INSTANT CHECKPOINTS IN JAPAN PART TWO
THE LETTER OF THE LAW AND USING IT TO YOUR ADVANTAGE:
UNDERSTANDING YOUR LEGAL RIGHTS IN THE FACE OF POLICE ACTION
(This Part is the conclusion to a long background article.
Click here to see Instant Checkpoints Part One)
(This has become the basis of a Japan Times Article, dated July 27, 2004, available here)
(Originally sent to Fukuzawa, ISSHO, and Friends Dec 17, 1998. This revised version sent to Fukuzawa Thu, 7 Jan 1999)
Subtitle: What you can legally do to protect yourself if the police decide to spot-check your Gaijin Card.
Your mission, should you choose to accept it, is to:
EXERCISE YOUR LEGAL RIGHTS
Don't misunderstand my motives. I am not advocating anarchy, and I am not saying that you should not cooperate in a police investigation of a specific crime. But the police have to know that they cannot see foreigners as suspect just because they are foreigners. It reduces our standard of living by making us publicly and legally vulnerable in a way that hardly any Japanese have to or will put up with.
For example, let's say you are on the street (or in Haneda Airport, for that matter, since as long as you are not in the office (jimusho) of the police, the law protecting our rights applies), and a policeman comes up to you and asks you for your Gaijin Card. If you do not wish to show it because the cop is being nasty or obstructionist, here's what you can do:
COP: Show me your Gaikokujin Touroku Shoumeisho.
YOU: Why? (naze desu ka) (Always ask for a reason, please. If he gives you a reason you are satisfied with, then fine. Show. But if they just say something like:)
COP: Because it's the law. (Nippon no houritsu da kara. Miseru gimu ga
which was basically the argument the cop in Haneda Airport made to me last November. That is unsatisfactory. Now it's time to bring out the real law.
(NB: All translations that appear in my article are mine, and if your browser does not read Japanese, you will have gobbets of gibberish every now and then. Gomen. But the letter of the law must be seen to be better heard, so please do press on.)
The Police Execution of Duties Law (Keisatsukan Shokumu Shikkou Hou--in kanji 警察官職務執行法), Section 2, says
"A police officer is able to ask for a person's ID, but only if based on a reasonable (gouriteki) judgment of a situation where the policeman sees some strange conduct and some crime is being committed, or else he has enough reason to suspect that a person will commit or has committed a crime, or else it has been acknowledged that a particular person knows a crime will be committed. In these cases a police officer may stop a person for questioning."
Meaning that there must be a *specific crime* or *suspicion of a crime* before questioning can occur. Just being a foreigner is not enough, and without a good reason (soutou na riyuu) a policeman's arbitrary questions to a stranger are against the law.
Of course, as a journalist friend of mine nnotes (who wrote an important article for the Daily Yomiuri on something related to this; it was suppressed in later editions by Yomiuri editors), technically speaking if you are riding a bicycle, a policeman can stop you on the suspicion that you may have stolen it. But any human rights lawyer (they do exist in Japan and they will work for next to nothing) would drool at the prospect of taking a case like that. So call their bluff.
What follows is the Japanese text for the above law, retyped from the Dai Roppou (the Bible of Japanese law). Print this up, put it in your wallet inside your Gaijin Card slipcover, and present it if questioned:
警察官職務執行法 第二条 警察官は、異常な挙動その他周囲の事情から合理的に判 断して何らかの犯罪を犯し、若しくは犯そうとしていると疑うに足りる相当な理由の ある者又は既に行われた犯罪について、若しくは犯罪が行われようとしていることに ついて知っていると認められる者を停止させて質問することができる。
In Romaji: Keisatsukan Shokumu Shikkou Hou, Dai Ni Jou Keisatsukan wa,
ijou na kyodou sonota shuui no jijou kara gouriteki ni handan shite naniraka no hanzai
o okashi, moshikuwa okasou to shiteiru to utagau ni tariru soutou na riyuu ga aru
mono mata wa sudeni okonowareta hanzai ni tsuite, moshikuwa hanzai ga okonawareyou
to shiteiru koto ni tsuite shitteiru to mitomerareru mono o teishi sasete shitumon
suru koto ga dekiru.
