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Japanese prosecutors and politicians keep up a delicate dance

'Independent' legal figures have long played politics in seeking their own goals

A photo montage shows, from left, Hiromu Kurokawa, who until recently headed the Tokyo High Public Prosecutors Office, and Prime Minister Shinzo Abe. Prosecutors and politicians in Japan have long had a complex relationship. (Source photos by Kyodo) 

TOKYO -- Prosecutors in Japan possess the sole power to both investigate any crime as well as levy charges and are grouped in a special administrative agency in the Ministry of Justice.

Thus, to ensure democratic control, the right to appoint and dismiss the top prosecutor-general rests with the Cabinet that is made up of elected lawmakers. But strict political neutrality and independence are necessary for prosecutors to function properly.

Now, a recent scandal in which Prime Minister Shinzo Abe's office stands accused of favoring certain prosecutors, both politicians and prosecutors, who have faced each other across a chasm of unorthodox means, find themselves under fire.

In the early summer of 1987, Shigeki Ito was Japan's prosecutor-general. Previously, as the head of the Ministry of Justice's Criminal Affairs Bureau, Ito testified in parliament that he "must gouge out and expose great evil." Upon becoming prosecutor-general, he decisively declared, "I won't let the bad guys sleep." Such statements earned him the moniker, "Mr. Prosecutor."

One day he had an informal talk with political reporters covering the Justice Ministry legal administration, rather than the police reporters who follow investigations by prosecutors. I, as a fledgling reporter, was among them.

At the time, the wiretapping of Yasuo Ogata, the international affairs director for the Japanese Communist Party, was a major issue facing the Public Prosecutor's Office. The Tokyo District Prosecutor had been indicted for allegedly violating the Telecommunications Business Act and an investigation by the special investigations department had revealed that multiple police officers from the Kanagawa Prefectural Security Department carried out the wiretapping ordered by their superiors. The prosecution and the police, which are responsible for maintaining state security, faced the tricky situation of being both investigator and subject of a criminal probe.

In talking with the political reporters, Ito indicated that he would not only build a case against the individuals alleged to have directly committed the crime and who could not be said to have any organizational responsibility. Rather, he would make the head of the National Police Agency take responsibility for it while pushing to correct illegal investigative methods and measures to prevent recurrences. It was, he said, not good for the prosecution and the police to be at war with each other.

Shigeki Ito, the late former prosecutor-general known as "Mr. Prosecutor."

What came next was a surprise. Ito harshly criticized Masaharu Gotoda, the then chief cabinet secretary and an important player in the Cabinet of Prime Minister Yasuhiro Nakasone. Known as the "razor," Gotoda was a widely feared figure.

"Gotoda is the root of all evil," Ito said. "Those who have passed through the public security field, especially police bureaucrats, should stick to being stagehands and not appear on stage," Ito said. "Nevertheless, since he became a member of parliament, not to mention chief cabinet secretary, the public security police have become increasingly arrogant."

Nakasone led the Liberal Democratic Party to a major victory in both houses of parliament in 1986, winning him an extension as party president and, thus, prime minister. He also had the political power to nominate Noboru Takeshita as his successor in the fall of 1987. Gotoda, meanwhile, who had long served as chief cabinet secretary and had transitioned from being a confidant of former prime minister Kakuei Tanaka to Nakasone adviser, was also at the height of his power.

At that time, Ito was the only figure who spoke down in such a way to a senior figure like the "razor." Looking back, he had probably already considered that his remarks would be relayed to the prime minister's office.

When all was said and done, the indictment for the wiretapping charge was suspended and both the director of the national Police Agency's Security Bureau and the chief of the Kanagawa Prefectural Police resigned. The head of the National Police Agency, meanwhile, later retired.

Ito himself retired in March 1988 as he battled cancer. He died shortly thereafter in May, just as his memoirs were being serialized in the Asahi Shimbun newspaper. In an episode titled "the Fairy Tale," in which he wrote about a "faraway country," he recounted the inside story of reaching an agreement with the police. "Can the prosecution beat the police?" he wrote. "It seems we cannot say that with certainty that it will win."

On July 5, 2017, at the Aoyama Funeral Home in Tokyo, a service began for the late Kaoru Yosano, who had served as chief cabinet secretary and minister of economic and fiscal policy. Following remarks by Abe and Speaker of the House of Representatives Tadamori Oshima, former Prosecutor-General Keiichi Tadaki offered condolences on behalf of Yosano's "friends."

"I felt that a politics of kindness was the starting point for Yosano," he said and proceeded to reveal a secret story from 2007, when he was still prosecutor-general.

At that time, the Cabinet of Prime Minister Yasuo Fukuda was struggling to deal with a lawsuit filed by people who were accidentally infected with the hepatitis C virus from tainted blood products. When the Osaka High Court issued a recommendation for a settlement that did not include some of the victims, the plaintiffs asked the government that all receive the same level of compensation.

But the district court that first heard the case had ruled that the state was not at fault. Therefore, the government was reluctant to accept administrative responsibility beyond that judicial ruling. The Cabinet's support rate dropped sharply as females among the plaintiffs appeared on television day after day, in tears demanding relief.

Yosano also served as chair of the lower house of parliament's Committee on Judicial Affairs and had a good relationship with Tadaki, who had long handled parliament affairs for the Ministry of Justice. Yosano asked Tadaki over the phone if there was something they could do for the victims.

