Every society has a formal power system in which the law ultimately determines which transactions and relationships are admissible and which are not. They also have informal power systems based on old-boy networks and all manner of rules, some written, most unwritten, but not ultimately determined by law.

In Japan, that informal system is pervasive, and to a large extent supplants the formal system. The way in which power is exercised in Japan really does not bear resemblance to what the Japanese Constitution says about how it should be exercised.

And nowhere is that more evident than in the office of the public prosecutor, according to long-time FCCJ member Karel van Wolferen, speaking at a Dec. 16 panel discussion at the Club. The other panelists were former public prosecutor Nobuo Gohara, now a professor at Meijo University, who has seen how the informal system works from the inside; and Takafumi Horie, ex-president of Livedoor, who experienced being caught in the web of unwritten rules.

In Japan, public prosecutors have enormous discretionary power, van Wolferen noted. He said foreign prosecutors visiting Japan find it hard to believe that their Japanese counterparts have discretionary powers as to when and whom to prosecute. This has an advantage, explains van Wolferen. In a misdemeanor case, how much contrition a suspect shows is important in determining how the prosecutor will handle the case. If the suspect apologizes, he or she has a good chance of being let off the hook. But if the suspect claims what they did wasn’t wrong, the prosecutor will continue to insist that the individual must be dealt with by the courts.

“It’s difficult to quarrel with a judicial system that keeps people out of prison as much as possible – we know countries where that is absolutely not the case at all – and yet, at the same time, maintains a violent-crime rate that is very low by international standards of industrialized countries,” van Wolferen said.

But there’s a reason for this, explained Gohara, who compared society to a circle. “The public prosecutor’s role only functions outside this circle, to pull out the dropouts from society, and an example of that is Mr. Horie,” Gohara said. Public prosecutors have played a key role in dealing with those who throw a wrench in the mechanism of Japan’s social harmony, while forgiving contrite ordinary people’s small transgressions, he explained.

Van Wolferen calls the way in which public prosecutors deal with things that threaten to throw the unofficial system out of kilter an “immune system.” When an individual threatens the balance of the power structure, that immune system springs into action. And public prosecutors can act as in immune system in cooperation with the media. Without media support, the public prosecutor is relatively powerless, van Wolferen noted. Of course, political-reform efforts, by definition, threaten the balance inside the informal system, even while many people, including perhaps the prosecutors themselves, agree that reform is necessary.

Van Wolferen describes the current Democratic Party of Japan government as the greatest threat to the Japanese power system since its consolidation in its present form in the 1950s.

“So, I’m sure that we can expect the ‘immune system,’ meaning the public prosecutor, to come into action,” van Wolferen said. “And I think the Japanese media should be aware of the fact that they are part of this, and that they in fact may of course – inadvertently – undermine what is in the end a very democratic process in Japan.”

That the “immune system” would kick in following the DPJ’s election victory is something van Wolferen predicted last January, when he returned to Japan after living in the Netherlands for several years. People would tell him: “You know, this year is going to be wonderful, because we are really going to see a major political change that the Japanese people have been waiting for for a long time. This year, we are going to have elections, and it is most certain that the Minshuto (DPJ) is going to win and that Ozawa will be prime minister.”

Van Wolferen said he would reply as follows: “Hold on a second. What about the scandal that’s going to come, and that is going to bring Ozawa down?” He says the attack on Ozawa was predictable, just as it was foreseeable that Hatoyama would run into trouble once in office. In the latter case, legal action was taken against a secretary and should not be seen as an effort to take Hatoyama down, but as a kind of warning. The warning, van Wolferen said, is: “Look. You know who is finally in charge of order-keeping in Japan? It’s not you, it’s us. We are the guardians of the Japanese bureaucratic power system.”

Public prosecutors also work in a way that makes it very easy to extract confessions from suspects, Gohara said, noting that those who do not confess are usually held for a long time. Muneo Suzuki, a former deputy chief Cabinet secretary who was arrested in 2002 on suspicion of accepting bribes from two Hokkaido companies, was held in custody for over 500 days.

Prosecutors can justify detaining suspects based on the possibility they may destroy evidence if granted bail. When it comes to misdemeanors or financial crimes, people who are not considered a flight risk, not seen as likely to destroy evidence or who have confessed, are granted bail. Therefore, suspects understand after a time that it is more advantageous to them if they confess as early as possible, according to Gohara. In addition, under the Criminal Procedures Law, if a person says something in front of a prosecutor, that is considered more trustworthy evidence than what is said in court. Under Article 3.2.1 of the Criminal Procedures Act, a written statement put together by a public prosecutor and signed by a suspect is more credible than what that person actually says in court.

Horie believes his legal troubles happened because he upset the Japanese social-harmony apple cart. With a group of student friends, the maverick entrepreneur in 1995 launched Web consultancy company Livin’ on the Edge, which was renamed Livedoor in 2004. Horie attracted the ire of some parts of the mass media when, as an outsider to the world of pro baseball, he tried to buy the Kintetsu Buffaloes. He then refused to grant an interview to NHK when he ran as a candidate in the 2005 general election. But what triggered the “immune reaction” was Livedoor’s attempt at a hostile takeover of Fuji Television the same year. With no prior notice, in January 2006 the Tokyo District Public Prosecutors Office raided Livedoor’s offices, later arresting Horie, Livedoor’s chief financial officer and the president of two subsidiaries on suspicion of securities and accounting fraud. Found guilty in March 2007 and sentenced to two and half years in prison, Horie has taken his appeal all the way to the Supreme Court. “As Mr. van Wolferen said, there are a lot of unwritten rules in Japan, but the public prosecutor came to me with all sorts of rules, and they fought me with their interpretation of those rules,” he said.

Gohara feels a system needs to be put in place to monitor and supervise the prosecutors’ activities. As a reaction to the pre-1945 situation, when ministers of justice abused their oversight authority, public prosecutors since the 1950s have basically been able to work as they wish. If they are working fairly, undue political control should not be exerted on them, Gohara believes.

“However, when we consider the enormous power the public prosecutors have, the enormous influence that they have on society at large, I think there needs to be some kind of democratic civilian control over their powers,” he concluded. ❶