DEBITO.ORG NEWSLETTER OCT 24 2006

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debito.org NEWSLETTER OCT 24 2006

Hello everybody. Arudou Debito here, emailing you during a layover at Narita Airport. Just got finished with my travels (Oct 4-22), so here’s an update on what’s transpired:

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1) ERIC JOHNSTON ON MCGOWAN LAWSUIT APPEAL VICTORY
2) AERA/MAINICHI ON 2-CHANNEL’S NISHIMURA
3) SHUUKAN PUREIBOI/JAPAN TIMES ON GAIJINIZING THE PUBLIC:
POLICE CHECKPOINTS NOW HAPPENING TO JAPANESE
4) WORLD TOUR II: TOKYO, CANADA, AND SEATTLE,
AND THE MURRAY WOOD CHILD ABDUCTION CASE DOCUMENTARY
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Debito.org newsletter dated October 24, 2006
Freely Forwardable

1) ERIC JOHNSTON ON MCGOWAN COURT VICTORY

This article comes from Japan Times Reporter Eric Johnston specially for this newsletter and debito.org. Please note that the opinions expressed in this article are his, and not necessarily those of The Japan Times. I enclose his article in full, because you won’t get this degree of analysis anywhere else:

——————–ARTICLE BEGINS————————–
McGOWAN COURT VICTORY AVOIDS THE REAL ISSUES
By ERIC JOHNSTON
Special to Debito.org

On Oct. 18th, the Steve McGowan case ended with a partial victory, when the Osaka High Court awarded him 350,000 yen. McGowan had sued Takashi Narita, the owner of an eyeglass store [G-Style, see http://gs-gstyle.jp ] in Daito, Osaka Pref. for racial discrimination, after Narita barred him from entering his store and told McGowan he didn’t like black people.

The court’s decision was welcomed by McGowan and his lawyers were, if not completely satisfied, at least relieved that the High Court did not simply repeat the District Court ruling which, as Debito has detailed so well elsewhere on this site (http://www.debito.org/mcgowanhanketsu.html), can be summed up as: McGowan “misunderstood” Narita and there is no evidence of racial discrimination.

But many of those who followed the case, especially human rights activists, remained worried. The High Court avoided ruling whether or not Narita’s words and actions constituted racial discrimination, a point that both McGowan’s lawyer and some of his supporters hammered home to reporters in the post-verdict press conference.

So what was the verdict? It was a very, very carefully, vaguely worded ruling that said Narita’s words and deeds were an illegal activity outside social norms. But, and this is the crux of the problem, it cited no written precedents. The phrase “outside social norms” smacks of paternalism, of a stern father privately scolding the bully. What social norms are we talking about, Dad, and could the court please provide all of us a list of the ones that are legal and illegal?

Furthermore, the phrase used in ruling about the social norms, “fuhou koui” can mean both “illegal activities” or “activities not covered by the scope of current laws on the books.” In this case, given the overall tone of the ruling and because the court ordered Narita to pay, the closer meaning in spirit is “illegal activities “.

But anybody familiar with the way Japan works can see the potential problem ahead. What is going to happen when the next person, Japanese or not, is barred entry into a store whose Japanese owner tells them to leave and then says they don’t like the color of their skin? Using the McGowan High Court ruling as a precedent, some future High Court can simply decide what the “social norms” are based only on what the judge or judges feel the norms are. They then have the power to decide, in the absence of clear, written precedents, whether or not those social norms have been violated to the extent that–even though there is nothing on the books–somebody should be punished.

In fact, using the logic of the Osaka High Court, the decision could have just as easily gone the other way. In other words, the High Court could have simply chosen to use the second possible definition of “fuhou koui”, and say that, although Narita’s comments may have been outside social norms, there is nothing on the books. Therefore, we cannot say that what happened was “illegal”. Therefore, plaintiff’s motion denied.

It is to the eternal credit of the Osaka High Court that their judges made a decision far more moral and ethical than the District Court. However, good intentions often make bad law. By avoiding ruling on the crux of McGowan’s complaint, that Narita’s remarks were, in fact, a form of illegal discrimination, the more fundamental issue remains unaddressed. Namely, whether or not the McGowan case constitutes racial discrimination in a written, legal sense, as opposed to unwritten “social norms” where determination about their violation, and authority for their punishment, is controlled by the whims of a few judges.

