Case against Coast Guard Officer Not Air-Tight

More bad news for the Kan administration, according to the evening edition of the hardcopy Yomiuri. My translation, plus comments.

Katsuyuki Nishikawa, the Director-General of the Criminal Bureau of the Ministry of Justice testified in the Judiciary Committee of the House of Councilors regarding the leak of the video of the Chinese fishing boat collision*, “We are not treating [the leaked video] as documents or articles of evidence, but since we received it as material for investigation, it will obviously a document related to a trial as prescribed in (the Code of Criminal Procedure,) Article 47.”

The Code of Criminal Procedure, Article 47 stipulates, “No document relating to the trial shall be made public prior to the commencement of the trial” unless “it is necessary for the public interest or other reasons” [and this testimony] expresses the view that it is strongly suspected that the leak is a violation of the National Public Service Act (obligation to preserve secrecy).

This testimony exposes two problems. First, it could be argued that it is no longer a document related to a trial. The Chinese captain was released under reservation of disposition, which means that as a matter of pure logic, he could still be charged and brought to trial. However, because of the political considerations explicitly stated by the public prosecutors in Okinawa on his release to the Chinese authorities with the obvious understanding that he would be returned to China, where he would be placed beyond the long arm of Japanese law, there is good reason to believe that the Public Prosecutors Office has given up any possibility of prosecuting him at any point in the future. Hence, no trial for the document to be “relating to” pending “commencement of the trial.”

Second, the document can be made public without violating Article 47 “if it is necessary for the public interest or other reasons.” Now I’ve used the quasi-official translation here, but “necessary” does not extend to “other reasons” in the Japanese text. In other words, if there is a valid reason for the disclosure, or rather, a valid reason not to apply the Article 47 restriction to a case of disclosure, then it could be a “document relating to [a] trial” and still not be prosecutable. And what better “other reasons” could there be than the fact that there is no longer a real possibility of a trial?

Note also that a criminal prosecution is a serious encroachment by the state on the individual. There is also the public’s right to know. These are good reasons for the Public Prosecutors Office to exercise restraint in actually proceeding with the case, and the courts are likely to take them into consideration in taking up my two preceding points.

I don’t know if the courts will accept all of these arguments, but don’t you think they’re pretty sound? At a minimum, unless the Coast Guard officer is willing to do the Japanese version of nolo contendere, his lawyers will surely raise them, and his Coast Guard colleagues and retired officers as well as volunteer groups politically motivated or otherwise are sure to pitch in financially for the legal ordeal.

My point is that the Kan administration is looking at a prolonged legal battle that it has little control over but will become intimately tied to in part because of Chief Cabinet Secretary Yoshito Sengoku’s intemperate and misguided statement equating it with the monstrosity of evidence tampering by a public prosecutor to buttress a weak case and subsequent alleged cover-up by his superiors. And that is bad. Ex-Prime Minister Hatoyama’s similarly bombastic and erroneous description of an administrative coup d’état hasn’t helped either.

To Conspiracy Theorists: Need a House?

I’ve consistently maintained that there was no conspiracy and that it was a rogue Coast Guard officer, not anyone from the Public Prosecutors Office, and it looks increasingly like it. In fact, I'll bet the house that it’s not an institutional operation. At most, one accomplice, who slipped him the video. Of course the DPJ is trying to dump it all on the Coast Guard, and as an administrative issue, it's right, there's absolutely no way new MLIT Minister Mabuchi can be held responsible for it—or for that matter his predecessor and now Foreign Affairs Minister Seiji Maehara—unless his predecessors are willing to share the blame for decades of neglect that allowed the Coast Guard to operate with such carelessness that an officer in Kobe could get hold of an unauthorized copy.

You know, there’s something to be said for the complaint that I often hear from John Campbell, Professor Emeritus at the University of Michigan, who now resides in Tokyo, that the LDP continues to spit at the heavens (my words, not his) and the media is giving it a free ride. But is there an anti-DPJ bias? Stephen Reid at Chuo University also has something to say about that. I’m not so sure about that though. I’m inclined to look at all the other factors that go into the bad press for the incumbents and the neglect towards the opposition, though it’s certainly something that should be explored systematically—if someone isn’t already doing it.

