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Friday, Nov. 8, 2002
THE ZEIT GIST
The fight for equal protection of the law
Judgment could deal blow to discrimination
By BARRY BROPHY
Next Monday will be a red letter day for the issue of racial discrimination in Japan.
On that day, the Sapporo District Court will decide if a Hokkaido bathhouse acted illegally in denying entry to two foreign residents and one naturalized Japanese citizen on the grounds of their race.
The decision will be crucial in clarifying just how much Japan's foreign population is legally protected against racial discrimination.
The judgment comes at the end of a lengthy case involving three plaintiffs, who are suing a bathhouse in Otaru over a management refusal to admit them, citing a ban on non-Japanese customers.
Around 1994, some bathhouses in the city, prompted by the bad behavior of some visiting sailors, decided to bar all foreigners from their premises. The owners justified their actions by citing foreign ignorance of Japanese bathing custom, complaints by Japanese customers, and poor foreign sanitary habits.
Unwilling to accept the bathhouse's policy, a group of foreign residents appealed to local, regional, and national authorities for clarification on their rights.
What they discovered was that Japan actually has no law in place outlawing discrimination on the grounds of race or appearance.
Fierce lobbying of Japanese lawmakers in a bid to accelerate the introduction of legislation banning these practices proved fruitless. Likewise, an appeal based on the fact that Japan had ratified the U.N.'s Convention on the Elimination of Racial Discrimination fell on deaf ears.
Having exhausted all available recourse to no avail, the plaintiffs, an American, Ken Sutherland, a German, Olaf Karthaus, and a naturalized Japanese citizen, David Aldwinckle (Debito Arudou), sued the bathhouse and the city government.
They sued on the basis that the district took insufficient and ineffective action as the area's administrative body to stop refusals by race.
"The U.N. Convention calls for 'immediate and effective' remedies," says Arudou. "Six years of ineffectiveness is too long."
Having previously failed to convince Japanese officials on their obligations under international treaty, the trio decided that the only course of action left open to them would be an attempt to establish a legal precedent.
To be sure, discrimination and racism exist, often to a far more severe extent, in most, if not all the world's developed nations.
Unlike most nations, however, Japanese law on the subject is so vague as to be completely arbitrary.
The English text of Japan's Constitution, adopted in 1947, states that "all of the people are equal under the law and there shall be no discrimination . . . because of race, creed, sex . . . or origin."
In the Japanese version of that text, however, "all of the people" is written as kokumin, or citizens, implicitly excluding non-Japanese from the protection of its terms.
In effect, there is no law governing unequal treatment on the basis of race.
"If you want your rights protected, appealing to the government or the police will still not help.
"You have to sue, in an expensive and time-consuming system where mandated compensations often do not even cover legal costs," says plaintiff Debito Arudou. He hopes to set a precedent where people, regardless of race, nationality or physical appearance, are protected by under law against discrimination.
"If Japan does not protect residents in a comparably minor matter of human rights like refusal of entry to a public space, how much can the foreign community hope to be protected in more difficult times?" asks Olaf Karthaus.
"I could understand somebody leaving the country because he or she feels they are not being equally protected under Japanese law."
That foreign residents of Japan should feel that state-sponsored discrimination has made it impossible for them to remain in Japan is at odds with that most popular of Japanese buzzwords -- kokusaika, or internationalization.
But despite a drive to internationalize, Japan's longtime perception of itself as a proudly mono-ethnic nation makes the integration of foreign individuals difficult.
Japan has the lowest percentages of immigrants and expatriate workers of any advanced nation and naturalization is extremely difficult.
Japan's difficulty in reconciling the concept of kokusaika and foreign residents can manifest itself in some bizarre ways. One Japanese nightclub, named Club International, for a long time carried a sign on its door saying: "No foreigners."
"No country is as obsessed as Japan with the word internationalization . . . yet few modern nations have erected such barriers against foreign people and ideas," author Alex Kerr has argued.
"The Japanese are so cut off from meaningful contact with people from other countries," he says, "that they are unaware of ethnic or national sensitivities."
Thus can Tokyo Gov. Ishihara Shintaro declare that foreigners will riot and loot in the event of a massive earthquake in the city and see his popularity ratings soar.
His statement, which he refused to retract, would almost certainly have cost him his career in any of the countries that signed up to the U.N. convention. Not so in Japan.
Under these circumstances, it's hardly surprising that foreigners are routinely targeted as a serious social bane, both in the media, and in official literature. In public schools around the country, students are provided with government literature warning that foreigners loitering around train stations are probably trying to peddle drugs and should be avoided at all costs.
Japanese security companies tout "foreigner-proof locks," while one local politician warned in the runup to the World Cup that Japan should prepare for unwanted pregnancies caused during the competition by football-supporting foreign rapists.
The nation's media trumpets and attributes burglary waves and skyrocketing crime figures to foreigners, sometimes with no factual basis at all. Recently, Tokyo police warned against "suspicious foreigners," accused of being behind a surge of bag-snatchings in wards where robberies actually declined.
However, the Otaru bathhouse case is not the first of its kind.
Perhaps the biggest involved Brazilian journalist, Anna Bortz, who won over 1 million yen in compensation from a jewellery store in Hamamatsu City, Shizuoka, that threw her out because it had a policy of not serving foreigners. Her case was based on the U.N. convention.
But applying international law in the absence of domestic safeguards against discrimination is unsatisfactory.
This is particularly true for Japan, about which both the United Nations and a government commission have said needs to attract more immigrants, not less.
"If Japan truly wants to prop up its sagging tax base and aging society, it must address the issues inherent to an internationalizing society," says Arudou. "Protecting the rights of international residents is one of those issues."