That is indeed a mouthful, and mercy sakes, I don't expect anybody to memorize it. Just show it and let them read it. However, you ought to practice two important words until they roll off your tongue, just for deterrence's sake:
the name of the law: "Keisatsukan Shokumu Shikkou Hou"
and a key concept: "Kyodou Fushin Sha" 挙動不審者--"A person of suspicious conduct"
Which means, after you present them with the law requiring specific suspicion, you can say:
YOU: According to the KSS Law, only suspicious characters can be questioned. Excuse me, but specifically what am I doing that is so suspicious?
(In Romaji: Keisatsukan Shokumu Shikkou Hou ni yorimasu to, kyodou fushinsha dake ni shokumu shitsumon suru koto ga dekimasu. Sumimasen ga, gutaiteki ni donna fushin na koui o shiteimasu ka.
(In Japanese: 警察官職務執行法によりま すと、挙動不審者だけに職務質問することができます。すみませんが、具体的にどん な不審な行為をしていますか。)
This might stop the cop in his tracks. If the policeman comes back with:
COP: This law applies to Japanese only.
YOU: No. According to the Police Law Number 162, it applies to all individuals
in Japan. (ie, chigaimasu. Keisatsu hou dai hyaku roku juu ni gou ni yorimasu to,
wagakuni no kojin ni atehamarimasu. Kokuseki wa kankei arimasen. いえ、違います。警察法第百六十二号によりますと、我が国の「個人」
Now, if the cop really knows his law (and chances are that he does), he will come back at you with another law, the Foreign Registry Law, which does explicitly state that people officially charged by the Ministry of Justice with immigration or law enforcement can ask for your ID, and if so you must present it. Hence it creates a loophole that needs to be plugged. Here's what it says in Japanese:
外国人登録法 第十三条 第二項 外国人は、入国審査官、入国警備官（入管法に定 める入国警備官をいう）、警察官、海上保安官その他法務省令で定める国又は地方公 共団体の職員がその職務の執行に当たり登録証明書の掲示を求めた場合には、これを提示しなければならない。
In Romaji: gaikokujin tourokuhou dai juusan jou dai ni kou gaikokujin wa,
nyuukoku shinsakan, nyuukoku keibikan, (nyuukanhou ni sadamaru nyuukoku keibikan
o iu), keisatsukan, kaijou hoankan, sonota houmushou rei de sadameru kuni mata wa
chihou koukyou dantai no shokuin ga sono shokumu no shikkou ni atari touroku shoumeisho
no keiji o motometa baai ni wa, kore o keiji shinakerebanaranai.
This is very clear, and I don't recommend you print this up cos it won't help your case. In translation:
"The Foreign Registry Law, Section 13, Clause 2. Foreigners, when asked to show their Gaijin Cards by immigration investigation officials (as outlined in separate laws), police, coast guard, or any other national or local public official or group empowered by the Ministry of Justice as part of the execution of their duties, must show."
This is bad news. However, there is a check and balance. If you read the next clause it says:
"The Foreign Registry Law, Section 13, Clause 3. Public officials governed by the previous clause, if asking for the Gaijin Card outside of their workplace, must carry a certificate of their identity and present it if asked."
Let that resonate for a minute. This means that unless a cop shows you his ID, you have no proof that this is an authorized official that you have to submit to. He, according to the law, MUST submit if you ask him to submit while you and he are outside of his workplace. That law is there, I assume, to stop con artists and blackmarketeers from running off with your card (like what could have happened to Richard Thieme in, of all places, Sapporo Station). But the beneficial side effect is that you now have a legitimate way to find out his name, his police number, and whatever other information you need to hold him accountable should some abuse of the law occur. Take the time to write this information down in your notebook. It is a valuable check.
So print this up too:
外国人登録法 第十三条 第三項 前項に規定する職員は、その事務所以外の場所に おいて登録証明書の提示を求める場合には、その身分を示す証票を携帯し、請求があ るときは、これを提示しなければならない。
In Romaji: gaikokujin tourokuhou dai juusan jou dai san kou zenkou ni kitei
suru shokuin wa, sono jimusho igai no basho ni oite touroku shoumesho no keiji o
motomeru baai ni wa, sono mibun o shimesu shouhyou o keitai shi, seikyuu ga aru toki
wa, kore o keiji shinakerebanaranai.
It doesn't get much clearer than that.
