JT on “Kyakkan Setsu vs. Nibun Setsu”: Grey zones in compensation for “work hours” in Japan

mytest

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Hi Blog.  As our last post talked about labor law issues (and the proposal to abridge Labor Standards in favor of greater “flexibility” to dismiss labor without reasons), here’s an important article that came out in the Japan Times last December that I was waiting to get to, discussing issues once again of employer power over employees:  When is a person under the authority of his or her employer, deserving compensation as “work time”?  Okunuki talks about important cases in a very enlightening article about just how grey “work hours” are, and underscoring how powerless Japanese employees are regarding all that overtime going unpaid — how many people take things to court or to labor unions to fight under this precedent, or are even aware of “kyakkan setsu vs. nibun setsu”?.  And the proposal we discussed last blog entry is to give even more power to employers?  Arudou Debito

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Japan Times Tuesday, Dec. 18, 2012
THE COMMUNITY PAGE LIFELINES: LABOR PAINS
When is an hour at work not a work hour?

The Japan Times, December 18, 2012
By HIFUMI OKUNUKI
http://www.japantimes.co.jp/text/fl20121218lp.html

It was 1988, in an ad for Regain energy drink. Actor Saburo Tokito, wearing a suit and carrying an attache case, asked a question that would go down in TV history: “Can I work 24 hours straight?”

Japan was reveling in the go-go years of the bubble economy, its people sacrificing their health, families and private lives in a mad devotion to work, work and more work. But beneath all the bright economic indicators lurked a dark underbelly of millions of hours of unpaid overtime and innumerable cases of karōshi, or death from overwork.

As 2012 winds down, economic and political stagnation drags on, while our society increasingly feels somehow claustrophobic. If we cannot have permanent economic growth, then shouldn’t we at least do away with the 24/7 work ethic? Yet the Japanese disease of “all work and no play” unfortunately seems to be here to stay. With job security fading fast, things are worse than ever.

I’d like to close 2012 with a major labor law theme: work hours. When is an hour a work hour? It’s not as straightforward as it might seem. To ensure that work hours are a pleasant and humane experience, we first need to define them.

The Labor Standards Law sidesteps a proper definition, and labor law scholars fall into two camps over how a work hour should be defined. One subscribes to what is known as kyakkan-setsu, roughly translating as “objective theory.” This camp argues that work hours are the entire time during which the employee can objectively be considered to be under the authority of her or his employer.

The nibun-setsu (two-part theory) camp, on the other hand, splits work hours into “core” and “peripheral” work hours, with the status of the latter gray area between strictly defined work hours and break time to be determined through agreement between the employer and employed.

The gold standard in case law regarding work hours is the Mitsubishi Heavy Industries Nagasaki Shipyard case. The Supreme Court’s Petty Bench on March 9, 2000, rejected outright the nibun-setsu approach and backed the kyakkan-setsu interpretation. Let’s examine the case.

The plaintiffs built and repaired vessels for Mitsubishi Heavy. The shūgyō kisoku (work rules) stipulated work hours and break time, as well as rules regarding changing into work clothes before and after work.

Workers were expected to be on site at the start and end of each shift in proper work clothes and gear. The preparation had to be done in the changing room and failure to do so before the start of each shift could result in disciplinary action, including poor evaluation, pay cuts or suspension.

The plaintiffs sued the plant, claiming that the following periods, numbered 1 through 8, were working hours and therefore should be paid as overtime and at overtime rates.

1) Time in the morning to get from the shipyard gate to the changing room.

2) Time in the changing room to don work clothes and special equipment, then to move to the preshift calisthenics area.

3) Time spent taking out equipment and materials from the warehouse before and after work and hosing down the yard before the shift.

4) Time to get from the shipyard to the cafeteria and then remove some gear and clothing for lunch break.

5) Time to move from the cafeteria to the calisthenics area and then put gear and clothing back on after lunch.

6) Time to get from the work site to the changing room and remove clothing and gear after work.

7) Time spent washing or taking a shower and then changing into ordinary clothes.

8) Time to get from the changing room to the gate of the shipyard at the end of the shift.

Nagasaki District Court in 1989, the Fukuoka High Court in 1995 and the Supreme Court in 2000 all ruled that 2, 3 and 6 constituted work hours that must be paid, while the others did not, for the following reasons: Workers were not under company authority during time periods 1 and 8; workers were free to use their break time as they chose for periods 4 and 5; and period 7 involved actions that were not required of workers and did not interfere unduly with their commute home.

