Archive for the 'Lawsuits' Category

Japan Times: Recent amendments to the Immigration Control Act, which also included changes to Japan’s alien registration card system, have improved the situation for participants of the internship program, although arguably it is a case of too little, too late.

Under the old system, those in the first year of the program were officially classed as “trainees,” not workers, meaning they were unable to claim the protections Japanese labor law affords regular employees.

For example, the minimum wage in Japan varies according to prefecture, and currently the national average is ¥713 per hour. But as foreign trainees are not technically “workers,” employers are not obliged to pay them even this. Instead, they receive a monthly “trainee allowance,” which for most first-year trainees falls between ¥60,000 and ¥80,000 — the equivalent to an hourly wage in the range of ¥375 to ¥500 for a full-time 40-hour week.

For first-year trainees, trying to survive on such a low income is a real struggle, so most have to do a great deal of overtime just to make ends meet.

Although the “trainee” residency status still exists for foreign workers who arrived before 2010, it is currently being phased out, and from 2011 all first-year participants in the program will be classed as technical interns. This a significant step forward, as the Labor Standards Law and the Minimum Wage Act apply to foreign migrant workers with technical-intern residency status. However, whether migrant workers are actually able to access the protections they are entitled to is another matter, and the issue of oversight — or the lack of it — is still a long way from being resolved.

Abiko believes this absence of proper oversight has grown out of the internship program’s weak regulatory structure and a general lack of government accountability. The government entrusts most of the operations of the internship program to JITCO, an authority that lacks the power to sanction participating organizations or companies, says Abiko.

“JITCO is just a charitable organization. It is very clear that JITCO is not appropriate to regulate and monitor this program.”

In addition, she argues, the financial relationship between JITCO and the collectives or companies under which trainees work makes JITCO’s role as a regulatory body even more untenable. JITCO’s total income for the 2008 financial year was ¥2.94 billion. More than half this amount, ¥1.66 billion, came from “support membership fees” paid by the companies themselves.

“How can JITCO appropriately regulate and monitor their support members when they are dependent on them for membership fees?” she said.

Japan Times: The battle between Berlitz Japan and Begunto began with a strike launched Dec. 13, 2007, as Berlitz Japan and its parent company, Benesse Corp., were enjoying record profits. Teachers, who had gone without an across-the-board raise for 16 years, struck for a 4.6-percent pay hike and a one-month bonus. The action grew into the largest sustained strike in the history of Japan’s language school industry, with more than 100 English, Spanish and French teachers participating in walkouts across Kanto.

On Dec. 3, 2008, Berlitz Japan claimed the strike was illegal and sued for a total of ¥110 million in damages. Named in the suit were the five teachers volunteering as Begunto executives, as well as two union officials: the president of the National Union of General Workers Tokyo Nambu, Yujiro Hiraga , and Carlet, former NUGW case officer for Begunto and currently executive president of Zenkoku Ippan Tokyo General Union (Tozen)…

Another of the teachers named in the suit, Catherine Campbell, was fired earlier this month after taking too long to recover from late-stage breast cancer cancer. In June 2009, Campbell took a year of unpaid leave to undergo chemotherapy and radiation treatment. Because Berlitz Japan failed to enroll Campbell in the shakai hoken health insurance scheme, she was unable to receive the two-thirds wage coverage it provides and had to live with her parents in Canada during treatment. The company denied Campbell’s request to extend her leave from June to Sept. 2010 and fired her for failing to return to work.

Berlitz Japan work rules allow for leave-of-absence extensions where the company deems it necessary. “If cancer is not such a case, what would be?” Campbell asks…

Further exploring the theme of the Japanese police’s extralegal powers and how power corrupts, here are two articles outlining cases where the Japanese police can arrest people they find inconvenient:

XX comments on Jiji Press article: In this news item a man who does not like the police has been putting up notices near crime scenes that say “Congratulations on not catching the killer.” He was arrested and prosecutored for violating the Minor Crimes Act. Interestingly, the Minor Crimes Act does not seem to have any offenses which cover what he did. Minor technicality, I guess.

FCCJ Number 1 Shimbun: Semba retired from the Ehime Prefectural Police in March, after 36 years on the force. At 24, he had been the youngest officer in the history of the prefectural force to be promoted to the rank of sergeant, but he says his refusal to falsify expenses forms that were funneled into a vast slush fund meant that he was never promoted again, was regularly transferred between unappealing assignments and had his handgun taken away on the grounds that he might kill himself or pose a danger to others.

“The Japanese police are a criminal organization and the senior officers of the force are all criminals,” Semba said. “Of all the companies and organizations in Japan, only the ‘yakuza’ and the police commit crimes on a daily basis. That includes building up slush funds and it was because I refused to participate in that that I stayed in the same position for all those years.”

Semba alleges that ¥40 billion is systematically racked up from falsified travel expenses and fictitious payments to individuals who assist the police in their investigations. Pretty much every officer in the country is involved in the scam, he claims, and they do not speak out because they are all too busy climbing the ranks to try to get their hands on a larger share of the pie.

Colin Jones in the Japan Times: A few months ago I met with some Western diplomats who were looking for information about Japanese law — in particular, an answer to the question, “Is parental child abduction a crime?” As international child abduction has become an increasingly sore point between Japan and other countries, foreign envoys have been making concerted efforts to understand the issue from the Japanese side. Having been told repeatedly by their Japanese counterparts that it is not a crime, some diplomats may be confused by recent cases of non-Japanese parents being arrested, even convicted for “kidnapping” their own children. I don’t think I helped much, since my contribution was something along the lines of “Well, it probably depends on whether the authorities need it to be a crime.”

Of course, the very question “Is x a crime?” reflects a fairly Western view of the law as a well-defined set of rules, the parameters of which people can know in advance in order to conduct themselves accordingly. However, there is a Confucian saying that is sometimes interpreted as “The people do not need to know the law, but they should be made to obey it.” This adage was a watchword of the Tokugawa Shogunate, whose philosophy of government was based in part on neo-Confucian principles.

