In a surprise move, Prime Minister Shinzo Abe announced on May 18 that he had given up on passing a controversial bill revising the Public Prosecutors Office Act (PPOA) aimed at extending the tenure of senor prosecutors, excluding the Prosecutor-General, during the current session of the Diet. Abe told reporters at his official residence in Tokyo:

　　　　　“I have concluded that we will be unable to move forward without people coming to grips with the proposed amendment. I have also reached an understanding with the secretary-general of the ruling party that another proposed amendment—this one designed to reform the existing public servant system—should not be pursued before a thorough hearing of public opinion.”

　　　　　Preceding the news conference, Chief Cabinet Secretary Yoshihide Suga remarked: “We have concluded that these bills—the PPOA and the National Civil Service Act (NCSA)—should be carried over to the next Diet session in the fall for more extensive deliberations. We have agreed that, under the present circumstances, it would be difficult to expect calm Diet debates when a controversial extension of the retirement age of Hiromu Kurokawa, head of the Tokyo High Public Prosecutors Office, has—for no good reason—been linked to the two amendments.”

　　　　　Suga rightly pointed out that Kurokawa’s case should not have been linked to the amendment to the NCSA aimed at raising the retirement age of all government employees, including senior prosecutors. Kurokawa’s case was approved by the cabinet on January 31 by “reinterpreting” the NCSA, while the amendment was submitted to the cabinet on March 15. But they have become tangled up in the ensuing deliberations, leading to stern objections from the opposition and strong public protests via social media. The Abe administration reportedly treasures Kurokawa as an indispensable human resource needed for the ongoing investigation into accused embezzler Carlos Ghosn, the ex-Nissan CEO who fled to Lebanon.

　　　　　Appearing on my regular weekly “Genron” Internet TV news show as a special guest on May 15, Abe had this to say about the cabinet approval of the extension of Kurokawa’s retirement age beyond the mandatory 63:

　　　　　“The Justice Ministry submitted to the cabinet a proposal that his tenure be extended as recommended jointly by the Prosecutors Office and the Justice Ministry. The Cabinet normally follows a time-honored procedure of automatically sanctioning such proposals—on the understanding that they reflect the consensus of agencies and ministries concerned.”

　　　　　Many people, including a retired public prosecutor-general who has raised his voice against revising the PPOA, assert that the cabinet has traditionally honored the wishes of these entities when it came to decisions on personnel affairs involving prosecutors. Abe himself has stated that the incumbent cabinet values this practice. In this vein, there ought to be absolutely no problem with the cabinet having approved of the proposal regarding Kurokawa.

　　　　　In fact, an extension of prosecutors’ retirement age has been discussed for several years. Recalled former justice minister Takashi Yamashita (October 2018-September 2019):

　　　　　“In my time, we tackled a proposal that the NCSA be applied to a possible extension of prosecutors’ tenures. Because the PPOA lacks a clause pertaining to such an extension, as Justice Minister I was fully for applying the NCSA to fill the gap.”

“Because Kurokawa is ‘pro-Abe’”?

　　　　　The Justice Ministry first opened discussion on a possible extension of senior prosecutors’ tenures in late 2018—about the time Yamashita assumed office. Responding to a recommendation by the National Personnel Authority (NPA) in August that year to raise the retirement age of all government employees, the Cabinet Office asked the ministry to sum up internal opinions as regards how the NPA recommendation would relate to the tenures of prosecutors as defined under the PPOA. Following extensive discussions within its Criminal Affairs Bureau, the ministry compiled an internal report on January 16, 2020, concluding: “The NPSA will not exclude an application for an extension of the mandatory retirement age of prosecutors.”

　　　　　The following day, on January 17, a special advisor to the justice minister asked Minister Masako Mori for permission to grant Kurokawa an extension of his tenure. Mori reportedly gave verbal permission. The ministry’s plan was approved by the Cabinet Legislation Bureau and the NPA, on January 21 and January 24 respectively.

　　　　　Going through this process, the Justice Ministry managed to secure a legal interpretation of the extension of Kurokawa’s tenure by six months from the original date of his mandatory retirement—to August 6. On January 29, the justice minister requested the prime minister to hold a cabinet meeting to discuss the extension, which was finally approved formally on January 31.

　　　　　The liberal daily Asahi immediately saw a problem with the extension, claiming that an extension of a prosecutor’s tenure, which had never before been implemented, could not have been carried out so orderly without some “political will” behind it.

