The Chinese Fishing Boat Captain Slips Through The Net Again

PLEASE WAIT LOADING ,,,,,,,,, So much for all that.

The other day I had a post on the Committees for the Inquest of the Prosecution, the liberalization of indictment procedures intended to serve as a backup route for citizens to bring to justice politicians and power brokers prosecutors found too intimidating to challenge. Unfortunately, the Committees have morphed into tools for conspiracy theorists and self-righteous vigilanteism.

Except in the post I praised the decision of the Naha Committee for the Inquest of the Prosecution to indict the Chinese fishing boat captain who rammed two Japan Coast vessels patrolling the waters off the Senkaku Islets in September 2010. The captain was arrested on charges of interfering with officers of the Government of Japan carrying out their duties -- which any sane person would admit he did. The Naha Prosecutors Office, however, after receiving the captain from the Coast Guard, dropped all charges against him on the peculiar, extra-legal excuse that the arrest had become an international incident.

"So what does that have to do with anything? That the arrest is becoming an international incident is Kasumigaseki's problem, not yours," was the response from the public -- which saw the release as the result of base and craven (no one in Tokyo would admit to having pressured the Naha prosecutors) political meddling in the judicial process.

For once, it seemed, a Committee for the Inquest of the Prosecution was going to perform the function for which it had been created: indicting and bringing to trial someone the prosecutors would not touch due to their spinelessness.

Indict him they did and bring him to trial they did -- but that is the end of the story. Last Thursday the presiding judge Suzuki Hideyuki revoked the right to prosecute (koso gikyaku) in the case, ending the trial.

The judge's action came after the three court-appointed lawyers failed to deliver a letter of indictment to the ship's captain within the requisite 60 days after they filed their mandated indictment (kyosei kiso) on March 15, 2012. The lawyers had until midnight, May 16 to provide the court with proof the indictment had been delivered. (J)

That they failed to complete their task in the allotted time should surprise no one. Under the Treaty between Japan and the People's Republic of China on Mutual Legal Assistance in Criminal Matters (2007) indictments handed down in Japanese courts are sent to the Homusho (Ministry of Justice) which then forwards them to its counterpart in China, the Zhongguo Renmin Gongheguo Shifabu.

Funny thing happened to that Naha District Court letter of indictment, or did not happen, as the case might be. The Zhongguo Renmin Gongheguo Shifabu seems to have not forwarded the letter to local authorities to serve to the captain. Indeed, just to demonstrate that tough-minded justice ministry bureaucrats that they may be, those working at the Zhongguo Renmin Gongheguo Shifabu are not without a sense of humor, they waited, according to the Sankei Shimbun, until May 15, the day before the expiration date of the letter of indictment, to send a message to Ministry of Justice of Japan that:

"As the Senkakus Islets (sic) are our national territory, we cannot accept applications made by the judiciary of Japan." (J)*

The Sankei Shimbun is understandably up in arms about these developments. It demands to know why Prime Minister Noda Yoshihiko did not bring up the matter of the non-delivery of the letter of indictment when he met with Chinese Premier Wen Jiabao on May 13.

Gosh, why would he not bring the matter up? Why would that be? Can anyone think of a reason? Or any number of reasons?

So the case -- which had the potential of becoming a major irritant in the bilateral relationship -- ends not with bang, but with a snigger.



Later - This post has been edited for clarity.

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* The Sankei Shimbun commits a howling error here. There is no way that the PRC Ministry of Justice would refer to the islands in question as the Senkaku shoto.

Committees For The Inquest Of The Prosecution - In Other News

PLEASE WAIT LOADING ,,,,,,,,, Correspondent SG reminded me yesterday that Ozawa Ichiro's case is not the only criminal case that has been or is the process of being brought to the courts via a Committee for the Inquest of the Prosecution -- the Orwellian-sounding citizens councils seeking indictments in incidents where the local prosecutors claim there is no case. Indeed a number of infamous incidents are in the process of being picked over by private lawyers hired by the courts, including:

- The Akashi Pedestrian Bridge Incident - where a crush of people, on there way to view a waterside fireworks display, lurched forward and fell down in a mass on the staircase of a pedestrian overpass, leading to the asphyxiation deaths of 11 persons, mostly children. On trial is the Deputy Chief of Police of Akashi, as the police were providing security for the event. A judgment in the case is expected in November.