It is also a saying that could provide some insights into why it sometimes seems difficult to get a clear answer about what exactly the law is in modern Japan. I am not suggesting that Japanese police and prosecutors have Confucian platitudes hanging framed over their desks, but knowing the law is a source of power. Being able to say what the law means is an even greater one, particularly if you can do so without being challenged. In a way, clearly defined criminal laws bind authority as much as they bind the people, by limiting the situations in which authorities can act. Since law enforcement in Japan often seems directed primarily at “keeping the peace,” laws that are flexible are more likely to serve this goal…

NZ Herald: The boss of a multi-national English language school in Auckland has been awarded $190,000 after an employment tribunal dismissed claims he was used to being treated “the Japanese way”.

David Page was stripped of his job as regional director of GEOS New Zealand at a conference in 2008 and demoted to head of the company’s Auckland language centre.

In April last year, he was fired by email after being given “one last chance” to make the school profitable.

Page launched an unfair dismissal claim against GEOS, which comes under the umbrella of the GEOS Corporation founded by Japanese businessman Tsuneo Kusunoki.

But the company responded by claiming that Page “accepted understanding of the ‘Japanese way’ of doing business”. They went on to say he was used to Kusunoki “ranting”, “berating” and “humiliating” people “so this was nothing new”.

But the Employment Relations Authority said the company’s failings were “fundamental and profound”.

Member Denis Asher said the final warning was “an unscrupulous exploitation of the earlier, unlawful demotion”. He said: “A conclusion that the ‘Japanese way’ already experienced by Mr Page was continuing to be applied is difficult to avoid.”

COMMENT: GEOS forgot this ain’t a Japanese courtroom where this actually might wash. They lose. Just goes to show you that what are considered working standards in Japan towards NJ (or anybody, really) aren’t something that will pass without sanction in other fellow developed societies. Attitudes like these will only deter other NJ from working in Japanese companies in future. Idiots.

AP: FRANKLIN, Tenn. — A Tennessee man who was arrested in Japan when he tried to take his children back from his ex-wife is suing the local judge and an attorney who handled the divorce.

Japanese prosecutors eventually dropped the case against Christopher Savoie of Franklin after he tried in September to enter the U.S. Consulate with his 9-year-old son and 7-year-old daughter. Ex-wife Noriko Savoie had violated a U.S. court custody decision by taking the children to her native Japan a month earlier.

The lawsuit says the children are still living in Japan with their mother.

Savoie filed a federal lawsuit this month against Williamson County Circuit Court Judge James G. Martin, who served as both the mediator during the divorce and then later as the judge that lifted a restraining order barring the ex-wife from taking the children to Japan.

Savoie claims that Tennessee Supreme Court law states that mediators should refrain from acting in a judicial capacity in cases in which they mediated. He also claims negligence because the judge was aware of the risk of child abduction in this case.

He also filed a state lawsuit in Williamson County against his former divorce attorney, Virginia Lee Story, arguing she failed to object to having Martin hear the case as a judge. He claims she was negligent and asks for compensatory and punitive damages.

Bringing this old article up as a matter of record: I mentioned on Debito.org back in early 2008 about a Swiss woman who came to Japan as a tourist and was arrested on drug charges. She got acquitted not once but twice in Japanese courts, yet was not released on bail because NJ and are considered more of a flight risk. While actual convicted felons are released in the interim if they are Japanese.

Again, foreigners aren’t allowed bail in Japan. Unlike Japanese: When Japanese defendants appeal guilty verdicts, they are not detained (see Horie Takafumi and Suzuki Muneo; the latter, now convicted of corruption twice over, is still on the streets, even re-elected to the Diet!).

So despite being incarcerated as an innocent NJ since 2008, she finally gets booted out for “overstaying her visa” (oh, sure, she could have gone to Immigration any time and renewed, right?) and barred from reentry. Rights of the defendant and “Hostage Justice” depending on your nationality. What a swizz.

Although I like to devote Mondays to “bigger news”, I’d like to take this day to salute a personal hero of mine, former nurse Chong Hyang Gyun, a Zainichi Korean who, like any other qualified civil servant in Japan, expected to be promoted commensurate with her experience and dedication.

But not in Japan. She in 1994 was denied even the opportunity to sit the administrative civil service exam because, despite her being born in Japan, raised in Japan, a native speaker of Japanese, and a taxpayer in and contributor to Japan like any other, she was still, in the eyes of the Tokyo Metropolitan Government, a “foreigner”, therefore not to be trusted with administrative power over Japanese (the old “Nationality Clause”, kokuseki joukou, struck again).

So she sued for the right to sit the exam nearly twenty years ago. Over more than ten years she lost, won, then ultimately lost in the Supreme Court, which, in a landmark setback for civil rights and assimilation, ruled there was nothing unconstitutional in denying her the right to chose her occupation and employment opportunities.

Now she’s retired as of April 1 (although rehired and working fewer hours). I’m just grateful that she tried. Some occupations are completely denied to NJ, including public-sector food preparation (for fear that NJ might poison our bureaucrats) and firefighting (for fear that NJ entering Japanese houses and perhaps damaging Japanese property might cause an international incident), that it becomes ludicrous for NJ to even consider a public-service job in Japan.(*) Especially if the “glass ceiling” (in fact, an iron barrier, thanks to the Supreme Court) means you can never reach your potential. The Chong-san Case made that clear, to Japan’s shame.

One more piece in the puzzle about why divorces with children in tow in Japan are so problematic. As we’ve discussed here before umpteen times, Japan does not allow joint custody (thanks to the Koseki Family Registry system etc.), nor does it guarantee visitation rights. Following below is another excellent article by Colin Jones on why that is — because Japan’s paternalistic courts and bureaucrats believe they know more than the parents about what’s best for the child. It’s one more reason why I believe that without substantial reforms, nobody should marry (Japanese or NJ) and have children under the Japanese system as it stands right now.

Kyodo: The Kumamoto District Court awarded more than ¥17 million in damages Friday to four Chinese interns who were forced to work long hours for low wages in Kumamoto Prefecture.

The court ordered that the union Plaspa Apparel, which arranged the trainee work for the four, to pay ¥4.4 million and that the actual employer, a sewing agency, pay ¥12.8 million in unpaid wages.

It is the first ruling that held a job broker for foreign trainees liable for their hardships, according to lawyers representing the four interns.

