At a time when every ounce of Japan’s efforts ought to be committed to preventing the spread of the novel coronavirus, the administration of Prime Minister Shinzo Abe attempted to take advantage of the pandemic-induced confusion to force through a controversial legal change, and blundered terribly.
The policy in question is an amendment to the Public Prosecutor’s Office Act that would have allowed the Cabinet to grant special retirement age extensions to prosecutors. The Abe administration had been aiming to speed the legal change through the Diet during the current session, but has decided to put it off.
Under the proposed amendment, the retirement age would be set at 65 for prosecutors generally. Meanwhile, those in senior positions such as superintending prosecutors and the deputy prosecutor-general at the Supreme Public Prosecutors Office would have to step down from their posts by age 63, two years before retirement. However, the bill would also allow those ages to be extended by up to three years should the justice minister or the Cabinet deem it necessary.
Prosecutors can be called on to investigate illicit activities by the prime minister and other Cabinet members, so they must remain independent of the to and fro of politics. Introducing a retirement extension provision creates the noxious potential for the administration to steer prosecutors’ offices personnel moves this way and that for its own ends.
Regarding the decision to put off passing the amendment bill this Diet session, Prime Minister Abe stated, “We cannot proceed without the people’s understanding.” However, a failure to sufficiently explain the bill to citizens was not the problem; it was the bill itself, and its threat to prosecutorial independence.
The Abe administration’s initial response to the corona crisis came late. And its pandemic policy has suffered a string of misfires since, such as deciding to give every resident of Japan 100,000 yen almost right after the Cabinet had resolved to provide 300,000 yen to only households with sinking incomes. It is likely that the attitude displayed by the government in its attempt to ram through a problematic legal change in the midst of a crisis enraged public, and as a result a tweet opposing to the bill spread in a remarkable manner.
The Abe administration has a fixed pattern of behavior. Once it has decided to do something, even if faced with blistering criticism, it will use the brute strength of its parliamentary majority to implement that thing. It has always acted as though electoral success gives it carte blanche to do as it pleases. The serious stumble over the prosecutor bill can be chalked up to the sheer arrogance and slack attitude of an administration that treats the opinions of the people with obvious disregard.
A public prosecutor is indeed a government agency employee. However, they can investigate crimes and are in near sole possession of the power to indict. They are thus a kind off semi-judicial officer.
It is for that very reason that appointment and dismissal decisions for the posts have always been treated differently than for regular civil servants. It is a basic principal that prosecutors cannot be made to resign against their will, but they also must leave their jobs when they reach retirement age; no exceptions.
Prime Minister Abe stated at a news conference, “Prosecutors are administrative officials, and independence of the three branches of government (legislative, administrative and judicial) will not be infringed (upon in the revised law).” As the amended legislation would not change the current procedure where the Cabinet appoints prosecutors-general, superintending prosecutors and deputy prosecutors-general, he said, “There will be absolutely no instances of personnel affairs being determined arbitrarily.”
However, under the revision, a prosecutor-general would be able to stay in-post until age 68. This would allow someone convenient for the government to manipulate the work of prosecutors’ offices for a long time. Creating this kind of structure is itself a serious problem.
The amendment could also shake public confidence in prosecutors. Even if, for example, prosecutors decided based on the evidence not to indict a politician, people may suspect that the decision came out of consideration for the ruling administration.
That is why there was such stiff opposition to the amendment from former prosecutors. A letter penned by former prosecutor-general Kunihiro Matsuo and other ex-prosecutors stated explicitly that the revision was an attempt by the Abe administration to have prosecutors’ offices act in accordance with its will. A written opinion by former special investigations unit chiefs with the Tokyo District Public Prosecutors Office also called for the revision to be rethought.
The issue that lit the fuse on this entire situation was a late January Cabinet decision to extend the retirement age of Tokyo High Public Prosecutors Office Superintending Prosecutor Hiromu Kurokawa. The move was unprecedented, and lambasted as an attempt circumvent of the law to slide Kurokawa, seen as quite cozy with the Abe administration, into the prosecutor-general’s chair.
The government’s interpretation of the National Public Service Act has always held that civil servant retirement age extension provisions do not apply to prosecutors. When this was pointed out in the Diet, Prime Minister Abe replied that his administration had changed its interpretation of the law. There is no public documentation whatsoever on the process of how this change happened.
The Public Prosecutor’s Office Act amendment is the clarification of this change of interpretation, and there is no extinguishing suspicion that the bill is an ex post facto attempt to legitimize the Cabinet’s move to extend Kurokawa’s career.
The government and ruling parties plan to reveal the standards for extending a prosecutor’s retirement age and pass the amendment bill in the autumn extraordinary Diet session. This delay is nothing more than a bid to evade the current storm of criticism.
The only reason given by the government for Kurokawa’s special extension was so that the elder prosecutor “can address investigations and trials for grave cases.” Even if the government creates standards for delaying retirements, there is a very high risk that the specifics of each extension case will never see the light of day.
As Japan’s society greys, there is a need to raise prosecutors’ retirement age. By the same token, if the amendment bill is to proceed, a special stipulation to extend prosecutors’ retirement age should be ruled out.
Kurokawa’s retirement extension runs out on Aug. 7 this year. If he is appointed prosecutor-general, it will spark suspicion that his appointment was decided arbitrarily. Kurokawa’s retirement age extensions should be revoked before the Public Prosecutor’s Office Act amendment is even debated.