This case was the first to take up the definition of work hours and is thus extremely important. Much attention is paid to the wording in the verdict that “time to do activities that are unavoidable or ordered by the employer constitute work hours.” This applies even if the order is tacit.

This case gives a sense of the courts’ thinking on work hours. If more workers understood this jurisprudence, we would surely see more workplaces that are “healthy in body and mind.”

Rest at http://www.japantimes.co.jp/text/fl20121218lp.html

Interesting cases: naturalized Japanese sues city councilor fiance who jilted her for Korean ethnicity, Pakistani parents file criminal complaint for injurious school bullying, Hatoyama Yukio officially called “traitor” for not toeing official party line on Senkaku/Nanjing issues

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Hi Blog. Here are a couple of interesting cases that have fallen through the cracks recently, what with all the higher-level geopolitical flurry and consequent hate speech garnering so much attention.  With not much to link them thematically except that these are complaints made into public disputes, let me combine them into one blog post and let them stand for themselves as bellwethers of the times.

First up, we have a criminal complaint filed with the police for classroom bullying resulting in serious injury due to his Pakistani ethnicity.  This is one of a long line of cases of ethnic bullying in Japan, once again with insufficient intervention by authorities, and we’re lucky this time it hasn’t resulted yet in PTSD or a suicide.  Like it has in these cases here with an ethnic Chinese schoolgirlwith an Indian student in 2007, or a Filipina-Japanese student in 2010 (in the last case NHK neglected to mention ethnicity as an issue).  Of course, even here the Mainichi declines to give the name of the school involved.  Whatever happened to perennial promises of a “major bullying study” at the ministerial level a couple of years ago to prevent things like this?  Or of grassroots NGO actions way back when?

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Pakistani student’s parents file complaint against classmates over bullying

http://mainichi.jp/english/english/newsselect/news/20130219p2a00m0na006000c.html

TAKAMATSU — The parents of a 13-year-old Pakistani junior high school student here have filed a criminal complaint with police, accusing their son’s classmates of bullying and injuring him.

A male Pakistani student at a public junior high school in a town in Kagawa Prefecture was bullied and seriously injured by his classmates, his parents alleged in a complaint filed on Feb. 18 with prefectural police.

The parents requested on the same day that the town’s board of education investigate the case and take measures to prevent a recurrence as they claim the student has been racially abused by four of his classmates since last spring. However, the education board denies bullying took place at the school.

According to the parents who held a news conference, the student was verbally bullied about the color of his skin by four of his classmates ever since he entered school last April. The parents claim that the students would make racist comments that their son’s skin was “dirty” and that they told him to “go back to his home country.”

The student was also physically bullied repeatedly by his classmates. Last November, one of the four classmates tripped him over when he was running in the hallway, severely injuring his legs and face. Since that incident, the student reportedly has to use crutches to walk.

The student’s 41-year-old father said, “We asked the homeroom teacher and vice principle multiple times to improve the situation but they failed to take any action.”

February 19, 2013 (Mainichi Japan) 

傷害容疑:「いじめで重傷」告訴…パキスタン籍の中1両親

毎日新聞 2013年02月19日 00時37分(最終更新 02月19日 09時33分)

http://mainichi.jp/select/news/20130219k0000m040116000c.html

 香川県中部の町立中学校に通うパキスタン国籍の1年男子生徒(13)が同級生からの暴行で重傷を負ったとして、男子生徒の両親が18日、傷害容疑で県警に告訴した。昨春以降、同級生ら4人から人種差別的な暴言によるいじめも続いているといい、両親は同日、町教育委員会に調査と再発防止を申し入れた。町教委側は「いじめはなかった」と否定している。

記者会見した両親らによると、男子生徒は昨年4月の入学直後から同級生4人に肌の色の違いを言われ「汚い」「国へ帰れ」など人種差別的な発言をされ、足を蹴られるなどの暴行も繰り返し受けたという。昨年11月には、校内の廊下を走っていて4人のうち1人に足を掛けられ転倒。足や顔などに重傷を負ったという。男子生徒は今も松葉づえで登下校している。父親(41)は「担任や教頭に何度も改善を訴えたがかなわなかった」と話している。【鈴木理之、広沢まゆみ】

婚約破棄:「在日差別意識に起因」 女性が市議を提訴
毎日新聞 2013年01月28日 15時00分(最終更新 01月28日 16時11分)
http://mainichi.jp/select/news/20130128k0000e040180000c.html

