The Cheat Sheet

Carlos Ghosn and the limits of criminal justice systems

Venky Vembu | Updated on January 02, 2020 Published on January 02, 2020

Boy, did he take off!

You bet. Carlos Ghosn’s ‘escape velocity’ as he fled from Japan, where he is under trial for alleged financial misconduct, was faster than anything achieved by any car from Nissan Motor Co, which he headed.

How did he escape?

It’s not clear, but it appears from preliminary reports that Ghosn, who was out on a $9-million bail, was ‘smuggled out’ in a biggish music box after a Christmas band came to perform at his Tokyo residence. He appears to have taken a private jet to Istanbul and then onward to Beirut, where as a Lebanese citizen, he was allowed in, presumably even without a passport.

Can he be extradited?

Japan does not have an extradition treaty with Lebanon; in any case, Lebanon is unlikely to cooperate with Japanese authorities.

Case closed?

Japanese authorities have very little leverage, particularly because the Japanese criminal justice system has drawn unflattering international attention, particularly after Ghosn’s arrest in November 2018.

What’s wrong with it?

It may not seem abnormal for anyone familiar with how the wheels of criminal justice spin in India, but Japan’s system is criticised as hitojichishiho (“hostage justice”), wherein the accused can be detained for extended periods and subjected to rigorous interrogations. Human Rights Watch noted in April 2019 that Japan’s criminal justice practices — “stretching suspects’ detention until they confess, forcing detainees to face investigators’ questions without the presence of lawyers and stripping them of their right to remain silent, and coercing them to confess including false confessions — have long been... a cause of wrongful convictions.” The conviction rate in criminal cases is an astounding 99.8 per cent.

Isn’t that a good thing?

Not if you know how the convictions were secured. In 1989, shortly before he retired after 40 years as a High Court judge in Osaka, Takeo Ishimatsu triggered consternation when he disclosed that in Japanese courts, criminal trials were merely a “formal ceremony”, and the prosecution pretty much has its way. Other legal scholars have branded the system as “diseased”. All this was highlighted in a sensational enzai (false charge) case involving professional boxer Iwao Hakamada. He was sentenced to death in 1968 for a mass murder but was granted a retrial and released in 2014 on the ground that the case had been falsified.

So Ghosn did right?

No, but the rich have ways of escaping criminal justice systems around the world. Nearer home, after the 1984 Bhopal gas tragedy, Union Carbide chairman Warren Anderson jumped bail and escaped trial, evidently after US authorities arm-twisted the Rajiv Gandhi government. And in 1993, Italian businessman and Bofors accused Ottavio Quattrocchi slipped away from India, again with the Congress government’s help. There’s also Vijay Mallya, Nirav Modi and Mehul Choksi, among others. These days, there is even a “global club” that helps corporate honchos escape prosecution for their crimes.

Tell me more.

After an 18-month investigation, BuzzFeed News established in 2016 that the investor-state dispute settlement (ISDS) mechanism, designed to arbitrate between countries and foreign companies that do business within their borders, was being abused to thwart countries’ attempts to prosecute corrupt CEOs or ban pollution. Companies typically turn to the ISDS ‘super court’ and sue the country for billions of dollars — to the point where even the threat of a suit increasingly forces countries to bend to the corporates’ will.

Bottomline?

Ghosn says he fled to “escape injusice”; but even in situations where they are clearly in the wrong, corporate leaders have the extraordinary privilege of escaping the consequences of their criminal actions.

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Published on January 02, 2020
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