The Enigma of Japanese Power (32 page)

Japan’s top judges have done nothing to stop the administrators transferring liberal-minded judges to unimportant areas, or discriminating against them where promotion and pay are concerned. The General Secretariat of the Supreme Court has conceded that it practises this kind of discrimination, but contends that the reasons for it cannot be revealed.
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Its effects were very clearly revealed in a series of controversies involving the young lawyers’ association, Seihokyo, established in 1954 by 107 scholars and 157 lawyers with the aim of protecting the constitution at a time when revision had become a political issue. (Constitutional revision is ardently desired by some segments of the ruling élite,
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and opposed with equal ardour by groups unwilling to entrust the issue to anyone at the top.)

At one time, Seihokyo counted 230 judges among its membership,
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and it played a role in drawing attention to the important environmental pollution cases discussed earlier. In 1969 the director of a local court in Hokkaido berated a judge of that court, believed to be a member of Seihokyo, for his handling of a lawsuit to test the constitutionality of the Self-Defence Forces. No administrator had ever interfered so openly with the supposedly independent judiciary, and his action was seen as a warning to members of the jurists’ organisation. A second warning came in the form of failure to reappoint a district court judge, the first time this had happened to a judge not involved in any scandal.
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Although the dismissal was in violation of constitutional guarantees, no explanation was given, and it is widely believed that it was meant to intimidate other judges who were members of Seihokyo. In 1971 the chief of the General Secretariat stated that ‘a judge should not join a group with a political colour’, and several more warnings were subsequently issued, each carefully avoiding direct reference to Seihokyo.
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In the late 1960s a number of magazines criticised allegedly ‘biased verdicts’ due to the influence of Seihokyo, but there was such similarity in the arguments that they were suspected of having a common source. The articles objected to the rate at which prosecutors were being denied requests for the detention of student activists on the basis of the extra-legal security regulations. One magazine called Seihokyo ‘pro-communist’ (a segment of its members can fairly be so described), and ran a series of articles on communist influence in the courts, which were distributed by the Supreme Court to courts all over the country.
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These officially approved magazine articles, as well as informal remarks by conservative jurists, agreed in labelling Seihokyo a ‘revolutionary’ group. This prompted one specialist to marvel at the fact that, although Seihokyo membership included some of the best-known scholars at Todai, including the university president himself, plus half of all successful candidates in the national bar examination and even several Diet members, no revolution had yet broken out in Japan.
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By 1968, when the chairman of the National Public Safety Commission stated that the courts should be more co-operative with the police, cabinet members were also getting into the act. In March 1969 Justice Minister Saigo Kichinosuke commented at a cabinet meeting: ‘We cannot touch the courts, but some kind of brake should be applied.’
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This was the period when radical student activism, including the occupation of university buildings, was causing considerable anguish among the ruling élite.

Subsequently, assistant judges working in the General Secretariat (and thus well set on the ‘élite course’) were advised to give up their membership of Seihokyo. Ten assistant judges complied. Similar advice was given at district courts all over Japan. In April 1970 the director of the General Secretariat, Kishi Seiichi, warned against membership of Seihokyo, without mentioning it by name.
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Rightist groups joined the campaign, requesting the Diet’s impeachment commission to impeach judges who were Seihokyo members.

The procedure followed here in coping with an organisation seen as a threat to the aims of the administrators of Japan’s court system was fairly typical. No official hearings were conducted. Mention of the organisation by name was generally avoided, and no explicit directives against membership were issued, since this would have contravened the principle of freedom of opinion too blatantly. But a ‘climate of opinion’ was created, with the help of a section of the media, in which it became extremely difficult to remain a member of Seihokyo without having a sense of acting improperly. Quite apart from this, membership of Seihokyo carries a risk of discrimination in salary, rate of salary increase and chances of promotion.

Before the war, the chief flaw in the court system’s independence was that it was under the control of central administrators who could pressure recalcitrant judges in various ways, for example by demoting them to less desirable benches.
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Today it is agreed by those concerned with developments in the Japanese judiciary that the impartiality of judges is undermined by worry about promotion and postings, which come up for review every three years. They are graded according to a secret marking system, introduced in the 1970s, that takes into account the number of cases they clear within a certain period; this includes cases dropped in favour of conciliation procedures.