I want to offer my congratulations to Oguri Saori, very successful author of the “Darling wa Gaikokujin” series (translated as “My Darling is a Foreigner”, but officially subtitled “My Darling is Ambidextrous”), for the news just out this month that the first book in the series will be made into a live-action movie (starring Inoue Mao and Jonathan Share as Saori and Tonii respectively). The empire built upon the dream being sold to Japanese women for marrying a white foreigner keeps on gathering strength.

Although portrayed in the movie by the very handsome and disarming Jonathan as a “grass-eating man”, Tonii in real life is not as he is cartooned. Laszlo is a big fan of putting his funds into threatening lawsuits, for one thing. And of deleting internet archives. And more. It just so happens I found a cartoon parodying this phenomenon of the contrasts. As the last post on Debito.org for this decade, enjoy.

Three articles (two with original Japanese) below charting a couple of interesting developments regarding Japan as an international haven for child abductions.

The first article is what happens when the shoe’s on the other foot, and the NJ parent goes on trial for allegedly abducting his or her child from Japan — the Japanese authorities eventually convict the NJ. Asahi reports a Chinese father was found guilty (sentence suspended) in Japanese court of successfully, shall we say, “committing a Savoie” — actually getting his Japanese-Chinese daughters out of Japan (moreover after a J court awarded his ex-wife custody). The story follows below, but one of the daughters came back to Japan from China and stayed on, and the father came over to get her — whereupon he was arrested and put on trial. Now the mother wants Japan to sign the Hague Convention to protect Japanese from abductions (well, fine, but neither China nor Japan is a party, so there you go; oddly enough, accusations of spousal abuse — as in this case — are being leveled conversely as reasons for Japan NOT to sign the Convention). Just sign the damn thing, already.

The second article is from the Mainichi highly critical of the Japanese consulate in Shanghai for renewing the daughters’ J passports without consent of the J mother overseas. Even though this is standard operating procedure when a Japanese spouse wants to bring the children back to Japan from overseas. It only seems to make the news when the valve is used against the Japanese spouse.

Final irony: Quoth the judge who ruled in this case, “It is impossible to imagine the mental anguish of being separated for such a long time from the children she loved.” Well, that works both ways, doesn’t it? Why has there never been a child returned by a Japanese court to a NJ parent overseas? Why didn’t this matter in, for example, the Murray Wood Case, when overseas courts granted custody to the NJ father yet the Saitama Family Court ruled against him? And how about the plenty of other cases slowly being racked up to paint a picture that NJ get a raw deal in Japanese courts?

The third article (following the original Japanese versions of the first two) is how Minister Okada of the Foreign Ministry is setting up a special task force on this issue. Good. But let’s see if it can break precedent by acknowledging that NJ have as much right to access and custody of their children as Japanese do. Dubious at this juncture.

In probably one of the most important legal decisions all year, the Supreme Court has ruled that the “Nationality Clause” (kokuseki joukou), often cited as a reason for barring NJ from administrative (and often, even stable noncontracted) jobs in the public sector, has been scrapped. I’m not sure if that means it’s been ruled “unconstitutional”, but the clause in the Mainichi below, (“The citizenship requirement was eliminated because the courts could be seen as denying employment based solely on the question of citizenship,” the court stated.) could reasonably be stretched in future cases to say that barring NJ from jobs (currently allowed in places such as firefighting and food preparation, and also in Tokyo Prefecture for nursing) should not be permitted. That would be excellent news for the long-suffering NJ academics in Japan’s higher-education system of Academic Apartheid.

Excerpt: Savoie’s is one of about 80 cases of international parental child abduction involving U.S. citizens, while France and Britain are dealing with 35 each.

The unofficial number is much higher, particularly when failed marriages between Japanese and people from other Asian countries are included. The Assembly for French Overseas Nationals for Japan estimates that 10,000 children with dual citizenship in Japan are prevented from seeing their foreign parent after separation or divorce.

Japanese courts habitually award custody of children to the mother. In many cases, they say they are simply trying to protect the rights of women fleeing abusive former husbands, a claim vigorously disputed by campaigners.

The country’s courts will be tested again later this week when Shane Clarke appeals in a custody battle with Japanese ex-wife…

Conclusion: While I believe you, Prime Minister Hatoyama, are sincere about resolving this issue, the facts lead me to distrust the bureaucrats in the Ministry of Justice and the Foreign Ministry. The Judicial Review Council and the Supreme Court knew about these problems in the first Judicial Reforms that began 10 years ago but chose not to face the tough issue of Parental Rights head on. Now, Mr. Hatoyama, are you relying on these same bureaucrats again? Why, is it that Professor Nishitani refers to a draft statute created by Japanese Scholars that would have paved the way for Japan to implement the Hague Convention on the Civil Aspects of International Child Abduction and the bureaucrats are sounding as though we have to start from scratch? If the Judicial Reform Council is drafting this legislation then who are the current members? I hope it is not any of the retired Supreme Court Justices that made the 2000 ruling. Furthermore, the Democratic Party of Japan’s Manifesto states the cabinet will be the center of policy-making. What happens if the DPJ loses power in the next election, which will be in two years, do we start from scratch again? Let’s see what Professor Yuko Nishitani and the Japanese Scholars proposed; maybe the cabinet can start from there. If the government wants the international community and all left-behind parents to cooperate while reforms are being created we need to know, What Are We Bargaining For?

Colin Jones in the Japan Times: My own view is that as a matter of law, Japan could start returning abducted children tomorrow without having signed the Hague Convention — just as children who have been abducted to countries like the United States or England have been returned to Japan notwithstanding the country’s nonsignatory status. Mr. Savoie’s case clearly demonstrates that it is not actually necessary to waste time and money in futile family court proceedings to get your child back: The police will do it for you if it is in their interests to arrest the abducting parent. The converse is that they may not do anything if it is not, and this is also why it is conceivable that Japan could sign the Hague Convention and immediately appear on the U.S. State Department’s list of noncompliant treaty partners.

Whatever the law says, it is very hard to imagine it being in the interests of the police and prosecutors to be seen taking crying half-Japanese children away from distraught Japanese mothers.

