Retirement Extension of the Superintending Prosecutor
Professor, Faculty of Law, Chuo University
Area of Specialization: Administrative Law
On February 7, 2020, the government decided to postpone the retirement of the Superintending Prosecutor of the Tokyo High Public Prosecutors Office by six months. The postponement of the retirement of a prosecutor is unprecedented. As many newspapers are reporting, this is because traditionally, it was considered that the retirement of public prosecutors could not be postponed under the Public Prosecutor's Office Act and the National Public Service Act. The government's position is that the decision above is made possible by changing the traditional interpretation. However, this change in interpretation is being criticized as breaking the rule of law. Let's take a look at the articles. The Public Prosecutor's Office Act stipulates that "the prosecutor general retires at the age of 65, while other prosecutors retire at the age of 63" (Article 22). There is no provision in the act regarding the postponement of retirement. In contrast, the National Public Service Act stipulates that "personnel retire when they reach the age of retirement unless otherwise provided by law" (paragraph (1) of Article 81-2), and defines the retirement age of general public servants as 60, in principle (paragraph (2) of the same article). Additionally, regarding the postponement extension of retirement, the National Public Service Act stipulates that "when a personnel reaching the age of retirement must retire under the provision in paragraph (1) of the previous article, the appointer" under certain conditions "can set a period not to exceed one year to continue to have the personnel engage in the given duty" (paragraph (1) of Article 81-3). Reading both articles of the National Public Service Act word for word, the postponement of retirement can be interpreted as being accepted only when retiring under the "provision in paragraph (1) of the previous article." Under the "provision in paragraph (1) of the previous article," "unless otherwise provided by law" is excluded. It can be interpreted that the provision regarding the extension of retirement under the National Public Service Act does not apply to retirement under the Public Prosecutor's Office Act, which is what is otherwise provided.
The logic behind the government's interpretation appears to be that, since prosecutors are general public servants with no provisions for the postponement of their retirement in the Public Prosecutor's Office Act, which is a special law, the provision regarding the postponement of retirement in the National Public Service Act, which is a general law, applies. It is clearly stated in the provisions of both the National Public Service Act and the Public Prosecutor's Office Act that the relation between them is that of general law and special law. Supplementary Article 13 of the National Public Service Act stipulates that "regarding general public servants, when they require special provisions for this Act based on particularities of their duties and responsibilities, they may be stipulated in ... a separate law," while Article 32-2 of the Public Prosecutor's Office Act states that "this Act,...its provisions...in Article 22, stipulates the special provisions for the Act based on particularities of the duties and responsibilities of prosecutors under the provisions of Supplementary article 13 of the National Public Service Act (Act No. 120 of 1947). The Public Prosecutor's Office Act has a retirement system established for prosecutors based on the particularities of their duties and responsibilities. Even if the relation between them is that of general law and special law, interpretation should be based on the particularities of the duties and responsibilities of prosecutors.
The duties and responsibilities of prosecutors are their quasi-judicial roles. If prosecutor's powers are affected politically and do not function properly, neither will judicial power. The separation of prosecutor's powers was preached since before the war. "Kensatsucho ho gairon (Introduction to the Public Prosecutor's Office Act)" (Kokuritsu shoin, 1948) by Masakichi Yasuhira describes the background to the proposal of the Public Prosecutor's Office Independence Bill (1938) to the Imperial Diet as follows: "As soon as a person with strong party ties assumes the position of leading the Public Prosecutor's Office as a minister of state, the risk of his political or administrative perspective interfering to a certain extent with his work as a prosecutor was expected, which led some to consider measures to prevent such risks (even though such situation did not exist)" (page 6 to 7). The book also continues to state "in other words, as with judicial power, prosecutor's powers must be independent from general administration. Such power must not be controlled by politics and administration of the times, and if we allow this, the duty of prosecutor to maintain justice cannot be accomplished" (page 7). At the time, the retirement age was 65 for the prosecutor general and 63 for other prosecutors according to Article 80-2 of the Court Organization Act (1890). This is similar to the current system, but the article stipulates that "however, the Minister of Justice may have them remaining in office for a period of three years or less. "In other words, under the old system, the Minister of Justice could decide to extend the retirement of prosecutors, while under the Public Prosecutor's Office Act established in 1947, provisions regarding the extension of retirement were deliberately not established.