Judges aware that the chief administrator of their court will rate their performance according to the speed with which they clear their docket are not inclined to take time absorbing the arguments of plaintiffs who may already have irritated them by rejecting their advice for a settlement out of court.
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Nor will they have much patience with explanations extending outside the realm of their own social experience; most judges, for example, tend to be ignorant of gangster blackmailing techniques, while in cases involving industrial accidents they have been known to imply that plaintiffs knew the risks they were taking in deciding to work in a dangerous place. On-the-spot investigations are rarely resorted to, because these are known to be frowned upon by the administrators and thus detract from a judge’s chances of promotion.
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A former high court judge asserts that the atmosphere at the courts is such that few judges, if they wish to stay in the good books of the bureaucrats, can afford to be guided solely by their conscience.
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Bureaucratic standards are applied throughout the system. Judges who meet these standards have a good chance of being appointed to administrative jobs and subsequently rising in the hierarchy. Those who listen mainly to their conscience as they conduct trials are generally not promoted.
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Japan’s legal system is, thus, highly politicised. At elections to the Lower House, Japanese voters are also given the unusual opportunity to indicate, if they wish, disapproval of recently appointed Supreme Court justices. To no one’s surprise, not one of these has ever been voted out of office in this way, since most voters are unaware of whom or what they are endorsing. This questionable instance of ‘direct democracy’ is in Japan a purely ritualistic addition, one that encourages a totally misleading view of the workings of the System and the character of the judiciary.

It is difficult to quarrel with a judicial system that keeps people out of prison as far as possible yet maintains a violent crime rate below that of other industrialised countries. This admirable achievement must be noted. Also, Japanese prosecutors try to be scrupulously fair within the interpretation of fairness prevalent in the judicial-bureaucratic community. Their sense of a duty to uphold the dignity of their office is beyond doubt.

The problem with the Japanese prosecutor is that, once he has decided to prosecute, he will not accept being shown in the wrong. As one Japanese specialist puts it: ‘prosecutors want to be God’.
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Losing a case is much worse for them than it is for their Western counterparts. Their own authority is at stake, and by extension that of the entire bureaucratic apparatus. They need not worry much. They have a 99.8 per cent chance of winning when they take a case to court.
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Of 63,204 people receiving their first criminal trial in 1986, only 67 were acquitted.

To all intents and purposes, then, the prosecutor is judge. But as we have seen, to judge blindfold is an alien notion for the prosecutors, and they are quite ready to tip the scales of justice out of social considerations. For all their humanity and sense of proportion, the prosecutors remain human with human failings. They are also beholden to the System and, whether consciously or not, must therefore discriminate against the ideologically motivated. The incredibly high conviction rate is usually explained by Japan’s judicial authorities as the result of police and prosecutors doing their homework extremely well. In fact, however, it amounts to official endorsement of the prosecutors’ infallibility. That they may have human failings is not recognised, for this would undermine the theory of the benevolent social order they represent. The situation is thus no different from what it was before the war, when judges rendered a guilty verdict on practically every suspect placed before their bench by the prosecutors.
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Functioning institutional guarantees that the prosecutors represent the public interest do not exist. A formal checking committee of ordinary citizens is controlled by the prosecutors’ office, and its findings (as, for instance, in cases related to political scandals) can be ignored with impunity.
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The superior power of the Japanese procuracy dates from the 1920s, when it gained control over the judiciary to the extent that the judges could almost be considered its servants. In court sessions, the prosecutors sat with the judges on the dais. In the 1930s their office played a major role in upholding the ‘national essence’ ideology and combating those whom they thought endangered it, including politicians. Possibly the second most significant figure, after Yamagata Aritomo, in the history of twentieth-century Japanese social control was one of their number, Hiranuma Kiichiro. A fanatical believer in the moral superiority of the officials carrying out the ‘imperial will’, the man known as the ‘dean’ of the nationalistic right-wing,
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Hiranuma fought the foreign heresies of Marxism, liberalism and democracy, and together with his clique dominated the Ministry of Justice until the end of the war. He served an unprecedented nine years as procurator-general and went on to become minister of justice, president of the Privy Council, and prime minister (for eight months in 1939), then home minister and class ‘A’ war criminal, before dying in prison in 1952.
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Even after the war, the influence of his followers helped to prevent, despite constitutional reform, any genuine change of the judicial guard.

Hiranuma was the epitome of the Japanese politicised prosecutor. He would manipulate the parties he despised and convict the politicians of bribery, forcing them out of office while simultaneously using them to further his own political career. A post-war imitator of the manipulating Hiranuma was Baba Yoshitsugu, who manoeuvred a top leader of the LDP, Kono Ichiro, into his debt, giving him much political leverage in the years leading to his appointment as procurator-general.
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Today, the prosecutors are again in practice the strongest power within the justiciary bureaucracy. Their office is theoretically a subordinate institution within the Ministry of Justice, but positions above section chief in that ministry are monopolised by prosecutors and a few judges, while the vice-minister – the
de facto
head of the ministry – is always a public prosecutor,
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and is also invariably subordinate to several superiors in the pecking order of the procuracy.

