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Saturday 11 January 2020

Faults in Japan's legal system in spotlight with Ghosn case

Saleem Zahid. 

In a Hollywood styled escape from Japan, Nissan’s former Chairman Carlos Ghosn has brought the faults in Japan’s legal system under global spotlight. Forced confessions, a nearly 100 percent conviction rate, and long pre-indictment detentions are regarded by the system’s critics as the flaws that benefit only the prosecutors. 

Ghosn was under trial for his alleged financial irregularities as the Japanese automaker’s head, a charge that he considers politically motivated. In December 2019, he fled Japan by hiding in boxes and changing jets and countries to end up in Lebanon with claims that his right to self-defense was not being provided. 

So what exactly is the problem in Japan’s legal system? While all countries have laws and investigation procedures customized to their local conditions, why is it Japan that is so often criticized? Let’s take a look at some of the major issues. 

Forced Confessions

Forced confessions have marred the reputation of Japan’s legal system for long. In a case that publicly highlighted this fallacy, husband and wife Tatsuhiro Boku and Keiko Aoki were acquited in 2016 after serving over 20 years for the murder of their daughter. Aoki maintains that she was forced to confess the murder under pressure from the investigators.

According to Japanese law, suspects’ lawyers need not be present during interrogations. This leaves room for manipulation at the hands of the interrogators. 

Sumio Hamada, a psychologist who has studied forced confession for almost 40 years, believes that Aoki’s mind might have been spiraling out of control during the investigations. After the tragedy of the death of her daughter, being blamed for the same was a matter a shock for her. According to Hamada, the guilt of not being able to save her child contributed to her willingness to write a confession.

And it is not just the case of Aoki. Hamada is of the opinion that given the right circumstances, most people would confess to crimes they didn’t commit. The Japanese legal system does not involve violence for extracting confessions but mental torture does exist, says Hamada.  

Guilty Until Proven Innocent: 99.9 Percent Conviction Rate in Japan

Japan’s legal system, notorious for its 99.9 percent conviction rate in criminal cases has given it the reputation of considering suspects guilty until proven innocent. After Ghosn’s escape, Japan’s justice minister Masako Mori asked him to prove his innocence if he wants to clear his name, further giving credence to the public perception regarding the faults in the system.

The high rate of forced confessions and the opaque nature of the investigations prompted the Diet, Japan’s legislature, in 2016 to enforce videotaping of at lease some interrogations. Enzai, the Japanese word for a crime that a person did not commit, has sent countless people behind bars only to the public’s horror decades later that they had been wrongfully convicted. 

For his defense, Ghosn had hired the former chief of the special investigations section of the Tokyo prosecutors office. That is why he exactly knew what he was up against. The only two options he likely had were a 10-year sentence and escape. No wonder he chose the latter. 

Corruption in Japan’s Legal System

Back in 2014, a high profile revelation of a former Japanese professional judge took the country’s legal system by storm. Hiroshi Segi, who was part of the system for 30 years, had quit and joined the Meiji University as a professor. 

Segi stated that the Japanese judiciary was full of bureaucratic elites where a strict hierarchy purges liberal-minded and outspoken individuals. He went on to publish a book to outline the collusion of judges with prosecutors by listing some of the most unprofessional convictions.

According to him, prosecutors pursue only those cases for courts that they are convinced of winning. This reduces the responsibility on the part of the judges for scrutinizing the merits in the cases.  

Comparison of Japanese and US Legal Systems 

The comparison of Japanese and US legal systems reveals that the two have marked dissimilarities. 

When ending up in the Japanese legal system, a suspect can be held for up to 23 days in custody without charge. This allows ample time for the prosecutors to extract a confession. Hard to refute, the confession then leads the suspect to prison. The arraignment, or appearance in front of a judge for informing the defendant of his rights and the charges against them, happens typically within 48 hours in the US. 

During investigations in Japan, a lawyer is not required to be present. It’s just the prosecutor and the defendant all by themselves. This makes the process notoriously opaque. In the US, the defendant is not required to speak anything in the absence of his lawyer. 

Another unique aspect of the Japanese legal system is that a person can be rearrested on different crimes to extend the detention. In the case of Ghosn, it is surprising that he was not granted bail several times when he applied. In the US, courts have given bail to even the most famous financial criminals right on the day they were arrested. 

Despite the constant criticism Japan’s legal system is receiving in light of the Ghosn case, it has been on the path of reform. In 2016, Japan amended its Criminal Procedure Code to add transparency to interrogations and introduce bargaining between defendants and prosecutors. 

Japan is still far from restoring the faith in its legal system after the bad press it has recently received. No matter what the outcome of Carlos Ghosn’s case is, Japan will have to wipe the stain on its legal system as soon as possible. 

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