The McGowan ruling simply reinforces the importance of having a national, written, easily understandable law banning racial discrimination, a point made by a range of people from McGowan, to 77 human rights groups, to the United Nations itself. As of this writing, it appears unlikely that McGowan will appeal to the Supreme Court to push for a clear ruling on the question of racial discrimination. Many of his supporters pushing for a national law banning discrimination don’t appear to be eager to take his case further and are, rather, content to let McGowan remain a symbol of the need for such a law. In the meantime, the basic question about what constitutes racial discrimination in Japan and what does not remains unanswered.
——————–ARTICLE ENDS—————————-

COMMENT FROM ARUDOU DEBITO:

Agreed. As I argued in my Japan Times article of Feb 7, 2006
(http://www.debito.org/mcgowanhanketsu.html#japantimesfeb7)
the previous Osaka District Court ruling was made by a cracked judge. He established (deliberately or inadvertently) a precedent which would effectively deny any foreigner his right to sue for racial discrimination in Japan. Fortunately, this High Court reversal sets things back on kilter, but lowers the market value for suing for this kind of thing (it was 1 to 1.5 million yen; McGowan’s award of 350,000 yen, or about $3500 US, won’t even cover his legal fees!) while ignoring even the existence of racial discrimination

That’s a shame. But it’s better than before, and far better than if McGowan did not appeal. Just goes to show that if you want to win one of these things, you’d better have a completely watertight case. Default mode for Japanese judges is siding with the alleged perpetrator.

Thanks to Steve for keeping up the fight! Send best wishes to him at
stevetsuruinc@msn.com

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2) MAINICHI ON 2-CHANNEL’S NISHIMURA

2-Channel, the world’s largest online BBS, and a hotbed for freedom of speech gone wild to the point of libel, is facing hard times. With owner and administrator Nishimura Hiroyuki refusing to even show up in court, let alone pay court-awarded damages for libel (see my court win against him at http://www.debito.org/2channelsojou.html), he’s apparently dangerously close to declaring bankruptcy, even disappearing from society altogether. Ryann Connell translates an article for the Mainichi. Excerpt follows:

—————-EXCERPT BEGINS————————-
Operator of notorious bulletin board lost in cyber space
http://mdn.mainichi-msn.co.jp/waiwai/news/20061010p2g00m0dm020000c.html

…Nishimura has been reported by Japan’s tabloid media as “missing” — with the strong implication that he’d run away from massive debts brought on by a huge number of lost lawsuits that he consistently refused to contest by showing up in court. But the women’s weekly says it has managed to track him down and find out about the rumors of his disappearance.

“I’m just hanging out like I always do,” Nishimura tells AERA with a blog posting that serves as answers to its e-mailed questions.

Nishimura defends his decision not to contest the myriad of lawsuits filed against Ni-Chaneru.

“I’ve been sued in the north as far as Hokkaido and the south as far as Okinawa. It’s simply not possible to attend every court case where I’ve been named as a defendant. I figure if I can defend myself in every case, it’s exactly the same as not turning up in my defense,” he tells the weekly indirectly.

[ED’S NOTE: Huh???]

Nishimura also strongly denies suggestions that he’s gone bankrupt, which many have speculated may be the main reason nobody seems able to find him now….

The plaintiff took the drastic step because Ni-Chaneru has consistently refused to pay up when courts have declared it a loser in court cases. It has already been ordered to fork out more than 20 million yen over lost lawsuits.

“If they put the Ni-Chaneru domain up for auction, it’d reap tens of millions of yen for sure… There’s bound to be a company out there that would buy it.”
—————–EXCERPT ENDS————————–
Rest at http://www.debito.org/?p=48

QUICK COMMENT: I’m beginning to think that Nishimura’s pathological aversion to responsibility has nothing to do with his self-proclaimed role as a guardian of Japan’s freedom of speech (http://www.ojr.org/japan/internet/1061505583.php). More as the story unfolds. Thanks to Mark as always for keeping me informed.