　　　　　For argument’s sake, let us assume that this may have reflected some intention on the part of a politician—presumably Abe in this case. As the reason for the alleged political intervention, Abe’s opponents cite a common belief that Kurokawa is “pro-Abe.” In reality, however, Kurokawa headed his office’s investigation into a bribery case that led to the arrest of an incumbent LDP legislator for the first time in a decade in late 2019. Kurokawa also questioned a sitting parliamentary secretary of justice, another protégé of Abe’s, in connection with the scandal. Kurokawa has thus dealt a heavy blow to the Abe administration, obviously impairing his image. So I find the claim unconvincing that Kurokawa is “close to Abe and his administration.”

　　　　　Let us try to also consider whether it was really the Public Prosecutors Office that originally proposed the extension of Kurokawa’s tenure. In light of the professional careers of past heads of the Tokyo Public Prosecutor’s Office, Kurokawa can be seen as the next public prosecutor-general. Before the extension, Kurokawa was expected to remain in the position of the head of the Tokyo High Prosecutor’s Office between six months and two years. Six of his ten predecessors have been promoted to Public Prosecutor-General, most of them retiring within two years of taking office.

　　　　　Nobuo Inada, the incumbent Public Prosecutor-General since July 25, 2018, will have served two full years by July 24. If, as is customary, he chooses to retire then, Kurokawa will have a high possibility of being named his successor at 63 years and five months. Makoto Hayashi, head of the Nagoya High Prosecutors Office and Kurokawa’s rival, is another likely candidate for Public Prosecutor-General. He will reach his mandatory retirement age of 63 on July 30. If Kurokawa fails to succeed Inada then despite the extension of his retirement age, Hayashi will have a good chance to succeed Inada.

Strange “Struggle for Power” in Progress

　　　　　In light of such circumstances, it may be possible to see a struggle for power among prosecutors behind the “Kurokawa” issue possibly between two factions, one supporting Kurokawa and the other Hayashi. Or, some quarters may wish to guard valuable human resources as future prosecutors-general. Against such a backdrop, the amendment aimed at extending the mandatory retirement age for all national government employees was abruptly submitted to the Diet. The issues involved became even more difficult to understand, with reports by liberal media outlets, such as the Asahi and NHK, vigorously fueling public opposition to the bill. Opponents have been vocal, their tweets with the “I oppose the amendment” hashtag reportedly reaching 5 million the second weekend of May. NHK even carried an analysis that left viewers with the impression that the tweets were not a campaign manipulated by a small number of individuals. I saw a strange “struggle for power” in progress.

　　　　　On May 15, veteran legal experts, including former Public Prosecutor-General Kunihiro Matsuo (77), submitted written statements to the Justice Ministry, strongly objecting to amending the PPOA. But some of their points do not seem to make much sense.

　　　　　Matsuo and his colleagues took issue with Abe for stating during a February 13 Diet session that “the NCSA governs the status of all government workers and can be reinterpreted as applicable to prosecutors as well.” Matsuo stated that Abe “sounded like the ghost of Louis XIV, who established an absolute monarchy in France, declaring: ‘I am the State.’” Matsuo further asserted that Abe’s decision “endangers the separation of powers, which constitutes the basic principles of Japan as a modern state.” There is little merit in these arguments.

　　　　　The rigid view that laws should never be reinterpreted would prevent us from dealing effectively with the realities of today’s world. It must also be understood that prosecutors are actually government employees serving as administrators and that the cabinet’s right to appoint and/or remove them as necessary certainly does not affect the separation of powers. Matsuo and others also rigidly stress that the government must honor “the well-established practice under which politicians have refrained from intervening in the prosecution’s authority to manage its personnel affairs.”

　　　　　Needless to say, the independence of the Prosecutors Office must strictly be honored. But it will be a serious problem if a powerful Prosecutors Office self-righteously manages its personnel affairs at will without heeding the opinions of the cabinet, which has the authority to appoint and dismiss prosecutors under existing law. Any assertion oblivious of this fact could very well lead to a form of “prosecutors’ fascism”—in line with the archaic expression Matsuo quoted Louis XIV as using: “I am the State.”

　　　　　Will our lawmakers be able to conduct calm discussions on the proposed amendments in the next Diet session? I am anxious to see what next steps the opponents of the amendments will take, including the tactics they will employ to manipulate public opinion through social media.
(The End)

(Translated from “Renaissance Japan” column no. 902 in the May 28, 2020 issue of The Weekly Shincho)