The Abuse and Misuse of the Principle of Prosecutorial Unity: Lessons from Japan's Lockheed Scandal

Focusing on the Lockheed scandal, the author first draws upon the Japanese prosecution system's application of the principle of prosecutorial unity in investigating this case to comparatively illustrate our country's misuse and abuse of the prosecutorial unity system.

Background Story

Around 1972, the U.S. Lockheed Corporation sold three types of aircraft produced by the company to Japan's All Nippon Airways. Mediated by Hiyama Hiroshi, president of Japan's Marubeni Corporation, a bribe of 500 million yen was delivered to Prime Minister Tanaka. The case broke out on February 4, 1976, due to a public hearing held by the U.S. Senate. Prime Minister Tanaka had already announced his resignation as Prime Minister on November 26, 1974, before the news broke. Based on the principle of "prosecutorial unity," Fuse Ken, Prosecutor-General of the Supreme Public Prosecutors Office of Japan, personally directed a meeting on February 18, 1976, of 19 senior officials from the Supreme Public Prosecutors Office, the Tokyo High Public Prosecutors Office, the Tokyo District Public Prosecutors Office, and the Ministry of Justice, assigning respective responsibilities for the investigation. Finally, on August 16, 1976, Mr. Tanaka was indicted for accepting bribes in breach of official duties and violating the Foreign Exchange Control Law.

Coordinating to Uncover the Truth

The social function of prosecutors lies in performing the task of "gathering evidence." For simple cases—such as drug use, a simple theft case, or drunk driving—the evidence-gathering operation is not complex; therefore, generally speaking, a single prosecutor can complete the evidence-gathering operation independently or by directing police and investigative personnel to confirm the factual truth of the case. However, for more complex cases—such as syndicate smuggling, collective corruption, or a theft ring—multiple parties are often involved in simultaneous evidence-gathering operations. In such cases, if handled solely by a single prosecutor or a single investigative unit, it is naturally difficult to complete comprehensive evidence-gathering. Therefore, multiple prosecutors or investigative units must coordinate with each other in gathering evidence to uncover the factual truth of the entire case. Hence, "prosecutorial unity" is indeed necessary for investigative agencies. In this case, the Japanese Special Investigation Department investigated the Lockheed scandal led by Prosecutor-General Fuse Ken, completing the evidence-gathering for the illicit receipt of bribes behind the scenes. The operation of "prosecutorial unity" was fully brought into play.

Characteristics of Collaborative Case Handling

Theoretically, every prosecutor possesses equal investigative powers, and there is no issue of preemptive investigative power. For ordinary cases, generally speaking, a single prosecutor can complete the investigation independently without needing to resort to the system of prosecutorial unity. However, for major and complex cases, reliance must be placed on the collaborative investigation of multiple prosecutors. At this time, it is necessary to cooperate with the system of prosecutorial unity, pooling the evidence-gathering strength of everyone, which is naturally more effective in fulfilling the social function of prosecutors than fighting alone. Therefore, the characteristic of prosecutorial unity lies in collaborative case handling; without collaborative case handling, the issue of prosecutorial unity does not even arise. Consequently, the following circumstances should be deemed inapplicable to prosecutorial unity: 1. Operations not based on the purpose of "gathering evidence"—The social function of the prosecution system lies in investigating crimes and instituting public prosecutions; a disposition of non-prosecution should only be rendered when the evidence of a crime is insufficient. Therefore, operations conducted not to achieve the purpose of gathering evidence clearly run counter to the essence of prosecutorial unity and are not subject to prosecutorial unity. 2. Purely legal opinions—The function of prosecutorial unity lies in collaborative evidence-gathering to ascertain the factual truth of individual cases. Therefore, since purely legal opinions are not aimed at understanding individual case facts, the issue of prosecutorial unity should not apply; otherwise, it would not only cause the application of the law to be manipulated but also hinder the development of legal science. 3. Public prosecution cases in court—Once a case is instituted with a public prosecution and pending before the court, prosecutors independently exercise their powers vis-à-vis the court. At this point, operations of prosecutorial unity can no longer be exercised. If the application of prosecutorial unity were to intervene again, any courtroom arguments made by prosecutors would have to await a consensus formed within the prosecution system, which is fundamentally incompatible with the nature of courtroom proceedings.

Mutual Encroachment Between Prosecution and Investigation

A collaborative case-handling approach inevitably requires a commander responsible for assigning tasks and pooling intelligence. Theoretically, it is naturally more ideal for a senior official to act as the commander. The Lockheed scandal in this case was directed overall by Prosecutor-General Fuse Ken, representing a typical manifestation of prosecutorial unity.

Comparing this with our country's practice, in the investigation of major special cases, instances of mutual encroachment between prosecutors and investigative agencies are heard from time to time. Although theoretically different units can coordinate with each other to conduct joint investigations, because the sources of intelligence tips differ among various units, if mutual trust is not established in ordinary times, it is temporarily difficult to achieve joint integration. However, among prosecutors, since there are no performance-rating issues, it is relatively easier to reach a unified investigation among one another to obtain more complete intelligence. If this situation occurs within the same district prosecutors office, based on the spirit of "prosecutorial unity," a specific prosecutor's division can be assigned to direct the special project, with other prosecutor's divisions assisting in the investigation. After the special project concludes, the prosecutor in charge of direction will indict the case under their own name. In current investigative practice, multiple prosecutors frequently divide labor and cooperate on major special cases, embodying the spirit of prosecutorial unity. As for cases similar to Japan's Special Investigation Department, where the Prosecutor-General directs a special project, such instances are rarely heard of in our country.