"The administration can't go beyond the judicial ruling," Tadaki advised him. "If you're going to do something, you have to have the legislature create a law to provide uniform relief for everyone." On that same day, Yosano wrote down an outline for the measure and spoke to Fukuda directly to push for it.

Although the nature of the funeral speech obscured the fact, it was Tadaki who initiated that call. "If the Fukuda Cabinet handles things this badly, the LDP is going to lose in the next lower house election," he told Yosano, who had few responsibilities and time to spare. Tadaki added that if the measure came from lawmakers in parliament, rather than the Cabinet, there would be no questions of constitutionality. Tadaki, the government's legal representative who was also a law enforcement authority, communicated inner thoughts he could never say in public -- and a solution for the issue at hand -- to key politicians through back channels.

Yosano, who prided himself as a "policy craftsman," was closer to the Ministry of Justice than any other government agency, including the Ministry of Finance and the Ministry of Economy, Trade and Industry. He fully cooperated with the Ministry of Justice on all of its legislation, such as the wiretapping law for organized crime investigations, and he was very close to Tadaki and all of his successors.

Even so, Yosano would vent that the prosecution apparently kept a well-researched file on his political fund flows. He was always aware of the tense relationship with the "strongest investigative agency."

"Independent judicial power" refers to the constitutional principle that judges and courts make independent decisions without political interference. The right of prosecution, however, is not within the purview of the judiciary, but rather falls under the executive branch of government. For the time being, that means the prosecutor's office is also subject to parliament's right to investigate the government.

However, since it also has a quasi-judicial character, the prevailing textbook on constitutional law -- the seventh edition of "The Constitution" by the late legal scholar Nobuyoshi Ashibe -- says that an independence similar to the power of the judiciary must be allowed.

According to article 14 of the Public Prosecutors Office Act, the justice minister has general, but limited, authority over the public prosecutor's affairs and in individual cases "only the prosecutor-general can give directions." Thus, to avoid a form of "prosecutorial fascism" even while under democratic control, a barrier was put in place against political pressure given that the prosecution may also expose crimes of people serving in the government. "The point of contact between the party cabinet and the right of prosecution has a high degree of political significance," wrote Fumiyuki Watanabe in his book "Prosecutor-General."

Although the Cabinet has the authority to appoint and dismiss the prosecutor-general, the deputy prosecutor-general and the eight superintending prosecutors at the various High Public Prosecutors Offices, it has de facto acknowledged the autonomy of legal and prosecution authorities. In the same way as the perceived taboo of invoking the right of command, it is part of finding the "highly political" balance between the Cabinet and the public prosecutor's office.

In addition to taking charge at investigation sites, prosecutors control many functions at the Ministry of Justice, including its budget and legislative and parliament affairs. A typical path of career advancement for a prosecutor involves becoming prosecutor-general after serving as the superintending prosecutor for the Tokyo High Public Prosecutors Office.

Former head of the Tokyo High Public Prosecutors Office Hiromu Kurokawa and head of the Nagoya High Public Prosecutors Office Makoto Hayashi have been called the two best of their class. Hayashi became head of the Ministry of Justice's Criminal Affairs Bureau in January 2014. It was thought that Hayashi took the lead in the race to become prosecutor-general when Kurokawa stayed on as deputy vice-minister of justice. But Kurokawa was promoted to vice minister in September 2016. His talent at coordination was highly valued by Chief Cabinet Secretary Yoshihide Suga and Deputy Chief Cabinet Secretary Kazuhiro Sugita. Hayashi transferred to the Nagoya post in January 2018.

Makoto Hayashi and Kurokawa in February. Kurokawa resigned on May 21 as head of the Tokyo High Public Prosecutors Office after being caught up in a betting scandal and was replaced by Hayashi, formerly head of the Nagoya High Public Prosecutors Office, on May 26.

Kurokawa moved up to become head of the Tokyo High Public Prosecutors office in January 2019, but authorities there still saw Hayashi as the candidate to become the next prosecutor-general. In February 2020, Kurokawa would turn 63, the mandatory retirement age as stipulated in law. Hayashi will turn 63 in July 2020. If the current prosecutor-general follows recent custom and steps down after two years in the position, he would end his tenure in July 2020. Kurokawa was not supposed to have had a turn. But Abe knew Hayashi well. As head of the ministry's Criminal Affairs Bureau, he supported changes to the organized crime law, including provisions for conspiracy charges, which caused turmoil in parliament.

Takashi Yamashita, a member of the lower house, served as justice minister for about one year from the autumn of 2018. He put Kurokawa in charge of the Tokyo office, and is himself a former prosecutor. "As justice minister, I thought the provisions for extending the retirement age for civil servants could also be applied to prosecutors," he said. "If you have two talented people from the same class, if you do not use the extension provision, they can't both become prosecutor-general." It was a clear reference to Kurokawa and Hayashi.

Within Japan's bureaucracy, many felt that the prime minister's office should be considering not just Kurokawa, but also Hayashi for the top spot. If the timing of the current prosecutor-general's retirement was carefully combined with a reinterpretation of the current rules governing the retirement age, there was the possibility of exploring a compromise in which the older Kurokawa took the top spot for one year, to be succeeded by Hayashi.

But the prime minister's office, which actually exercises the right of appointment and dismissal, and the prosecutor's office, which loathes political interference, could not get on the same page. Both have now been hit hard by widespread public anger over the move to change the retirement age as well as by Kurokawa's unexpected resignation on May 21 over an unrelated gambling scandal and find themselves in a serious state.

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