- The Amagasaki JR Derailment - the most serious and idiotic rail accident of the last 40 years, resulting in the deaths of 106 persons and the maimings of many, many more. While the obvious culprit was the incompetent train engineer, who had a record of poor performance and sent his train hurtling off the tracks by taking a curve at excessive speed, this in order to make up for time he had lost in overshooting the platform at a previous stop, families of the dead and injured have been trying for a decade to pin the blame on senior JR West executives. The trial of the three past presidents of JR West for dereliction of duty leading to death begins in July.

- The Chinese Fishing Trawler Collision Incident - when a Chinese fishing boat rammed two Japanese Coast Guard vessels in the waters off the Senkaku Islands in September, 2010, the JCG detained the crew of the Chinese vessel, arresting the captain on charges of interfering with the activities of government personnel carrying out their duties. Other than the captain, the crew of the ship were returned to China. The case of the captain, hwoever,was remanded to the Nago District Court. After the Chinese government, both directly and indirectly, ratched the pressure on Japan, the Nago Court released the captain, on the bizarre grounds of his arrest being a matter of foreign policy, not law. Since the case had been remanded to the prosecutors, however, it left open the door for interested parties to pursue the original arrest through a Committee for the Inquest of the Prosecution, which interested parties did. Without much of a fuss, an Okinawa Committee for the Inquest of the Prosecution issued an indictment of the Chinese captain in March, with no trial date set.

It is difficult to approve of the actions taken by the Committees in the first two cases. These should be civil suits for damages, not criminal indictments for negligence and dereliction of duty. The persons being tried have only distant connections to the accidents, heinous as they were.

However, it is hard not give three cheers for Committee in Okinawa. The grotesque intrusion of politics into a legal proceeding, which the government promised it would not to do, no matter what the Chinese did, then reversed itself and did, then denied that it had done -- demolished the credibility of Prime Minister Kan Naoto and the Democratic Party of Japan. That the Svengali pressuring the Nago Prosecutors Office to release the captain was Chief Cabinet Secretary Sengoku Yoshito was an open secret. His machinations earned him a well-deserved censuring by the House of Councillors, with Mabuchi Sumio, the minister in charge of the Coast Guard, getting censured in what amounted to collateral damage from the chastisement of Sengoku.

It is possible to read too much into the effect the indictment of the Chinese captain will have on Sino-Japanese relations. It will certainly be an irritant to the Chinese. The Japanese government will not pursue the captain, except perhaps by putting his name on a list of international fugitives at Interpol. Even if the courts allow the captain's being convicted in absentia, which he would be, given the video evidence of the collisions, neither government has any incentive to bring the matter up in bilateral negotiations -- so they will not.

Whether Japanese right wingers will transform the captain's indictment into one of their cause célèbres remains an open question. They have already so many different items on their plates...

Extended And Revised Thoughts On The Decision To Retry Ozawa Ichiro

PLEASE WAIT LOADING ,,,,,,,,, Yesterday, the three lawyers appointed by the court to prosecute Ichiro Ozawa under Japan's Committee for the Inquest of the Prosecution system announced they would be appealing the not guilty verdict the Tokyo District Court handed down on April 26. The decision to appeal comes less than 24 hours after the DPJ's Standing Officers Council voted to end the suspension of Ozawa's party privileges and 24 hours before the deadline for the three lawyers had to file an appeal.

Given that the lawyers had two weeks to make this decision, their choice to do so within the same news cycle as the DPJ executive's having made its move on reinstating Ozawa indicates that it is politics, not the law, that is driving this case.

Three major cases come to mind of countries with democratic elections where the courts have been used to prevent a challenger of the system from seizing upon his chance to take power: Anwar Ibrahim in Malaysia, Mikhail Khodorkovsky in Russia and Ichiro Ozawa in Japan.

Elevating Ozawa to the level of the other two may seem perverse. After all, he has never spent a day in jail while the other two have languished in prison for years.