Elite Prosecutors Responsible for Investigation

Based on the principle of prosecutorial unity, the person responsible for overall investigative command must bear full responsibility; that is, the person in charge must sign the indictment and bear full responsibility for the investigative outcome, shouldering the honor and disgrace of the investigation results. Therefore, this also means that if the investigation succeeds, one can enjoy a higher level of command; conversely, if it fails, the position of the person in charge will likewise be indefensible.

Under this kind of prosecution system, those capable of serving as investigative commanders must be elite prosecutors in investigations.

Therefore, in the investigation of this Lockheed scandal, Prosecutor-General Fuse Ken declared: "I will bear full responsibility, and I hope everyone will make every effort to investigate." This responsible attitude fully brought out the spirit of prosecutorial unity. This point is likely unimaginable in our country.

In our country's prosecutorial practice, after a prosecutor concludes an investigation, the prosecutor must first submit the documents of the investigative results to a senior prosecutor, reviewing prosecutor, or chief prosecutor for review. However, this does not mean that the senior prosecutor or chief prosecutor must bear responsibility for the investigative results; the prosecutor in charge of handling the case still signs the documents and bears sole responsibility for the investigative results. Meanwhile, the senior prosecutor or chief prosecutor reviewing behind the scenes does not share or assume investigative responsibility. The Prosecution Department of the Ministry of Justice once issued an interpretation via official letter (Fa-91-Jian-Si-Zi No. 0910019976 on May 24, 2002) describing this situation as "prosecutorial unity," which is fundamentally erroneous. In the administrative system, the affixing of a seal by the head of an agency signifies signing and taking responsibility. However, in the prosecution system, although the chief prosecutor or senior prosecutor must review the documents, they are not required to bear responsibility for the success or failure of the investigation. The only reasonable explanation is that the prosecution system has become bureaucratized, and its purpose is to facilitate administrative bureaucrats in controlling prosecutors' investigations. Therefore, comparing our country's and Japan's application of prosecutorial unity, our country can be said to have no prosecutorial unity characterized by hierarchical collaborative case handling.

Administrative Intervention in Judicial Control

Because our country's so-called "prosecutorial unity" is merely a means for administrative bureaucrats to control the judiciary, prosecutors are required to submit case files and evidence to senior prosecutors and chief prosecutors for review upon concluding any investigation. Consequently, prosecutors' investigative powers have frequently become tools manipulated by those in power.

Judicial administration is merely the policymaker, whereas investigative power is a part of judicial power; the two do not have a subordinate relationship. Before a policy is enacted into law, it possesses no regulatory effect, and prosecutors shall not exercise investigative power based on any policy. Conversely, after a policy is enacted into law, it binds all citizens—including those in power—and prosecutors should enforce the law fairly to manifest the fairness and justice of the judiciary. Therefore, demands by judicial administrative departments for the prosecution system to execute or suspend the execution of a certain law constitute acts of administrative interference in the judiciary.

In practice, to facilitate the control of prosecutors' exercise of investigative power, judicial administrative units have established departments such as research, evaluation, and statistics. However, judicial administrative personnel lack the competence to review whether prosecutors' exercise of investigative power is appropriate. As a result, emulating the administrative agency's method of closing official documents, they use whether the case serial number for an investigative case has been cleared as the standard to determine whether a prosecutor has closed a case, treating prosecutors like administrative staff members in a legal affairs section. This model of administrative intervention and control over judicial cases causes prosecutors to become lax in investigating cases and fearful of investigating cases, which runs entirely counter to the social function prosecutors ought to shoulder regarding the responsibility of "gathering evidence."

When Japan established its Special Investigation Department on May 14, 1945, the original intent of its founder, Baba Yoshitsugu, was "to center around seasoned prosecutors, supplemented by junior prosecutors, assistant prosecutors, and prosecutorial administrative officials, to establish an investigative unit for white-collar crimes and enable it to become a specialized organization to a certain extent." This conception fundamentally conflicted with the Allied occupation forces' advocacy that police should exercise investigative powers while prosecutors should be responsible for courtroom public prosecution activities. Subsequently, Japan's prosecution system demonstrated its investigative prowess in the Shoden scandal, finally persuading the Allied forces to consent to retaining the investigative powers of Japanese prosecutors. Reflecting on the past to understand the present, if our country's prosecution system continues to be manipulated by judicial administrative bureaucrats through personnel appointment powers over chief prosecutors and senior prosecutors to fetter prosecutors in exercising investigative power, the fairness of our country's prosecutors in exercising investigative power will find it difficult to gain the public's trust. If prosecutors' social functions cannot be manifested, the question of whether our country's prosecution system should be abolished will inevitably be raised and reviewed by the citizenry.

Controlling Prosecutors Means Controlling Political Power

Professor Lin Shan-t'ien once mentioned at a seminar on the reform of the prosecution system held by the Judicial Reform Foundation:

"In relatively backward places, whoever controls the military controls political power; in our place, whoever controls the prosecutors controls political power."

Legal systems exist in response to the spatial-temporal and qualitative-quantitative variations of the society of their time; the principle of prosecutorial unity is no exception. When those in power excessively manipulate the operation of prosecutorial unity, resulting in its misuse and abuse—and even triggering public distrust in the prosecution system—society will naturally generate new alternative systems in response. Both the Independent Counsel system in the United States and our country's Truth Commission are reactive products of society against the dysfunctional performance of the prosecution system, which is worthy of deep reflection by relevant stakeholders.