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.