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3) GAIJINIZING THE PUBLIC: POLICE CHECKPOINTS NOW HAPPENING TO JAPANESE

I have reported on police random ID checks of foreign-looking people (justified by the authorities as a means to curb illegal aliens, terrorism, and infectious diseases) at length in the past. Cycling, walking, appearing in public, staying in a hotel, even living in a place for any amount of time while foreign have been grounds for spots ID Checks and police questioning in Japan. More at:
http://www.debito.org/TheCommunity/communityissues.html#police

One of my pet theories is that Japan has a habit of “guinea-pigging the gaijin” with policy proposals. In essence, before you institute a new national policy, foist it on the foreigners–since they have fewer rights guaranteed them by law. Then propose a new-and-improved version for the nationals. It worked for increasing surveillance cameras for the general public (first Kabukichou, then onwards), and for undermining tenure with contract employment in tertiary education (http://www.debito.org/activistspage.html#ninkisei). It didn’t work for universal ID cards (remember the moribund Juki-Net system?). Now the police are working on expanding their authority further, to include Japanese citizens in their random ID checks.

I’ve come to see Japan as a benign police state. Remember–this is the land of the prewar Kempeitai thought police, “katei houmon” home visits by school teachers (with the express aim to snoop on students’ lifestyles, see http://www.debito.org/kateihoumon.html), and neighborhood watch systems still visible as the defanged “chounaikai”. Well, this new police putsch is receiving news coverage with advice. Excerpt follows:

—————-EXCERPT BEGINS————————-

Police shakedowns on the rise
By MARK SCHREIBER
Original article appeared in Weekly Playboy (Oct. 16)
Translation appeared in The Japan Times: Sunday, Oct. 8, 2006
http://search.japantimes.co.jp/cgi-bin/fd20061008t2.html

Last January, I was rushing past the koban [police box] at the west exit of Shinjuku Station en route to a meeting and suddenly this cop halts me, saying, ‘Will you please submit to an inspection of what you’re carrying on your person?’ ” relates editor Toshikazu Shibuya (a pseudonym), age 38. “I happened to be carrying this Leatherman tool, a pair of scissors with a 3-cm-long folding knife attachment in the handle. The next thing I knew, he escorted me into the koban.”

Shibuya vociferously argued that he used the tool for trimming films and other work-related tasks. “There’s no need for that gadget, you can find something else,” the cop growled, confiscating it.

Several weeks later Shibuya was summoned to Shinjuku Police Station to undergo another round of interrogation. After an hour, he was let off with a stern warning that possession of such scissors was illegal, and made him liable to misdemeanor charges.

Weekly Playboy reports that police have been conducting these shakedowns of the citizenry as part of an “Emergency Public Safety Program” launched in August 2003. In 2004, the number of people actually prosecuted for weapons possession misdemeanors uncovered during these ad hoc inspections, referred to as shokumu shitsumon (ex-officio questioning), reached 5,648 cases, double the previous year, and up sixfold from 10 years ago.

“I think you can interpret it as an expansion of police powers,” says a source within the police. “They are taking advantage of citizens’ unfamiliarity with the law to conduct compulsory questioning.”

In principle, police are not empowered to halt citizens on the street arbitrarily. The Police Execution of Duties Law, Section 2, states that an officer may only request that a citizen submit to questioning based on reasonable judgment of probable cause, such as suspicious appearance or behavior.

Moreover, Weekly Playboy points out, compliance to such a request is voluntary, i.e., you have the right to refuse….

What should you do if you’re stopped? Weekly Playboy offers several suggestions, including recording the conversation and carrying a copy of the relevant passage of the law to show you know your rights. Since cooperation is voluntary, you can refuse; but an uncooperative attitude might be regarded with suspicion. Raising a ruckus in a loud voice might cause a crowd to gather and convince the cop you’re more trouble than it’s worth….
—————–EXCERPT ENDS————————–
Rest at http://www.debito.org/?p=47

COMMENT:
Hm. Good advice. Exactly the advice I’ve been giving for close to a decade now on debito.org, as a matter of fact. See
http://www.debito.org/whattodoif.html#checkpoint
But I wouldn’t recommend you raising a ruckus if you’re a foreigner. I’ve heard several cases of people (foreigners in particular) being apprehended and incarcerated for not “cooperating” enough with police, so beware. Point is it’s getting harder to argue racial profiling when Japanese are also being stopped and questioned. However, the difference is that the article’s advice doesn’t apply as well to foreigners–all the cop has to do is say he’s conducting a Gaijin Card search and you’re nicked.