There is reason to suspect regular miscarriages of justice caused by the prosecutors’ nearly unassailable position, since being openly contradicted in Japan entails a loss of face. As one prominent Japanese legal scholar has noted, the prosecutor’s activities are not directed by the principle of
in dubio pro reo
(‘when in doubt, favour the accused’).
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Prosecutors can rely on the fact that judges, also, do not want them to lose face; it is common for defence lawyers to view not only the prosecutor, but the judge as well, as their enemy in court. Judges, moreover, have an important reason for going along with the prosecutors in that their own stock will fall if their sentence is revised on appeal.
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In the extremely rare case of a not-guilty verdict, Japanese prosecutors forget all impulses to lenience and continue to appeal, fighting tenaciously to regain the ‘dignity of the office’. The latter expression is common and has nothing to do with notions of the dignity of the law. Related to it is the expression ‘dignity of fixed judgement’ with which the prosecutors’ office has long resisted retrials.
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Circumstantial evidence adduced in finding the accused guilty is frequently rather flimsy, and we have seen earlier how heavily the Japanese prosecutor’s success depends on confessions. As one of the most perceptive political scientists writing on Japan has put it:

Japanese police, procurators, and judges think of the confession as the ‘king of evidence’ (
shoko no o
). It is the decisive element of proof sought by every procurator before he takes a case into court and the single most important item determining the reception his efforts are likely to receive from most Japanese judges when he gets there. Compared with having a good confession, circumstantial evidence is definitely secondary; and given this preference for confessions on the part of procurators and judges, it is small wonder that Japanese policemen are much more attuned to obtaining them than to building ‘objective’ cases.
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Until the occupation authorities tried to change Japanese practice, confessions – often extracted by tricks or what amounted to torture – were the basis of nearly all prosecution successes. Since the end of the occupation, convictions based on confessions have again predominated, accounting for 65 to 75 per cent of the total. As we saw in Chapter 7, this contravenes the constitution, which stipulates that no person shall be convicted or punished if the only proof against him is his own confession (article 38). Many accused, moreover, have already retracted confessions subsequently used as circumstantial evidence. The attitude of the judge is very important in this context. The rare judge will balk at the ways of the prosecutor. On 16 December 1987, for example, Tokyo district court judge Sorimachi Hiroshi found a suspect not guilty of burglary and attempted rape and openly criticised the relentless efforts of the prosecutors to extract a confession. My own interviews with judges and lawyers indicate that the fraction of one per cent of cases that the prosecutors lose are those in which the few liberal-minded judges have been reluctant to accept retracted confessions as evidence.

The prosecutor must personify the ethical perfection of the System, and it is often pointed out that, whereas in all other government bureaux and agencies one finds cases of corruption and serious misbehaviour, the public prosecutors lead exemplary lives. This image is maintained partly through the great secrecy with which all judiciary bureaucrats surround themselves. Because of this secrecy, scholars studying these officials and their most celebrated cases find it difficult to verify the simplest details. Judges and prosecutors censor each other’s memoirs and case histories,
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their overwhelming concern being with the ‘dignity of the office’. There is only one big chink in their armour that they cannot hide: their treatment of politicians and bureaucrats involved in a scandal.

Individual prosecutors operate, in theory, on their own, but in practice they are expected, before taking action against influential officials, ministers. Diet members or local government leaders, to write preliminary reports for their superiors all the way up to the minister of justice, and to wait for their consent. This controversial
shobun seikun
(request for instructions as to steps to be taken) system of responsibility within the procuracy has led to the dismissal of many political corruption cases.
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Even when such corruption cases are not dismissed, the politicians involved will usually be allowed to emerge unscathed, and bureaucrats-turned-politicians need not at all fear being publicly tainted.
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For seven years before the great Lockheed bribery scandal, the prosecutors had done nothing about the rampant structural corruption among politicians. The previous big case, the Nittsu bribery scandal of 1968, had demoralised the procuracy to a considerable extent, since most prosecutors in the special investigation department of the Tokyo district prosecutors’ office were subsequently transferred to local areas.
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The Lockheed case could be tackled whole-heartedly only when the then prime minister, Miki Takeo, showed that he would do nothing to protect Tanaka Kakuei.

Even though details of the scandal first came to light abroad, in the investigations of US senator Frank Church’s subcommittee, the prosecutors saw Lockheed as a chance to regain some of the prestige lost among the convolutions of Japanese politics. But simultaneously there was a shared view among the prosecutors and certain prominent figures in the LDP that Tanaka Kakuei was also a ‘danger to Japan’s democracy’ – meaning, as we saw in Chapter 5, that he was getting too powerful for the comfort of his rivals.

