JPRI Working Paper No. 34: June 1997
Why the Wicked Sleep: The Prosecution of Political Corruption in Postwar Japan
by David T. Johnson

We will not let the wicked sleep.

--favorite prosecutor maxim, popularized by Itoh Shigeki, Japan's 14th postwar Prosecutor General, December 19, 1985 to March 23, 1988.

The wicked are sleeping.Prosecutors, wake up!

--Tachibana Takashi, Japan's premier investigative journalist.

Political corruption in Japan is rampant, often implicating the country's most powerful political elites. Prosecutors in Japan claim their main mission is to expose and indict cases of political corruption. Moreover, they receive strong public support to 'not let the wicked sleep.' However, since 1954 few major politicians have been charged with serious crimes. The wicked seem to be sleeping.

Though political corruption plagues many nation-states, most observers believe that an especially virulent form of the disease infects Japan, and that the Yamato strain of the malady is especially resistant to treatment. The list of postwar politicians who have been involved in one or another scandal reads like a virtual who's who of postwar politics: Ashida Hitoshi, Yoshida Shigeru, Ikeda Hayato, Sato Eisaku, Tanaka Kakuei, Fukuda Takeo, Nakasone Yasuhiro, Takeshita Noboru, Miyazawa Kiichi, Kanemaru Shin, Ozawa Ichiro, and even Hosokawa Morihiro, whose ascension to the prime-ministership in 1993 ended the Liberal Democratic Party's 38-year era of one-party dominance. In short, political corruption in postwar Japan is not only extensive; it has repeatedly tainted the names of the nation's most prominent politicians.

Table 1 reveals that since 1948, Japanese prosecutors have indicted 41 members of parliament for bribery, 22 of which (more than half) occurred during the period 1948-54. However, despite frequent prosecutor promises to 'clean the sewers' of political corruption and strong public and media support for that goal, since the occupation ended in 1952 only one member of Japan's political power elite has been charged with a serious offense--former Prime Minister Tanaka Kakuei, for bribery in the 1976 Lockheed scandal, the biggest corruption scandal in postwar history. This raises two major questions: first, given so much political corruption in postwar Japan, why has only one major politician been indicted for a serious bribery offense? And, second, since prosecutors were nearly seven times more active before 1954 than after, what happened after 1954?

Table 1: Postwar Bribery Prosecutions, 1948-1994

Year

No. of Politicians
Indicted

Outcomes

1948 (Showa Electric Scandal)

7

5 acquittals, 2 convictions

1948 (Coal Mine Scandal)

8

4 acquittals, 3 convictions *

1954 (Shipbuilding Scandal)

4

1 acquittal, 3 convictions

1954

1

1 acquittal

1954

2

2 convictions

1957

1

1 conviction

1957

3

1 acquittal, 2 convictions

1961

1

1 conviction

1967

1

1 conviction

1968

2

2 convictions

1976 (Lockheed Scandal)

3

3 convictions

1986

2

1 acquittal, 1 conviction

1986

1

1 conviction

1989 (Recruit Scandal)

2

2 convictions

1990

1

1 conviction

1992

1

on trial

1994 (Zenecon Scandal)

1

on trial

Sources: Kubo, 1989, p.27; Nomura, 1994, pp.56-57.
*In the Coal Mine Scandal of 1948, one defendant died during the trial.

The ideal method for solving these two puzzles would be to analyze independently the evidence prosecutors had in all bribery cases that came to their attention, not just those they chose to prosecute. This approach would enable us to discern whether prosecutors are intentionally letting the wicked sleep, even when they possess sufficient evidence to charge and convict, and to determine whether prosecutors have really grown more reluctant to indict members of parliament since 1954. Unfortunately, the ideal method is impossible to execute. The people who know the evidence--the prosecutors--will not talk; and the people who talk--mainly the journalists--do not know the real state of the evidence.

The best route around this impasse is to analyze the balance of pressures on prosecutors in corruption cases. As we shall see, in big bribery cases Japanese prosecutors confront great pressure against prosecuting political elites. Since these pressures are mainly legal, the solution to both puzzles is found largely in the nature of Japanese law.