This is why the media attention is so important on this issue. Because law in Japan tends to serve the bureaucrats first and the people second, legislation and litigation may not lead to solutions if the bureaucrats are part of the problem. Thus, it will likely be criticism — relentless pressure and attention from both domestic and foreign sources — that will probably carry the day in Japan shedding its shameful status as an abduction haven. If so, it will be because the criticism risks damaging the authority of the bureaucrats by making them look bad.

I received this comment early this morning from “Joseph” regarding the Savoie Case, piecing together with a minimum of speculation a plausible timeline for what happened between Christopher and Noriko. It’s too good to be buried as a comment, so I create a separate blog entry for it. He finds for Christopher, concluding:

In Japan, sole custody is awarded to one parent, and one parent only. This means that if there is a messy divorce, as it appears to be in this case, and the mother doesn’t want to allow the father to see his children, there is nothing that can be done. Period. Christopher was obviously well aware of this, and knew that if he wanted to have any access to his children, he needed to have his divorce here.

Noriko, with full knowledge of Amy, came here specifically for the purpose of getting that divorce – she was not “tricked” into it. She came here, she had her day in court, she received a large financial settlement, she repeatedly assured the court that she had no intention of removing the father from his childrens’ lives, and then she went ahead and did just that. She took the children away, took the money, and now she happily spends her days walking the children to and from school, while he spends his being interrogated in jail. He sits there knowing that, as the Japanese courts always favor the Japanese parent in these cases, he will in all likelihood never see his children again.

I received this yesterday, and am forwarding this with permission, from a person by the name of James Wiegert, who tells his story of how he received custody of his then 8-year-old son from a Japanese court a quarter century ago as a NJ.

He points out a number of mitigators — the clear and present unreasonableness of the mother (who first said he could have custody and then took it back), his gainful employment in a major company in Japan (and generous offer of a settlement to her), and the fact the son could only have US citizenship (i.e. could only have the citizenship of the father, which was the law at the time),

His wife did receive visitation rights, which Mr Wiegert allowed to be enforced.

Although this case is to me the exception that proves the rule (even he says he’s not sure why he was granted custody), there is indeed a legal precedent for allowing NJ to get custody in court. I hope that NJ parents in proceedings can cite this in order to tip the overwhelming one-sided judicial scales a little more in their favor.

Plaintiff Valentine Support Group: WHO MAY BE THE NEXT VICTIM? Mr. Valentine who was beaten up with a broken knee by the uncovered police officers 4 years ago, is calling on the foreign community living in Japan to attend his next high court trial on 6th. tuesday 2009. By 2:30pm. Venue: Tokyo High court. Kasumigaseki. 8th floor. Room 808.

Why? This Case is very important to attend is because some thing strange is going on with this case. On 6th. tuesday, a DNA professor. Prof Ishiyama. is coming to give his expert opinion about the cause of the broken knee. on behalf of the Tokyo Govt.

We need Justice to be done. Your presence is highly needed. This matter has being going on for 4 years now.

Here is some more media on the Savoie Child Abduction Case. Although the case is certainly a lot messier than it was 48 hours ago (divorces are like that; neither adult is blameless), the media is starting to report more on husband Christopher’s apparent Japanese citizenship and wife Noriko’s loneliness and financial dependence on him in the US (even though she reportedly received a sizeable sum of close to $800,000 USD from the divorce).

Also coming to light is that the US State Department’s policy on issues such as these: “U.S. consular officers are prohibited by law from providing legal advice, taking custody of a child, forcing a child to be returned to the United States, providing assistance or refuge to parents attempting to violate local law”. They have, according to Japan’s Ministry of Foreign Affairs, quoted in Stars & Stripes, not asked Japan to release Savoie.

In sum, the case and the reportage on it is a mess. As more information comes to light about the Savoie Case, I will admit for the record, in all intellectual honesty, that there are a number of circumstances that, as commenters point out, detract from supporting husband Christopher as a “poster child” for the push to get Japan to sign the Hague Convention. But unfortunately divorces are messy things. I’ll probably write an apologia (not an apology, look up the word) tomorrow on the case.

What follows are excerpts from the court testimony of Christopher Savoie vs Noriko Savoie, indicating the bad-faith negotiations that took place. The messy circumstances notwithstanding, we have clear promises from Noriko that she will not abduct the children, and that her trip to Japan would be for no more than six weeks.

So the retraining order against Noriko gets lifted, and Noriko absconds with the kids. That is the background to the case. Her current extraterritoriality notwithstanding, she broke the law, and now there’s an arrest warrant out on her. That’s what occasioned Christopher taking the drastic actions that he did.

Now, speaking as a left-behind parent myself might be coloring my attitude towards this issue. But divorces are nearly always messy and fault can be found with both sides in mediations. And the fact remains that Noriko did what so many Japanese will do in these situations — abduct the children and claim Japan as a safe haven. Then the children are NEVER returned, and usually contact is completely broken off with the left-behind parent for the remainder of the childhood.

This is an untenable situation. And it must stop. For the sake of the children. This in my mind is undisputable. The children must be returned to Dr Savoie in order to discourage this sort of thing happening again. Anything else is just more encouragement for Japanese to abduct their children.

OTARU ONSENS TAPE (1999-2003) PART ONE
CONTENTS WITH TEACHING NOTES
1) TV ASAHI NEWS STATION on ANA BORTZ DECISION (Nationally broadcast October 12, 1999) (10 minutes). National broadcast. Describes the first court decision regarding racial discrimination in Japan, citing the UN Convention on the Elimination of Racial Discrimination, and the fact that Japan has no law against racial discrimination. Imbedded video and mp4 format for viewing on iPods available.

COMMENT: What’s remarkable about this broadcast is how thoroughly it describes the Bortz Case and the UN CERD. Also the videotape, from Sebido Jewelry Store security cameras in Hamamatsu, showing the owner refusing Ana quite forcefully. It is the most sympathetic broadcast to come out during the Otaru Onsens Case, and unfortunately it would come at the very beginning, before the media really lost the point.