Now, say the cop remains obstinate. Does this mean that if he doesn't show you his first that you don't have to show him yours? That is not, according to a Tokyo lawyer I talked to and the law prof in our university, specifically outlined in the Dai Roppou as a proper sanction. But remember you can still at least demand his identification if you are outside (meaning on the street, or at Haneda Airport, outside the Kouban). Once he gets you on his turf, you lose your legal footing.
One fine but important point. Can't he just drag you to the Kouban and preserve his secret identity? Actually, no. Unwarranted demands to come to the Kouban are illegal too. According to that fat law up back up there called the Keisatsukan Shokumu Shikkou Hou, Clause Two, I quote:
"It is possible to ask a particular person to accompany the [police] to a nearby police station, police branch [i.e. kouban], or any police administration area for questioning if it is determined that this place is unsuitable for questioning because it obstructs traffic or is disadvantageous to the questionee."
which means that the police have the right to ASK you. However, the next clause, Clause Three, says you have the right to REFUSE and they have no right to restrict your movements without a formal charge or arrest. I quote:
"Unless there is a regulation relating to criminal action, officials may not confine, bring back to any police administration area, or else coerce a person to reply to questions against his will."
This is pretty straightforward and deserves to be known about. So if the policeman demands in public that you come with him to another area, like a separate room at Haneda Airport for questioning, refuse. Print up and pull out this law:
警察官職務執行法 第二条 第二項 その場で前項の質問をすることが本人に対して 不利であり、又は交通の妨害になると認められる場合においては、質問するため、そ の者に附近の警察署、派出所又は駐在所に同行することを求めることができる。 警察官職務執行法 第二条 第三項 前二項に規定する者は、刑事訴訟に関する法律 の規定によらない限り、身柄を拘束され、又はその意に反して警察署、派出所若しく は駐在所に連行され、若しくは答弁を強要されることはない。
In Romaji: Keisatsukan Shokumu Shikkou Hou, Dai Ni Jou, Dai Ni Kou, sono
ba de zenkou no shitsumon o suru koto ga honnin ni taishite furi de ari, mata wa
koutsuu no bougai ni naru to mitomerareru baai ni oite wa, shitsumon suru tame, sono
mono ni fukin no keisatsusho, hashussho mata wa chuuzaisho ni doukou suru koto o
motomeru koto ga dekiru. Keisatsukan Shokumu Shikkou Hou, Dai Ni Jou, Dai San Kou,
zennikou ni kitei suru mono wa, keiji soshou ni kansuru houritsu no kitei ni yoranai
kagiri, migara o kousoku sare, mata wa sono i ni hansite keisatsusho, hashusso moshiku
wa chuuzaisho ni renkou sare, moshikuwa touben o kyouyou sareru koto wa nai.)
That should stop him. Now the policeman either has the choice of showing you his ID (which means you will have to show him yours, of course. Shikata ga nai.), or of refusing and thus not obeying the law. Let's take the worst-case scenario. Say this cop gets really irritated, refuses to show you his ID and tries to either get physical or abusive. The best thing for you to do is not fight back. If you do anything that can be construed as physical violence (boukou 暴行) or threatening (kyouhaku 脅迫) actions, under the "Obstruction of the Execution of Public Duties Crime" (koumu no shikkou o bougai suru zai 公務の執行を妨害する罪) you can formally be charged with a crime and confined to a room. Then you are at the police's mercy and that is definitely dire straits.
Since there is no law of Habeas Corpus in Japan, the Japanese Police can, and often do, keep people in rooms for weeks without charge, adequate food or even sleep until incriminating confessions are signed. You can ask for a lawyer by saying, "Sumimasen, bengoshi ni nandoki de mo renraku suru kenri ga arimasu." (すみ ません、弁護士に何時でも連絡する権利があります。) (NB: The "nandoki" is a word used in the legal document for "any time", and will alert them that you know the law). However, that is not an entirely reliable recourse, since there have been plenty of cases where lawyers were denied access in Japan. Be it known that cops in this country have a lot of arbitrary power; they make their moves and let the lawyers or Amnesty International sort it out later.
