Before We Get All Excited About The TEPCO Ruling

Recommendation for indictment from the #5 Committee for the Inquest of the Prosecution and the three TEPCO suspects

Let us run through the Committee for the Inquest of the Prosecution drill one more time, shall we?

STEP ONE: The public prosecutor's office investigates suspects, deciding whether or not to indict them on charges.

STEP TWO: The public prosecutor's office, after careful consideration of the evidence, decides it cannot secure a conviction of the suspects in question.

STEP THREE: A private individual or a group, ticked off at the decision of the prosecutors, files a motion with the Committee for the Inquest of the Prosecution to reexamine the prosecutor's decision.

STEP FOUR: The Committee for the Inquest of the Prosecution, whose sole reason for existence is to question the decisions of prosecutors to not prosecute, comes to the conclusion that the public prosecutor's office should reconsider its decision. (This is what happened yesterday as regards the three former executive of Tokyo Electric Power Company, owner and operator of the Fukushima Daiichi nuclear power station - Link)

STEP FIVE - The public prosecutor's office, upon being told that its decision to not prosecute was wrong, replies, "No, we got it right the first time: there is no basis for a prosecution" and rejects the Committee for the Inquest of the Prosecution's conclusion.

STEP SIX - The Committee for the Inquest of the Prosecution, pissed off that the public prosecutors refused to take its conclusion seriously, says, "Oh yeah? Why did we even bother to ask you to reconsider anyway? We'll just appoint our own, private sector lawyers to indict and prosecute the defendants. So there!"

STEP SEVEN - The Committee for the Inquest of the Prosecution trudges over to the local bar association office to find three lawyers to serve as prosecutors. The local bar association tells the Committee to not expect much, as no competent lawyer with a thriving practice has the time to be a prosecutor. Furthermore, no lawyer concerned about his/her professional reputation would agree to step in after the public prosecutors have already twice determined there is no case. The Committee asks the bar association to try anyway.

STEP EIGHT - Three lawyers who are either incompetent, do not care about their reputations or have been browbeaten into accepting the role by colleagues saying, "Look, just accept the assignment, OK? Just go through the motions, fail and the Committee is off all our backs. We'll make it up to you later" agree to look at the evidence.

STEP NINE - Since the three lawyers were hired to file charges, they unsurprisingly find the evidence to prosecute compelling and indict the suspects.

STEP TEN - Either from a personal lack of smarts, zero cooperation from a resentful public prosecutor's office or the total absence of giving a damn, the three lawyers fail to convince a judge of the merits of the charges and the suspects are all found "Not Guilty."

And no, the above is not just a cynic's barking. This what happens when an interesting question -- "Is there not some way that average citizens, certain that the decisions of public prosecutors to not prosecute are the result of political interference or other nefarious forces, can demand that the prosecutors either do their jobs or stand aside?" is not followed up by the question "OK, what could go wrong?"


Later - The Asahi Shimbun sees the Committee's action in a less caustic light, giving extra credit for having at least the right intentions. (Link

Screen shot courtesy: NHK News

The Courts Try Reason

In most industrialized democracies, the above title is something of a non sequitur. However, in this blessed land, where the courts have long shown deference to the executive and legislative branches, the sudden irruption of reasonable and reasoned decisions against the government is a surprise -- and a cause for celebration.

Last year Philip Brasor and Masako Tsukubu posted on their Yen for Living blog about the case of a former Osaka salaryman and father of two small children. The man had found a way to beat the odds, putting together a program that, when applied in a brute force manner, could net a tiny profit out of betting on horse races. Relying on databases of race results, the man placed massive, repetitive, automated bets on multiple horses, resulting with each iteration in a tiny, but compounding, return.

After letting his computer run these bets for three years, the man learned, to his horror, that under existing interpretations of tax law, his tax bill would be calculated not based upon his net winnings but upon the blunt, arithmetic total of his gross winnings, minus the cost of the winning tickets. This meant that when the dust cleared the man owed the National Tax Bureau 570 million yen in back taxes on transactions that had netted him only 140 million yen in income. (Link)

The man filed suit for relief from the Osaka District Court, arguing that the tax office's method of calculating income was insane.

Incredibly, at least for those of us who have been around these parts for a while, Osaka District Court Justice Nishida Masaki this morning handed down a judment in the man's favor (Link - J). He released the man from the immense tax penalty he had incurred, ordering him to pay taxes only upon the amount he had actually earned from his successful, fractional trading betting strategy.

Justice Nishida is of the 34th graduating class of lawyers, so he is near, if not exactly on the cusp of, retirement.

So?

So for those looking for the story of Japan being saved despite itself, perhaps talking with hot young entrepreneurial types or reformist politicians and bureaucrats is a misleading waste of time. Perhaps the real vanguard of change for the better is a posse of old guys and gals in long black robes.

