Asahi Dec 1 06: Osaka High Court rules Juki Net unconstitutional. OK, how about Gaijin Cards, then? (with update)
Posted by Dr. ARUDOU, Debito on December 1st, 2006
Hi Blog. Interesting legal precedent set here about constitutional rights to privacy. Hm. What the plaintiffs probably fear happening to them happens on a daily basis to foreigners in this country, who are also supposed to be covered by the Constitution.
More comment afterwards.
Court, citing privacy, orders data cut from Juki Net
12/01/2006 THE ASAHI SHIMBUN
OSAKA–The high court here ruled Thursday that the “Juki Net” residence registration network infringes on people’s right to privacy if they oppose the system.
For four plaintiffs, it ordered the code that allows access to their data to be taken off the network.
However, it rejected claims for individual compensation of 50,000 yen by 12 other plaintiffs.
Presiding Judge Shogo Takenaka said: “The Juki Net has defects that cannot be ignored in terms of protecting personal information. Applying it to residents who don’t want their personal details on the network is against Article 13 of the Constitution that guarantees the right to privacy.”
The court’s decision is the first by a high court. It overturns an earlier ruling by the Osaka District Court.
The lawsuit was filed by 16 residents from the Osaka prefectural cities of Toyonaka, Suita, Minoo, Moriguchi and Yao.
A number of lawsuits have been filed around the country over the system that started in August 2002.
Each resident is given an 11-digit code and data covers name, address, date of birth and sex.(IHT/Asahi: December 1,2006)
COMMENT: Well, how about that. People all up in arms due to a possible infringement on privacy? And even the courts say that is a serious concern, enough to rule that the holding of this information without permission is unconstitutional?
Fine. But this release of personal information to outside parties (police, hotels, employers, video store clerks…) happens on a daily basis to foreigners in Japan, thanks to their very own version of the “Juki Net”–the Gaijin Card. This is something that follows them around, too. They hafta carry their Gaijin Cards 24 hours a day and show them to certain officials upon request, or face arrest and criminal prosecution.
Given this ruling, how about foreigners’ rights to privacy, now?
I am aware that foreigners have fewer rights in any country (such as lack of suffrage). But protection of privacy and from unwarranted police harrassment is not axiomatically something which needs to be made contingent upon holding citizenship.
Police and public officials must have probable cause before investigating people in public in Japan. That is enshrined in law (Keisatsukan Shokumu Shikkou Hou) with no exception made for extranationality. If you don’t have probable cause, that’s an infringement of privacy, something even the Japanese courts yesterday made clear is inviolate under the Japanese Constitution. And sorry, folks, Constitutional guarantees apply to people in Japan regardless of citizenship.
I am also aware that the laws contradict themselves–that under the Foreign Registry Law (Gaitouhou), police can stop anybody at any time who looks foreign and probably get away with it. But which trumps here? One law (and a court ruling) which says privacy is inviolate without permission and probable cause? Or a law which enables random and wanton Gaijin Card checks by certain officials, and is so easily abused by those officials (and the people they suddenly deputize) that it leads to racial profiling and harrassment of even Japanese citizens? Precisely those things that the Japanese Constitution is supposed to protect against?
Would be interesting if somebody were to take this to court and let them decide. (Hey, don’t look at me. I don’t even have a Gaijin Card anymore.)
Now just in case you’re seeing molehills here, a couple of links:
Abuse of the law by public officials: “CHECKPOINT AT CHECK-IN; Laws are still being bent by authorities to target ‘foreigners’”. By Arudou Debito, Japan Times, October 13, 2005
Pertinent laws and how to enforce them yourself:
COMMENT FROM CYBERSPACE:
The laws do not conflict. If the Gaitouhou conflicted with the
Constitution it would be null and void, the Constitution being the
supreme law of the land (article 98).
In applying the above case to argue that foreigners should be
protected from intrusive IC chips and gaijin card checks, the issue is
a conflict between 1.) the right to privacy, and 2.) our presence in
Japan, which is not a right and can be denied and regulated. Nowhere
in the constitution does it say you have the right to enter Japan or
live here. Entrance and reentry into this country is at the
immigration bureau’s discretion, and your visa and right to be here is
at the discretion of the state. (For real diehards, this issue was on
this year’s bar exam: year H.18, question 2!
