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Tuesday, Feb. 7, 2006

THE ZEIT GIST

Twisted legal logic deals rights blow to foreigners

McGowan ruling has set a very dangerous precedent


Steve McGowan, an African-American resident of Kyoto, sued an eyeglass shop in Daito City, Osaka Prefecture, for refusing him entry in 2004 on the basis of the color of his skin.

News photo
Steve McGowan stands near the eyeglass shop at the center of his lawsuit, in Daito City, Osaka Prefecture.

It should have been a slam-dunk case.

The owner shooed McGowan away from his store, G. style, physically if not verbally. As reported previously by the Community Page, he was caught on tape admitting he barred McGowan from entry. He made it clear in court that he has a "thing" about black people, justifying it as merely part of his personality.

But Japan is a land of surprises. On Jan. 30, McGowan lost his case.

Judge Yoshifumi Saga of the Osaka District Court handed down a decision that worked backward from preformed conclusions.

Clearly McGowan had to lose, when you consider how petty the judge's justifications were.

Instead of questioning the responsibility of a shopkeep refusing customers he just happens to find racially repugnant, Saga decided to discredit the victims.

He disqualified McGowan and his wife as credible witnesses to any discrimination, by ruling:

1.) McGowan's testimony is inadmissible, as he apparently does not understand enough Japanese to reliably prove that the store-owner used discriminatory language toward him.

2.) In her follow up investigation, McGowan's wife didn't confirm whether the store-owner had excluded McGowan because he is black ("kokujin"); she apparently asked him if it was because her husband is foreign.

Therefore, Judge Saga concluded it unclear whether McGowan had been excluded specifically for being black.

Since McGowan's suit claimed discrimination against black people (as opposed to discrimination by race or nationality), case dismissed.

Let's put it another way: A guy gets struck by a motor vehicle. The driver refuses to apologize, even says hitting pedestrians is merely part of his personality. The pedestrian takes him to court, claiming that getting hit by a car hurt him. The judge says, "You weren't in fact hit by a car. It was a truck. Compensation denied."

Judge Saga avoided addressing the issue of why McGowan had been turned away.

Was there no discrimination here at all? It was a farcical judgment unbecoming to a trained mind entrusted with interpreting the laws of Japan.

But this is no laughing matter, given the damage this verdict could wreak.

The problem with a quibbling judge is that he still sets legal precedent. Judges are supposed to consider the ramifications of their decisions.

However, in his haste to kick McGowan's case out of his courtroom, Judge Saga deployed reasoning that could make it impossible to successfully seek legal redress for racial discrimination in Japan.

I'm talking about the fact that the judge invalidated McGowan's testimony simply because his language abilities are suspect.

Think about it. This gives incredible license to the chauvinists, as there will be no way to resolve a disagreement in favor of the foreigner.

Let's say you're in a dispute with somebody. How many times have you heard the following:

"Hey, the gaijin misunderstood my Japanese. After all, he's not a native speaker."

Claiming a language barrier will bring in a benefit of the doubt.

After all, Japanese is one of the world's most difficult languages, too difficult for a foreigner to understand fully, right?

Thus native speakers hold all the aces. It's a great way to delegitimize the gaijin's voice.

Thanks to Judge Saga, it is now a legitimate legal tactic. Just say the gaijin didn't understand your words, and you destroy the credibility of his testimony.

To avoid this pitfall, I usually advise people to return to the scene with a native speaker and reconfirm what happened. (Community Page, Nov. 30, 2004)

But Judge Saga must read this column, because he anticipated that. If the plaintiff's native speaking friend asks the defendant questions that don't satisfy the judge's sense of Sherlocking, pack your bags.

Hey, your friend wasn't there when the discrimination occurred anyway, so who can say what happened? The defendant again wins by default.

In other words, under the "Judge Saga Litmus Test for Racial Discrimination," to claim credible damages you must: Avoid being a foreigner.

* Avoid being a non-native speaker of Japanese.

* Have a native-speaker witness with you at all times.

* Record on tape or video every public interaction you have 24 hours a day.

* Hope your defendant admits he dislikes people for their race.

Actually, scratch the last one. The eyeglass shop owner did admit a distaste for black people, yet the judge still let him off.

So much for the government's claim to the U.N. that Japan doesn't need any laws against racial discrimination since our judiciary will protect us.

But does legal precedent like this really matter in Japan's judicial system?

Of course it does. Court decisions are not merely case-by-case. They cite something -- if not specific laws, then reasonings found in legal precedents.

But if there is no specific anti-racial discrimination law to ground a verdict upon, then you refer to the outcomes of related court cases.

For example, two Zainichi Koreans won their case in Kobe District Court Amagasaki for wrongful housing refusal on Jan. 24; the judge cited verbatim the legal reasoning from the Otaru Onsens Case -- in which this writer was a plaintiff -- ie. that discrimination is illegal "if it transgresses socially accepted limits" ("shakaiteki ni kyoyou shiuru gendo o koeru").

However, we now have a precedent to disqualify a foreigner's testimony, denying him his rights, because he doesn't speak satisfactory Japanese. That can be great weapon for a provincial judge.

History shows it takes a long time to undo something like this. Even with the shortcomings of comparing legal systems, consider the U.S. precedent of "separate but equal" justified by Plessy vs. Ferguson in 1896.

It took until 1964, with the passage of the Civil Rights Act, to cancel that one out.

It takes a lot more effort and a separate government branch to get a civil rights law passed.

So with no laws to rein them in, judicial precedents offer judges more prerogatives.

The McGowan Case has exposed an attitude unbecoming of a developed country. How can a judge, in the world's second-biggest economy, ignore racial discrimination through semantics and splitting hairs? What of the role of the judiciary to protect the weak, in the name of severance, deterrence, even simple justice?

I hope Steve McGowan appeals, as a ruling like this must not be left alone. He ran a risk by suing. He got a cracked judge. Now that the cracks are clear, the High Court (which does overturn and even admonish lower court decisions) must have a go at it.

Otherwise, the damage is done, and this decision will affect millions of people in Japan who will find themselves unprotected by either the laws or the courts.

Further analysis of the McGowan court decision is available at www.debito.org/mcgowanhanketsu.html

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