Long Time, Hard Time

Anecdotal -- but it seems that judges are handing out increasingly long sentences to parents who have killed their own children. Just yesterday the Osaka District Court upped the prison terms of a father and mother who killed their infant daughter from 10 years to 15 years (J). Last Friday, another Osaka court handed out a staggering 30-year prison term to a 24 year-old bar girl who abandoned her two children to starve to death in the family apartment (J).

I want the courts to be merciless with the killers of the children of others, for those that kill the children of others rob parents of life's only true treasures. However, persons killing their own children is almost always the result of families or individuals being under extraordinary stress. Judges should be taking circumstances into account, rather coming down with peculiarly arithmetic maximum sentences for these first-time offenders. In the first case mentioned, the baby, the family's third child, was killed out of a moment's rage at her not eating her food. In the second case, the young woman had only been recently divorced and was in retrospect overwhelmed by both her night work and childcare.

I can understand that society would have a vested interest in transmitting the message "Do not kill your kids." However, is it really necessary to deliver the message with a sledgehammer? Furthermore, is the judicial system the transmitter of choice?

Committees for the Inquest of the Prosecution

I have been trying to get a handled just how far and beyond the pale the current prosecution of Ozawa Ichiro is. The newspapers are either being slipshod or obscure in calling Ozawa's prosecution the first of its kind. I cannot tell whether they mean the first of its kind for a member of the Diet, the first of its kind under the 2009 revision of the law establishing the Committees for the Inquest of the Prosecution or the first of its kind for whatever reason.

The section of the Ministry of Justice White Papers on the subject of the dispositions by the Committees is not much help in this matter, though it does provide a very good review of the Committees in general.

For the Japanese language reader, the latest available White Paper is last year's, to be found here.

For the English-language reader, the latest available version is the 2008 White Paper, where the relevant section is White Paper on Crime 2008, Part 5, Chapter 2, Section 1.

Working from the English language 2008 publication, so that the greatest number of readers may benefit, one finds out that since the establishment of the Committees in 1949 through to 2008, 135,136 persons were recommended for prosecution by a Committee, 1,408 were prosecuted and 1,254 were convicted. One also finds out that the new law, which gives the Prosecutors Office a second crack at the evidence before the Committee submits a case to a judge, came into force on May 21, 2009 -- a rather odd date since most laws generally come into force on April 1 or October 1 of a given year. One also finds out that nationwide there are 165 Committees for the Inquest of the Prosecution.

Click on the pop out tables and matters start to get confusing.

In the first table 5-2-1-1, one learns that in 2008 2,039 cases were referred to the Committees, either by request of by an authority (what kind of authority would be doing this is unclear). Now the Committees probably have a backlog of work from previous years built up, so the number of cases they consider in a single year is not necessarily equal to the number they receive. In 2008, the Committees disposed of 2,366 cases, recommending 130 for prosecution.

Now what happened to those 130 cases?

T'is hard to tell because the second pop out (5-2-1-2) says that in 2008 151 cases were disposed of. One has to assume that this disposition was done by judges, though this is unclear. As with the actions of the Committees, the discrepancy between the number of cases disposed of by the Committees and those disposed of by the judges (?) must result from a backlog of cases from previous years or cases that did not make it to trial in the recording year.

Now it seems, though again it is unclear, that of the 151 cases brought before a judge in 2008 35 were actually prosecuted, the others being being dismissed by the court.

So what was the result of these 35 prosecutions? No way to tell, as the data does not report the conviction rates.

For the record, from the Japanese-language 2010 White Paper, 155,583 cases were referred to the Committees for the Inquest of the Prosecution in between 1949 and 2009, resulting in 1444 prosecutions and 1286 convictions.

Which indicates that in 2009, the courts started action on 36 cases and 32 cases ended in guilty verdicts. Furthermore, in comparing the data totals presented in both of the White Papers, 1 -- yes only 1 -- case ended in acquittal in 2009.

Gotta admit, that last number is not great news for Ozawa Ichiro.

Blinded Justice

It was buried in back pages (the crimes section) of the newspapers this morning but a decision came down yesterday in the heinous Ginza Eye Clinic case. As if in counterpoint to the post of yesterday, where a judge severely punished defendants for crimes that may not even exist, the defendant in the eye clinic case got off with what seems an absurdly light sentence.

For those who have forgotten the Ginza Eye Clinic (Ginza ganka) case, Dr. Mizoguchi Tomo was arrested in December 2010 for having conducted hundreds of LASIK procedures with unsterilized or reused medical devices, sometimes moving from one patient to another without even washing his hands, causing hundreds of serious eye infections that damaged the eyesight or even blinded patients.

Yesterday, Judge Kondo Hiroko sentenced Dr. Mizoguchi to 2 years in prison (prosecutors had asked for 3 years) for malpractice in the cases of 7 patients (ja).

C'mon judge, give him 10 years. Better yet, give him as much time in prison as his victims have to live with blindness...and yes, some of his victims were teenagers.

