
Examining Carlos Ghosn and Japan's System of 'Hostage Justice' - onemoresoop
https://www.japantimes.co.jp/news/2019/04/17/national/crime-legal/examining-carlos-ghosn-japans-system-hostage-justice/
======
anonu
Ghosn's handling by the Japanese is utterly despicable. No habeas corpus ...
no due process.

Ghosn is credited with a stunning corporate turnaround and creating billions
of dollars of value for a Japanese company and the Japanese people. I am
certain foreign corporations who do business in Japan are thinking long and
hard about the implications and potential risks of operating there.

To be clear - I am not saying Ghosn is innocent. He may very well have created
special corporate structures to siphon off cash - and if he did, he certainly
didn't do it alone. I think he regretted not taking the helm of GM where he
saw US top execs easily earning $20, $30mm a year with no complaints from the
public...

~~~
mises
At some point, foreign nations are different and we just have to deal with it.
We got habeas corpus and other processes from the Magna Carta back in the
eleventh century B.C., and the resultant English Common Law shaped the justice
systems of America and other nations. It is not fair of us to expect all
justice systems to align with ours.

For an extreme example of this issue, look at the Middle East. They have
simply never taken to democracy, and a good number of people are of the
opinion it is simply an issue with their culture. This is why nation-building
fails there. Japan is so to a lesser degree. They Westernized more due to
losing WWII to America, but are still different. It's not our job to play
world police.

~~~
lostlogin
> For an extreme example of this issue, look at the Middle East. They have
> simply never taken to democracy.

This isn’t helped by foreign interference in every election they have. Even
the borders, arbitrary lines drawn up by colonial powers, contribute to the
problem as the forced groupings don’t suit anyone except for some colonial
empire a long time ago. If the meddling stopped for a decent duration
democracy might have a chance.

~~~
rayiner
Maybe, maybe not. Counter example. Bangladesh (where I’m from) was created in
1972 with a constitution embodying various western style principles, including
secularism. The country was organized along pretty sensible
geographic/linguistic/religious borders, and there has been no western
meddling with its elections. Regardless, over the decades the people have
voted to make Islam the official religion and generally cut back on
secularism, free speech, and democracy. One of the relatively few bright spots
is the Bangladesh Supreme Court—a western transplantation that _e.g._ conducts
its business and issues opinions in English. Americans love to blame the west
for everything. I find it fairly patronizing.

~~~
mises
I certainly didn't blame the west. I personally think it has done more good
than harm in the long term. My only point was that not all cultures take to
democracy in the same way.

~~~
rayiner
I was responding to @lostlogin’s response to you.

~~~
lostlogin
I don’t entirely follow sorry, could you expand a little on your comment about
it being patronising how Americans blame the west?

In the Middle East, there are so many bad actors it’s ridiculous. I haven’t
consciously encountered Americans blaming the west for the situation in the
Middle East. Does the definition of ‘west’ you are using include the US?

In case it is relevant, I am from New Zealand and think the disgusting
behaviour in the region started long before the US got involved and includes
far more countries than any set defined as ‘western’. Even places as far away
and as small as New Zealand have ended up with a record of massacres and
murders when in involved in the region.

~~~
rayiner
I’m saying Americans blame the west, not necessarily that Americans blame
America. America had very little to do in the subcontinent, for example.

As to it being patronizing. Speaking for myself—I think if you can’t blame
people for the state of their own country, you’re taking agency away from
those people. The British did lots of bad things in the subcontinent and
looted it. (They also left some really good values and ideas and
institutions.) But that ended 70 years ago. In that same time period, South
Korea went from being nearly as poor, and far more war torn, to being a
developed nation. It’s not the absence of interference from the west that did
that, it’s the industry and virtue of the Korean people. Likewise, to the
extent Bangladesh hasn’t grown as fast as it should (and to be fair, things
have gotten better at least on the economic side in the last decade), who is
to blame? I think it’s patronizing to continue to blame the west. Maybe blame
the fact that Bangladeshis supported a military dictator for President,
supported dismantling secularism, invited fundamentalism in from the Middle
East, etc. Whose fault is it? Maybe it’s the fault of the clerks in the
Bangladesh Supreme Court that demand bribes to quickly your filings quickly.
If we credit Koreans for the development of their country, Bangladeshis must
get their fair share of blame for what is happening in their own country.

~~~
lostlogin
Thank you for that reply, I see your point and it’s a good one.