Most conspicuously, compared to their American counterparts, Japanese prosecutors work in a 'schizophrenic' legal environment. On the one hand, in 'ordinary' cases of street crime, Japan's rules of criminal procedure confer so many advantages on prosecutors that they are able to dominate the criminal process and 'make' cases far more easily than prosecutors in other countries. On the other hand, Japanese prosecutors lack many of the procedural powers--like the authority to offer immunity or conduct undercover stings--that are routinely used in other countries to 'make' corruption cases.

Two other legal rules further constrain the procuracy's capacity to investigate, charge, and win corruption cases. First, the substantive law of bribery, and the judges who interpret and apply it, impose severe problems of proof on Japanese prosecutors. And second, the law defining the relationship between prosecutors and politicians severely restricts the procuracy's independence by making Japan's top prosecutor--the Prosecutor General--an agent of the top politician, the Prime Minister. More than anything, it is this last law that explains what happened after 1954.

Thus, prosecutors need two things in order to prosecute corruption crimes successfully: independence from the target of their investigation, and evidence sufficient to charge and convict. When prosecutors lack independence, political elites can quash investigations that threaten themselves or their allies, or they can use prosecutors to harass and punish enemies and rivals. When prosecutors lack evidence, the courts of law and public opinion will declare prosecutorial failure, thereby damaging the procuracy's legitimacy and with it the capacity to investigate future cases. Crucially, in big corruption cases both requirements are difficult for Japanese prosecutors to satisfy, the first because the law grants them limited independence from elected politicians, and the second because the law imposes an unusually heavy burden of proof without conferring the powers necessary to shoulder that load.

Occupation Reforms

Democratizing the procuracy was a primary Occupation aim. Occupation officials, like many Japanese, believed that prewar prosecutors had abused their power by trampling human rights and pursuing their own political objectives. As a result, Occupation reforms aimed above all to decrease the procuracy's control over the police and judiciary and to increase the procuracy's responsiveness to democratic forces.

Occupation officials advanced a number of proposals to make prosecutors more democratically accountable. Prosecutors strongly opposed these proposals and resisted efforts to restrain their power by advocating their own proposals for even greater institutional insulation. In the end, the Occupation's proposal won out. In 1947 it was codified in Article 14 of the Public Prosecutors Office Law (kensatsuchoho): "The Minister of Justice may control and supervise public prosecutors generally in regard to the functions provided for in Articles 4 and 6. [Articles 4 and 6 define the prosecutor's main functions as investigating cases, charging crimes, requesting that the courts properly apply the law, supervising the execution of court judgments, expressing opinions (such as sentence requests) to the court, and representing the public interest.] However, in regard to the investigation and disposition of individual cases, he may control only the Prosecutor General."

On its face, Article 14 seems to provide front-line prosecutors with some protection from political interference. Indeed, between 1947, when the law was enacted, and 1954, when it was first used, prosecutors were not alone in thinking that the main purpose and effect of Article 14 was to insulate the procuracy from the machinations of party politics and partisan interests. Even today many prosecutors invoke Article 14 as evidence of their freedom from political control.

In fact, however, since Article 14 permits the Minister of Justice to control the Prosecutor General in the investigation and disposition of individual cases, and since the Prosecutor General has authority to "control and supervise the officials of all the public prosecutors offices" (Articles 7 and 11), the institutional structure leaves prosecution decisions highly vulnerable to outside control. The Shipbuilding Scandal of 1954--the first major corruption case of the post-Occupation era--dramatically demonstrated just how open to political influence prosecutors are. In this case, prosecutors attempted to arrest Liberal Party Secretary General Sato Eisaku, one of Prime Minister Yoshida Shigeru's most promising proteges and a future prime minister himself. However, acting through his Minister of Justice, Yoshida used Article 14 to prevent Sato's arrest.

In the short run, Yoshida's action shipwrecked the investigation, outraged the public, forced the Justice Minister's resignation, and humiliated the procuracy. But the more important consequences were long-term. For the next two decades the dark shadow of Article 14 made it impossible for prosecutors to pursue major cases of political corruption.

Article 14 and the Shipbuilding Scandal

The Shipbuilding Scandal erupted in the economic bust period that followed the Korean War, when Japan's struggling ship-transportation and shipbuilding companies bribed key government officials--politicians and bureaucrats--to draft and pass legislation that would benefit their industries. The bribes worked. In January 1953, the Diet passed the Law for the Subsidization of Interest and Insurance Against Losses of Oceangoing Shipbuilding, thereby enabling the shipbuilding industries to borrow money at below-market interest rates, and in August of the same year the law was revised to expand government support even more.