The next step is, unbelievably, petitioning the Ministry of Health, Welfare and Labour to strip Mizoguchi of his license to practice medicine. Then there is the ongoing class action suit against the Ginza Eye Clinic, attempting to recover for the victims whatever small monetary compensation they can expect to receive for their suffering.

That Mizoguchi was convicted at all was attributable to the huge number of patients affected: over 100 are either party to or are applying to be parties to the class action suit. It was easy for doctors to come forth and testify in court that Mizoguchi had departed from even the most basic medical practices in his surgeries.

In most medical malpractice cases, doctors are reluctant to come forward to testify against other doctors. Serve as consultants to legal teams, sure...but testify? No -- not when it means they might be ostracized by their peers for breaking the professional code of silence on malpractice...a kind of behavior one would normally associate with gangsters.

In a sense, Mizoguchi was sentenced to prison as much for having generated bad press for doctors as for injuring hundreds of trusting individuals.

For Those Who Have Lost Much, A New Day

Headline on the front page of my newspaper this morning:

Aiming Toward Accession to the Hague Convention: Prime Minister Indicates the Preparation for the Legal Underpinnings

After so many years, and after so much utter excrement about how it would be too difficult to reform family law and police practice in such a way as to force law enforcement officials into treating child abduction as a crime, a first step toward justice.

The prime minister's assertion that "in order to come to a quick resolution, we have to find a path toward making this happen" is only a start -- but a good one.

Some folks still hold a cynical "Meet the new boss. Same as the old boss" view of the Democratic Party of Japan and the ruling coalition -- that all the hopes the people have for change will come crashing down due to inescapable realities. This dismissive view is rapidly losing value. Considering the amount of time, energy and attention that have been lost to going through Prime Minister Hatoyama's and DPJ Secretary-General Ozawa Ichiro's finances these first few months under the new regime, I would be willing to be on record as saying the revolution has been moving forward at an encouragingly rapid clip.

Last Summer's Elections Are Still Unconstitutional

Now please go away and stop bothering us!

That, in a nutshell, was the decision handed down by the Tokyo High Court yesterday. The court ruled in favor of the plaintiffs in a complaint doubting the constitutionality of nine Kanagawa Prefecture electoral districts. However, while the court agreed with the plaintiffs that the existence of an electoral map where the votes of those living in the nation's smallest population district are worth more than twice as much as those living in the nation's largest districts cannot be meshed in any rational way with the Constitution's provisions on the equality of citizens, it did not declare void the August 2009 House of Representatives election based upon said districts.

Taking rationality as the fulcrum point on which to balance its reasoning, the High Court ruled that even though the electoral districts were unconstitutional, nobody did anything to rectify the districts in a rational amount time prior to the election, so the electoral results cannot be found unconstitutional.

To find out how this assertion could be true is tough. One has to wade through a swamp of parenthetical phrases and climb over a series of parallel dependant clauses until one finally hits a wall at "the Diet's not having acted upon this same revision cannot be said to be unconstitutional as a discretionary deviation per se."

Or, as the best free online translation software application I know translates the explanation of the court (as listed in this article):

However, though the expansion of twice or more the difference was admitted about a present electoral system by the frame method according to one person after 94 years, Run counter to the Constitution..opinion..divide..supreme court..judgment..division..regulations..constitutional violation..admit..opinion..command a majority..electoral system..revision..correspond..time..require.., considering..Diet..this case..elect..this case..division..regulations..revision..examine..have..reasonable..period..correction..do..admit..Diet..revise..discretion..deviate..run counter to the Constitution..do.

Yes...indubitably.

The Tokyo High Court ruling represents the third ruling of the recent past finding the current small-district electoral map to be unconstitutional. It comes on the heels of similar verdicts in Osaka in December last year and Hiroshima in January. A major revision of the nation's electoral map is already planned in response to the results of the census (the next census' completion date is October 1 this year). The judicial system's ratcheting up of the pressure for the reduction of the level of inequality in House of Representatives electoral districts will only magnify the already strong desire of the ruling Democratic Party of Japan to grant greater representation to the DPJ's core supporters in the urban and suburban areas.

So the DPJ's current distressing small-scale replication of the LDP's broad strategy of securing votes in the rural areas through public works contracts may end up being the last roar of the Tanakaist beast prior to its final, well-deserved demise. For should the DPJ secure a working majority in the House of Councillors this summer, either solo or in coalition, and with the results of October's census in hand, it should be able to shepherd an equitable reapportionment of House of Representatives electoral districts, bringing to an end the post-1946 tyranny of the rural voter...at least as far as the House of Representatives, the more potent of the two houses of the Diet, is concerned.

And should the DPJ-dominated Diet fail to follow through on overseeing the promulgation of a more equitable electoral map, despite all the seeming political incentives for the party to do so, it looks as though the courts are laying down a legal framework to impose one of their own.