Why the DPJ Claims about the Leak Are So Wrong and My Fears over a Weakened Kan Administration

Far less coherent than I’d thought when I wrote it as an email, so I’ve edited it extensively. Still not completely sound, but life is short, so here it is.

The video leak is a serious problem for the Kan administration, but there’s more than this and they are accumulating on Chief Cabinet Secretary (CCS) Yoshito Sengoku’s doorsteps. In this particular instant, making the legally unsound statement that equated it with a group of public prosecutors allegedly involved in the fabrication of evidence to buttress a weak criminal charge and the subsequent cover-up when the fabrication came to light in an attempt to put all the blame on the bureaucracy—which, ironically, it mostly should properly be placed—is going to backfire on him. He has a tendency to wing it in the spotlight—which is really not what the CCS should be doing, though I can't blame him much, given that Kan has turned out not to be a good communicator as prime minister, which fact has been a surprise to me—and have to walk it back, apologize, bluff his way though, whatever. That’s not good. Now let’s look at how his statement is ill-considered.

A) One is a criminal offense by an agent of the state against an individual, while the other is a piece of administrative malfeasance and only possibly a criminal offense by an agent of the state against the state. The latter can, yes, go all the way up to insurrection, but I'm sure that a leak that has little practical effect than to confirm the allegations of the Japanese government pales in comparison to an attempt to sustain an unsound indictment by tampering with the evidence (and entrap the defendant), casting a heavy pall on the entire prosecution process.

B) The evident contrast between the politically motivated release of the Chinese fisherman and the harsh treatment of the Japanese Coast Guard officer, assuming that the officer is indicted, will be all too painful, while the Kan administration will look utterly foolish if the official is not.

C) My guess is that the video was passed around among the officers like a Paris Hilton home movie, and the guy in Kobe got so mad that he went and posted his copy on YouTube. That, Mr. Hatoyama, is administrative failure, not a coup. (Yes, ex-Prime Minister called it a “coup d’état by members of the government.” And ex-MIAC Minister Kazuhiro Haraguchi used the word “insurrection against the state.”

Okay, C) is more of an aside, but my point is that bombastic misstatements from Hatoyama, Sengoku and the like indicate how seriously the DPJ is taking this as a threat to the long-term survival of the DPJ regime. This and Ozawa's lie-in—refusal to testify in the Diet—are playing havoc with the legislative schedule in this extraordinary session as well as with public opinion*, and jeopardizing prospects of expanding alliances, most plausibly with Komeito. Meanwhile, Kamei is yapping about the Japan Post and worker dispatching agency bills. Ozawa is likely to continue to dig in, so that issue will linger well into the regular Diet session, which overlaps with the consolidated local elections in April. As a Japanese voter, I'm beginning to worry that Kan will be too weakened to push the debates on consumption taxation and Trans-Pacific Partnership negotiations, facing down opponents with the threat of a snap election if necessary.

* The near-universal public outcry in Japan reminds me albeit in very low-key form of the way Kim Jong Il’s revelations over the abductees blew up in Prime Minister Junichiro Koizumi’s face (though to be fair, he showed a remarkable stick-to-it-iveness through his second trip to North Korea and beyond).

Impressed by William D. O’Neill’s Commentary on Senkaku Collision

There must be more than enough opinions from the informed, less informed, uninformed, and of course the ill-informed to last a lifetime of reading. There’s one that’s really impressed me, though, and it’s this one from William D. O’Neill explaining that the Chinese fishing boat initiated the collisions. Now I have no way of verifying (or refuting for that matter) his claims except to turn to another nautical expert (and the claim-counterclaim may not be of that much importance to people who think that the islands belong to China and that’s all there is to it), but a forensic, if cursory, examination from someone who’s been there, done that, is a welcome addition to a debate that has been overwhelmingly dominated by social science and lawyer types—like me. It’s a breath of fresh air, really.

That said, I will soon inflict on you some of my ruminations on the subject that I don’t see reflected out there, at least as far as I’m aware. They are my comments in discussions with my friends at Eurasia Group—social science types, most of them—lightly edited for public consumption.