However, that lobbying success became a scandal when prosecutors discovered a memo written by Yokota Aizaburo, the president of the Yamashita Steamship Company, listing not just the names of more than thirty well-known politicians and bureaucrats, but also the dates and dubious aims of Yokota's meetings with them. The list of bribees included Transportation Minister Ishii Mitsujiro, Deputy Prime Minister Ogata Taketora, Ikeda Hayato (then president of the Liberal Party's Policy Affairs Research Council), and Liberal Party Secretary General Sato Eisaku. Ikeda (1960-64) and Sato (1964-72) would later become prime ministers, and in 1974 Sato would go on to win the Nobel Peace Prize for his antinuclear diplomacy.

The Shipbuilding Scandal was huge, surpassing all previous scandals in the volume of bribes, indictments, and convictions. Richard Mitchell (p. 111), reports that "the amount of grease pumped into the political machinery" surpassed 100 million yen and that "all major shipping companies" paid bribes. Half of the 34 bureaucrats arrested from the Ministry Transportation were formally charged with crimes. Of the 71 businessmen and politicians who were arrested, 32 were indicted and 23 were convicted, but only one (Inomata Osamu, the chief distributor of the bribes) was sentenced to prison. Seven defendants were acquitted and two died during the trial process. More broadly, the scandal also contributed to the collapse, in December 1954, of the fifth and final cabinet of Prime Minister Yoshida. This was the fourth time in Japanese history, and the second time since World War II, that the procuracy brought down a cabinet--the previous cases being the Siemens scandal of 1915, the Teijin scandal of 1933, and the Showa Electric scandal of 1948.

Measured by these tangible outcomes, the Shipbuilding investigation may look like a resounding prosecutor triumph. In fact, however, this case is best remembered for what did not happen--the arrest of Sato Eisaku. The two biggest fish caught in the procuracy's net were Sato and Ikeda Hayato. Both were named on the scandal-breaking Yokota memo, but in a move reflecting judicial rulings in earlier bribery cases, prosecutors decided that the money Ikeda received (two million yen) was a legally legitimate gift and neither arrested nor indicted him. However, prosecutors believed that the two million yen that Sato received was not a 'contribution' but a bribe. For them the central question was whether they would arrest Sato.

Sato appeared to be in danger for, at least in principle, each Japanese prosecutor is an "independent government agency" who possesses the personal discretion to make arrests and institute prosecutions as he or she deems proper. However, this principle lies buried beneath two superseding principles: the "principle of prosecutor unity" and its corollary, the "principle of absolute obedience to superiors." The principle of prosecutor unity holds that "the procuracy is a national, united, hierarchical structure in which superiors command and subordinates obey and all prosecutors form one body." It is rooted in provisions of the Public Prosecutors Office Law that give the various office heads, and by implication all prosecutor managers, authority to direct their subordinates in any work-related area, whether investigation, trial, or the decisions to arrest or indict. The principle is both a description of and a prescription for the distinctively hierarchical, solidary, and Japanese style of organizing prosecution.

One key expression of the principle of prosecutor unity is a norm that prescribes hierarchical review of all major prosecutor decisions. Before taking any significant action in high-profile cases all prosecutors are required, by the procuracy's internal guidelines and by directives from their political bosses, to give their superiors 'reports' and 'requests for instructions as to steps to be taken.' Functionally, of course, these reports and requests invite outside review and political control. In the Shipbuilding case, Prosecutor General Sato Tosa received almost daily reports from his subordinates, which he summarized for Minister of Justice Inukai Takeru, who in turn summarized them for his boss, Prime Minister Yoshida.

To discuss the issue of Sato Eisaku's arrest, the Prosecutor General held an executive meeting of the procuracy's ultimate decision-making forum in high profile cases. The meeting was attended by 11 people: Prosecutor General Sato (who had been a judge before being appointed to the procuracy's top post), four executive prosecutors from the Supreme Prosecutors Office, two from the Ministry of Justice, and four from the Tokyo District Prosecutors Office, which was conducting the investigation, including Kawai Nobutaro, the captain in charge of the case. Kawai and the other front-line prosecutors insisted that they had sufficient evidence to arrest and indict Sato, but their opinion met with strong resistance from the executive prosecutors, especially the two Ministry of Justice officials, who had been consulting regularly with Justice Minister Inukai. After nearly fifteen hours of deliberation spread over two days the meeting finally decided to go forward in the only way the law allowed: it would instruct prosecutors to ask the Diet's permission to arrest Sato Eisaku.