— In cyberspace, someone wrote:
>The laws do not conflict. If the Gaitouhou conflicted with the
>Constitution it would be null and void, the Constitution being the
>supreme law of the land (article 98).
Yes, if somebody challenged it in court. I’m not sure anyone has. That’s precisely the point
of my post. It’s an interesting question, in light of this recent ruling on privacy rights and
public registration. Anyone want to challenge the Gaijin Card in court? I can’t. Debito
“Gaijin” card checks have been regularly upheld by the courts, most
recently in a 1997 case where the Supreme Court said a confirmation
system (kakunin seido) as defined in the Foreign Registration Law, for
the purpose of assuring proper foreign registration of non-citizens
(nihon kokuseki wo yuu shinai mono) does not violate the 13th or 14th
Articles of the Constitution. (Sorry, I’m on a docuview program and
can’t provide a link or file, but the case citation is: H.9/11/17 -
H6(a) 687-go. Ruling of the First Petty Bench of the Supreme Court
[saikosai daiichi shouhoutei hanketsu]).
Here’s where the Osaka case may help: if evidence shows that the new
IC card system for foreign registration cards can be exploited and
personal information can be stolen. After all, the fingerprinting
(shimon ounatsu) was removed from the foreigner registration cards on
the grounds that Article 13′s privacy rights did extend to foreigners,
and the state could not take fingerprints from citizens or foreigners
without a just reason.
A google search turned up a short blurb on the case here.
Actually, this whole site is a nice collection of court rulings
related to the rights of non-citizens in Japan.
Flipping through those links, it’s a catalog of pretty scary stuff.
If this collection doesn’t terrify those of you eligible into
naturalizing, nothing will.
Regarding the legal definition of the right to privacy in Japan:
There is no enumerated right to privacy in the Japanese Constitution.
Article 13 guarantees A.) respect of the individual and B.) the right
to pursue happiness, both to the extent that these two rights do not
oppose the public welfare.
The right to privacy has been inferred to exist from Article 13, but
its definition is defined as:
1.) the right to not have your personal lifestyle (shi seikatsu)
2.) the right to control information regarding one’s person.
A successful case on right to privacy grounds must argue within the
scope of one of those definitions.
Speaking of which, consider this: the right to privacy was “created”
by the Japanese Supreme Court in 1961 (look at the defendant who lost)
http://www.kyoto-su.ac.jp/~suga/hanrei/10-1.html on a broad
interpretation of Article 13 and respect of the individual; the US
Supreme Court created on the grounds that the “penumbras” of the
Constitution implicitly grants a right to privacy against government
intrusion (in the case Griswold v. Connecticut). Interesting how
Japanese and US law was parallel in that regard. And it wasn’t the
first or last time. More on that in person some time.
Courtesy of Kyodo News (Thanks Chris)
Monday, Dec. 4, 2006
Juki Net judge in apparent suicide
OSAKA (Kyodo) An Osaka High Court judge died Sunday morning in his
Hyogo Prefecture home in an apparent suicide four days after handing
down a landmark ruling on the controversial resident registry system.
Shogo Takenaka, 64, was the presiding judge when the high court ruled
Thursday that listing people on the Juki Net national resident
registry network without their consent is unconstitutional.
The court, citing a request from his family, did not comment on how
Takenaka died at his home in the city of Takarazuka. But police
sources said he was found hanged in the second floor of the house at
around 9 a.m. and was later confirmed dead.
The ruling, reversing a February 2004 decision by the Osaka District
Court, is expected to affect other lawsuits filed by people opposing
the nationwide network connecting local governments’ databases of
residents. Non-Japanese are covered by a separate registry.
Takenaka ruled that including residents in Juki Net who are opposed to
the system and want their data deleted violates the right to privacy
guaranteed by the Constitution. The high court, acting on a suit filed
by 16 residents of Osaka Prefecture, ordered three city governments to
delete resident registry codes and data on four of the plaintiffs.
A native of Hyogo Prefecture, Takenaka became an assistant judge in
1970 and served on the high court since September 2004.