The Ana Bortz Lawsuit would inject new energy into the Otaru Onsens Case (which first started in earnest on September 19, 1999, about a month before), offering positive legal precedent for the onsens to take their signs down. Shortly afterwards, one did (Onsen Panorama). The other two, Onsen Osupa, would take until March 2000 and a lot of beers and making friends with the owner. The last one (in Otaru, at least), Onsen Yunohana would take until January 2001, nearly fifteen months and a lot of events later, on the day that we announced that we would be suing them. Then, and only then, and Yunohana only replaced it with a new set of exclusionary rules. It would take several years to prove this, but these moves would be a losing formula for them in court. More in my book JAPANESE ONLY.

Japan Times: The first foreign defendant to be tried in a lay judge trial was sentenced Friday to five years in prison at the Saitama District Court for two counts of robbery resulting in injury…

The lay judge system, which debuted in May, requires courtroom participants to make their arguments orally so trials are easier for people who are not legal professionals to follow, which in turn means more work for the interpreters in cases involving foreign nationals.

Much of the focus in the latest case was on whether the two Tagalog interpreters could accurately convey the tone of the remarks and how their interpretation might affect the decisions of the lay judges.

Japan Times Aug 27: Former Nova President Nozomu Sahashi was sentenced Wednesday to 3 1/2 years in prison by the Osaka District Court for his role in skimming off employee funds in 2007, just before the foreign language school giant’s bankruptcy that October.

Presiding Judge Hiroaki Higuchi’s severe sentence took some in the courtroom by surprise. Prosecutors had sought five years for the former president of what was once the country’s largest foreign language school chain and employer of foreign nationals. Sahashi is expected to appeal the sentence. …

Sahashi was charged with funneling nearly ¥320 million from employee benefit funds to a bank account belonging to a Nova affiliate in July 2007. He denied embezzling the funds, telling the court he used the money on behalf of his employees.

He tried to portray himself as only one of a group of senior Nova executives responsible for the decision. But the judge said that given the amount of money and his authority, Sahashi bore a heavy responsibility for the crime.

LIMA, Peru (AP) — Former Peruvian President Alberto Fujimori was convicted and sentenced to 25 years in prison Tuesday for death squad killings and kidnappings during his 1990s struggle against Shining Path insurgents.

The court convicted the 70-year-old former leader, who was widely credited for rescuing Peru from the brink of economic and political collapse, of “crimes against humanity” including two operations by the military hit squad that claimed 25 lives…

Fujimori, who proclaimed his innocence in a roar when the 15-month televised trial began, barely looked up, uttering only four words — “I move to nullify” — before turning, waving to his children, and walking out of the courtroom at the Lima police base where he has been held and tried since his 2007 extradition from Chile…

Fujimori’s congresswoman daughter, Keiko, called the conviction foreordained and “full of hate and vengeance.” She said it would only strengthen her candidacy for the 2011 presidential race.

“Fujimorism will continue to advance. Today we’re first in the polls and will continue to be so,” she said outside the courtroom. She has vowed to pardon her father if elected.

Excerpt: Examine any justice system and patterns emerge. For example, consider how Japan’s policing system treats non-Japanese. ZEIT GIST has discussed numerous times (Jul. 8 2008, Feb. 20 and Nov. 13 2007, May 24 2005, Jan. 13 2004, Oct. 7 2003) how police target and racially profile foreigners under anti-crime and anti-terrorism campaigns.

But the bias goes beyond cops and into criminal prosecution, with Japanese courts treating suspects differently according to nationality. We’ve already discussed how judges discount testimony from foreigners (ZG Aug. 14 2007), but here’s the emerging pattern: If you are a Japanese committing a crime towards a non-Japanese, you tend to get off lightly. Vice versa and you “haven’t a Chinaman’s chance,” as it were…

See Suo Masayuki’s movie SORE DE MO, BOKU WA YATTENAI (I Just Didn’t Do It), everyone. I did. It’s an excellent illustration of court procedure in Japan — long, drawn-out, well researched, and necessarily tedious. Experience vicariously what you might go through if arrested in Japan.

Don’t think it just won’t happen to you. Random searches on the street without probable cause are permitted by law only for NJ. If you’re arrested, you will be incarcerated for the duration of your trial, no matter how many years it takes, even if you are adjudged innocent (the Prosecution generally appeals), because NJ are not allowed bail (only a minority of Japanese get it as well, but the number is not zero; NJ are particularly seen as a flight risk, and there are visa overstay issues). And NJ have been convicted without material evidence (see Idubor Case). Given the official association with NJ and crime, NJ are more likely to be targeted, apprehended, and incarcerated than a Japanese.

If it happens to you, as SOREBOKU demonstrates, you will disappear for days if not weeks, be ground down by police interrogations, face months if not years in trial if you maintain innocence, have enormous bills from court and lawyers’ fees (and if you lose your job for being arrested, as often happens, you have no income), and may be one of the 0.1 percent of people who emerge unscathed; well, adjudged innocent, anyway.

Like getting sick in the US (and finding that the health care system could destroy your life), getting arrested in Japan could similarly ruin yours. It’s Japan’s SICKO system…

Economist on jury systems:

European countries are restricting jury trials; Asian ones expanding them

MARK TWAIN regarded trial by jury as “the most ingenious and infallible agency for defeating justice that human wisdom could contrive”. He would presumably approve of what is happening in Russia and Britain. At the end of 2008, Russia abolished jury trials for terrorism and treason. Britain, the supposed mother of trial by jury, is seeking to scrap them for serious fraud and to ban juries from some inquests. Yet China, South Korea and Japan are moving in the opposite direction, introducing or extending trial by jury in a bid to increase the impartiality and independence of their legal systems. Perhaps what a British law lord, the late Lord Devlin, called “the lamp that shows that freedom lives” burns brighter in Asia these days.

Here’s a landmark case, dismissed by activists as a “frivolous claim”, which will affect unions profoundly in future if the right to strike (a right, as the article notes, which is guaranteed by the Japanese Constitution Article 28 under organization and collective bargaining) is not held sacrosanct by a Japanese court.

