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1980 doc shows Japan gov't ruled out retirement extensions for prosecutors

Justice Minister Masako Mori answers a question during a subcommittee meeting of the House of Representatives Budget Committee, on Feb. 25, 2020. (Mainichi/Masahiro Kawata)

TOKYO -- A recently confirmed Japanese government document stipulates that the extension of the retirement age for state officials under the National Public Service Act does not apply to public prosecutors, raising the possibility that the Cabinet decision to extend the tenure of Japan's No. 2 public prosecutor beyond the mandatory retirement age of 63 is illegal.

The document, dating back to 1980, was found at the National Archives of Japan by an opposition lawmaker and was confirmed by the Mainichi Shimbun. The finding comes amid mounting criticism over a decision by Prime Minister Shinzo Abe's government to reinterpret the law to extend the tenure of Hiromu Kurokawa, superintending prosecutor at the Tokyo High Public Prosecutors Office, effectively opening the way for him to be promoted to Japan's top prosecutor post in the future. Kurokawa is viewed as being close to the Abe government.

The document was found by independent lawmaker Hiroyuki Konishi among records of deliberations on bills that the Cabinet Legislation Bureau compiled. In the October 1980 document, titled "A list of potential (Diet) questions and answers on a bill to revise part of the National Public Service Act (on the mandatory retirement system)," the personnel affairs bureau of the then General Administrative Agency of the Cabinet states that "the extension of (prosecutors') retirement is excluded." The bill to revise the National Public Service Act was put to Diet debate the following year.

The official documentation underscores the government's long-held position that prosecutors must be excluded from the postponement of retirement for national public servants, just as the government had stated in the Diet in the past. Opposition parties grilled the government during a Diet session on Feb. 25, with one lawmaker saying, "There is no room for applying the retirement extension to prosecutors, increasing the likelihood that the Cabinet decision was illegal." The Cabinet on Jan. 31 approved extending Kurokawa's tenure by six months until Aug. 7, 2020, a decision that came just a week before he turned 63 on Feb. 8.

One of the anticipated Diet questions listed in the document states, "With regard to prosecutors and university faculty, is the special provision warranted only for their (retirement) age? Or are they entirely excluded from the mandatory retirement system (under review) this time?" The planned answer states that prosecutors and university faculty will "be excluded from the application of the system for retirement, special retirement, extension of employment and reappointment."

The paper also states that "To easily apply an extension of employment runs counter to the purpose of the mandatory retirement system," and that "It is undesirable, from a viewpoint of ensuring fairness, for the application (of the law) to vary among ministries and agencies."

In regard to the mandatory retirement system under the National Public Service Act, the National Personnel Authority (NPA) in 1981 told the House of Representatives Cabinet Committee session, "The retirement age of prosecutors is already set (under the Public Prosecutor's Office Act), and the mandatory retirement system (under review this time) will not be applied." The statement is consistent with the effect of the government document recently found in the National Archives in Tokyo's Chiyoda Ward.

A document stating that the extension of retirement under the National Public Service Act does not apply to prosecutors, is seen at the National Archives of Japan in Tokyo's Chiyoda Ward on Feb. 25, 2020. (Mainichi/Shinnosuke Kyan)

However, during a lower house Budget Committee session on Feb. 20 this year, Justice Minister Masako Mori pointed out that the NPA's 1981 statement lacked clarity and said, "There is no document that directly mentions" whether it is possible to extend the retirement age of prosecutors. "The Justice Ministry, which oversees the Public Prosecutor's Office Act, interpreted that (the retirement age of prosecutors can be extended)," Mori told the Diet.

During a subcommittee session of the lower house budget panel on Feb. 25, Yuichi Goto of the opposition Democratic Party for the People attacked Mori, by pointing to the existence of the 1980 document and noting, "This clearly contradicts your statement." Goto demanded that Mori retract her Feb. 20 Diet declaration.

The justice minister, however, refused to withdraw her earlier statement, remarking that she had already heard of the content of the 1980 document.

"The list of potential questions and answers does not clarify the detailed processes and reasons for interpreting (that prosecutors are excluded from the retirement extension)," Mori countered. "By taking social circumstances into account as well, the National Public Service Act is applied in extending the retirement of (prosecutors)," she said.

When reached by the Mainichi Shimbun, Konishi, who belongs to a parliamentary alliance led by the main opposition Constitutional Democratic Party of Japan, slammed the Justice Ministry, saying, "This is not a reinterpretation of the law, but a fabrication of the legal interpretation."

While the Public Prosecutor's Office Act stipulates that prosecutors must retire by the age of 63, except for the prosecutor-general, whose retirement age is set at 65, the National Public Service Act allows the government to extend the mandatory retirement age of national government officials by no more than one year if the retirement of an official could seriously hinder the execution of public duties.

(Japanese original by Daisuke Nohara, Political News Department, and Shinya Oba, Integrated Digital News Center)

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