Enjoy life in Japan. Keep your nose clean and short.

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Finally, put last because this is the most personal part of the newsletter…

4) WORLD TOUR II
SPEECHES AND PRESENTATIONS IN TOKYO, VANCOUVER, KAMLOOPS BC, AND SEATTLE
AND THE MURRAY WOOD CHILD ABDUCTION CASE DOCUMENTARY

This was my second excursion abroad to talk about issues in Japan (last March was the first, at U Michigan Ann Arbor, NYU, Columbia Law et al), and on this eighteen-day journey I gave a total of seven presentations (two of them papers), at Temple University Japan, Tokyo University, Thompson Rivers University (Kamloops, Canada), University of British Columbia in Vancouver, and University of Washington Jackson School of International Studies. You can see what I said where on this trip, along with other links to older speeches, powerpoint presentations and papers (now totalling 100 since 1995) at
http://www.debito.org/publications.html#SPEECHES
They all went really quite smoothly–well-attended, full of questions and comments, accompanied by great hospitality from all my hosts (and I had hosts and places to stay in every port of call; thanks forthcoming to them individually).

Of particular note was the atmosphere at the Japan Studies Association of Canada (JSAC) annual meeting in Kamloops. Despite some initial trepidation, people turned out to be welcoming of an activist (I guess it made a difference from often bone-dry academia); I sold more books there (more than thirty) than ever before. Also, in addition to presentations on “communities within communities in Japan (my aegis), JSAC hosted sections on demography and future welfare, education, security issues, history, and artsy-fartsy stuff. It was enjoyable to coast between presentations and feel the different atmospheres depending on disciplines: Luddite handouts and OHPs with the “continuous-retread touchy-feeley” cultural studies, cloak-and-dagger “what if” theories of the security hawks (North Korea, after all, had just been confirmed as nuclear), and the “See I’m telling you so! Here comes the brick wall” portentous presentations of the demographers. Kudos to friend (and host) Joe Dobson and company for putting this thing on.

The best part of JSAC for me was the fact that the Canadian Ambassador of Japan, Joseph Caron, not only put in an appearance–he stayed two nights and even chaired two sessions at the conference! (Imagine the American Ambassador doing that!) Ambassador Caron proved himself a true gentleman at our farewell dinner, where I got to ask a question and got an impressive answer. But first a segue for context:

—————SEGUE BEGINS: THE MURRAY WOOD CASE——————-

When I first arrived in Vancouver on October 8, I was met by Murray Wood, his partner Brett, and two cameramen. They were all here to film a documentary on the Murray Wood Case, a cause celebre gathering steam in Canada as a major human rights case.

I have mentioned this case briefly in previous newsletters, but let me synopsize again: The Murray Wood Case started when Murray and Ayako Maniwa met, married, and had two children. A former flight attendant at Air Canada, Ayako was by all accounts (Murray’s family was most open with their criticisms as we enjoyed Canadian Thanksgiving dinner in front of the cameras) unconcerned with the welfare of her children–so much so that even the Supreme Court in British Columbia awarded Murray custody of their kids after they split up. However, Ayako, under a ruse to visit her family in Saitama, abducted the children and severed all contact with their father. This is not a matter of he-said she-said: The Canadian police have a warrant out for her arrest if she ever comes to Canada again.

