On January 17, the Washington Post published an opinion piece by Jeff Kingston, a professor at Temple University Japan, under the title “Brand Japan is taking a hit.” The nominal purpose of this article appeared to be informing an audience that the arrest of Carlos Ghosn and recent reports of misogyny in Japan are harming the image of Japan. In his concluding sentence, though, Kingston writes, “Alas, the old, conservative, male elite that still dominates Japanese society is betraying Brand Japan along with the aspirations of women and young Japanese.”
Leaving aside the question of whether this assertion is valid, is this not a message for the Japanese people to be delivered in the Japanese language, rather than to an American audience that presumably already has its image of Japan tainted by those who are in Britain termed “pale, male, and stale”?
As far as I have been able to determine, Kingston has written nothing in Japanese for Japanese readers. This is despite a voluminous output of commentary in English purporting to tell the Japanese in general and Prime Minister Shinzo Abe in particular that they ought to do this, that, and the other thing.
Not only does Kingston not write in Japanese for a Japanese audience, judging by the references in his more nominally academic writing about Japan, he does not read Japanese. In his essays in his Press Freedom in Contemporary Japan (Routledge, 2016) there are no references to Japanese language articles, not even to articles that might support his claims. Further, as shown below, he has not read widely or carefully in even the English language reports pertaining to the arrest of Ghosn.
Grading His Essay
In what follows, I provide commentary on the first half of Kingston’s essay much in the manner I have done for undergraduate students’ essays over nearly four decades teaching Japanese history and sociology. In this, I (EHK) limit myself to what Kingston (JK, in boldface) has to say about the Ghosn case because what constitutes misogyny is highly subjective and because the Ghosn case is more timely.
(JK) Pity Carlos Ghosn. Japanese prosecutors have denied bail to the jailed former Nissan chief executive, extending his two months in pretrial detention where he is subject to up to eight hours of interrogation a day without access to legal counsel.
(EHK) He has access to legal counsel, although he does not have counsel present while being questioned. The French system (and other continental legal systems) do not necessarily allow lawyers to be present during questioning or require them to remain silent. A New York Times article noted this fact and it is explicitly stated in a British government advisory for British nationals arrested in France.
If Ghosn was a foreign national arrested in France, he would have little chance for bail and, according to a British government publication, foreign nationals typically spend 24 months in pretrial detention. In the case of Brazil, it is 18 months. In Lebanon, “you can be held on remand indefinitely without specific charges being brought.” In other words, Ghosn is not necessarily worse off in Japan than a foreign national would be in any of the three countries where he holds citizenship.
Bail is, moreover, a system of extreme class inequity. For that reason California recently abolished cash bail and moved to a system that gives judges great (some say too much) latitude in deciding on conditional release. Nearly one-quarter of the enormous U.S. prison population is made up of people who cannot make cash bail.
(JK) By wearing him down psychologically, prosecutors are trying to coerce the Franco-Brazilian-Lebanese executive into signing a confession drawn up in Japanese, a language he isn’t fluent in.
(EHK) Ghosn’s son has asserted that his father is being pressured to sign a confession. His former lawyer (Motonari Otsuru) has publicly denied this, saying, “Not once has Mr. Ghosn said to us he has any concerns about being asked to sign something in a language he doesn’t understand.”
(JK) From the time of his “perp walk” in handcuffs as he was escorted off his private jet until he appeared in court with a rope around his waist ….
(EHK) By using the American slang term “perp walk,” Kingston is inadvertently drawing attention to an American practice. Not only is it common in the U.S. that those charged with crime appear in handcuffs, they are often shackled and dressed in orange jumpsuits. Pregnant prisoners have been forced to give birth while handcuffed. Roger Stone, arrested in conjunction with the Mueller probe, appeared in court handcuffed and shackled.