Prosecutors never got the chance to ask. Before they could even begin the formal request procedure, Sato's political allies ordered them to retreat. The Prosecutor General had reported the executive council's decision--to arrest Sato--to Minister of Justice Inukai. Inukai, in turn, consulted with Prime Minister Yoshida and Deputy Prime Minister Ogata Taketora. The result was the infamous "operation of the right to command," whereby Justice Minister Inukai exercised his Article 14 authority to 'control the Prosecutor General' and thereby prevented Sato's arrest. Inukai justified his action by arguing that an arrest would derail Diet deliberations over two important defense bills and by stating that prosecutors should not drop the Sato case but should continue the investigation on a 'voluntary' basis. But prosecutors and the public regarded this explanation as mere window-dressing for a more dubious kind of political motive.

Inukai's order was the death knell for the prosecutors' investigation, and Inukai knew it. Indeed, anticipating that his command would devastate procuracy morale, Inukai did not even have the heart to communicate it in person. Instead he sent his directive to Prosecutor General Sato via a messenger. After reading it, Sato briefly consulted with his underlings and then headed straightaway to Inukai's office in order to make a personal appeal to reverse the order. But Inukai had already left the office--for good. Soon thereafter he resigned, driven out of office by a tsunami of public outrage over political meddling in the administration of justice.

If the Shipbuilding scandal had mixed consequences for Japan's political elites, the damage it did to the procuracy is, in the words of Nomura Jiro, "impossible to measure." In the immediate aftermath of Yoshida's intervention, prosecutors were criticized almost as harshly as the meddlesome politicians. Some critics charged that prosecutors should have ignored the Article 14 order. Others contended that even if prosecutors had to delay Sato's arrest, they still could have--and should have--continued the investigation on a "voluntary basis" and indicted him for bribery.

The public backlash not only impugned the procuracy's reputation for integrity; it also shaped the outlooks of subsequent prosecutors. Above all, they concluded that before 'driving politicians into a corner,' they must anticipate the probable political reaction and "adjust" their decisions so as to prevent a recurrence of the 1954 disaster. Ironically, such "adjustments" in response to "unseen demands" enable prosecutors to prevent overt political intervention precisely because they make direct intervention unnecessary. Kawakami Kazuo, a former director of the Tokyo Special Investigation Division, reports that "a majority of top-echelon prosecutors . . . tend to cave in to political pressure and are reluctant to pursue cases of corruption out of fear the scandals might lead to the collapse of the governing party" and "chaos in national politics." Kawakami is correct in so far as he goes, yet he fails to acknowledge a reality that the Shipbuilding Scandal made plain: the 'chaos' can be as damaging to prosecutors as it is to politicians. Since 1954, no Minister of Justice has openly utilized Article 14 to command the Prosecutor General in an individual case, but the law casts a long shadow. Indeed, prosecutors did not emerge from that shadow until over two decades later, when the Lockheed scandal erupted on the other side of the Pacific and a peculiar conjunction of domestic factors made it again possible for prosecutors directly to challenge the center of political power.

Problems of Proof

Political independence is a necessary but insufficient condition for the successful prosecution of corruption. Prosecutors also need evidence, and here too they are handicapped by circumstances largely beyond their control. In Japan there is a wider gap between scandalous political conduct and specifically indictable offenses than in most other industrialized democracies. Since this gap makes it especially difficult for prosecutors to develop conclusive legal proof of bribery, it too helps explain why the bad guys sometimes appear to be sleeping all too comfortably. The problems of proof arise from two related sources: culture and law.

There is no self-evident way to distinguish a gift from a bribe. Both are types of reciprocity, and reciprocity is a rule of life in all societies. Since the basic elements of reciprocity--giving, accepting, and repaying--characterize gifts and bribes alike, they cannot be used to differentiate legitimate and illegitimate exchanges. According to John Noonan, author of the most authoritative intellectual history of the moral idea of the bribe (1984), bribery can be distinguished from gift-giving and other lawful reciprocities if--and only if--it is "socially identified and socially condemned."

The distinction between gifts and bribes is especially murky in Japan. Japanese seem to be giving gifts constantly--to physicians, teachers, bosses, co-workers, relatives, and all other potential benefactors whose good graces they want to enjoin and enjoy. The ubiquity of gift-giving has earned the country its reputation as "an exchange-of-presents and entertainment culture" (zoto-settai bunka). Most importantly, gifts are given in Japan not just to express feelings of affection--what Westerners regard as the most salient characteristic of a 'real gift'--but also out of an expectation of reward. This motive for gift-giving--the aim to get something back-imposes on the recipient of the gift an obligation to reciprocate, a duty Ruth Benedict described as being "forced" or "cornered with giri." Since Noonan insists that it is precisely the giver's desire to "corner" the receiver with an obligation to repay that distinguishes a bribe from a gift, and since in Japan gifts and bribes are often imbued with the same motivation, his litmus test fails to perform the same work in Japan as it does in other contexts.

Two other features of Japanese political culture add to the prosecutors' problems of proof. First, politics in Japan have long operated on a 'double track of authority,' with politicians on the front-stage serving as little more than puppets of the puppeteers who wield real power 'behind the screen.' Whether intended or not, one key function of this double track is to make bribery charges hard to prove. Second, politicians, like everyone else in Japan, routinely use name-stamps instead of signatures to indicate assent or obligation. Since a name-stamp gives its holder power of attorney to transact business, the stamp enables politicians to delegate dirty work to their subordinates while denying their own involvement in wrongdoing. In the Recruit scandal of the late 1980s, for example, the secretaries of Takeshita Noboru and Miyazawa Kiichi used their bosses' name-stamps to authorize illegal stock transactions. However, even after prosecutors acquired records of the transactions they dared not indict Takeshita or Miyazawa because both had legally efficacious (albeit dubious) alibis: ignorance of the bribes.

In addition to culture, the substantive law of bribery presents another formidable problem of proof for Japanese prosecutors. Put simply, Japan's bribery law states that in order to show that an official has been bribed, prosecutors must prove three elements of the crime:

1. A bad act: that the official demanded, received, or contracted to receive money or something else of value;

2. A guilty mind: that the official knew the money was a bribe; and

3. Authority: that the official was in a 'position of authority' to influence official business in favor of the briber.

Since the first element--the bad act--is common to the bribery law of all democratic countries, it poses few special problems of proof for Japanese prosecutors. However, the guilty mind requirement is more difficult to prove in Japan than in countries like the United States for at least two reasons. First, as described above, proving that a politician knew he was being bribed is no small task in a country where gift-giving is ubiquitous and political contributions are a legal and accepted part of everyday life. In addition, proving a 'guilty mind' is easier when prosecutors can use investigative tools such as wiretaps, stings, and immunity in order to obtain clear evidence of culpability. Since Japanese prosecutors cannot use such tools in corruption investigations, they must rely on indirect and circumstantial evident to gain convictions. In the past, that has often been inadequate to demonstrate--at least to the court's satisfaction--proof beyond a reasonable doubt.

Most importantly, however, the third requirement of Japanese bribery law imposes a burden of proof on Japanese prosecutors that their counterparts in countries like the United States or Germany do not have to bear at all. Under federal law in the United States, for example, it is not essential to a bribery charge against a public official that he or she have the authority to make a final decision in an official matter. Thus, prosecutors in the U.S. can win bribery convictions "even if the public official does not have the power to bring about the result that prompted the bribe" (Kuzma, p. 298). Similarly, German law holds politicians accountable not only for 'official' legislative actions but also for 'informal' decisions made within the party apparatus.

By contrast, under Japan's present legal system, there are no laws that regulate the inner workings of political parties. Instead, a political party is just an informal association without any legally binding rules to govern its ostensibly internal processes. Commenting on the Recruit scandal and the public perception that prosecutors were letting go all the big fish, Yasuhara Yoshiho, Japan's Prosecutor General from 1981 to 1983, describes how this legal fact provides corrupt politicians with more legal protection than they deserve:

"The Criminal Law stipulates the crime of bribery to protect the integrity and justness of public office. A political party, legally speaking, is an 'association without personality.' It is only a private body. Assuming that there is a violation of party ethics, this by itself cannot immediately be linked to the integrity and justness of public office. The giving and taking of questionable money related to the activities of a Diet member's party cannot be regarded as an act connected with public office under the present law. . . . Public office is not involved when a legislative measure is discussed or amended within the LDP. The office of a Diet member relating to legislation is [legally] involved only after a bill is submitted to the Diet for deliberation. It cannot be said that an officer of a political party accepted shares in connection with his office even when they were offered in regard to the party's policy-making. This escapes the application of the law" (The Japan Times, May 21-22, 1989).

