Carlos Ghosn may be guilty – but the Japanese criminal justice system is in the dock too

Japan’s legal system gives unhealthy amount of latitude to prosecutors, with insufficient checks on their behaviour. Could Ghosn’s high-profile treatment constitute the ‘suicide of Japan’s judicial system’?

On 19 November Carlos Ghosn, the most famous man in the global automotive industry, touched down at Haneda airport in his private jet and was immediately arrested by Japanese prosecutors. That was the last time he was seen in public.

Ghosn has now spent more than 30 days in detention, where he has been subject to questioning by the Tokyo Public Prosecutor’s Office. He has not been allowed to have a lawyer present during those interrogations. Access to his family has been tightly limited.

Meanwhile, details of the allegations of what Ghosn is supposed to have done have been released by prosecutors to the media. We have heard nothing from Ghosn himself except a second-hand report of a denial of wrongdoing.

It appeared that Ghosn was going to be released on bail last week, but fresh evidence produced by prosecutors at the last minute has kept him detained this weekend. In Japan suspects can be re-arrested on different allegations, which restarts the clock again on their maximum 23-day detention.

Ghosn has not even been formally charged yet. “Detention is essentially an investigative tool used to interrogate suspects and develop evidence,” explains Colin Jones, a professor of the Doshisha Law School in Kyoto and an expert on the Japanese legal system.

Leave aside the issue of whether or not Ghosn is guilty of the allegations of under-reporting his Nissan income by tens of millions of dollars over many years, what does this kind of treatment of a suspect say about the state of the Japanese criminal justice system?

The prolonged and indefinite detention without charge constitutes a punishment in itself. The majority of indicted detainees confess while in custody, during unrecorded interrogations. Rights groups have long complained of the risk that these confessions are extracted under duress.

According to some legal scholars, trial procedures favour the prosecution. There is a notorious 99 per cent conviction rate.

“Most Japanese criminal trials are just about sentencing decisions,” says Mr Jones. “A defendant may, of course, challenge the validity of their confession at trial, but the burden of proof is on them – they must prove they are innocent in the face of it.”

Some have suggested that in understating his remuneration Ghosn was simply doing what many other executives in Japan do and that this is a case of selective justice, and therefore no justice at all, similar to the way formal corruption prosecutions in authoritarian regimes like China and Russia are about eliminating political rivals rather than tackling graft.

Others have claimed that Ghosn has been a victimised because he is a foreigner.

Another view is that one has to understand his downfall in the context of a power struggle between France and Japan over the future of the Renault-Nissan alliance.

There are questions about Japanese corporate governance. Does this show there has been no improvement since the 2011 Olympus scandal that exposed astonishing levels of fraud in a Japanese boardroom?

Or is the fact that this alleged scandal has been exposed, supposedly after a whistle-blower came forward, demonstrate the opposite?

But we should keep the issues separate. It’s possible that Ghosn is guilty of corruption, that the issue was brought to a head by a global corporate power struggle, that Japanese corporate governance is still deficient – and also that the Japanese legal system is in need of reform.

Japan’s legal system is based on the imperial German inquisitorial model, where the courts are involved in investigating facts. Yet it also has elements of the US adversarial system, laid over the top after the Second World War. The result is a hybrid system that seems to give an unhealthy amount of latitude to prosecutors but with insufficient checks on their behaviour.

A former Japanese civil servant, Kazuo Yawata, has asked whether Ghosn’s high-profile treatment might constitute the “suicide of Japan’s judicial system”. On the evidence we have, hara-kiri would seem to be rather welcome.