Just for Fun, Trivia of Sorts around the Senkaku Incident

The search for The Source begins. In the meantime, an edited version of a memo that I sent out in response to suspicions of a high-level, politically motivated leak to my Asia practice friends at Eurasia Group that will never find its way to its clients:

This Jiji Tsushin wire, which identifies the video as a version edited by the Japan Coast Guard station in Ishigaki and this Sankei report, conjointly support my conjecture that a relatively junior JCG official engineered the leak. FYI, I happened to receive a secondhand report on the JCG dismay just after the Chinese boat captain's release by the public prosecutors. The prosecutors have always been at odds with the regular police. Now, they and the Kan administration have managed to piss off the Coast Guard.

There’s an important lesson here for the Chinese authorities.

Hu’s Coming to Dinner?

Yes, he will. At least that’s what I think. There’s been much speculation in Japan whether Hu Jintao, the Chinese President, will actually show up to sup with his fellow heads of state and government at the upcoming APEC summit in Yokohama. The last-minute unilateral cancellation of a meeting on the sidelines of the ASEAN summit between Prime Ministers Naoto Kan and Wen Jiabao by the Chinese side—accompanied by a tirade from the Chinese Foreign Deputy Minister—had put the matter in further doubt. The Japanese authorities pointed out that a key part of the denunciation—the last straw if you will—was the result of an erroneous AFP report*. On the heels of this dust-up, though, Foreign Minister Seiji Maehara, for whom the Chinese netizens appear to harbor particular enmity, announced that the two prime ministers had indeed subsequently held a ten minute chat, where Wen reportedly expressed his regret that their meeting had to be canceled. I wondered how that story would be carried in the Chinese media. Now, I know. Yesterday (Sunday, Oct. 31), the answer came in 法制晩報 (Evening Legal Report: my translation), one of many semi-official publications operating out of Beijing, according to Damien Ma** at Eurasia Group. The Evening Legal Report, according to a Kyodo Tsushin wire by way of among others the Sankei, gave a matter-of-fact report of a ten-minute meeting and characterized it as a “coincidental” “reenactment of corridor diplomacy.” It does not appear to have referred to the Japanese claim about Wen’s regrets. In the meantime, the Chinese side appears to be putting the blame on attempts by national security conservative Foreign Minister Maehara and other hawkish elements in the Kan administration to repair the damage under the Hatoyama administration to the Japan-US bilateral relationship, according to the somewhat more authoritative—am I right, Damien?—環球時報 (Global Times) indicated today (Nov.1) in a bylined report.

Leaving aside guesswork on Chinese motives, I think that the first report is a sign that the Chinese authorities want to limit their reputation risk abroad while containing discontent at home—the demonstrations have all occurred in the less prosperous interior provinces (and Chongqing, a special city in the interior), the most recent ones spilling over into domestic complaints—which means that Hu will show, the only suspense surrounding the status of a bilateral that should take place on the sidelines. The second report? A reminder that the US is the other big dog in the neighborhood, as well as possibly a manifestation of the Chinese authorities’ desire to localize if not completely isolate in the minds of the Chinese public the undesired elements of the Japanese political establishment. There is no mention of the near-universal if low-key Japanese aversion to Chinese actions around the latest Senkaku incdident***.

(Addendum) More to the point, this Global Times editorial puts the blame squarely on Maehara’s shoulders. Note also that Maehara has risen to the top of the preferred politicians in Japan according to the latest Nikkei-TV Tokyo public opinion poll. I don’t think that this is a delayed recognition for his JAL bankruptcy workout efforts, or his less commendable work on the Yamba Dam project.

* Is it just me, or is AFP generally less reliable than, say, Reuters?

** Damien, you will remember, blogs at the Atlantic website, a considerably more prestigious piece of virtual real estate than my more modest efforts. Little known fact: Damien played lead guitar for Johnny Cash’s studio recordings in the country legend’s last years. He is also quickly becoming an authority on rare earth elements. True story.

*** The Chinese belligerence took the Japanese public by surprise and captured its attention in a way that reminded me of the national response to the revelations of the North Korean abduction of Japanese citizen albeit in a much more low-key way. So many people in Japan, including those who had shown little to no interest in Japan’s international relations, or politics for that matter, woke up and took note.