According to the New York Times, “Rudolph W. Giuliani, then a federal prosecutor with a somewhat cavalier approach to the rights of the accused, built a tough-guy reputation by marching accused Wall Street types before the press.” The same article goes on to note, “One of the more famous walks of recent vintage involved Dominique Strauss-Kahn, who in 2011 was managing director of the International Monetary Fund and a likely candidate for the French presidency.” This produced outrage in France with numerous commentators describing the arrest as a lynching.
If Kingston’s goal is to present the Japanese approach as being out of line with “global standards,” introducing the American “perp walk” is a singularly odd way to do this.
(JK) He has been “prosecuted” by a cascade of leaks in the media that make his conviction appear inevitable. Indeed, less than 1 percent of defendants are acquitted, despite qualms in the legal community and civil society organizations about the extent of false confessions extracted under duress.
(EHK) Anyone who follows American court cases and investigations will know that leaks are hardly a Japanese peculiarity, as a Google search on “Trump leaks” will instantly confirm. Moreover, Japanese judges are generally described as being tone deaf when it comes to public sentiment, rather than being swayed by it.
The “less than 1 percent” acquittal rate, more usually stated as a 99% percent conviction rate, has been well explained by Harvard University Law School Professor J. Mark Ramseyer in a study published in 2001 and corroborated by all subsequent research on this subject. Japanese prosecutors simply do not go forward with cases they think they might lose. In practice they drop approximately 40% of possible criminal prosecutions rather than risk an acquittal.
There is, moreover, nothing particularly notable about a 99% conviction rate if U.S. Federal Courts are used as the comparative standard. They too have 99%-plus conviction rates. Some U.S. Federal Courts have a 100% conviction rate.
If there is any country that extracts confessions by duress, it is the United States, not Japan. Numerous sources state that 95% of criminal cases in the U.S. are handled by plea bargains. A plea bargain “is an agreement that, if an accused person says they are guilty, they will be charged with a less serious crime or will receive a less severe punishment.”
Plea bargains involve both coercion and duress. Often, agreeing to a plea bargain is a condition for getting bail. This is the duress part. The coercion comes from the risk you run in going to court under the charges prosecutors have lodged against you. Studies show that if you do go to court without having agreed to a plea bargain, you stand a high probability of being convicted and receiving a sentence more than twice as long as what you would have received otherwise (up to seven times longer for drug offenses). The American Civil Liberties Union and other groups are highly critical of U.S.-style plea bargains.
(JK) By global standards, the former chief executive of one of the world’s most profitable car company was not overpaid, but by Japanese standards, he was, and that’s the yardstick authorities are applying to his case.
(EHK) This statement is completely false. How much he was being paid is not at issue. He (and Nissan) has been charged with understating his compensation on a required financial report. False statements on financial reports are a serious legal matter in general, not just in Japan. Ironically, the reporting requirement that is at issue here was one introduced based on an American model and in response to foreign criticism that Japanese reporting requirements were too lax.
As for Ghosn being overpaid, there was actually more criticism of this in France than in Japan. In February of 2018 the Wall Street Journal reported that Renault shareholders and the French government had insisted that Ghosn take a 30% pay cut as a condition for getting a final two years as Renault CEO.
Agence France-Presse interviewed Renault workers after Ghosn’s January court appearance. Comments ranged from indifference to hostility. “He’s rolling in gold and doesn’t increase pay for his employees,” said one. Union official Philippe Gommard commented on Ghosn’s somewhat gaunt appearance: “I don’t think workers will be too upset that Ghosn has lost weight. On the contrary, given how employees work in this factory, their working conditions, and given how he is seen as always asking for more while always taking more for himself, I don’t think anyone here will miss him.”
He has also been the subject of satirical cartoons in the French press. One had him complaining that there were no gold flakes on his rice at the Tokyo Detention House.
Even before his arrest, Ghosn was being described as the personification of the “Davos man,” a not particularly positive image. Subsequent to his arrest, the same Wall Street Journal that had described his arrest and interrogation as an inquisition carried a long and detailed article documenting his extravagant lifestyle and use of Nissan-owned facilities for personal, non-business activities.
