JPRI Critique Vol. VI No. 10 (October 1999)
The Yasuda Arrest: Criminal and Political Considerations
by Michael H. Fox

On December 6, 1998, the Japanese media reported the arrest of Yoshihiro Yasuda, noted human rights lawyer and head of the Aum Shinrikyo defense team. The explicit reason given for the arrest was that he had obstructed the compulsory seizure of rental income of one of the failed jusen mortgage lenders (on the jusen scandal, see "Japan's Housing Lenders' Crisis," JPRI Critique Vol. III No. 2, February 1996). Yasuda was charged with advising Singaporean real estate developer Sun Chungli and his son Naoaki, to set up a dummy company to hide the income. The Suns were arrested in October last year, and Yasuda on December 6.

According to police, Sun was president of "Sun's Corporation Tokyo Ltd.," which was a major borrower from several of the defunct jusen housing loan companies. Police accused Yasuda of conspiring with Sun to hide rental income of about ¥200 million (about US$1.6 million) by directing tenants of two buildings in Tokyo's Minato ward to divert their rental payments to a separate real estate management firm, named Wide Treasure. Wide Treasure, the police maintain, was from 1993 to 1996 a dummy company affiliated with Sun. Police suspect that Yasuda instructed the Suns on how to hide assets after the Housing Loan Administration Corporation sent notices that it intended to seize the rent on the two buildings.

Yasuda acknowledges that in 1991 he became Sun's legal adviser, but he denies the charges. He claims not to have had any involvement with the Wide Treasure operation. The Suns pleaded guilty so there is no doubt that fraud did occur. But was attorney Yasuda involved?

No motive has been established. It is unclear why Yasuda would take the risk of advising a client to act illegally. The Suns and their assets were already under microscopic scrutiny; any slight movement of funds would be easy to detect. It does not seem likely that Yasuda would act from a desire for personal enrichment. Like all lawyers in Japan, he is financially successful, and the monetary rewards to be gained through assisting in a fraud hardly outweigh the risk of embezzlement charges. It is therefore possible that this is a case of bekken taiho (arrest on a charge unrelated to an investigation)--that the stated charge is superficial or inflated and the forces of authority harbor ulterior political motives. There are many in Japan who think so, and they cite five reasons to support their suspicions.

The first and most credible point is that Police and Ministry of Justice officials want to seize control of the Aum trials by damaging the defense team (on Aum and the Tokyo nerve gas attacks, see Helen Hardacre, "Aum Shinrikyo and the Japanese Media," JPRI Working Paper No. 19, April 1996; and Sheila K. Johnson, "Aum Shinrikyo and Oklahoma," JPRI Critique Vol. II No. 7, July 1995). The authorities would like to finish the trial quickly, execute sect leader Asahara, and put the rest of the defendants away for as long as possible. Public opinion is squarely behind them. As far back as June 1995, a mere three months after the Tokyo subway gassings, a criminal defense lawyer observed, "The magnitude of the cult's alleged offenses is making the public less willing to recognize the rights of the accused. Public hysteria could endanger the rights of suspects and lawyers alike." (Japan Times, June 10, 1995).

Fear and hysteria aside, a group of able attorneys was assembled to defend Aum. The team sees its mission as distilling the truth about the sect. Asahara will inevitably face justice, but who else and how far the culpability extends is a point of dispute. Through meticulous investigation, Yasuda found and constantly reiterated that the state's assertions and the real circumstances differ significantly. Recently, the defense has succeeded in freeing several former members charged with collaboration in the gassings, which strongly suggest that an impartial trial has been occurring. Yet on the other side of the bench, these decisions have hurt. The prosecution considers each such decision not only a lost case, but also a loss of face. It does not like seeing its power challenged. The purpose of the Yasuda arrest, according to many social critics and observers of the criminal justice system, is to fortify the state's case and disrupt the Aum defense (see, for example, Masaki Yamaguchi in Jinken to houdou No. 134, December 27, 1998). If this is indeed the case, then the strategy has proven successful.

A second reason for the arrest may be to frighten other lawyers into compliance regarding cases that involve large-scale financial wrongdoing. The government is eager to clean up the jusen and banking disasters in order to restore foreign confidence and coordinate investment in line with the "big bang" changes in regulation. One problem is what to do with the remaining liquid assets. Some of these assets should revert to government coffers and some should not. Then there is the matter of criminal charges against directors and employees of the failed institutions. Anyone charged with a crime should have the right to counsel, but the government wants to intimidate anyone who may stand in the way of its plans for liquidating the scandals. It has warned that in regard to a bank collapse or a corporate bankruptcy--cases where assets ought to revert to the state--lawyers who receive remuneration from defunct enterprises could be sued for retrieval of their fees. Thus, performing normal legal obligations could be considered a kind of punishable conspiracy, and the many hours invested in honest defense work will be subject to zero remuneration. According to legal scholar Shinichi Ishizuka, the Ministry of Justice is trying to metastasize the judicial quagmire of moral hazard "into one of moral panic."

Yet a third possible reason for Yasuda's arrest may be to incapacitate the Japanese Bar. An Osaka lawyer, Kouhei Nakabo, has gained a reputation as a kind of superstar within human rights circles. He and Yasuda share different opinions on various issues and have squared off against each other in the past. Nakabo is now the head of the Housing Loan Administration Corporation, the agency overseeing the jusen problem. One may well ask why a human rights crusader would take on such a job, but cleaning up the jusen scandal has come to be viewed by the press and public as a sort of Robin-Hood-like endeavor to retrieve stolen wealth and restore public justice. However, in a recently published book devoted entirely to this case, author and social critic Manabu Miyazaki argues that Nakabo collaborated in Yasuda's arrest as a personal vendetta (see Miyazaki, Jigoku e no michi wa ahou-na seigi de tsumattoru [The Road to Hell is Paved with Stupid Justice], Ohta Shuppan Kan, 1999).

