THE OTARU LAWSUIT DECISION
AND ITS POSSIBLE EFFECTS
(opinions of one Plaintiff, Arudou Debito)
(made public Nov 12, 2002)
On Nov 11, 2002, the Sapporo District Court handed down its decision on the Otaru Onsen Lawsuit (where Plaintiffs Olaf Karthaus, Ken Sutherland, and Arudou Debito brought a civil suit against one "JAPANESE ONLY" onsen bathhouse for racial discrimination, and the City of Otaru for taking insufficient measures against it).
The headline is that Senior Judge Sakai ordered Defendant Onsen Yunohana to pay 1 million yen to each Plaintiff in damages.
The Court, however, rejected all Plaintiffs' claims of damages or legal obligations against the City of Otaru.
Now for some legal arguments. There is good news and bad news.
THE DECISION ON DEFENDANT ONSEN YUNOHANA
THE GOOD NEWS
is that Yunohana's practice of excluding people simply because they look like foreigners is indeed racial discrimination, and an illegal activity punishable by a pretty large amount of compensation (by Japanese standards) in Japanese courts. This may send a message across Japan that businesses which practice this should desist.
THE BAD NEWS
is that the decision held that RACIAL DISCRIMINATION in itself is not the punishable activity. On the bottom of page 23 it reads (my translation):
"Therefore, in this particular case of bathing refusals, refusing all foreigners without exception is 'unrational discrimination' (fugouri na sabetsu). As it can be said to go beyond permissable societal limits, this is illegal and thus illegal activity."
(Original Japanese: Shitagatte, gaikokujin ichiritsu nyuuyoku kyohi no houhou ni yotte nasareta honken nyuuyoku kyohi wa, fugouri na sabetsu de atte, shakai teki ni kyoyou shiuru gendo o koeteiru mono to ieru kara, ihou de atte fuhou koui ni ataru.)
The point being: "racial discrimination" per se is not the problem in this case. It is the act of discriminating TOO MUCH that made this activity illegal (with the underlying assumption behind "rational discrimination" being some discrimination is unavoidable, if not logically justifiable, in society).
Nowhere in this judgment are questions clarified of "What is the 'socially permissible limit' of discrimination?" and "When does it become 'too much'?" Nor is the premise of "Rational Discrimination" defined. (I asked reporters at our press conference to research and debate this.)
These statements effectively dilute the applicability of our case as a litmus test for other discriminatory activities in Japan. For how does one define or sanction against "racial discrimination"? Take it to Japanese court for a couple of years with a hopefully watertight case, and let that particular judge decide? Clearly not an option for all people in Japan.
Also, bear in mind that this is a court decision, not a law. It holds some precedent force in the judiciary, but has no force in the legislative or administrative branches of government. It is a signal of what might happen if one sues, no more.
Now how about the potential of legislation to make discrimination of this sort clearly "illegal", enforcable by the administrative branch? This is dealt with in the second part of our ruling:
THE DECISION ON DEFENDANT OTARU CITY
THE GOOD NEWS
is that the judges recognize that the City, as a local wing of public power, is as "duty-bound" as the national government to bring racial discrimination to an end. That resolves one possible loophole of the UN Convention on Racial Discrimination being applicable only to national governments (as they are the ones who negotiated the treaty).
THE BAD NEWS
is that the government can indemnify itself, as it is under no legal obligation to pass laws or local ordinances it would have to enforce to eliminate racial discrimination. In the middle of page 25 it reads (my translation):
"Defendant Otaru City, as it is a regional public organization playing a part in public administration, has the same duty as the national government to prohibit and bring an end to racial discrimination. However, this duty is no more than a political one, and concerning matters between individual citizens, this is interpreted to mean that the [city government] is under no clear and absolute (ichigiteki) obligation to prohibit or bring to an end concrete examples of racial discrimination by establishing local laws (jourei)."
(Original Japanese: "...chihou koukyou dantai de aru hikoku otaru shi ga, koukenryoku no ichiyoku o ninou kikan to shite, kuni to douyou ni, jinshuu sabetsu o kinshi shi shuuryou saseru gimu o ou to shitemo, sore wa seijiteki sekimu ni todomari, koko no shimin to no aida de, jourei o seitei suru koto ni yotte gutaiteki na jinshu sabetsu o kinshi shi shuuryou saseru koto ga ichigiteki ni meikaku ni gimu zukerareru mono de wa na to kai sareru."
So this means they oughta, but as it is a political matter they don't hafta. Since Japanese judical precedent holds that the abscence of formal domestic laws, international treaties are binding in their place, this sets a bad precedent for further legal application of the UN Convention against Racial Discrimination in Japan.
The backbone of this ruling is that "discrimination is not an illegal activity unless a judge says so, since there is no specific law to eliminate this sort of practice". Yet it is removing all pressure on the government to make that specific law to eliminate it.
CONCLUSIONS FOR NOW:
1) ABOUT THE LEGAL HAIRSPLITTING: Word has it from legal scholars around me that the judges in a lower court are of course chary of ruling against the city at all--since they do not their judicial activism overturned in a higher court (hurting their chances of promotion). This is why our judges leave things vague and apparently let their superiors in appellate courts clarify things later.
2) ABOUT LITIGANTS' REACTIONS TO THE CASE: Otaru City is understandibly happy with being exonerated. Onsen Yunohana is understandibly angry and (word has it) considering an appeal. We Plaintiffs are unhappy with the City's loopholes and are considering an appeal of our own. We have two weeks to decide if we want to file.
3) ABOUT POSSIBLE NEXT STEPS: If Plaintiffs do decide to pursue the matter, there are two routes: 1) Appeal this case against the City, or 2) Bring suit against the national government (which is more clearly bound to follow international treaty). Our legal sources say that option 2) would more likely result in a positive outcome, but option 1) is an unprecedented move and may have a larger impact.
4) ABOUT PLAINTIFFS' COMPENSATIONS: After paying back our supporters for their contributions and covering any additional legal fees, etc., Olaf says he plans contribute every yen to orphanages and other needy places in Cambodia, India, and The Philippines. Debito plans to use it for projects involving human rights in Japan (such as, say, an appeal of this case). Ken says he will give it to his wife. FYI.
All for now. Thanks for reading.
Arudou Debito, one Plaintiff, Sapporo
UPDATE NOV 15, 2002: ARUDOU DEBITO DECIDES TO APPEAL
UPDATE DEC 4: DEFENDANT YUNOHANA ONSEN ALSO DECIDES TO APPEAL, and gets a court order enabling them to avoid paying Plaintiffs any damages until the decision comes down next time around (which may take years).
International and national media reactions to this decision are available here:
The entire Court Decision (28 pages of jpgs) is up in Japanese at:
Background to the case at:
Other exclusionary practices by Japanese businesses:
On discrimination against non-Japanese in general: