‘Guilty until proven guilty’ in Japan and Korea

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While Tokyo tries to defend a besieged judiciary facing allegations of power abuse, Seoul declares war on its own prosecution

ByJake Adelstein and Andrew Salmon –  Asia Times

Call it a tale of two justice systems. Or at least, two very similar justice systems, two very different polities.

In Japan, amid a brouhaha sparked by the high-profile escape of former Nissan CEO and accused criminal Carlos Ghosn, the judiciary is under fire both at home and abroad.

Tokyo’s justice minister is not helping matters. Attempting to rebut Ghosn’s searing criticisms, she made a very public statement that appeared to confirm his most damning allegations. As a result, even harsher light has been cast upon  Japanese judicial mores, to the embarrassment of the right-wing Shinzo Abe administration.

In neighboring South Korea – where the justice system is a legacy from colonial Japan – a judicial fracas is also underway. However, it is not a fugitive foreigner who has generated that controversy. In Seoul, the left-wing Moon Jae-in government itself is engaged in a fierce struggle to reform a fiercely resisting prosecution.

That institution, like its Japanese counterpart, is widely accused of abuse of power to win its customary high conviction rates. Complicating the issue in Korea is the judiciary’s long and close entanglement with politics – a situation that has ignited a parliamentary firestorm.

Explosive gaffe  

Japan’s Justice Minister Masako Mori made a curious statement at a press conference in the middle of the night on Thursday. Her presser was called to respond to Ghosn’s claims, during his own press conference in Beirut, that Japan’s justice system was unfair, brutal and inhumane.

Mori aimed to convince the world that Japan had an equitable judicial system, in line with its status as a G3 nation. But among her many remarks accusing Ghosn of propagating lies about Japan, she shot herself in the foot.

“If he’s clean as he says he is, then he should fairly and squarely prove his innocence in the court of law,” she said. She subsequently posted her remark on social media.

The backlash was severe.

Former special prosecutor Nobou Gohara, a vocal critic of the Ghosn investigation and Tokyo prosecutors, did not mince words. On Yahoo! News – one of the most widely read news sites in Japan – he noted: “The prosecutor has to establish guilt; to say the accused has to prove they are innocent is absolute bullshit. Even though the minister is a lawyer, she clearly has no understanding that ‘presumed innocent until proven guilty’ is a fundamental, basic principle.”

A  French lawyer retained by Ghosn, was also quick to point out the error.  “It belongs to the prosecution to prove guilt and not to the accused person to prove innocence,” Francois Zimeray said in a statement.

It was widely noted that Mori deleted her original tweet and replaced it with one that changed the phrase “prove innocence” to “assert innocence.” The minister quickly claimed that she did understand the law, and it was all verbal gaffe. But since she said it twice, tweeted it and posted it on Facebook, questions hover.

‘J’Accuse!’

In Beirut, Ghosn, who had flown Japanese justice, made damning allegations. “I was brutally taken from my work as I knew it, ripped from my work, my family and my friends.… It is impossible to express the depth of that deprivation,” he said.

He detailed how he was interrogated up to eight hours per day without lawyers. He called his escape from Japan, “the most difficult decision of my life – but I was facing a system where the conviction rate is 99.4%, and I believe this number is far higher for foreigners.”

That provided the impetus for Mori’s impassioned midnight rebuttal. Though principles of justice have never won mass public interest in Japan, after the Mori affair, “proof of innocence” (muzai shomei) was trending on Twitter.

Netizens pointed out: “She just admitted that what Ghosn was saying is true.” Comments on social media included, “If the Minister of Justice doesn’t understand that the prosecutors have to prove guilt or the accused is innocent, well of course [Ghosn] is going to want to escape. Is this a witch hunt from the Middle Ages?”

A lawmaker from the Democratic Party for the People was blunt. “She has committed an act of stupidity.… She deserves to be fired,” he said.

Still, Mori is not the first Japanese justice minister to spark controversy.

Just for one other example, former Minister of Justice Nagase Jinen, appointed during  Abe’s first term in office, told conservative lobbyists in 2012, “The people’s sovereignty, basic human rights, and pacifism ― these three things date to the postwar regime imposed by MacArthur on Japan, therefore we have to get rid of them to make the constitution our own!”

In a clip that made it to YouTube, Abe applauded.

Yakuza and foreigners

The tremendous power of prosecutors in Japan and the use of pre-trial detention under harsh conditions to elicit confessions has been linked to Japan’s high conviction rate. Prosecutors in Japan have been caught forcing confessions and forging evidence to win cases.

The author of a book called Failure As A Public Prosecutor, who during his time in law enforcement had forced officials to confess to crimes they hadn’t committed, made a telling observation: “I was educated to believe that yakuza and foreigners have no human rights.”

In fact, there is a Japanese word for false accusations and rigged verdicts: enzai. There is even a magazine devoted to such cases: Enzai File. The explanation of the magazine’s mission statement from its publishers reads:

“Even though you’re innocent, you get treated as a criminal – [that’s] enzai. In Japan’s criminal trials, the conviction rate is 99% once you’re indicted. If one person spends their entire life appealing their innocence, they’ll find the walls of justice are incredibly thick. Even if you win a not-guilty verdict, the time stolen from you will never come back. You may never recover the job, family, friends, and financial stability” that was lost.

The magazine covers miscarriages of justice that Japan’s mainstream media, which depends on leaks from prosecutors for scoops, generally avoid covering. While the fan magazines that glorified the yakuza are now extinct, Enzai Files, which has been published since 2008, looks to have an assured future.

Unjust justice

Justice – or injustice – is also under scrutiny in Japan’s neighbor, South Korea. Germanely, Korea inherited its judicial system from Japan during the colonial era (1910-1945). Based on the French and Prussian civil law system, it, unlike Anglo-Saxon common law, does not customarily offer jury trials.

Under three decades of Imperial rule in the first half the century, and in four decades of authoritarian domestic rule in the second, Korea’s judicial system was widely seen by citizens as a tool to crush opposition. After Korea democratized in 1987, change swept through many institutions. One stubborn hold-out was the legal system.

Jealous of its privileges, the legal sector was among the last Korean markets – if we may use such a term – to open to foreign competition. And the heart of the system – the prosecution – has remained stubbornly immune to reform.

This is partly because even in the democratic era, the prosecution – along with tax authorities – has been used as a blunt instrument by repeated administrations to hammer powerful commercial or political opponents.

This partly explains the criminal records of virtually all high-profile Korean business figures, and the jailing of ex-Korean presidents, their allies and their family members once a new administration enters office. Only after most key members of the previous administration were safely behind bars did the Moon administration kick-start prosecution reform.

Reform is sorely needed. As in Japan, the prosecution’s privileges – and abuse thereof – leave the accused with minimal chances of acquittal.

A former Constitutional Court research judge told Asia Times that, despite the fact accused persons have a constitutional right to lawyers, in practice this right is at the discretion of investigating prosecutors. Another observer noted how abusive investigative processes are, with pre-trial detention, media plays, hours of interrogation, sleep deprivation and mental abuse.

Despite these known issues, Moon’s initiative proved to be a sizzling-hot political potato.

Politicians vs prosecutors

The president appears to have erred in promoting a highly contentious figure to justice minister on September 9 to carry out the task. The nominee, academic and author Cho Kuk, was despised by the right wing for his known leftist proclivities.

Amid allegations of Cho’s own power abuse – notably, his daughter’s questionable entrance into a top college, always an issue among egalitarian-minded South Koreans – massive protests hit the streets.

On October 14, after just over a month in office, Cho resigned. He now faces investigation by prosecutors.

A new justice  minister, Choo Mi-ae – a high-profile leftist politician – was appointed on January 2 to take up Cho’s cudgel. Cho had used his brief time in his ministerial position to draw up a draft document on prosecutorial reform.

Given the entrenched opposition, even Choo – a professional politician and a decidedly tougher character than Cho – may have difficulty gaining traction. Last week, she struck hard, announcing a sweeping prosecutorial personnel reshuffle.

Predictably, her move earned criticism from those claiming it was designed to reassign prosecutors who are investigating figures close to the Moon administration.

Still, there are some ways forward. After prolonged legislative combat, the government passed a bill in December to establish a new, supra-prosecutorial body to probe political corruption. But how this will operate remains unclear. The government also seeks to strip some investigative powers from the prosecution and hand them to the police. This is expected to become the loci of parliamentary squabbling in the days to come.

So: Two neighbors, one justice system, two rows. In the current feverish climate, whether Korea’s tortuous struggle to reform its Japanese-inherited judiciary will have any influence on its former colonial master is unclear.

 

 

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