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Number 1 Shimbun

The legal fallout from the great escape

04-1

Facing off 
Carlos Ghosn, pauses during a press conference in Beirut, Lebanon,
on Jan. 8. (AP PHOTO/MAYA ALLERUZZO)

 

Law professor Colin P.A. Jones shares his thoughts on the ongoing saga of Carlos Ghosn in an interview with David McNeill

 

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and the author of several acclaimed books on Japanese law.* He writes a column for the Japan Times and has become a regular commentator on Japanese legal issues.
We asked him to discuss the arrest, detention and escape of Carlos Ghosn
.

MCNEILL: Like the rest of us, you’ve been following the Ghosn case with some interest. What aspects of the case do you find most troubling or fascinating?
JONES: Well, I guess what I find troubling is that I don’t really find anything about it troubling—it all seems to be the Japanese criminal justice system operating in the usual manner. The escape was, of course, fascinating. I think it will also be interesting to see how the debate over the Japanese system plays out on the world stage, including in extradition hearings—in the unlikely event they happen—or efforts to go after Ghosn family assets and so forth.


Would you speculate on what the next steps of the prosecutors and the justice system will be?

I would hesitate to speculate as to what will happen, other than that they will probably spend a long time trying to make his life miserable. They have long memories, these institutions.


A common criticism of foreign correspondents in Japan is that they simplify or sensationalize the Japanese justice, focusing on the unlimited detentions, or the 99.4 percent conviction rate, while playing down problems in the countries from which they hail, especially America. Do you think that’s valid?

If you are eating sushi with an acquaintance and you say, “The sushi here doesn’t seem very fresh,” and your acquaintance responds with, “Well, American hot dogs are atrocious,” it may be a true statement, but it doesn’t get you any closer to whether the sushi is any good or whether you are qualified to judge it. Comparisons can be useful but often they are a reflexive response that distracts. Comparative criticism about legal systems often fails to identify what a “better” system might be, because what is “better” may be highly contextual. People who criticize Japan’s 99.4 percent conviction rate probably can’t articulate what a “better” conviction rate would be or why. And if other countries have a lower rate, why is that better? Better for whom?


Japanese journalists come in for their share of flak too, for being too ready to play patsy to the establishment. Do you agree with that criticism?

I thought it was funny that Ghosn effectively established his own press club (at his first press conference in the Lebanon) and refused to accredit media organizations that had been critical in the past. I would have thought mainstream Japanese journalists would find that familiar.


Do you have any advice for foreign journalists trying to make sense of how things are done here, especially those covering legal issues and the courts?

I teach Japanese law to foreign students, and I always start out with the overall structure of government and the ministries, and then go to the courts. I think starting with the courts is confusing, because depending on where you are from, it may burden you with all sorts of assumptions about the role of courts in government, which may not apply in Japan. But that may not be immediately obvious. I think it is also helpful to think of the Supreme Court as effectively another ministry—the “Ministry of Dispute Resolution,” perhaps. When Japanese lawyers and legal scholars talk about “The Supreme Court” half the time they are actually talking about the administrators of the national judicial bureaucracy, not the “court.”


Many people find it hard to sympathize with a rich foreigner who earned $120m from his gigs as head of the world’s largest car alliance.

Being in favor of Miranda rights does not mean you have sympathy for rapists, which is what Ernesto Miranda was. In America, at least, a certain amount of important law comes from people who may not be very sympathetic. That such people can still be expected to receive a fair trial is part of the bargain in a fair legal system, because next time it might be you. Of course, there are all sorts of people in the United States who may quite reasonably not have such expectations.
Ghosn has indeed brought a lot of attention to the system, and when he was originally arrested one of my first thoughts was, “Do the prosecutors know how much negative attention this is going to get them on the world stage? Do they really want that?”


Is it too early to speculate whether the Ghosn circus might result in any long-term changes to how police and prosecution work is done in Japan?

Mostly worse in the immediate term, I suspect: less bail, more detention. Since changes to criminal procedure will almost certainly need to go through the Ministry of Justice, which is run by prosecutors, it is hard to imagine substantive changes that at least do not provide some benefit to prosecutors as well. But if they keep the case in the news, the constant attention will make it easier to advocate for change at least.
One interesting thing to watch will be GPS tracking on bail. His own lawyers offered it as a bail condition and it was rejected, but it is now identified as something that might have prevented him from escaping. My prediction is that we will start to see people in official circles trying to articulate why GPS is a bad idea notwithstanding that. If Ghosn can get bail with GPS tracking, why can’t other people? In fact, why do you need to detain them if you can just track them. I think detention is an important tool for police and prosecutors, not necessarily just for reasons related to preventing suspects and defendants from fleeing justice or despoiling evidence. Widespread use of GPS tracking on custodial release could potentially take that tool away from them.


After Ghosn’s press conference on Jan. 8, Mori Masako, Japan’s justice minister released a statement that said every country’s criminal justice system has its roots in its history and culture and that arguing about the superiority or inferiority was irrelevant. She also said it was Ghosn’s duty to prove he is innocent. Do you think she unwittingly revealed some truths about the system in these quotes?

It’s a perfectly legitimate, arguably meaningless statement. I hope it is remembered whenever anyone in authority speculates about the reliability of the Lebanese system in the days to come. It is also a useful riposte to anyone making the counterclaims of the type in your second question.


One of the points that gets made, quite explicitly in Mori’s statement, is that Japan has very successful outcomes—notably its very low crime rate—and that justifies the problems with the system of overenthusiastic prosecutors. What’s your take?

I don’t know. There may be all sorts of factors in Japan’s low crime rate, none of which have anything to do with the way the criminal justice system functions. I don’t know that a causal relationship between the two has been empirically validated. To an extent, the authorities can control the crime rate anyway, by defining the crime and enforcement. For example, the police can generate more “foreign crime” by simply doing more identity checks and arresting those who don’t have ID.


Speculate outrageously for a minute that the Japanese government asks you for your opinions and actually acts on them: What would you recommend in terms of most immediate reform, in the understanding that you can only focus on the most egregious issues?

Eliminate the ability of prosecutors to appeal an acquittal. It seems ridiculous that being acquitted by a trial court is not adequate to establish enough “reasonable doubt” to prevent a conviction on appeal. If Ghosn had been acquitted at trial, he could still have spent the rest of his life fighting to keep that acquittal from being overturned. That is one of the reasons why I think that, assuming for the sake of argument that he really was innocent of all charges, it was still perfectly rational for him to try to escape.
Eliminating prosecutorial appeals would also probably change some of the institutional dynamics at play in the judiciary which makes it harder for judges to acquit in the first place. Judges are subject to annual personnel reviews, and being “wrong” too often is probably part of the equation. So if acquittals are no longer potentially “wrong”—because they are appealed—then perhaps there will be less reticence in granting them. ❶

*Jones is lead author of The Japanese Legal System (2018) and The Japanese Legal System in a Nutshell (2020), both from Kurodahan Press, as well as Obey, Not Know: Essays in Japanese Law and Society (2019).


David McNeill writes for the Irish Times and the Economist, and teaches media literacy at Hosei and Sophia Universities.

Published in: February 2020

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