If it did not matter to prosecutors whether bribery indictments resulted in conviction, or even if it mattered substantially less than it actually does, then problems of proof would be a much lower barrier to indictment, and prosecutors could simply collect the best available evidence and roll the dice at trial. This appears to have been the policy adopted by the Occupation authorities and imposed on their agents in the procuracy, and it is also the policy required by the principle of mandatory prosecution in countries like Germany, Italy, and Spain. In fact, however, Japanese prosecutors care greatly about acquittals and have constructed an elaborate system of internal bureaucratic controls to ensure that only cases that have an extremely high probability of conviction get charged.

One of the central differences between the Japanese system of prosecution and the American one is that the two have markedly different aversions to risk. Japanese prosecutors systematically favor the risk that a non-charged offender will 'get away with it' (and possibly reoffend) over the possibility that a charged suspect will be acquitted. American prosecutors prefer the converse danger. Several Japanese prosecutors told me that the procuracy's biggest problem is its inability to indict offenders who should be charged, especially in high-profile cases. The result, they say, is that too many offenders escape the punishment they deserve. One elite prosecutor told me that this is a 'disgrace' (haji) which is growing worse all the time:

"You ask why we prosecutors do not take adventures (naze boken shinai no ka). In one sense the answer is easy. The law says we have to provide proof beyond a reasonable doubt. In fact, however, what is required is proof beyond an unreasonable doubt. The fewer acquittals there are, the more attention and criticism each one gets and the more careful we become to avoid acquittals in the future. It's a vicious circle. Don't you see? In a way it is natural that the acquittal rate is declining over time. But it is not a good thing" (Personal interview, March 1995; emphasis added).

Limited Power

The problems of proof described above are especially knotty because in corruption cases Japanese prosecutors lack investigative powers taken for granted by prosecutors in the U.S., Great Britain, Germany, and other comparable democracies. To be sure, for ordinary street crimes such as theft or assault, Japanese law confers extraordinary power on prosecutors. They have monopoly power over the decision to charge. They have discretion to withhold charges in any case and to withhold evidence from the defense in any case charged. They have ample time to conduct investigations and make carefully considered charge decisions. They have authority to compose 'statements' (chosho) in their own words and to get those statements admitted as evidence at trial. They have the right to appeal unfavorable verdicts and sentences. And they enjoy a highly 'enabling legal environment' that promotes crime-control interests far more than is true in the U.S. or Canada.

However, while Japanese law enables prosecutors to dispose of routine cases, it prevents them from dealing effectively with some offenses--especially crimes of corruption--that greatly concern the public. Generally speaking, the capacity to solve a crime depends on four main factors:

1. The 'traces' left by the crime and the criminal;

2. The willingness of people to inform prosecutors of those traces;

3. The resources prosecutors have and the intelligence with which they use them; and

4. The activities prosecutors are permitted to engage in (Heymann, p. 319).

For Japanese prosecutors, bribery constitutes the most problematic investigative situation of all. First, since the bribery transaction is consensual there is inherently no willing witness to inform prosecutors of the crime, nor are there obvious paper traces of the illegitimate exchange. Further, since only about 35 of Japan's 2,000 prosecutors (less than 2%) are assigned to the Special Investigation Division in Tokyo, the prosecutors responsible for investigating high-profile bribery crimes are burdened with heavier workloads than their peers working in other job assignments or than corruption prosecutors in the United States. Most crucially, Japanese prosecutors have severely limited authority to conduct wiretaps and undercover stings or to grant immunity to cooperating suspects and witnesses. They thus lack precisely the techniques most useful for overcoming bribery's biggest investigative hurdles. The absence of these legal powers means that Japanese prosecutors must use reactive techniques to deal with a crime that is far better investigated proactively.

