A New Event for the 2020 Tokyo Olympics –The Bribery Cover Up Marathon
In recent days several news outlets have reported that the French financial prosecutor is investigating the possibility that the 2020 Olympics were awarded to the city of Tokyo because of a bribe. Articles on this topics are here, here, and here. In short, the reports assert that a member of the International Olympic Committee, Lamine Diack, is suspected to have voted for Tokyo to host the 2020 Olympics after he was paid a bribe by someone associated with the Tokyo bid to host the 2020 Olympics.
Clearly, an allegation that a person or persons responsible for Japan’s bid for the 2020 Olympics paid a bribe or bribes will be politically sensitive in Japan. Already, the Chief Cabinet Secretary of Japan, Yoshihide Suga, told the press, “I am confident that our bid was conducted in a clean manner”. Suga is one of the highest officials in the Japanese government. The fact he quickly denied a bribe before he had time to conduct an investigation shows the Japanese government wants this allegation to disappear. This is likely because many famous, influential, and respectable members of Japan’s elite (business, government, acadamia, etc.) are associated with the Tokyo 2020 Olympics. These people could suffer reputational damage if the bribery allegations are true. These people do not want an investigation of the bribery charges.
But Suga may have spoken too soon. A few days after Suga vouched for the integrity of Tokyo’s 2020 Olympic bid this article appeared in the English language Mainichi newspaper. Here is the money quote from the article, “Tsunekazu Takeda, president of the Japanese Olympic Committee, suggested he does not know how 230 million yen that the 2020 Tokyo Olympics and Paralympics bid committee paid to a Singaporean company was used.”
The purpose of this post is neither to review the facts surrounding the allegations of the bribe nor to assess the veracity of the allegations. Instead, this post will examine what could transpire if the French financial prosecutor should request investigative cooperation from appropriate criminal investigative agencies in Japan.
As it turns out, there is an “Agreement between the European Union and Japan on mutual legal assistance in criminal matters”. Hereinafter referred to as the MLA (Mutual Legal Assistance Agreement). A link to a PDF of the agreement is here.
A Bribe by Any Other Name…
If there is any universal principle governing provision of criminal investigative assistance by one government to another it is the concept of Dual Criminality. In the case of the reported criminal investigation by France of allegations of bribery Japan would be under no obligation to assist France if bribery was not a crime in Japan. And indeed, Article 11 (2) of the MLA linked above specifies this as a basis for a party to the MLA to refuse a request for investigative assistance from another party.
Now the fun begins! Bribery in Japan is illegal and the media reports that bribery in France is illegal. As reported in the press, the bribe funds were sent from Japan to a bank account in Singapore. The French likely will want the money transmission records from the bank in Japan. If the Japanese criminal investigators are enthusiastic about the investigation they will proceed to procure the bank records and provide them to the French under the terms of the MLA. However, if the Japanese criminal investigators feel pressure from their betters to limit their cooperation with the French investigation they could decline to assist based upon the following basis. The bribe money was paid in Singapore, not in Japan. Only a transfer of funds occurred in Japan and transfers of funds are legal in Japan. Therefore, the request from the French does not meet the dual criminality standard and Japan will not provide the bank records. And for a final flourish, the Japanese criminal investigators could tell the French to contact the government of Singapore since it is alleged the payment of the bribe funds occurred there.
But the “dual criminality” excuse can look flimsy. And in Japan appearances are as important as anywhere else. If the Japanese criminal investigators are under serious pressure to protect perpetrators in Japan but they want to maintain the appearance of cooperation they can use another time tested Japanese technique to keep the French at bay.
Anyone who has lived in Japan knows the “yes, but…” technique. A request is made by a foreigner to someone who is Japanese and the Japanese person does not want to fulfill the request. But neither does the Japanese person want to openly reject the request. Hence, the “yes, but…” reply. In short, the Japanese will agree to the request “but” point out a reason to delay fulfillment. As it turns out, the MLA contains a wonderful “yes, but…” clause. Article 10 (3) of the MLA allows Japan to postpone a request because it will interfere with an ongoing criminal investigation in Japan. This is a great technique for Japan to use because it simultaneously gives the appearance that Japan is “shocked, shocked!” at the allegations of bribery and vigorously responding while keeping the French at arms length for as long as they want. No time limit is specified for a postponement under Article 10 (3).
The Bobby Fischer Check Mate
Some readers might scoff at the notion the Japanese government would dodge and weave and do whatever it can to deny the cooperation France might request. But remember, it is likely very influential Japanese citizens could be dragged into the bribery investigation. These influential people will likely put as much pressure as they can on the Japanese government to stop the investigation.
And the Japanese government has slipped out of cooperating with foreign criminal investigation requests before. Consider this Wikipedia article about Bobby Fischer, a U.S. citizen chess champion. The information relevant to this post is a paragraph about halfway down the page entitled, “Detention in Japan”. Briefly stated, Fischer, as a result of a valid criminal investigative request from the U.S., was arrested in Japan. As a U.S. citizen he should have been deported to the U.S. promptly. However, the Japanese government prevaricated for months. Ultimately, and after the U.S. requested his deportation, Iceland granted Fischer citizenship. The Japanese government used Fisher’s newly granted Iceland nationality as a reason to deport Fischer to Iceland instead of to the U.S. Needless to say, in Iceland Fischer lived as a free man.
If the French government intends to request criminal investigative assistance from the Japanese government to investigate allegations the 2020 Olympics were awarded to Tokyo due to a bribe it would do well to study the case of Bobby Fischer.