OPN Carlos Ghosn-1579342576113
Former Nissan chairman Carlos Ghosn. Image Credit: Reuters

In the 13 months between the arrest of Carlos Ghosn, the former chief executive of Nissan, and his fleeing Japan amid allegations of improper compensation and misuse of corporate assets, the Japanese criminal justice system has been put under a microscope.

Critics in Japan have raised concerns for years, in particular about the broad powers granted to prosecutors. All of those powers have been on full display in Ghosn’s case: His pretrial detention was repeatedly extended, he was held for hours of questioning without a lawyer present, and he was repeatedly denied bail — something that is usually granted only to defendants who are prepared to confess. (He was eventually granted bail with strict conditions.) Aside from a few reforms, like the introduction of videotaped interrogations, the Japanese legal system has continued unchanged for decades. Wide prosecutorial powers have been generally accepted by the Japanese people as appropriate and effective, given extremely low crime rates in Japan.

Western concepts of justice are deeply rooted in the principles of individual liberty, checks on official power and the rule of law. In the West, these ideals are embraced and believed to be universal. The Japanese concept of justice, in contrast, is rooted in regulating individual conduct according to norms that define the relationship of the individual to society. And these norms are defined by a history that predates Western legal concepts by thousands of years.

Some reforms of the Japanese justice system could be helpful, such as expansion of attorney-client privilege, a more level playing field in terms of access to witnesses and documents, limits on pretrial detention and freer access to legal counsel.

- Nobuhisa Ishizuka, executive director of the Centre for Japanese Legal Studies

As a result, when discussing the Ghosn case, the two sides of the Japanese reform debate talk past each other. For Western commentators, the Japanese system deserves as much scrutiny as the defendant’s guilt or innocence. For the Japanese, Ghosn’s conduct is itself the central issue, quite apart from his guilt or innocence.

Prosecutors’ objectives

One fact repeatedly cited by Ghosn and others as a prominent feature of the Japanese criminal justice system is the country’s “99 per cent conviction rate,” often through confessions. The objectives of prosecutors in Japan help explain this. The aim of achieving corrective behaviour and reintegration into society, rather than simply determining guilt and punishment, is a high priority for Japanese prosecutors. This requires recognition of wrongdoing and remorse. Restitution and forgiveness of victims is an important element of this process (a highly unlikely outcome in this case, where Nissan’s interests are decidedly aligned with the prosecutors’). Once these objectives are achieved, prosecutors have considerable authority and discretion to grant leniency, and they often do. Only cases with a high likelihood of conviction tend to go to trial.

This leads to one of the most troubling issues to outside observers: the presumption of innocence. How can there be a determination of guilt and an admission of culpability before there has even been a trial on the merits?

Protections for the accused do exist under the Japanese Constitution; they were introduced by the United States during its occupation of the country after the Second World War. Under the Japanese civil law system, however, they generally apply only at the trial stage, where issues of guilt or innocence are formally determined. During the pretrial stage, local rules place emphasis on the investigatory powers of the prosecutors. So, the right to counsel during questioning depends on whether — in the prosecutors’ estimation — a lawyer’s presence is likely to “interfere” with the investigation. (Invariably, the determination is that it will, as in the case of Ghosn.)

Detention and granting of bail

Conditions for contact with others during detention and the granting of bail are based on assessments of the suspect’s good faith and willingness to cooperate and the perceived likelihood of evidence tampering. This explains why a defendant might be cut off from their spouse and held for prolonged periods without bail, as Ghosn was. Suspects are free to refuse to “confess,” as Ghosn has done, but that inevitably results in increased exercise of substantial prosecutorial powers to obtain a confession.

Ghosn has fled to Lebanon, which has no extradition treaty with Japan, so the prospect of a trial is unlikely. But if his case does go to trial, additional factors will come into play. In the context of Japanese prosecutorial objectives, going to trial would indicate that prosecutors’ efforts to obtain Ghosn’s remorse have failed, increasing the pressure on them to achieve a conviction. For Ghosn, everything would then rest on the discretion and probity of the judge, a career bureaucrat.

Other possible changes to Japanese justice system

Even without a trial, his case is stirring welcome debate. Some reforms of the Japanese justice system could be helpful, such as expansion of attorney-client privilege, a more level playing field in terms of access to witnesses and documents, limits on pretrial detention and freer access to legal counsel. These and other possible changes could be made in a way that balances society’s needs for recognition of wrongdoing, remorse and rehabilitation with increased rights of defendants to choose their own path to resolving accusations.

There is no reason for Japan to try to import the adversarial and costly American system of justice. But if Japan does move forward with reforms, this could result in a more enlightened system of justice and provide some useful lessons for the West.

— Nobuhisa Ishizuka is executive director of the Centre for Japanese Legal Studies and a lecturer at Columbia Law School