Although "the use of wiretapping is an issue in Japan that has yet to be definitively resolved by either the courts or the legislature" (Cleary, p. 136), courts have never permitted wiretaps of politicians, and even prosecutors who advocate wider wiretap powers do not regard politicians as a legitimate target. In short, in Japanese corruption cases the technique is both illegitimate and unused. Recently Japanese courts have begun to relax their interpretations of Article 21 of the Constitution and of the Electric Communication Service Law (denki tsushin jigyoho) so as to allow wiretapping in select cases involving drugs or organized crime. However, the scale of use in Japan remains far below that in the U.S.

The inability to wiretap makes it hard for prosecutors in Japan to convict corrupt politicians, for without the technique that generates the most graphic and powerful evidence in a criminal investigation it is difficult to prove the second element of the bribery crime--a guilty mind. Japanese courts are famously reluctant to infer intent from circumstantial evidence. This tendency was clearly illustrated in the 1994 acquittal of Fujinami Takao, the only LDP politician charged in the Recruit scandal that rocked Japan in the late 1980s. Ironically, during the Recruit investigation many commentators harshly rebuked prosecutors for failing to investigate and indict far bigger fish than Fujinami--especially but not only former Prime Minister Nakasone. However, the Tokyo District Court's acquittal of Fujinami suggests (after the fact) that prosecutors were probably telling the truth when years earlier they claimed they did not have sufficient evidence to indict the other politicians implicated in the scandal.

After the acquittal, Munakata Norio, a former chief of the procuracy's Special Investigative Division and the lead prosecutor during the Recruit investigation, harshly criticized judges for their 'stubborn and unreasonable' finding that Fujinami lacked criminal intent. In a tone dripping with sarcasm, Munakata declared that unless prosecutors elicit a 'smoking gun confession' that enables judges to hear the defendant actually say 'yes, it was a bribe' (hai, wairo desu), courts will find no amount of prosecutor proof sufficient to prove intent (Personal interview, October 20, 1994).*

American prosecutors are also allowed to use the undercover technique, or 'sting,' to obtain evidence. In the words of Joseph E. Gangloff, one of the U.S.'s most experienced corruption prosecutors, use of the undercover tool "has become essential to the detection and prosecution of political corruption" (p. 7). Here again, Japanese prosecutors lack comparable powers, except for a narrow range of drug cases explicitly authorized by law. As a result, corrupt politicians are never 'caught in the act,' and prosecutors lack the investigative advantages undercover operations provide, chief of which is the capacity to prove cases with direct, as opposed to circumstantial, evidence.

Undercover operations would also enable Japanese prosecutors to overcome one of the chief investigative problems in bribery cases: the unwillingness of the parties to the transaction to report the criminal activity. However, since prosecutors cannot use proactive investigative methods, they have little recourse, if they are to follow up at all, but to try to construct an incriminating paper trail out of the available documentary evidence. Anyone who has seen tokusobu officials load dozens of boxes into government vans must realize that the massive volume of documents seized makes for an arduous paper chase. What they may not recognize is that often the paper chase is less a preferred investigative technique than it is a default option made necessary by restrictions on more proactive strategies. It is precisely those restrictions that explain why "the most common mode of discovering political corruption [in Japan] is the serendipitous discovery of records of bribery in the files of a suspect in some other type of investigation" (Reed, p. 400).

Finally, since going undercover is one of the best ways of discovering the structured relationships that characterize structural corruption, the absence of undercover powers helps explain why Japanese prosecutors seldom indict more than one or two politicians per scandal. Until prosecutors are granted undercover powers, Japan is unlikely to witness anything like the Abscam case, which ended in the conviction of seven members of the United States Congress. In fact, in its 125-year history, Japan's procuracy has not indicted a single politician as the result of an undercover sting.

Although it is often said that Japan does not have plea bargaining, this claim reflects conceptual and empirical misunderstandings about Japanese criminal justice. In fact, Japanese prosecutors do plea bargain, by systematically pressuring suspects and defendants to choose criminal process 'shortcuts,' such as summary procedures and uncontested trials, rather than the fully contested trials to which they have a legal right. However, because plea bargaining is illegal in Japan, prosecutors cannot strike deals openly, as their American counterparts can. In corruption cases, where the witnesses are otherwise reluctant to testify, this too makes it unusually difficult for prosecutors to obtain enough evidence to indict and convict, for prosecutors can hardly put an illegally immunized witness on the stand to testify about the bribe-soliciting or bribe-taking behavior of a corrupt politician.

