Law in Contemporary Society
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Carlos Ghosn and Japan’s 99.9% Conviction Rate

-- By BrandonDelijani - 28 Feb 2020

The Great Escape

Mr. Carlos Ghosn was Nissan's former chairman, who made headlines by orchestrating a Hollywood style escape to Lebanon, while awaiting trial in Japan. He stowed away in a box for musical instruments. Mr. Ghosn’s escape has brought global attention to the Japanese legal system. Mr. Ghosn was awaiting trial on financial misconduct charged and was under house arrest with a thirteen-million-dollar bail agreement. Among the alleged charges are that Mr. Ghosn mis-reported taxes on a salary of approximately 10 billion yen, or $88.7 million U.S. dollars between 2011 to 2015. Mr. Ghosn claimed he was "wrongly accused and unfairly detained based on meritless and unsubstantiated accusations." Mr. Ghosn, who is 64 years old, faced up to ten years in prison and a fine of up to ten million yen if convicted.

Mr. Ghosn holds Lebanese citizenship, which has no extradition treaty with Japan. Since his escape, Mr. Ghosn has made relentless efforts to make a case against the Japanese legal system. He insists that his trial in Japan was unfair and that he is a victim of "political persecution." He claims that he was “held hostage by a rigged Japanese justice system where guilt is presumed, discrimination is rampant, and basic human rights are denied." He has also given numerous speeches warning other foreign business professionals conducting business in Japan of the potential risks posed to them by the Japan’s criminal justice system. The dramatic nature of Mr. Ghosn’s escape and his high-profile status has garnered a lot of attention to this issue. While the specifics of his case are unclear, making it difficult to pass judgement, many believe Mr. Ghosn has brought attention to a legitimate problem in the Japanese judicial system.

The Japanese Legal System

Beginning in the Meiji era [1868–1912], Japan established a constitutional monarchy, with the emperor as the head of state. Under this regime, they had an inquisitorial legal system. Under an inquisitorial judiciary, there are two sides, the judge which represents the state and oversees the investigation and the defendant. The judge plays a central role in all aspects of the system, beginning with reviewing evidence, determining applicability and finally passing judgement. The government played such a central role under this system that it was customary for the public prosecutor to sit alongside the judge on the stand, rather than on equal footing with the defense.

Following World War II, Japan adopted a new constitution, which was heavily influenced by the American legal traditions and principles. This brought the framework of an adversarial judicial system to Japan. While the new framework adopted the fundamental components of an adversarial system. For instance, three parties, a Judge, the prosecution and defense, and the judge no longer played an active role in the fact-finding process. While this change fundamentally uprooted Japan’s system legal system, many of the traditions of the Meiji system live on. For instance, judges still play an enhanced role relative to the other adversarial judicial system. It is also customary among senior Japanese judges to pass judgement based on their intuition rather than careful review of the record. This has brought many legal scholars to label the Japanese system as a pseudo-adversarial system.

The most evidentiary examples of the Japanese system’s deviation from a traditional adversarial system is the lack of “investigation” process. Suspects are denied counsel during questioning and lack any Fifth Amendment protections. This system is specifically devised to coerce suspects to confess. Further, the record established during the pretrial stage is particularly devised to impact how the Judge receives and tries the case in the court room. Ultimately, the state always has an implicit advantage. Therefore, to account for this inequality, a protective measure must be secured to ensure the accused has an opportunity to present a viable defense. The lack of these protections contributes to a system that questions one’s ability to receive a fair trial. Additionally, even in the unlikely case that a “not guilty” verdict is reached, the prosecution is nearly guaranteed to appeal the verdict and have the decision overturned. This begs the question of whether judges simply defer to the prosecutors in reaching a ruling. Thus, the judge’s role has simply become a formality to portray legitimacy.

The presumption of innocence must be a cornerstone of any legal system. While Japan’s constitution pays homage to this principle, the commitment is not shared by many Japanese prosecutors, the law enforcement officials, or its legal elite. An example of how the system deviates from this principle is in the vast discretion of prosecutors in selecting the cases to pursue. Additionally, prosecutors are incentivized to only try cases where conviction is virtually guaranteed. Prosecutors careers depend on having a track record with a high level of indictments. This has led to the suspension of approximately 60 percent of criminal cases prior to indictment. Therefore, it is believed that once an indictment is served the outcome has already been determined.

What Now?

There are reforms currently being championed in Japan. One possibility to combat this problem is the use of civilian juries to dilute the discretion of judges in criminal cases. There has been recent movement in this direction. In 2009, for the first time since 1943, there have been experimentation with a new trial system where six lay jurors join three judges on a panel to adjudicate certain serious criminal cases. While this is a relatively new effort and the effect of the judicial system are still inconclusive it is a positive sign of needed reform.

It is possible that Mr. Ghosn is exploiting flaws of the Japanese legal system to garner public support for his escape. Nevertheless, there are encouraging signs that his advocacy has brought international attention to legitimate criticisms of the Japanese criminal justice system.

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r1 - 28 Feb 2020 - 20:59:32 - BrandonDelijani
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