I think that the two arguments are not in opposition though. It is possible
for foreign interference to have harmed democracy in the Middle East and for
locals to have damaged it too, and there are plenty of examples of this.

------
mindgam3
The real mindfuck here isn't just that Japanese law allows the authorities to
question you during detention (before being charged with anything), all day
every day, with no attorney present.

Nor is it that they can restrict access to the outside world, only allowing
you to speak to family for max 20m a day, with a translator + officer present
at all times.

No, the real kicker is that the clock for the 20-30 day detention period
starts fresh every time, for each charge they want to investigate. This means
that they can essentially keep people in detention for as long as they want by
having a list of charges and "investigating" them one at a time.

If you're used to things like due process, "give me my phone call", etc, the
Japanese justice system is quite difficult to wrap your head around.

I have no idea if Ghosn is guilty of what he is accused of. But there are
massive pressures to extract confessions from people in his position. And
forced confessions reduce the legitimacy of the entire justice system.

------
_cs2017_
Edit: I just realized that the nearly 100% conviction rate is only for those
who go to trial. A third of the people who are detained are released without
trial. So ignore this post: my main assumption (that arrest is similar to
conviction) was incorrect.

\---

Maybe one way to think of the Japanese justice system is that the trial
happens before the defendant is arrested. After all, the conviction rate is
nearly 100%, so in some sense the actual trial is just a formality. From that
perspective, it's not surprising that defendants may be detained without bail
for weeks: the system treats them as if they are already convicted.

It seems to me that with such a system, it's far too easy to convict an
innocent person: after all, the decision is made by prosecutors, who are
usually incentivized to err on the side of conviction (both by career
pressures and by personal predisposition).

Do we know whether Japan has a really high false conviction rate? It's
probably very hard to answer, since it's unclear how anyone could collect such
statistics.

If it turns out that false convictions are rare in Japan, it may imply the
prosecutors are actually trying to discover the truth rather than convict.
Which would be a very interesting deviation from any other justice system I
know of.

~~~
Causality1
Like much of Japanese society, appearances and propriety are very important.
Sometimes that means releasing criminals who might not be found guilty.
Sometimes it means homicides get declared suicides.

~~~
ansible
Years and years ago I traveled to Japan.

It seemed like a very safe place. I had heard about crime in Japan, and the
year before had (allegedly) less than 100 murders for the entire country,
which puts the murder rate far, far below the rest of the world.

And these days when I read about how criminal justice works there... well, I'm
glad I'm not as naive as I used to be.

~~~
pas
It's a case of both. Japan is incredibly safe, no questions about that. At the
same time they have a very severe problem with managing expectations and
facing the sometimes inevitable less than perfect results of reality.

------
deugtniet
I find it interesting how Japan and Germany both have a constitution that was
essentially written by Americans after the second world war. But there is a
big difference in civil liberties between these countries.

E.G. If the police charge you in Japan, there is very little chance not being
sentenced to something (or taken hostage). Compared to Germany where you would
have a much fairer trial.

~~~
mafribe
Aside, not relevant to the article discussed here.

    
    
       constitution that was essentially 
       written by Americans
    

I cannot speak about Japan, but that's historically false for Germany. If you
look at the list of participants in the main events that drafted the West
German constitution such as the _Rittersturz-Konferenz_ [1] and the
_Verfassungskonvent auf Herrenchiemsee_ [2], then you'll see that all
participants are German. Naturally, the allies had to agree, but they were
split in a big way. The Soviet Union anyway, but the US and France really had
very different ideas. France, in particular, wanted to snatch the Saar region.
Naturally the drafters of the German constitution were inspired in particular
by the US constitution, because it was rather successful.

[1] [https://de.wikipedia.org/wiki/Rittersturz-
Konferenz](https://de.wikipedia.org/wiki/Rittersturz-Konferenz)

[2]
[https://de.wikipedia.org/wiki/Verfassungskonvent_auf_Herrenc...](https://de.wikipedia.org/wiki/Verfassungskonvent_auf_Herrenchiemsee)

~~~
deugtniet
My constitutional knowledge on the German constitution is a bit rusty, but I
guess you hit the nail on the head when you say: 'Naturally, the allies had to
agree'. The Allies were the ones that required these conferences and approved
of the Germans that went there. I guess the English and the French had some
say, but really the big dog of the allies was the US. So I stand by my
statement.

~~~
azernik
No, they did not; the conferences were attended by the governments of the
German states, who had passed through the de-Nazification filter but were
otherwise selected by purely German political processes.