Given Japan’s unenforcable or nonexistent child-custody and visitation laws after divorce, and the dubious honor of being the only G7 country not to sign the Hague Convention on the Rights of the Child, Japan has become a safe haven for international abductions. However, what makes this case interesting is that Murray actually tried to work through Japan’s judicial system to get custody back. However, Saitama’s Family District and High Courts were unaccommodating. They ignored Canadian court judgments in their entirety and awarded Ayako custody–essentially because a) the children should not be uprooted from their present surroundings, and b) “fairness”. Judges claimed in their ruling (which I read but cannot provide a link to at this time) that Ayako had not said her piece in Canadian court (she never showed up to give it); but since she appeared in Japanese court, the judges ruled that their opinion (in her favor) more adequately reflected both sides! The Government of Canada is not happy with this outcome, and Murray has gotten a lot of press across Canada. As so he should. More substantiation on all these claims from
http://www.crnjapan.com/people/wom/en/
http://www.debito.org/successstoriesjune2006.html
http://www.google.com/search?num=100&hl=en&lr=&safe=off&q=Murray+Wood%2C+Ayako&btnG=Search
Murray Wood reachable at amw@telus.net.

The case has garnered enough attention for two cameramen, one named David Hearn (reachable at david@ghosty.jp), to come all the way from Los Angeles and Tokyo to film it. Over the course of three days, they interviewed more than a dozen people of authority, family members, and friends (even me) on what happened and what this meant to them. We have a good feeling about what got captured on video, and I’ll keep you posted on any developments. In the age of the powerful documentary, this could be a good thing indeed.

————————–SEGUE ENDS—————————–

Back to JSAC’s final dinner with Ambassador Caron speaking. The Consul General of Japan at Vancouver and his staff were there (I happened to be seated next to Consul Assistant Keith Fedoruk, a rather chinless local hire, and we talked, however briefly and uncomfortably, about the Otaru Onsens Case and racial discrimination in Japan. He said, “Can’t you use your language abilities and position as a citizen in Japan more constructively?” as he broke off conversation.) It was clear that people wanted things to remain nicely, nicely. Perfect timing for one of my questions. Something like:

“Thank you Ambassador Caron. As you know, it is my job to raise the difficult issues, so let me not act out of character. The Consul General mentioned in his earlier speech tonight about the communality between Canada with the high regard for human rights and the rule of law. I would like to raise the issue about the Murray Wood Case. Given that this case involves Canadian court decisions ignored to deny custody to Canadian citizens, I would like to know if your office will continue to pursue this. Your government has been very publicly supportive or human rights. Your predecessor, Ambassador Edwards, kindly gave us a strong letter of support during the Otaru Onsens Case. Child abductions after divorce are a serious problem which affects the rights of both of your countries’ citizens. What will you do in future to promote human rights between your countries?”

Yes, it was a long question, and I had no time to develop Murray’s Case. I expected a standard answer of “We know nothing. We’ll look into it.” But no!

Ambassador Caron actually knew Murray’s case, and even took time to describe it in more detail to the audience! He mentioned how important he considered it in particular and the issue in general, and he said that he would continue pushing Japan to sign the Hague Convention!

Breathtaking. When the party ended, chinless wonder sitting next to me (who had earlier agreed to at least show my donated J and E JAPANESE ONLY books to the Consul General for consideration for the Vancouver Japan Consulate library) simply walked away, leaving the books behind on the dinner table. Bit of a shock, but again, not out of character. I sold them later that night anyway. Ambassador Caron (who also knew the Onsens Case) gladly took a copy as well.

Let’s hope the Murray Wood Case continues to build up steam, since like the Otaru Onsens Case, it’s a watertight representation of a problem with all other alternatives at resolution exhausted.

———————————-

Lots more happened during this trip, but that was the highlight which is germane to this debito.org newsletter. If you want me to spin a few stories for the Friends’ email List (I still haven’t written out what happened on last March’s World Tour I), let me know at debito@debito.org. Always helpful to know if people out there are enjoying what they read.

Enough for now. I hear my plane back to Sapporo revving its engines.

Arudou Debito
Narita, Japan
October 22, 2006
debito@debito.org
http://www.debito.org

NB: If you wish to receive updates in real time on important issues and articles, you can view and/or subscribe to my blog at http://www.debito.org/index.php Newsletters will necessarily lag as they collate important information for the general public and media.

DEBITO.ORG NEWSLETTER OF OCTOBER 24, 2006 ENDS

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