Language school Berlitz, shortly after a request was filed with the authorities for an investigation of its employment practices, sued Begunto labor union for damages due to strikes. Although the article stops short of saying the epiphany-inducing words “union busting activities”, Berlitz below seems to playing for time in court, not even offering their reasons for their lawsuit by the appointed court date. Keep an eye on this case, readers. Next Labor Commission hearing date Feb 20 in Tokyo. Excerpt:

According to Hideyuki Morito, an attorney and Professor of Law at Sophia University, “There are four checkpoints as to propriety of the strike.” The striking union must be a qualified union under the Labor Union Act and the strike must be related to working conditions. The means of the strike must also be legal, so striking union members can’t occupy offices or interfere with operations. “In short, all they can do is not work ,” says Morito. Finally, unions must “try to bargain collectively with the employer before deciding to go on a strike and give a notice in advance when they will strike.”

Tadashi Hanami, professor emeritus at Sophia University, outlined what the company must prove to win. “The outcome of the court judgment depends almost entirely on whether the company can provide enough evidence to convince the judge that some of the union activities were maliciously carried out in order to intentionally cause undue damage, by disturbing normal running of day-by-day school business, thus exceeded the scope of legally protected bona fide collective actions as a kind of harassment.”

The Economist print edition last week had a thorough story (albeit not thorough enough on Japan) on what divorce does to people when it’s international. Of particular note was that in Japan, the article noted that you don’t comparatively lose much money, but you lose your kids. It also mentions Japan’s negligence vis-a-vis the Hague Convention on child abduction. Excerpt:

“Japan has not signed [the Hague Convention] either—the only member of the rich-country G7 not to have done so. Canada and America are leading an international effort to change that. Foreign fathers, in particular, find the Japanese court system highly resistant to attempts even to establish regular contact with abducted and unlawfully retained children, let alone to dealing with requests for their return. Such requests are met with incomprehension by Japanese courts, complains an American official dealing with the issue. “They ask, ‘Why would a father care that much?’” Countries edging towards signing the Hague Convention include India, Russia and mainland China. But parents whose ex-spouses have taken children to Japan should not hold their breath: as Ms Thomas notes, even if Japan eventually adopts the Hague Convention, it will not apply it retrospectively.”

First Canada’s media and government,then America’s ABC News, then the UK’s Grauniad, and before The Economist came Australia’s Sydney Morning Herald. The story continues to seep out about Japan as a problematic party to a divorce and as a haven for child abduction. Now what we need is ever more big-impact media outlets such as The Economist to devote an entire story to it.

Here’s something that didn’t make the English-language news anywhere, as far as Google searches show. Japanese stewardesses are suing Turkish Airlines for unfair treatment and arbitrary termination of contract. They were also, according to some news reports I saw on Google and TV, angry at other working conditions they felt were substandard, such as lack of changing rooms. So they formed a union to negotiate with the airline, and then found themselves fired.

Fine. But this is definite Shoe on the Other Foot stuff, especially given the conditions that NJ frequently face in the Japanese workplace. Let’s hope this spirit of media understanding rubs off for NJ who might want to sue Japanese companies for the same sort of thing.

Further to my Japan Times JUST BE CAUSE column earlier this week, here is somebody else who is finally taking action against Internet stalkers and bullies. Smiley Kikuchi, a comedian (whose name is listed in today’s Yomiuri), has finally gotten the NPA to get off their asses and actually prosecute people criminally for posting threatening messages.

Good for him. I get death threats all too frequently. The first time I got a major death threat, the police did nothing except take the threat letter, hold it for six years, and send it back with “inconclusive results”. The second time, much the same. In Kikuchi’s case, the messages were posted directly to his blog, by fools who didn’t realize that (unlike 2channel) their IP addresses would be visible.

Given how inept I consider the NPA to be about enforcing its own mandate, or even court decisions, I usually just delete messages to my blog that are malicious or threatening in tone. Now, thanks to Smiley, they just might be legally actionable.

Last month the Japan Times put a cat amongst the pigeons last December with a Zeit Gist column about the Otaru Onsens Case, decrying the court ruling against racial discrimination as something undermining Japanese society.

It caused quite a stir, according to my editor, with most of the comments coming in critical of the thesis. Some of the responses were worth a reprint as a follow-up column, and that came out last Tuesday. Have a read. And yes, I briefly responded too (although only on this site as a comment), which I paste at the very bottom. Choice excerpt from the published rebuttal:

“De Vries’ primary objection to the Arudou judgment is that “the case was fought and won on the issue of racial discrimination when the policy being employed by the Yunohana onsen could more accurately be described as the racial application of ‘group accountability.’ ”

“Racial application of group accountability” sounds so much nicer than boring old “racial discrimination,” doesn’t it? The question is whether there really is any difference between the two. Sadly, De Vries offers no logical reasons why we should see his preferred version of these two (identical) concepts as being anything other than a new name for the same old discredited idea. To deny access to public facilities to an innocent individual because of the color of their skin is simply wrong, regardless of who is doing it or what their motives are.”

Here is my latest Japan Times JUST BE CAUSE column on the good news of 2008 regarding human rights in Japan for NJ. Complete with sources. Ranked in terms of what I consider to be the top six advances last year, they are: The U Hoden court victory, the Chinese Trainee court victory against Tochigi strawberry farms, the increasing international awareness of Japan as a child abduction haven, the 12,000 yen “economic stimulus” package opened to all NJ taxpayers, the revision of the Nationality Laws to no longer require patrimony recognition before birth, and at the top, the GOJ recognizing the Ainu as an official ethnic minority.

Serial rapist and sexual predator Obara Joji yesterday had his “innocent on the grounds of lack of evidence” lower court decision overturned by the Tokyo High Court, with Lucie Blackman’s rape and murder now added to his long list of crimes against women. A hair was split between actual murder and just doing nasty things to her corpse, but for people outraged about the rather odd consideration of evidence in this case (which I in the past have indicated might have something to do with a J crime against a NJ, as opposed to the opposite), this is a victory of sorts. Given that Obara got away with a heckuva lot before he was finally nailed (including some pretty hapless police investigation), I wonder if the outcome of his cases will be much of a deterrent to other sociopathic predators out there. Anyway, this verdict is better than upholding the previous one, of course. Two articles follow.

Economist.com: In Jane’s view, the first rape went unpunished: Mr Deans remains at large. So she turned her attention to the “second rape”. She sued the Kanagawa police for a bungled investigation that denied her proper justice. In December 2007 the court ruled against her, stating that the police had fulfilled their responsibilities. She appealed the decision.