(JK) The puritanical zeal exhibited in the Ghosn case may play well to the domestic audience, which is apparently thrilled by the takedown of a greedy gaijin (foreigner).
(EHK) Kingston offers no evidence that the Japanese domestic audience was “apparently thrilled by the takedown of a greedy gaijin (foreigner)” and this assertion contradicts his previous accurate claim that Ghosn was “lionized” in Japan. It is also known that the whistleblower responsible for the investigation of Ghosn was not a Japanese but a gaijin.
(JK) Yet no such enthusiasm was evident in a number of recent Japanese corporate scandals such as Olympus (cooking the books), Takata (dangerous air bags) or Tokyo Electric Power (Fukushima fiasco).
(EHK) This is the single most bizarre sentence in this article. Clicking on the link for Olympus takes the reader to a BBC article that states, “Six executives sacked by Japan’s Olympus have been ordered to pay more than half a billion dollars in damages after a massive accounting fraud.” The link for Tokyo Electric Power takes the reader to an article in the Guardian describing how three former executives of the company are on trial for professional negligence.
That Japan did not prosecute Takata or its executives is irrelevant. Three Takata executives were prosecuted in the U.S. and the company fined one billion dollars. Further, the defective Takata airbags were manufactured by a subsidiary, not Takata itself, in Coahuila, Mexico.
(JK) Ghosn is also accused of submitting falsified documents. That, to be sure, is a serious offense. Yet last year prosecutors decided against indicting bureaucrats for tampering with documents submitted to the Japanese parliament that exonerated Prime Minister Shinzo Abe in a scandal involving a sweetheart land deal. Double standards?
(EHK) Quite possibly, but this is a whataboutism argument and the kind of thing that gets a “two wrongs don’t make a right” argument when I have the temerity to point out that Japan is not the only country with warts.
I have found that critics of Japan revel in comparisons that show Japan in a bad light. But as soon as I introduce a comparison that shows Japan no worse than another country, or even better, it elicits the response, “two wrongs don’t make a right” or “just because the U.S./UK or wherever is worse than Japan, that does not mean that Japan should not strive to be better.”
There is, moreover, a double standard in Kingston’s reference to the “sweetheart land deal” more usually referred to as the Moritomo Gakuen scandal. Kagoike Yasunori, 65, and his wife were held for 300 days in the same system that is holding Carlos Ghosn.
Although the Japanese press speculated that they were held solely to keep them from further embarrassing Prime Minister Abe, Kingston’s favorite target, I could find no evidence that Kingston expressed sympathy for their plight, let alone editorialized about it. To be sure, Kagoike and his wife are not a very appealing couple. But 10 months of incarceration for an alleged non-violent crime is still 10 months of incarceration, whether you are Japanese or a Davos man with French-Brazilian-Lebanese citizenship, $60 million USD in Nissan stock, and a declared income that was running at more than $340,000 USD per week at the time of arrest.
I would not accept something like Kingston’s piece as an undergraduate essay. I’d hand it back and say rewrite it. You don’t have to agree with me, but you need to demonstrate that any comparisons you make or imply between Japan and other countries are comparisons of Japanese reality with foreign reality, not comparisons of Japanese reality with foreign ideals.
Further, if there are numerous sources that do not support your thesis, cite them and explain why you think they are not relevant, don’t just ignore them.
Finally, if you are saying what the Japanese should or should not be doing, write in Japanese in Japanese language venues. Better yet, if you think your ideas would improve Japan: (1) naturalize and vote and (2) stand for election.
Naturalization is not difficult. Naturalized foreigners have been elected to the Diet and local government office. Even if election attempts fail, giving stump speeches will enable more Japanese to get the message than if writers confine themselves to English-language venues.
Author: Dr. Earl H. Kinmonth