year prison term, a light sentence he regarded as vindication. In his view, he was punished for breaching society’s moral code rather than illegal actions. Back in 1989, the NYT reported that he might spend an incredible 15 years in court. As it turned out, that was only slightly off the mark.

In Japan the accused can be held for 23 days, renewable almost indefinitely as judges normally give prosecutors the benefit of the doubt. As Ghosn knows very well, judicial authorities resort to piecemeal charges so they can re-arrest suspects and thereby prolong detention without a lawyer sitting in on questioning. Ghosn spent 108 days in detention before being granted bail the first time.

According to the lawyers’ petition, “The ‘hostage justice’ system uses detention beyond its original purpose of securing suspects’ appearance in court and violates the human rights guaranteed by the Constitution of Japan, including physical freedom, the right to remain silent, and the right to a fair trial. The practice to refuse the release of those who deny their crimes can violate the prohibition of torture, as it uses sufferings caused by prolonged detention and interrogation to force confession.”

In recent years several convictions have been overturned because the prosecution invented, misinterpreted or ignored exonerating evidence, rendering the much-touted 99 percent conviction rate more of an embarrassment than bragging point.

The video that was released after Ghosn was rearrested makes clear that he attributes his legal problems to a palace coup orchestrated by executives who opposed the merger plan he backed. Some of those executives have cut deals with prosecutors in exchange for dishing the dirt on Ghosn.

Maybe it’s not a one-sided stitch up job, but until Ghosn gets to present his side of the case in court the judiciary will remain indicted by many Japanese advocates of the rule of law, human rights and fair trials alongside the international business community.