Jane’s ordeal underscores the clumsiness of Japan’s police force. In several recent high-profile cases, the police have coerced confessions from suspects. It also highlights the lack of a tradition of individual rights in the country, and the often thinly reasoned rulings of Japanese courts. And it fits the pattern that in many crimes by American servicemen, the Japanese authorities fail to press charges.

But the reason why cases like Jane’s are not prosecuted may have less to do with incompetent police and more because of a secret agreement between America and Japan in 1953 that has recently come to light.

In September 2008, Shoji Niihara, a researcher on Japanese-American relations, uncovered previously classified documents in the U.S. National Archives. They show that in 1953, soon after Dwight Eisenhower assumed the presidency, John Foster Dulles, his secretary of state, embarked on a massive programme to get countries to waive their jurisdiction in cases of crimes by American servicemen.

AP: The Nebraska Supreme Court has ruled that the state’s courts have no jurisdiction over a custody dispute involving a 6-year-old boy, leaving the issue to a Japanese court.

In the ruling issued Friday, the court said a Douglas County district judge had no authority to grant joint custody of the boy to his divorced parents, even though the boy was born in Nebraska and had lived here while in the U.S.

The court determined that under custody law, the child’s residence is considered to be in Japan.

COMMENT: We should hope the Japanese courts would be so impartial. But they aren’t. Contrast with the Murray Wood Case, where international children kidnapped from British Columbia (whose courts granted the Canadian father custody) were deemed unremovable from Japan. And are American courts so ignorant to not know (or was Mr Carter’s legal defense so inept to not point out) that Japan does not recognize joint custody, full stop? Mr Carter will not get a fair trial in Japan. No child kidnapped to Japan as of yet has been returned to the NJ parent by a Japanese court. He’s lost his kid. Full stop.

I made the case some months ago, in a special DEBITO.ORG NEWSLETTER on criminal justice and policing of NJ, that NJ get special (as in negative) treatment by courts and cops. An article I included from the Japan Times mentioned that a case of a NJ man killed in a bar “was likely to draw leniency” in criminal court. It did. The killer essentially got off last September. Here’s an article about it, from Charleston, WV:

Charleston Gazette: Prosecutors in Japan have decided not appeal the sentence in the murder conviction of a man placed on five years’ probation for murdering Charleston native and West Virginia University graduate Scott Tucker.

“Prosecutors decided not to even present the appeal,” said Kenneth Tucker II, Scott Tucker’s brother. “They said the witness’s testimony was strong enough not to appeal.”

Tucker’s wife and family had hoped prosecutors would appeal the sentencing in an attempt to get the man jail time. But prosecutors said Thursday they would not pursue an appeal before the two-week window to file ends on Monday.

On Sept. 8, Atsushi Watanabe, 29, was sentenced to three years in prison or five years’ probation for killing Scott Tucker. Under Japanese law, probation in murder cases can begin immediately so Watanabe will serve five years probation rather than three years in prison, David Yoshida, who attended the trial with Tucker’s wife, Yumiko Yamakazi, said previously.

Yamakazi is weighing her options in pursuing a civil case against Watanabe, Kenneth Tucker said…

Clarke, 38, who lives in central England, has since been given an order from the British courts that declares that the children are “habitually resident” in Britain, and he claims his wife would be prosecuted under English law if she returned.

However, the family judge in Ibaraki Prefecture has told Clarke informally that if his case went to court, he would not order that the children return home or give Clarke access.

The judge explained that it was “complicated” and he did not have the powers to enforce an order coming from a British court, Clarke said.

Critics claim this habitual refusal from family courts stems from the fact that Japan has not yet ratified the Convention on the Civil Aspects of International Child Abduction…

“The message to Japanese nationals is that they can commit crimes on foreign soil and if they get home in time they won’t face extradition,” he said.

He said he has had little help from the British Embassy or government in his fight.

Question about the role of the media in defamation in Japan, regarding lawyer and current Osaka Gov Hashimoto losing a court case re televised statements he made about a group of lawyers:

“But it seems the English translation [in the Daily Yomiuri] “… urging the public to call for disciplinary action through mass media was illegal …” does justice to the original in Japanese. If that is correct, then we have a judge stating that I cannot go on television to ask the public to send letters to Prime Minister Aso to fire Mr. Kakayama. Well, “mass media” would include print, web, radio, etc.

“Am I missing something here? It doesn’t read in Japanese or English that it was only illegal for a lawyer to do this. It doesn’t read that it is only illegal reference a bar association. It appears to be a general statement.

“Can anyone please explain to me where I am getting this wrong? I ask because this can’t possibly be correct, can it? Haven’t we seen letters and appeals to the public to a prime minister for one of his cabinet officials to be fired?”

I’m not a big fan of the Japan Supreme Court, as my experience with it was when they summarily ruled that the Otaru Onsens Case (which involved racial discrimination, Japan Constitution Article 14) was “unrelated to constitutional issues”. This after only a couple of months of deliberation (it usually takes many years for rulings to come down).

It also refused to hear the case for Gwen Gallagher vs. Asahikawa University case, where she was fired for not being “fresh” (their words) enough to teach. And also, given Japan’s lower court rulings, because she’s a woman.

Yes, the JSC does sometimes issue miraculous rulings, such as this recent one regarding international children and J citizenship laws (causing some speculation that the JSC is in fact becoming more liberal; a bit premature IMO). But given the odd conservatism seen otherwise (such as the Chong-san case a few years back, ruling that denying a Zainichi the right to sit Tokyo medical administrative exams, merely because she’s a foreigner, is constitutional), that’s why they’re miraculous.

Anyway, read on. My favorite bit is at the end on how we can vote on Supreme Court justices. (I’ve done so when I voted.) It’s not much of an indicator–abstaining from voting for someone is counted as a “yes” vote (yes, I asked), meaning it’s not a majority of “yes” vs “no” votes, it’s “yes and no vote” vs “no” votes, meaning it’s highly unlikely the public could ever turf out a Robert Bork type. In other words, it’s a sham. And it’s never denied a JSC appointment, as the article indicates.

Yet another interview with BBS 2-Channel’s Nishimura, where he claims that what goes on at 2-Channel is not his responsibility.

