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Japan’s Justice, Ghosn Too Far

Carols Ghosn.
Carlos Ghosn (detail of a 2010 promotional image for the Nissan Leaf).
Image courtesy Nissan Motor Co. Ltd, via Wikimedia Commons.

Carlos Ghosn’s cinematic escape from Japanese detention brings the drama of the fallen CEO to a close, but humiliated authorities in Tokyo are already writing the script for a sequel in which Ghosn’s wife will play a bigger part.

They might call it “Going, Going, Ghosn 2: Hostage Justice.”

Carole Ghosn joined her husband in Lebanon after he jumped bail and escaped de facto house arrest in Tokyo. The Wall Street Journal has reported that Ghosn was smuggled out of Japan on a private jet while hidden in a musical equipment case with specially drilled air holes. After a connection and transfer to a smaller private plane in Turkey, he arrived in Lebanon, where both Ghosns hold citizenship. Lebanon has no extradition treaty with Japan.

Prosecutors in Tokyo this week issued an arrest warrant for Carole Ghosn, accusing her of perjury in a statement she gave voluntarily in April. A spokeswoman for Carole Ghosn called the move “pathetic,” which seems about right. Carole Ghosn has been an outspoken advocate for her husband’s innocence, which alone offended Japanese prosecutors (who rely on extensive pressure to extract confessions). Then there was the embarrassment of her husband’s escape from what he called a rigged system. The charge against Carole Ghosn seems intended mainly to allow the embarrassed law enforcers in Japan to save face. It is also likely an attempt to maximize the pressure and inconvenience on the Ghosns in their refuge in Beirut, and potentially to restrict their travel. Carole Ghosn holds a U.S. passport, and Japan does have an extradition treaty with the United States.

Ghosn ran automaker Nissan Motor Co. until his arrest – or, rather, until his first arrest – in 2018. Between that November and the following April, Japanese prosecutors arrested Ghosn four separate times. Each time reset the clock, allowing authorities to hold him for up to 23 days without an indictment. Prosecutors accused Ghosn of financial misconduct, charges which he has consistently denied. The third of the four arrests came in late December 2018, so Ghosn had to spend that Christmas in jail. A year later, Ghosn was under house arrest in Tokyo, having finally won a fight for bail. Yet the Tokyo District Court barred Ghosn from seeing or speaking to his wife, except on limited occasions in front of Ghosn’s lawyer.

When Ghosn was first arrested in November 2018, I expected Tokyo prosecutors to proceed cautiously. More than half of Japanese arrests are dismissed without indictment, reflecting prosecutors’ belief that they do not have a strong enough case to take to trial. Yet of the cases in which charges are ultimately brought, convictions occur in over 99% of court proceedings. Judges in Japan do not like to get on prosecutors’ bad side. Those prosecutors are also free to use high-pressure tactics to try to extract confessions, as they did against Ghosn. These may include long detentions without charge, multiple arrests and grueling interrogations lasting as long as 12 hours at a time.

There are uncomfortable echoes of Japan’s prewar authoritarian past in the way justice is administered there. It is not on a par with justice in China or Vietnam – places where a mere arrest is tantamount to a conviction in the great majority of cases – but it is far from our U.S. concept of justice. We are accustomed to justice being dispensed before impartial judges, under an adversarial system where the defense has substantial power to challenge law enforcement’s conduct and to confront accusers.

As a rule, bail-jumping is not a behavior worthy of applause. Ghosn’s case is the exception. Nothing about the way he was treated in Japan would strike a disinterested observer as fair or proportionate. From the beginning, the case has smacked of a boardroom coup with nationalist overtones, in which other executives at Japan’s Nissan sought to block a merger with France’s Renault, which Ghosn – who ran both companies in an alliance with Japan’s Mitsubishi –was preparing to advocate. Ghosn told Fox Business that he has evidence that such a corporate coup was underway. Criminal courts are not a good place to settle commercial disputes in the first place. Japan’s criminal court has proved even less suitable than others.

The entire affair has already blackened Japan’s reputation in the global business community. As often happens with sequels, the next installment is likely to fall short of whatever standard its forerunner achieved.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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