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Tuesday, Jan. 3, 2006

THE ZEIT GIST

Lawsuit-free land a myth

Who says people don't sue in Japan? They do, and sometimes it makes a difference.


By ARUDOU DEBITO

Japan is not renowned for its courtroom dramas. But occasionally a landmark ruling does make the front pages.

Witness the Sep. 14, 2005, Supreme Court decision on absentee voting. Plaintiffs sued the government for not guaranteeing their constitutional right to vote from overseas, and won.

This is big. Big enough maybe, believe it or not, to have a profound effect on human rights for foreigners in Japan.

Non-Japanese residents already have a history of taking racial discrimination cases to court.

To wit: The Ana Bortz case of 1999, where a woman was thrown out of a Hamamatsu jewelry store for being Brazilian; the Otaru onsen case of 2001-2005, where three Caucasians (one a naturalized Japanese) were barred from a bathhouse for having the wrong physical appearance; a case in 2003, where a Saitama realtor screened an Indian renter for the appropriateness of his skin color; and a 2004 case, where a naturalized Chinese was refused entry at a Tokyo bar ostensibly for being foreign.

Early this year, the Osaka District Court will opine on the Steve McGowan case (Zeit Gist: Nov. 30, 2004), regarding an American who was refused entry to a Kyoto eyeglass shop because the manager "doesn't like black people."

No doubt the future portends more suits of this ilk, as "Japanese Only" signs and policies continue to proliferate nationwide. Racial discrimination, lest you forget, is not illegal in Japan.

However, the good news is that plaintiffs above have won their cases, penalizing private-sector businesses for their exclusionism.

That's encouraging. And not only because non-Japanese are slowly realizing that with copious time, money and willpower, they might sue and get some semblance of justice. They might even positively affect legal precedent in Japan.

Now, before detractors resume accusing these "foreign lawsuiters" of "cultural imperialism," of "foisting their Western litigiousness on Japan," consider some facts:

First, it's perfectly all right to sue in Japan. As the Japanese government told the U.N. in 1999, access to the courts is a constitutionally guaranteed right. (They also said Japan needs no laws against racial discrimination precisely because the judiciary will provide redress.)

Second, about that myth that "Japanese don't sue." Time it got a dirt nap.

According to the latest figures on the Prime Minister's Cabinet home page, in 1998 alone there were nearly 5.5 million suits filed in Japan ( www.kantei.go.jp/jp/sihouseido/dai8/saikousai/12s.pdf ).

Filed by -- you guessed it -- Japanese people.

In fact, the Japanese judicial system is so clogged up that there is debate on how to speed things up -- by, say, lessening court deliberation time, or making it easier to pass the Bar exam.

It's not as if you haven't heard of any high-profile lawsuits here. Win or lose, here are a few:

Hansen's disease patients, Minamata mercury poisoning victims, Ienaga Saburo's textbook censorship, salary discrimination by gender, and various wartime issues left unresolved by any other means . . .

Again, these lawsuits were filed not by "litigious Westerners," but by Japanese and other Asians. People with strong senses of social justice, who wanted to be compensated for mental suffering, make public statements of discontent and even set a good judicial precedent.

Some, encouraged by Japanese legal support networks, even file what could be disparagingly labeled as "nuisance" lawsuits: Suing local and national governments for negligence ("fusakui"). Still, they are perfectly entitled to, under the State Reparations Law ("kokka baishou hou"). That's why it exists.

After all, filing suit against individual miscreants is like pounding moles in a mountain range. Suing the government for not serving their taxpayers may offer universal redress at a stroke.

But that's quite a challenge. You know the axiom, "you can't fight City Hall." It's even more true in Japan.

Traditionally, lawsuits against the government have been an exercise in creative illogic. Japanese courts have ruled that the public has no legal ground to expect laws to be passed to safeguard their constitutional rights.

Why? The argument runs: The judiciary cannot force the legislative branch to legislate. That would be a violation of the separation of powers.

But further lawsuits have fortunately eroded that. Let me take you down a line of precedents:

Once upon a time, there was a handicapped person in Sapporo. Unable to leave his house, he could not vote in elections because Japan had no absentee ballot system.

In 1971, he sued the national government for not taking sufficient measures to ensure his constitutionally guaranteed right of suffrage.

In 1985, the Supreme Court ruled that he had no case. Passing laws is, after all, "at the government's discretion."

It also ruled, incredibly, that public policy is a political matter, and that politicians have no absolute duty to protect the rights of individuals. (Ashibe Nobuyoshi, "Kenpou," page 347)

That's nuts. What's the point of having a Constitution, then? One would expect elected representatives to be first in line to follow it.

This affected future lawsuits.

In the onsen case, the Otaru city government was sued for negligence, i.e. for not taking effective measures to force businesses to cease unconstitutional "Japanese only" policies.

Citing the 1985 precedent, courts ruled that a local government had no absolute duty to protect its foreign residents (or its Japanese citizens, for that matter) from racial discrimination. Sapporo High Court made the most sophistic, er, sophisticated argument:

"If there is a law out there, we can rule whether or not it is constitutional or against international treaty.

"However, if there is no law, there is nothing we can rule upon.

"Therefore, the nonexistence of a law is not actionable in court."

That's even more nuts. This gives governments an incentive to avoid passing a law because doing so will take away their "discretionary power," moreover make them liable in court. So do nothing. This ruling demonstrated there's no penalty for that.

Should be cause for defenestration. But take heart. If enough people file suit, eventually something good gets through.

As an example, let's go back to that decision in September, where plaintiffs sued over the lack of absentee voting for overseas Japanese.

When the Supreme Court agreed, it created the legal precedent to say the government can be held responsible for not passing laws.

This opens an avenue for Japan's foreign community. The lack of a racial discrimination law is now technically legally actionable.

Slow. My legal consultants caution against over-optimism. The right to vote is rightly seen as the cornerstone of Japan's postwar democracy. Judges will see this right as more deserving of special protection than most.

But courts didn't see that as so important 20 years ago. Or even last year.

So who knows what will happen if somebody takes the national government to court for not passing a law against racial discrimination? Despite 50 years of the postwar Constitution and a decade of treaty promises to do so?

Someone ought to. Because even lawsuits that get derided as "frivolous" and "nuisances" act as incessant drops upon the stone. Years later, an impression gets made.

Few things cause change faster than exposing for public critique the hitherto unspoken illogic that perpetuates flawed systems.

Sapporo Lawyer Toshiteru Shibaike contributed to this essay.

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