Since LDP politicians tend to be at each other’s throat much of the time, the prosecutors are subject to subtly changing and often contradictory pressures. Sometimes powerful LDP groups fight back quite openly, as when a special committee to study the fairness of the judiciary was established in the policy affairs research council of the LDP under a chairman who himself had been involved in a major scandal.
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This committee’s main focus was judicial handling of the Lockheed scandal.

Prosecutors justify their highly selective approach to corruption in the political world in terms of the varying vociferousness of the mass media in specific cases. Thus public opinion desired the arrest of Tanaka, so the prosecutors took action to ‘maintain the current establishment’ and their own prestige. On the other hand, with the subsequent Douglas-Grumman bribery scandal the press response was not vehement enough to persuade them to go after the politicians involved.
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‘Public opinion’ as interpreted by the five major national dailies is thus of great weight for Japanese prosecutors. Conversely, when they are concerned about possible political obstruction in a case they have decided to pursue, they will leak the fact that they are investigating it, together with the minimal amount of information the newspapers need to unveil the impending scandal on their front pages.
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Many judges, too, are concerned about media response to their decisions, which is always assumed to represent ‘public opinion’. Lawyers likewise tend to accept public opinion as an important sanctioning force that must be reflected in court decisions. Thus even Seihokyo and other critics of Japan’s judicial system praise the tenacity with which the prosecution is pursuing Tanaka Kakuei’s case. They overlook the political bias involved (a bias well illustrated by the statement of Okahara Masao, the former presiding judge of the Supreme Court, that Tanaka would not win his case in either the high court or the Supreme Court) and seem unaware that the methods employed to deal with the imagined threat of Tanaka to the System can also be used in dealing with the imagined threat of, say, the consumer movement. A case clearly designed to damage the reputation of the consumer movement did in fact occur in November 1971, when an executive of the Japan Consumers’ Union who had claimed that a Honda car was defective was instead charged with making threats against the manufacturer.
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The social sanctioning role played by the Japanese press must be seen in the perspective of the practical shortcomings of the Japanese legal system. ‘Although other jurisdictions share some of the limitations of Japanese law, none share so comprehensive a failure to provide effective sanctions or remedies for violation of legal norms,’ writes an American expert on the subject.
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The power-holders cannot do much to enforce the law, aside from locking people up in criminal cases. The Japanese courts have no contempt powers. Attachment of property is a possible ultimate sanction, but there are many ways in which the guilty can avoid it.
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Penalties for violating legislated regulations are hardly ever invoked if the violator is a corporation or other large mainstream organisation. As already pointed out, what keeps Japanese organisations and their masters from sinning too much is the damage to their reputations if they are unlucky enough to be selected as the ‘one example to warn one hundred’.

At the end of 1986 it was announced that the Ministry of Justice would in the near future close 149 of the 575 summary courts.
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The summary courts are a post-war introduction aimed at giving ordinary people easier access to judicial procedures. Besides misdemeanours such as traffic offences and petty theft, they accept civil suits in which the award is less than 900,000 yen.

In official eyes, closure of the courts is justified by the minimal use made of them. But villagers in the areas served by these courts are concerned that it will cause an influx of ‘professional mediators’ such as gangsters; where there is insufficient legal protection, people need powerful friends. And faced with a System that relies so much on arbitrary processes, the small fry need personal relations to defend themselves. This helps explain the role of the local ‘boss’, the Diet member, the gangster and other ‘fixers’ in Japanese society. It explains the overriding importance of one’s
jinmyaku
– connections are crucial to safety as well as to success. It is also a reason why the Japanese cannot risk alienating themselves from their social environment by taking an individualistic stance.

Japanese know that their compatriots are fallible, including those who control their society and those who sit in judgement on them. As pointed out in Chapter 7, they tend to be rather cynical about claims of benevolence; sometimes when explaining to foreigners the traditional ideas on which the System and its legal processes are based, they will say that most ‘typical’ Japanese accept these as the best possible, thereby implicitly excluding themselves.

Menda Sakae, who spent 33 years in prison, 31 of them on death row, before a retrial declared him innocent, asked me in an interview whether I thought that justice existed in Japan, implying that he did not. Some may argue that the very fact that he was finally acquitted proves that he is wrong. But aside from the argument that justice delayed for thirty-three years is justice denied, it took a hard campaign by sympathisers outside the judiciary before his acquittal was obtained. In the late 1980s humanitarian activists were fighting on behalf of some two dozen similar cases, aware that such cases cannot be left to the Japanese legal process. In October 1987, after thirty-three years on death row and strong pressure from support groups, Akahori Masao, whose confession was extracted under torture, was granted a retrial, which in the Japanese context means that the judiciary had already decided that he was innocent. Yet the final verdict setting him free was not expected for another year. Milovan Djilas has said that the country that is most just is the country most aware of its injustices. By this yardstick the Japanese System does not score very high.