Monday, April 06, 2009

The Newsweek Leaves Japan, Leaving Behind… Chronicles (2)

Do “Ozawa supporters insist the scandal was cooked up as a last-ditch attempt by the old order to protect itself”?

Yes. But note that there is a difference between such accusations—coming most prominently from Ozawa’s faithful if not completely trusted deputy Yukio Hatoyama—and Ozawa’s more modest claims aimed at the Public Prosecutors Office. The first implies a vast conspiracy theory that is at odds with my understanding of the PPO’s role and intentions (about which I have blogged recently), which happens to be consonant to a great degree with Ozawa’s. The difference here is that my conclusions are based on a few testimonies and some observation while Ozawa’s determination appears to be rooted in painful experience. Specifically, the PPO took down his two mentors, Kakuei Tanaka and Shin Kanemaru, two of the most powerful men in the LDP at the time, for taking funny money (Tanaka died while appealing his more serious bribery conviction), and the construction industry relationship that he inherited from the two has come to roost for him.

Note also that an embarrassing (for me, probably not for most of you) number of Administrative Vice-Ministers (a neat criminological double entendre here) have received criminal sentences and gone to jail to jail over the years, as have a much greater number of lesser government officials.

It’s hard to doubt from these and any number of political scandals that have ended up in criminal cases that, like it or not, the PPO pursues its own agenda at a minimum largely independent of the administration and the rest of the bureaucracy. Ozawa’s claims, circumspect in scope, indicate that he understands that only too well.

You may still prefer to subscribe to the view that this is “a last-ditch attempt by the old order to protect itself” and deny that this is “proof that he suffers from the corruption and cronyism that has long poisoned Tokyo politics.” Now Ozawa’s supporters may say that and many of them may actually believe it and it may be true (though I think not), but is it one or the other? Are they the only opinions in play? And don’t Ozawa’s own expressed views figure into this, since this is, after all, an issue in which he has a personal interest and about which he has spoken up himself?


Joe said...

You've mentioned that the PPO has its "own agenda" in a few different places, Okamura-san, but I was wondering if you could offer some insight as to what that is. I'll be damned if I know.

Jun Okumura said...

Joe: Thanks for looking in. Without extensive research,I’m not sure I have much to add except by way of some detail and background, but here are my thoughts.

The first thing that I want to note is that public prosecutors keep a healthy distance from the political and administrative branches (although the Public Prosecutors Office is nominally part of the latter). It is highly unusual for a public prosecutor to seek elected office—in stark contrast to the rest of the bureaucracy, where a political career has long been a significant career choice for fast-track officials, increasingly so in recent years. I am aware of only two former prosecutors in the Diet, one New Komeito (Takenori Kanzaki) and one DPJ (Toshio Ogawa; Shiori Yamao, is also running as a DPJ candidate in the next Lower House election). If anyone knows of any ex-prosecutors among LDP Diet members, please let me know. Prosecutors and bureaucrats are recruited and trained separately. Their career paths as public servants rarely intersect except in the Ministry of Justice, where they, together with judges, dominate its regular bureaucracy.

This independence is important when going after politicians and bureaucrats, some of them high-profile. Business leaders have not been spared either, as CEOs of major financials and corporates have been sentenced for an assortment of criminal mismanagement and bribery charges. The Justice Minister can step in, but that power has been exercised only once in post-WW II Japan, in 1954, by Takeru Inukai, who resigned the following day. This essentially ended Inukai’s political career.

The essence of their agenda is pretty simple: exercise this independence to maintain the letter and the spirit of the law, not necessarily in that order. To be more specific, I cannot escape the feeling that public prosecutors consider themselves a key element of the last line between social order and anarchy and believe that it is their duty to make sure that nobody steps beyond the proscribed limits. Of course a liberal democracy is in principle not based on proscription (and who decides what’s good for society anyway?), and public prosecutors are surely not unaware of this. But with the wind of public opinion—admittedly an extremely vague concept—beneath their wings, they will be, in my view, more ready to take risks in testing the boundaries of the legal tools that the legislature has given them to work with.

In the Nishimatsu case, they lucked into a treasure trove of old-fashioned construction money flowing to a group of old-school politicians, of whom Ozawa’s case (and possibly Nikai) turned out to be the most prominent and consequently most prosecutable example from both a legal and public relations points of view. There’s still a chance that Ozawa’s secretary will be acquitted; in fact, one ex-public prosecutor has consistently claimed that it won’t be easy to convict. But the pain and embarrassment of a loss will be easier to bear if much of the public is thinking, well, Ozawa deserved it even if his secretary was acquitted.

Incidentally, their willingness to push the limits of interpretation appears to be shared by the judicial branch, although the latter can show a more populist streak (or greater respect for the rights of the individual, depending on your outlook).

I realize now that I have outlined not so much an agenda as a motive, which probably happens not to be that different from that of their Western counterparts. However, Americans may see an alarming picture of an unelected fourth branch, a group of men (and women) who exercise enormous discretion under the protective cloak of institutional near-autonomy.

Did this help, Joe?

Joe said...

It did quite a bit, thanks.

How selective do you suppose they are in the cases they pursue? In your above response you said they "lucked into" a lot of evidence pointing to shady construction money. That implies that either the PPO was already investigating Ozawa's people, or they were tipped off (if so, who did the tipping? I'm too lazy to look and see how this story broke in the first place). A third possibility is that they were directed, but you've already stated your doubts about that.

Jun Okumura said...

When I said they “lucked into” it, Joe, I really meant it. Last year, a disgruntled former Nishimatsu executive walked into the PPO and started blabbing about some money that Nishimatsu had ostensibly stashed away in an overseas slush fund and had been using among other things to bribe Thai officials. (That’s a crime in Japan and to the best of my knowledge all other OECD member countries.) According to the not exactly gruntled executive, a big chunk of that money had been surreptitiously shipped back to Japan (also a Japanese crime). The PPO started calling in Nishimatsu executives, the executives started blabbing, and the rest is history.

According to media reports, the former executive had been fired when Nishimatsu found out that he had appropriated some of that funnay monay for himself. Sometimes, Joe, crime doesn’t pay…enough.

I don’t have a good answer for your first question. I have been told that there is a monetary threshold beyond which they will prosecute you for gambling; likewise for freebies for public servants. Our judiciary likes these bright red lines when it comes to hard to define criminal activities. But that’s another story.

Jan Moren said...

Americans may see an alarming picture of an unelected fourth branch, a group of men (and women) who exercise enormous discretion under the protective cloak of institutional near-autonomy.

Actually, I find the idea of elected judges and prosecutors to be rather more alarming. Public opinion on criminal cases is rarely a good guide for prosecution or sentencing - if nothing else, it's mostly formed on the basis of fragmentary third- or fourth-hand information on the case - but an elected prosecutor will be heavily pressured to conform or face an election loss down the line. And when a judge or prosecutor depends on substantial monetary donations for their election things can go very, very wrong, as a few recent cases in the US has illustrated.

Jun Okumura said...

Janne: I too prefer the appointed version, with public opinion and the institutions of a representative democracy exercising a more indirect control over the judiciary and the prosecutorial branch. There’s powerful inertia at work with institutions though, so major wrongs could go uncorrected for a long time, and experimentation will be more difficult. There’s a tradeoff here, whose difference in the pattern of outcomes between Japan and the United States appears to be repeated in other aspects of government and beyond.