A fourth reason for the arrest may be vengeance against Yasuda for leading and coordinating a nationwide network of death penalty abolition groups. Capital punishment serves the state in several functional ways, particularly in the investigation of crimes. In Japan, there is no such thing as the perfect unsolved murder; when a murder occurs someone must be arrested. The most heinous miscarriages of justice occur when inept detectives botch investigations and declare accidental deaths to be murders, as in the Kabutoyama case. (Twenty-five years ago, in 1974, two children disappeared from the Kabutoyama Gakuen, a school for mentally disturbed children, and were subsequently found drowned in a septic tank on the school's grounds. A teacher, Etsuko Yamada, was charged with murder; the principal and another teacher were charged with perjury for testifying on her behalf. All have been found innocent twice in district court but the case continues because of prosecutorial appeals. A third and possibly last decision will be handed down on September 29, 1999. See the Kabutoyama case web site in both English and Japanese at www.jca.ax.apc.org/abutoq.)

Where there is a crime, there must be a criminal. Modern Japan has a long history of innocent defendants who have served many years in prison due to coerced confessions. The government's favorite ploy, the "sing or swing" threat, has been a highly effective tactic in extracting false confessions to police scenarios. The world-wide movement against the death penalty, strongly endorsed by Amnesty International to prevent murder as a form of political reprisal, has been gaining ground in Japan. If the death penalty is ever eliminated in America, Japan will probably follow suit. However, such a development scares the forces of law and order, since it will eliminate a cherished weapon.

Finally, a fifth reason cited for Yasuda's arrest is to weaken the Japanese Bar's Human Rights Protection Association, which would result in gains for the forces of the right. The arrest has already aided the LDP in passing two unpopular measures, the legalization of wiretapping and a bill to allow the dispatch of troops overseas.

For argument's sake, let us assume that Yasuda is entirely innocent. If so, is there not some redress for wrongful arrest and imprisonment? Legally, the answer is yes; but realistically, no. If he is pronounced innocent, Yasuda will have the right to seek restitution. He can bring suit against the state for false arrest and seek damages under the State Redress Law and for wrongful imprisonment under the Criminal Compensation Code. The case will drag on for many years and if he wins in District Court, the state will appeal the decision to the High Court. If Yasuda wins in High Court, the state will appeal to the Supreme Court. The Supreme Court will eventually hear the appeal and almost certainly reverse the previous court's decision. The chance of an ultimate victory against the state is nil: the most that can be won would be symbolic victories in the lower courts. In the end, the state will triumph--the usual case for the forces of power and authority in Japan.

This pessimism is not based on mere fancy. Despite Japan's abundant history of false arrests, only one criminal case has ever succeeded in penetrating the ethereal realm of the Supreme Court to return a victory for individuals against the state and bring compensation to the falsely accused (see Chalmers Johnson, Conspiracy at Matsukawa, University of California Press, 1972). Though some have succeeded through both the district and high court levels, all others have been quashed by the Supreme Court.

Even more disturbing than the Yasuda arrest itself has been his prolonged incarceration behind bars. Yasuda was in a police station cell from the time of his arrest on December 6, 1998, until he was moved to the Tokyo Detention Center on January 6, 1999. In cases like these, bail is usually granted; it is only withheld when the prosecution can show that the accused is a threat to society, may destroy evidence, or flee. Although none of these claims is applicable here, Yasuda is still in jail at the time of writing, almost ten months after his arrest. His defense team requested bail five times during the first five months. On the sixth try, June 11, 1999, the District Court finally granted the request. That same afternoon, prosecutorial authorities filed a protest with the Tokyo High Court, which mechanically complied with the prosecutors' demands. Bail was canceled and Yasuda remains in jail.

The authorities are able to delay bail because Yasuda has no organized political backing. If he were aligned with an established political organization such as the Communist Party, Komeito, or a labor union, the group would rally on his behalf. The Communists bear a special grudge against Yasuda for defending Aum. In 1989, Aum orchestrated the murder of a Communist-leaning lawyer, Tsutsumi Sakamoto and his wife Miyako and their three-year-old son. Sakamoto had been investigating Aum and had been interviewed for a television documentary. After the family disappeared, the documentary was abandoned and its producers and the TBS network collaborated to cover-up the incident (see Asano Kenichi, Media fashizumu no jidai [The Age of Media Fascism], Akashi Shoten, 1996).

One would like to think that prosecutors might exercise some leniency in the case of a fellow lawyer. But although the courts are a lofty and supposedly impartial institution far above any commercial establishment, they remain by and large culturally very Japanese. Prosecutors and judges share an important tie: both are paid employees of the Ministry of Justice, part of the same batsu or in-group, in contrast to practicing attorneys. The judiciary is like a corporation that seeks to preserve its market share of authority, fortify the political forces of the status quo, and expand social control. In the future as in the past, those like Yoshihiro Yasuda who stand up to the state, whether innocent or not, will face a precarious climate.

MICHAEL H. FOX is associate professor at Hyogo College and former coordinator of the Kansai Human Rights Forum. He can be reached by email at thefox@humans-kc.hyogo-dai.ac.jp.


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