More fundamentally, political corruption cases never fall, ready-made, into a prosecutor's lap, ready to be indicted, nor are corrupt quid pro quos evident at the outset of an investigation. Rather, corruption investigations usually start small, with a tip or a complaint or a fishy magazine story by an investigative reporter, and only over time are prosecutors able to untangle the illicit interconnections that make the scandal a scandal. American prosecutors routinely unravel those connections by offering 'deals' to small fish in order to build cases against the big ones. More important, they can use the information gained in such deals as evidence at trial. Japanese prosecutors are prevented from cutting deals at the bottom in order to reach the most culpable figures at the top, and this fact--rather than any peculiar passivity on their part--helps explain why the big fish often get away.

Though it is difficult to establish conclusively, I am convinced that the vast majority of Japanese prosecutors strongly desire to 'get the bad guys'--and the bigger, the better. Getting the bad guys, however, is a function not only of prosecutors' desire (what they want to do) but also of their opportunity (what they can do). I have argued that prosecutors in Japan encounter severe structural limitations on their opportunity to prosecute major crimes of corruption. In particular, limited independence, limited power, and problems of proof make it exceptionally difficult for them to bring major bribery charges. Indeed, considering the unusually large 'gap' in Japan between scandalous political conduct and specifically indictable offenses, it is noteworthy that prosecutors have been able to charge as many members of parliament as they have.

From my perspective-as an American who regards the rule of law as a cultural achievement of universal human significance-the Japanese procuracy's submission to the rule of law, even when that law is profoundly disabling, is a vast improvement over prewar practice. Of course, whether the Japanese feel the same way is for them to decide, although I doubt that many would regard a return to prosecutor fascism as an appealing prospect. The rule of law may not be an 'unqualified human good,' as some have claimed, but it is better than the alternative.

*[Bottom of page note] *Prosecutors appealed the acquittal, and on March 24, 1997, the Tokyo High Court convicted Fujinami, sentenced him to three years imprisonment, and suspended the sentence for four years. Commentators noted that in convicting Fujinami the High Court adopted an unusually broad interpretation of "authority" (shokumu), the third element in the crime of bribery. Prosecutors are not alone in hoping that this verdict is a harbinger of more favorable court decisions to come. Fujinami is appealing.

DAVID T. JOHNSON is an Advanced Research Fellow in the Program on U.S.-Japan Relations at Harvard University. He holds a Ph.D. degree from the University of California, Berkeley. In August 1997, he will become Assistant Professor in the Department of Sociology at the University of Hawaii at Manoa. His research on Japanese prosecutors will be published by Oxford University Press as The Japanese Way of Justice: Prosecuting Crime in Japan.

REFERENCES:

Cleary, William B. "Criminal Investigation in Japan," California Western Law Review, Vol. 26 (1989), pp. 123-48.

Gangloff, Joseph E. "Structure and Practice for the Investigation of Bribery of Public Offcials in the United States," Unpublished paper, Public Integrity Section, U.S. Department of Justice, 1995.

Heymann, Philip B. "Understanding Criminal Investigations," Harvard Journal on Legislation, Vol. 22: No. 2 (Summer 1985), pp. 314-34.

Kubo, Hiroshi. Nihon no kensatsu (Japan's Prosecutors), Tokyo: Kodansha, 1989.

Kuzma, Susan M. "Bribery and Gratuities," Prosecution of Public Corruption Cases, United States Department of Justice, February 1988, pp. 293-304.

Mitchell, Richard H. Political Bribery in Japan, Honolulu: University of Hawaii Press, 1996.

Nomura, Jiro. Nihon no kensatsu: saiko no kenryoku no uchigawa (Japan's Prosecutors: The Inside Story of Supreme Power), Tokyo:Kodansha, 1988.

Nomura, Jiro. Nihon no kensatsukan (Japan's Prosecutors), Tokyo: Waseda Keiei Shuppan, 1994.

Noonan, John T. Jr. Bribes: The Intellectual History of a Moral Idea, Berkeley: University of California Press, 1984.

Reed, Steven R., with Ieiri Tomonori, Okumura Matsuko, Rokkaku Koji, Tabata Shuichi, Tabira Kenji, and Takeuchi Masao. "Political Corruption in Japan," International Science Journal, Vol. 149 (Sept. 1996), pp. 395-405.


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