FINAL UPDATE FROM TIM KORST ON HIS COURT CASE

From: korst@hotmail.com
Date: Sun, 21 Jun 1998
To: jaltcall@clc.hyper.chubu.ac.jp
Subject: The Court Decision

THE COURT DECISION

CONTENTS
The Essence of the Decision
The Court Reasons
Legal Options


THE ESSENCE OF THE DECISION

My immediate apologies to those waiting for the outcome of my court petition for an injunction to keep my job. As many of you have heard per Aldwinckle's posting, I lost the decision. Although the decision was made on Friday, 12 July, I didn't receive a copy of it till the following Monday, nor have a chance to speak with Kato until Thursday. I offer here but a brief outline of the court's reasoning.

In a word, the court swallowed the state's arguments hook, line, and sinker. The court ruled that a gaikoku-jin kyoushi is a civil servant, though outside of the protection of the Civil Servant Law. Since the Labor Standards Law does not apply to civil servants, the protection offered regular laborers by this body of law is also not applicable. On a more fundamental level, the Constitution does not apply to foreign civil servants, nor does the protection offered by international treaties.

Here we have it. Four separate bodies of law offering protection to foreigners and workers, but none of it is afforded the foreign kyoushi. According to this decision, the kyoushi is apparently in a unique circumstance, occupying a position that is not protected in any way by law. In fact, the only basis in law for the position of kyoushi, and that on which this whole Court decision was based, is Article 2.7 of the Civil Servant Code, which simply allows the government to hire foreigners as exceptions.


THE COURT REASONS

The Court offered five reasons for its decision (p. 21-22, #3) regarding the validity of the one-year contract period.

1) The foreign kyoushi's contract is based on a number of laws and directives (hourei)

2) The Plaintiff consented to the terms of the contract

3) It is understood that the Civil Servant Law allows the hiring of foreigners as an exception

4) National universities have also the kyouIN method of hiring foreigners

5) A one-year contract facilitates the hiring of non-permanent (hiteijuu) foreigners

This decision restricts the rights of foreigners determined by the Tokyo High Court in the Chong case. In that case, the High Court ruled that foreigners have the right to hold civil servant positions that are not involved in the direct exercising of political power. In such cases, the Constitution is explicitly applicable, in particular Article 14, protecting the foreign laborer against discrimination.

In the Korst case, however, the Court ruled that foreigners MAY become civil servants, but if they do, they forfeit any labor rights they would otherwise have under Japanese law. In particular, this decision makes no distinction between the type of work a civil servant may render, whether directly or indirectly involved with the exercising of political power. Rather it lumps all civil servants into one batch, regardless of the work they are hired to carry out.

Another difference that I should point out between the Chong and Korst cases is that the former involves a civil servant on the local level, whereas the latter involves one on the national level. However, whether this constitutes a legal difference is unclear. Kato, though, says there is no difference and that the Chong case should be relevant to the Korst case.


LEGAL OPTIONS

My legal options are few. Although I still need to clarify some procedural matters, basically it boils down to these three.

1) File a case in regular court

If I go this route, I have to choose the venue. If I file in Okinawa, the chances are fifty-fifty that I will have the same judges as in the injunction case. Best to file elsewhere. Since the defendant is the state, it seems I could file anywhere in Japan. Timewise, it would take a couple of years.

2) Appeal the injunction ruling

In this case, my understanding is that I must file in the Fukuoka High Court, Okinawa Branch. The judges will be different, but my chances of winning are slim, Kato says. The advantage of this option, however, is that it offers a speedy route to a Supreme Court decision. I still have to check on the details.

3) File the case in the World Court

This option sounds interesting. On some level perhaps a ruling from this court would be easier to live with. Also, it offers, unlike Japan, the possibility of a class action suit, which would relieve some of the individual burden. But, according to one legal pundit, the downside is, any victory would be merely symbolic, since Japan would most likely ignore the decision. All three options are long shots.

Best Regards,
Tim Korst

korst@hotmail.com


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