My point is that you should not do anything that would be construed as resisting arrest. If the policeman gets physical, sit down and don't move. That means no flailing, no sudden movements. I doubt he will drag you to the nearest cop shop. Then what? Dunno. My legal adviser suggests: "Say to him that if you are not shown Police ID, you will personally begin a formal protest (kouben 抗弁) and refuse to show him your Gaijin Card. If th is winds up in stalemate, walk away and on to your airplane." He says that the policecannot construe calmly walking away as trying to escape, but that's awfully brave. I think being prepared with a long layover is your best course if you really want to take it this far. If so, be patient. Technically speaking, the safest course is waiting until the policeman gives up--anything else, and he probably can charge you for resisting him.
Here's what I suggest you do if a surly policeman asks for your ID in a public place.
COP: Because I said so.
YOU: The Keisatsukan Shokumu Shikkou Hou (brings out copy of the law from wallet) says that you cannot do that unless I am a Kyodou Fushinsha. What Fushin Koui am I doing?
COP: Shaddap. You are a foreigner and you are bound by the Gaikokujin Touroku Hou to show me your Gaijin Card.
YOU: And you are also bound by the Gaikokujin Touroku Hou to show me your Police ID if I ask you to. It says so on this piece of paper I just happen to have right here in my wallet. I hereby ask you to. Show me your ID first, please.
COP: Get stuffed. I don't have to show you anything.
YOU: If you do not, I will not show you mine. I will hereby protest until you show me yours. (Moshi misete itadakanakereba, watashi no mibun shoumeisho o misetaku naku narimasu. Misete kureru made kouben shimasu.) (sounds hokey but the word "kouben" presses a lot of mental buttons with cops)
COP: Alright you, come with me.
YOU: Going with you is optional, right? (Nin'i (任意) desu ka?)
COP: What's going on here? Do as I say or else.
YOU: According to the Keisatsukan Shokumu Shikkou Hou, going with you is my option, not something you can command me to do. See this piece of paper right here? That's the law. Are you arresting (taihou suru) me? If not, I refuse to go.
COP: (about ready to have an aneurysm) Move or I will move you!
YOU: (calmly sits down on the floor) You can't do this. It's against
the law (houritsu no ihan desu). It's against human rights. (jinken no ihan desu)
It is against the Japanese Constitution. (iken 違憲 desu)
What's next? Depends how far you want to take this. If this happens to you in Haneda Airport, you should here make a couple of phone calls (Emergencies only, please. Let's not abuse the avenue we've been given.) to concerned parties:
Ryokyaku Sentaa Kachou, Koga-san: (03) 5757-8505
Haneda Kuukou Keibi Kachou Watanabe-san, or Jin-san: (03) 5757-0110
They (click here to go to INSTANT CHECKPOINTS Part One if you want to know more about them) have given me permission for me and my friends to contact them in times of trouble. I didn't tell them how many friends I've got.
If you are stopped outside of Haneda, I have less idea what will happen, and it is up to you to make the police accountable. Fortunately, I've only been Carded one other time in my life, on the street in Otaru in 1987, so chances are that only places with tight security, like Haneda Airport, are going to instant checkpoint you.
In any case, although we cannot refuse to show our ID if the cops really know the law, there are checks--ways to make their job more difficult if they are treating us disrespectfully, and, more importantly, ways to hold them accountable if they are abusing their position. Even if you are not a Rosa-Parks type, please do consider, if suddenly Carded, at least asking for a reason why. If they are inconsiderate, I would request you bring out the laws.
And why? Because the current situation is unacceptable. The Japanese Police, by their own admission in INSTANT CHECKPOINTS Part One would almost never treat a Japanese the way they often treat foreigners, and the main reason they do that in my view is that they believe they are legally entitled to. It's only part of their job, and their are only enforcing some of the laws to the fullest extent. Moreover, nobody up to now, as my Haneda cop said, has complained, and nobody has taken them to task on the checks the law does in fact provide. Up to now, that is.
We can help change this situation by pushing for our rights; in fact, it is the only way. As I pointed out in a recent post, Japanese laws on fingerprinting did not change until people complained. Nor will they change in this case if you accept prejudicial status. Don't make the job easy for them if they are making life hard for you. For the good of Japan, it must be done.
As the police chiefs at Haneda clearly stated in Part One, foreigners are suspects because they are foreigners, and foreigners are singled out on the basis of racial characteristics. This is unnecessary harassment for us as residents and for our diaspora as regular citizens, and does not befit a modern, mature society, signatory to various covenants of human rights which specifically outlaw this sort of behavior.
Dave Aldwinckle (now Arudou Debito)