When it came to the content of the constitution, the Allies' conditions were
clear and pretty general - it had to be democratic, and it had to be federal.
(The latter was distinguished from the Weimar constitution only in that the
Allies insisted on general size parity between states.) Plus complying with
occupation policy on control of heavy industry. See
[https://de.m.wikipedia.org/wiki/Frankfurter_Dokumente](https://de.m.wikipedia.org/wiki/Frankfurter_Dokumente)

The main principles of the constitution itself were assembled by German
elected governments of the states
([https://de.wikipedia.org/wiki/Verfassungskonvent_auf_Herrenc...](https://de.wikipedia.org/wiki/Verfassungskonvent_auf_Herrenchiemsee#Ergebnisse)),
and were very much direct responses to the process of the Nazi takeover in
1933.

------
Thaxll
Japan is a really weird country, on one hand it's the safest country, on the
other it has old laws / weird mentality about some modern concepts for
society, ex:
[https://en.wikipedia.org/wiki/International_child_abduction_...](https://en.wikipedia.org/wiki/International_child_abduction_in_Japan)

~~~
zAy0LfpBZLC8mAC
> Japan is a really weird country, on one hand it's the safest country

How do you know it is safe if you can easily be wrongly convicted, but no
statistic about the country shows that?

~~~
hamilyon2
Criminals think seven, no, seventy times before doing anything that could
possibly upset japan national on Japanese soil.

This is how it is that safe.

~~~
stcredzero
_Criminals think seven, no, seventy times before doing anything that could
possibly upset japan national on Japanese soil._

 _This is how it is that safe._

Or, the criminals are organized and have connections and unspoken agreements
with the authorities, existing in a kind of truce.

(EDIT: In essence, the seven to seventy times thinking over has been enshrined
and institutionalized.)

------
AcerbicZero
I'm not going to tell the Japanese how to run their society, primarily because
I'm not Japanese, they're a sovereign nation, and there is no evidence that
the system I'm currently subjected to is any better or worse.

If the Japanese people want to change this, and want external support to
change this, that is an entirely different discussion from what was in this
article.

~~~
stcredzero
_there is no evidence that the system I 'm currently subjected to is any
better or worse_

There's plenty of evidence in the form of the many people who want to come
here, and in the form of the many people who have come here and established
successful happy lives. My family history is evidence. Inherent, universal
human rights are the right side of history. The history of the world shows
this.

------
sandworm101
I don't see the problem. Extended detention and repeated interrogation is
normal around the world. Visit Rikers island and look at how long people are
held there prior to trial (years). The focus on confessions isn't a Japanese
thing. Look at how many americans/canadians/brits/auzzis agree plea deals, a
form of confession. Repeated questioning isn't torture. In the USA it is true
that police have to stop asking questions once you demand a lawyer, but that
isn't true in Canada. The mounties can, and do, question suspects for hours.
Brits who do not want to speak still have to sit through the ritual of "no
comment' interviews which can last hours. Are we only talking about these
Japanese cases because they involve rich people?

~~~
ConcernedCoder
My unpopular opinion: Questioning someone longer than they want to provide
answers, when that same person is unable to leave the interview is a form of
torture -- change my mind.

~~~
rmah
Your request is, at its heart, a question about the definition of the word
"torture".

The pedestrian definition of "torture" as per the Merriam-Webster dictionary
is:

1: the infliction of intense pain (as from burning, crushing, or wounding) to
punish, coerce, or afford sadistic pleasure

2: a) something that causes agony or pain; b) anguish of body or mind

3: distortion or overrefinement of a meaning or an argument

I guess definition 2b in the context of "mind" fits best with your
proposition. Which then leads to the definition of "anguish".

Alternatively, we can examine the legal definition, which will vary by
jurisdiction, but for completeness, I will link to the UN definition at
[https://www.apt.ch/en/what-is-torture/](https://www.apt.ch/en/what-is-
torture/). In brief:

"Torture means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession"

Here, you'd have to ask if prolonged unwanted questioning causes "severe
[mental] pain or suffering".

And finally, perhaps you mean torture in the figurative sense.

Either way, if simply questioning someone "longer than they want" is "torture"
then pretty much all of us have, at some point tortured someone. At that
point, the word "torture" becomes synonymous with "discomfort" or "to annoy"
and would, IMO, lose all utility from a legal point of view.

In the final analysis, what this boils down to is that the world does not
exist to serve your desires. Unpleasant things can and will happen to you.
Even being asked questions you don't want to answer in situations where you
cannot leave. While an individual may never have experienced anything more
unpleasant than that, and thus it feels horrible to them, the fact is that
there are far far FAR more unpleasant experiences that millions of others have
faced. Society does not owe the sheltered more than the less sheltered.

~~~
edmundsauto
It makes more sense if you think of torture as a gradient, not a binary.

2 hours of questioning in a room? Not that torturous. 60 days, 12 hours a day,
even if your basic needs are met? Pretty bad.

------
noego
> _During detention, both were subject to extensive questioning by prosecutors
> without an attorney present. Videotapes of Ghosn’s questioning — a new
> feature added in the Criminal Procedure Reform law in 2016 in direct
> response to documented abuses — were made available to his attorneys who
> were present at the detention center, but lawyers were not permitted in the
> room where questioning took place._

> _The system must change._

> _First, every suspect should have the right to consult a lawyer as soon as
> the case is in the hands of prosecutors, and questioning should be
> prohibited in the absence of an attorney._

The article makes no attempt whatsoever to explain why the above change "must"
be made. I'm on the fence on this matter, but the article just sounds like a
sanctimonious scolding of Japan for not doing what other Western countries are
doing.

 _" We're all doing it, so you better do it too"_ isn't a particularly
compelling argument. In fact, given how much more effective their criminal
Justice system is compared to America's, I would err on the side of keeping up
their good work.

~~~
djrogers
> In fact, given how much more effective their criminal Justice system is
> compared to America's, I would err on the side of keeping up their good
> work.

When a society justifies human rights abuses based on results, bad things tend
to happen.

~~~
noego
Being questioned by the police without a lawyer being present, is a "human
rights abuse"? I have yet to hear an explanation on why being questioned 1:1
by the police is so bad.

------
tus87
I find Western criticism of Japan's legal system hilarious.

> Japanese prosecutors subject suspects to up to eight hours of daily
> questioning while they are detained in a bid to obtain a confession,
> shutting off access to their family and barring them from obtaining legal
> assistance during the questioning. And according to the popular narrative,
> it’s all done capriciously, with the nefarious machinations of the state
> lurking behind.

This is true in almost every western country except the US. England, Canada,
Australia etc you have no right to a lawyer during questioning. Police will
destroy and cover up evidence in attempt to frame people on a regular basis,
and basically join the prosecution from day 1 instead of investigating crime.
They seek certain sorts of convictions to please their politics masters. They
much rather a rape conviction than a false accusation conviction for example.
They will prosecute people against the weight of evidence, where in fact the
only evidence is exculpatory.

Consider the case of Mark Pearson. Falsely accused of a rape after bumping
into a woman in a subway station. Video evidence proved it wasn't possible, so
police slowed down the footage to make it appear it did happen.
[https://www.independent.co.uk/news/uk/crime/cps-slowed-
down-...](https://www.independent.co.uk/news/uk/crime/cps-slowed-down-cctv-
footage-of-commuter-accused-of-sexual-assault-to-look-like-he-had-more-time-
to-a6861181.html)

Now if this same thing happened in Japan, if they saw the video footage that
basically proved it was a false accusation, do you think they would have acted
as capriciously as UK police, or maybe charged the woman instead?

The narcissism of the Western political/legal class knows no bounds.

------
corey_moncure
Who is the writer and what is his angle here? It looks like this is his only
contribution to this outlet. A google search on his name turns up nothing.

~~~
cerealbad
Outside Board Director, Former Executive Officer at US/Japan Multinationals,
Retired Int'l Business Attorney.

you can find him on linkedin.

[https://www.linkedin.com/today/author/eneiheisel](https://www.linkedin.com/today/author/eneiheisel)

------
vectorEQ
i find it interesting that if a normal person gets detained like this, no one
fucking cares. ;)

------
ttul
A hundred years ago, Japan was a feudal society. Apparently, some of the old
traditions live on.

~~~
u10
Japan wasn't a feudal society 100 years ago, in fact, they had beaten a
western power 10 years prior.

Not to mention the 'West' just finished 4 years of blowing each other up, not
very "Civilized" imo.

~~~
rhizome
And also not to mention that while their internal justice may have been
questionable (as it always is, everywhere), the Edo period had zero war for
250 years. Imagine the US never having been in a war since before the
Declaration of Independence. Would that GP included _that_ in their criticism.