Love the section below where he says, “Unless there is a court order, we will not delete any messages.” That’s a lie. He’s had a court order since January 2006 to delete the posts on me judged by a court to be libelous. More than two and a half years later, they’re still there…!

I don’t think this guy realizes that sooner or later, there’s going to be legislation passed that will ultimately deprive the Internet of the privacy he allows his BBS to so wantonly abuse.

Kyodo/Japan Today: The first foreign resident in Japan to reject alien fingerprinting, Han Jong Sok, died of respiratory failure at a Tokyo hospital on Thursday, his family said Friday. He was 79. Han, a Korean resident in Japan, in 1980 rejected the fingerprinting required under the then alien registration law, and was the first foreign resident to do so.

Terrie’s Take on Oji Seishi: As work has progressed, the families became suspicious that Oji may have had another reason for doing the construction work and decided to hire a professional architect to come in and assess the work. To their shock, he pointed out a number of areas fitted with asbestos and worse still, PCBs — perhaps from the same source as those found in the Nagano soil by Seiko Espon.

When confronted by the families, Oji initially denied any presence of either substance and continued their work as if everything was OK. However, the two families persisted and in June (last month), in front of lawyers and staff representing the families AND the Minato-ku Ward Office, Oji Real Estate and Takenaka Construction company representatives admitted that the building does in fact have both substances, with the asbestos being present in significant amounts, and that they’d known for some time about the presence of these substances.

Now, let’s think about this. A luxury apartment full of young kids, top-level international executives, and their guests, and yet Oji had known for possibly up to two years about the presence of asbestos and PCBs! What does this tell you about the company and its ethics?

As far as we know, we’re the first to break this story to the public, but the families are obviously hoping that the media will pick up on the situation and give Oji the coverage that the company obviously still needs in order to get the message: “a quick admission of the problem and proper settlement of tenant claims is the only reasonable outcome”.

In the meantime, if you are living in or have lived in any of the Oji apartment complexes, you may be wondering what the presence of asbestos means. Providing it is inert, probably the buildings have been/are reasonably safe, but the problem with asbestos is that one never knows when it or the binders it is applied with will age and start to flake off. Oji Palace is even older than the Oji Homes facility and there has been no indication at this stage that Oji plans any investigation or remediation of substances possibly present there. We think this is extremely irresponsible…

Then of course, there is the matter of the two families and their kids left in the building… We find it incredible that Oji Real Estate is able to engage in such dangerous construction work with tenants still present. This represents a level of bloody mindedness on the part of Oji managers that wouldn’t be tolerated if those families were Japanese. The proper venue for a showdown of this nature is the courts, and if Oji wants the resisting tenants to move, it should take them to court, reveal the levels of compensation being offered, and wait for the courts to decide before continuing their work.

Japan is still testing its lay judge system before inauguration in 2009. According to Kyodo, they’ve uncovered a bug–how to deal with court translation. Ironically, they use a case where the NJ accused is charged with carrying narcotics. Very ironic, given the recent scandal of Narita Customs planting drugs on NJ….

“Hi Debito-san, I just wanted you to know that the [Otaru Onsens Lawsuit] Sapporo District Court decision of 11/11/02 is now available in English for the Asian-Pacific Law and Policy Journal Vol 9:2. Please feel free to set up a link to the following url on your own website”: http://www.hawaii.edu/aplpj/articles/APLPJ_09.2_webster.pdf

Best news we’ll hear all year, I bet. Japan’s Supreme Court has just declared the insane system of “invalid nationality if postnatal paternity” (my term) unconstitutional, i.e. refusing to award Japanese citizenship to children born out of wedlock to NJ women if the J father acknowledges paternity AFTER the child is born. They awarded ten Japanese-Philippine children Japanese citizenship. Another very big step in favor of Japan’s internationalization and multiculturalization. Bravo!!

Colin Jones in the Japan Times: “I feel like a bit of a wet blanket writing this. Make no mistake, it will be great if Japan actually does join the Hague Convention on Child Abductions. Whatever help Japanese authorities need in understanding and implementing the convention should be offered unstintingly. Anything which improves the situation of children abducted to Japan is to be applauded. And if joining the convention somehow leads to improvements for the many more Japanese children in strictly domestic cases who lose one parent through judicial action (or inaction), it would be almost revolutionary… It seems unlikely that Japan joining the convention alone would change this basic aspect of the country’s legal system, since it would involve the police (and prosecutors) in a vast new area of law enforcement family disputes when only a tiny fraction of such disputes would involve the Hague Convention. Perhaps some enforcement mechanism limited to convention cases will be developed, though it would be an odd (though not impossible) result if parents and children from abroad got a better deal in the Japanese legal system than those actually living in Japan. Furthermore, bureaucratic imperatives being at least as important as actual law in Japan, it is difficult to imagine how the police and prosecutors could ever find it in their interests to be arresting Japanese parents (more often than not mothers) in order to return Japanese children to foreigners.”

Wired Magazine on Nishimura and 2-Channel: “Nishimura has lost about 50 lawsuits and owes millions of dollars in penalties, which he has no intention of paying. “If the verdict mandates deleting things, I’ll do it,” he says. “I just haven’t complied with demands to pay money. Would a cell phone carrier feel responsible when somebody receives a threatening phone call?”" Those silly arguments taken apart on this blog.

We have (insufficient) news reports about a case earlier this month of a Filipina suspected of being killed by a Japanese man, and having her body parts stowed in a locker in Hamamatsu Station. Then it turns out this guy, Nozaki Hiroshi, had killed a Filipina some years before, and apparently tried to flush her body parts down a toilet. For that previous crime, Nozaki was convicted, but only sentenced to three years plus. It wasn’t even judged a murder. And he got out allegedly to kill again. Oddly enough, Nozaki’s jail sentence was only a bit more than Nigerian citizen Mr Idubor’s, and Idubor’s conviction was for alleged rape, not murder. Yet Nozaki was apparently caught red-handed, while there was no physical evidence and discrepant testimony in Idubor’s Case. Ironically, that means that under these judicial litmus tests, the women involved could have been killed and it would have made no difference in the sentencing. That is, if you’re a Japanese criminal victimizing a foreigner, it seems. It’s getting harder to argue that the J judiciary is color-blind towards judging criminals and victims.