Thursday, November 11, 2010

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.


RMilner said...

I'm not sure if Japanese courts have the authority to summon witnesses.

If they do, Mr. Sengoku and Mr. Kan could well find themselves subpoenaed and asked embarrassing questions under oath, by the defence lawyers.

I think they would be best advised to avoid any possibility of that happening.

PaxAmericana said...

The big question I've had through the mercifully short Kan regime is "Who is advising them?" At least Hatoyama could blame the rather strong pressure from the usual suspects of the 1955 system for many of his problems. Kan's seem even more self-inflicted.

Anonymous said...

I was wondering, now that the Lower House passed the stimulus bill, what happens if nothing else gets passed? Will the stimulus bill still take effect? Does it matter that there aren't 30 days left in the legislative session?

Anonymous said...

I am very disappointed that the LDP has decided to continue to stall on the stimulus bill despite the resignation of Yanagida. I get the feeling that Japan is trying to force America to choose between the stimulus bill and the fate of Ozawa. I am not happy about this. But if that is the choice, then I would personally prefer Ozawa over the stimulus bill.

If you don't respond to this then I'll assume my judgment on this issue is correct.

MKM said...

Based on the latest editorial from the Asahi Shimbun, I gather that Japan wants America to help it solve the Futenma issue. In a recent speech, Joseph Nye called the Futenma issue a second order issue. He thought Hatoyama wasted too much time on the issue. Futenma itself isn't all that important. But Futenma is a symptom of much larger problems that are fundamental to the relationship between Japan and America. An attempt to solve the Futenma issue that doesn't address the fundamental issues concerning the alliance will not mean much and such an attempt will probably fail, just like the previous attempts to solve Futenma.

Two of the really big issues that the alliance has failed to resolve are the relations between both countries and China and whether or not both countries want to be democracies. But the biggest issue is whether or not both countries really want to see each other succeed. Based on the latest Senkaku incident, the answer to that question isn't so clear to me. Based on that episode, it appears to me that Japan and China want to do everything they can to convince America to continue to waste its money on military equipment that it does not need. Of course, I'm not going to blame the sorry state of the alliance only on East Asia. America has made more than its share of mistakes.

From what I can tell, the people in charge of Japan and America really do not want their countries to be democracies, but they want to call their countries democracies. I want Japan and America to become real democracies. To do that, someone needs to tell the truth. Unfortunately, I do not know the whole truth. But I believe I know enough of it to know that the conventional wisdom on the relationships between China, Japan, and America are about as far from reality as they possibly could be. It makes no sense to have a democratic system of government when the gap between reality and the perceptions of the public are so wide. Furthermore, the lack of transparency allows both sides to take actions against each other which end up hurting both sides and leaving both sides poorer off than they would have been had those actions not been taken.

I've often heard Japan experts marvel at the ability of Japan to reinvent itself when needed. Japan needs to reinvent itself now. We need to tell the truth. We need to be sincere. And we need to believe that we only succeed when we both succeed.

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