However, the cases are comparable in the use of pliant prosecutors and flimsy charges to effectively short-circuit the democratic process, to the benefit of politicians and corporate managements grown fat and lazy on crony, state-assisted capitalism and patronage.

While the cases of Anwar and Khodhorkovsky have served as reminders of just what kind of states Malaysia and Russia were and are, the judicial houndings of Ozawa and his aides have raised few warning bells worldwide. Indeed, the persecution of Ozawa has some in Washington dancing in the aisles. The 2009 arrest of Okubo Takanori, the beginning of the process that has led to yesterday's decision to retry, not only prevented the installation of a prime minister wishing to redefine the Japan-U.S. relationship as a more equal partnership but one seeking to meet the challenge of a rising China with an extended open hand rather than a closed fist.

The continued court cases against Ozawa and his subordinates also eat away at the support for the DPJ, which many in Washington see as a party too spiky and independent for the smooth operation of the Japan-U.S. military alliance.

However, those craving to see the return to power of a seemingly more U.S.-friendly and purportedly more competent LDP are either ignorant of history or in the pay of the wrong sorts of people. The LDP, as an illegitimate ruling party – which means its continued hold on power was dependent upon the suppression of votes – was a terrible interlocutor for the United States and the world. It was the party of delay, always whining about its inability to make good on its promises until “after the next election” – a plaint that tested the listener’s capacity to reason out, “But wait, after the next election, there will be another election, and after that, yet another…” Given their electoral lock on the country, LDP governments cared little that policy makers, journalists and scholars saw through this “wait until after the next election" canard  – and that under its thrall Japan would always underperform and punch below its weight. Under the"serious" and "seasoned" LDP, trade and IPR talks would drag out for decades, the Futenma-to-Henoko move went nowhere and the Self Defense Forces remained marginalized and internationally insignificant.

Some might argue that there are immediate benefits to this decision to retry Ozawa, that hobbling him will smooth the passage of important legislation tackling the national debt emboldening the Noda government to be more aggressive in pushing Japan into negotiations on joining the TPP. Unfortunately, opposition to the government's plans to raise the consumption tax, cut spending and join the TPP negotiations runs across the political spectrum. It is not just Ozawa.

There is the further problem that turmoil in Tokyo has promoted the rise of regional challengers to the main national triumvirate of the DPJ, the LDP and the New Komeito. The most successful and obvious of these is the Ishin no kai of Osaka Mayor Toru Hashimoto. These new regional movements are the wild cards now in Japan’s national politics. The old boys and the rare old girls of the bureaucracy and the non-profit foundations probably assuring their counterparts in the world's capitals that these new political forces can be tutored in the ways of behaving themselves on the international stage. However, there are no guarantees of that Hashimoto, Mayor Takashi Kawamura of Nagoya or other regionalists will listen to what their tutors tell them.

The legal persecution of Ozawa has had a corrosive effect on the development of a two-party system, where two legitimate, centrist, responsible parties with largely equal access to national office slug it out over differences in policy. Those who wave off what is happening with a dismissive “Ah, this is just the law finally catching up a grubby old time party hack, nothing new” have agendas of their own, obsfucating the truth being one of them.

The Masked Man Returns

PLEASE WAIT LOADING ,,,,,,,,, For those defenders and friends of Ozawa Ichiro -- and I know you are out there -- will you please tell him, beg him if you have to, to reconsider the wearing of a surgical mask on days when he is hot water?

Ozawa Ichiro, leaving his home on May 9, 2012.

I know that this all could be coincidence. After all, the above photo was taken at around noon and the press conference announcing the appeal of his case was not until the afternoon.

However, the instances of Ozawa's sudden comings down with colds at awkward moments have been painful to observe.

As for the prosecuting private attorneys, if they really wish anyone to believe that they are under no political pressure at all to appeal the not-guilty verdict of April 26, then sweating rivulets during their press conference on a mild May day is not the way to do it. While cool cucumber Yamamoto Ken'ichi (J - far right) managed not even a glow, Omuro Shinzo and Muramoto Michio were spurting like the fountains of Trevi.


Later - To be fair, Ozawa's lawyers were sweating even worse than the prosecuting attorneys.