Prosecutor's powers constitute part of administrative powers, and administrative powers belong to the Cabinet (Article 65 of the Constitution). The Minister of Justice, who is a member of the Cabinet, shares and manages "matters regarding prosecution" (paragraph (1) of Article 3 of the Cabinet Act, paragraph (1) of Article 5 of the National Government Organization Act, and item (vii) of Article 4 of the Ministry of Justice Establishment Act), and the Public Prosecutor's Office is positioned within the Ministry of Justice and is considered a "special organization" specified under the Public Prosecutor's Office Act (paragraphs (1) and (2) of Article 14 of the Ministry of Justice Establishment Act). The special organization (Article 8-2 of the National Government Organization Act) differs from the Office, which is an external bureau of a ministry, and is an organizational form used when there is a certain level of independence expected (Isao Sato, "Gyosei soshiki ho (Government organization law) [new edition, enlarged]" (Yuhikaku, 1986) page 160). In general, Ministers can issue instructions and notifications regarding work under their jurisdiction to organizations and personnel under their jurisdiction (paragraph (2) of Article 14 of the National Government Organization Act), and personnel are obliged to follow them (paragraph (1) of Article 98 of the National Public Service Act). However, Article 14 of the Public Prosecutor's Office Act states that the Minister of Justice "can direct and supervise prosecutors in general," but with the proviso that "only the prosecutor general can be directed for investigation and decision in individual cases," limiting the power of the Minister of Justice. According to Shigemitsu Dando, an authority on criminal law (professor emeritus at Tokyo University and former Supreme Court Justice), under Article 14 of the Public Prosecutor's Office Act, the prosecutor general also is subject to the direction and supervision of the Minister of Justice from a legal perspective, but in reality, a rather strong check function is expected with regard to unjust direction and supervision (Shigemitsu Dando, "Homu daijin to kenjisocho no kengen (Power of the Minister of Justice and Prosecutor General)," Jurist No. 32, p. 24-), and in some cases, the prosecutor general can even risk his/her career when stopping such directions ("Zadankai: Homu daijin no shikiken hatsudo (Discussion Meeting: Exercising of the Minister of Justice's Authority)," Jurist No. 58, p. 2- [comment by Shigemitsu Dando]). Additionally, Shigeki Ito, who served as prosecutor general, argues in his book "Shinpan kensatsucho ho gaisetsu (Outline of the Public Prosecutor's Office Act)" (Ryosho fukyu kai, 1986) that "in the unfortunate event when the opinions of the Minister of Justice and prosecutor general do not agree regarding the direction of the Minister of Justice, it is not acceptable for the prosecutor general, who represents prosecutor's powers, to blindly follow unless the direction is illegal"(page 92). Predecessors in various fields paid attention not only to the mechanism and interpretation for protecting the independence of prosecutor's powers, but also to the mindset regarding prosecutor's powers, and their work must be highly regarded.
Let's go back to the interpretation of the provision regarding the extension of retirement in the National Public Service Act. Based on an interpretation method that is true to the language and sentences of legal norms (literal interpretation) or an interpretation method which systematically harmonizes multiple legal norms (systematic interpretation), it seems impossible to justify this change in interpretation. However, generally speaking, when a reasonable conclusion cannot be found through literal or systematic interpretation, interpretation based on the purpose of the legal norms (teleological interpretation) may be inevitable. Regarding what the purpose of the law is, there is conflict between the will of the legislature theory, which considers it to be the purpose of the legislature when they made the law, and the will of the law theory, which considers it to be the purpose of the law in society today (Kiyoshi Igarashi, "Hogaku nyumon (Introduction to Law) [fourth edition, newly bound edition]" (Nippon Hyoron sha, 2017) p. 145-). In any case, there is no reason for the purpose of the law not to be achieved unless the interpretation is changed. Rather, it will defeat the purpose of the law, which is the independence of prosecutor's powers.
Professor, Faculty of Law, Chuo University
Area of Specialization: Administrative Law
Hirotaka Tokumoto was born in 1967, and brought up in Ishikawa prefecture. He graduated from the Faculty of Laws of Kanazawa University in 1992. He completed the SENSHU (LL.M.) master's course program at the Division of Law and Politics of the University of Tokyo Graduate School, in 1994. He withdrew from their doctoral program upon completing the course requirements in 1998.
He assumed his current post in 2017 after assuming his position as a full-time lecturer since 1998 and assistant professor since 2001 at the Faculty of Law of Meiji Gakuin University, an associate professor since 2007 and a professor since 2011 at the Faculty of Urban Liberal Arts of Tokyo Metropolitan University. His research include a comparative study of administrative law as well as the legal system associated with academic research activities. His major publications include "Gakumon, Shiken to Gyoseihogaku (Academics/Examinations and Administrative Law)" (Koubundou, 2011).