婚約相手だった兵庫県内の自治体の30代男性市議に自分の祖父が在日韓国人だと告げたところ、婚約を破棄されたとして、大阪市の会社員の女性(28)が市議に550万円の損害賠償を求める訴訟を大阪地裁に起こした。市議側は結婚できない理由として「政治的信条から消極的にならざるを得なかった」と説明しているが、女性側は「差別意識に起因し、不当だ」と批判している。人権問題に詳しい専門家からは市議の対応を問題視する声が上がっている。

提訴は昨年10月。訴状などによると、市議と女性は結婚相談所の紹介で同3月に知り合った。市議は同6月、「あなたのことが大好きです」などと書いた手紙を渡して「結婚したい」と伝え、女性も承諾した。しかしその数日後、女性が自分の祖父は在日韓国人だと市議に伝えると、市議は「韓国の血が流れている」などとして婚約を破棄したという。女性自身は日本国籍だった。

市議側は地裁に提出した書面で「結婚したい」といったん女性に伝えたことは認めた上で、「保守派の政治家として活動し、在日韓国人らに対する選挙権付与に反対するなどの政治的スタンスをとっており、政治的信条などから結婚できないと考えた」と説明。さらに「婚約は成立していない」として請求の棄却を求めている。

市議本人は取材に「弁護士に任せているのでコメントできない」としているが、女性は「どれだけ人を傷つけたのか、深く受け止めてほしい」と話した。在日外国人問題に詳しい田中宏・一橋大名誉教授は「結婚で出自を問う発想は問題だ。政治家としての考え方があるから正当化されるものではない」と指摘している。

判例などによると、双方の両親や友人らに婚約の意思を伝えている▽結納や指輪の交換をした−−などの事実があれば、婚約が成立したとみなされる。過去には、日本人男性から国籍を理由に婚約を破棄されたとして韓国籍女性が男性に慰謝料などを求めた訴訟で、大阪地裁は83年、「民族差別の存在に起因した迷いから婚約破棄したのは不当」として、男性に約240万円の支払いを命じた判決がある。【渋江千春】
ENDS

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And finally, courtesy of japanCRUSH last January, we have this interesting titbit:

Japanese defense minister Onodera Itsunori is the latest politician to enter the fray by calling former prime minister Hatoyama Yukio a ‘traitor’ on a television programme. Onodera’s remark came after Hatoyama commented to Chinese officials that the Senkaku Islands should be recognised as disputed territory, rather than Japanese territory, during his trip to China. Interestingly, Hatoyama caused further controversy this week when he apologised for the Nanjing massacre.

Translations courtesy of japanCRUSH:

Defense Minister Calls Hatoyama a ‘Traitor’ (kokuzoku)

Sankei Shinbun:  On the evening of January 17, defense minister Onodera Itsunori gave a scathing criticism of Hatoyama Yukio, who met with Chinese officials in Beijing, for his acknowledgement of the Senkaku Islands in Okinawa Prefecture as being a disputed territory between Japan and China. Onodera stated, ‘This is a huge negative for Japan. At this, China will announce to the world that there is a dispute, and form international opinion. For the first time in a long while, the word ‘traitor’ came to mind’. Onodera spoke on a BS-Fuji news programme.

鳩山氏は「国賊」と防衛相

産經新聞 2013.1.17 22:29 [鳩山氏の不思議な行動
 小野寺五典防衛相は17日夜、北京で中国要人と会談した鳩山由紀夫元首相が沖縄県・尖閣諸島は日中間の係争地だとの認識を伝えたことについて、「日本にとって大きなマイナスだ。中国はこれで係争があると世界に宣伝し、国際世論を作られてしまう。久しぶりに頭の中に『国賊』という言葉がよぎった」と述べ、鳩山氏を痛烈に批判した。BSフジの報道番組で語った。
===========================

Defense Minister Onodera: Former Prime Minister Hatoyama is a ‘Traitor’

JIJI/YahooNews.jp:  On the evening of January 17, defense minister Onodera Itsunori appeared on a BS-Fuji television programme, and said that ‘This is a huge negative for Japan. I shouldn’t really say this, but for a moment the word ‘traitor’ came to mind,’ strongly criticising former prime minister Hatoyama Yukio’s remark that ‘It is important to recognise that the Senkaku islands are a disputed territory’.

The defense minister showed his anxiety, saying ‘Although there is no dispute, and (Senkaku) is native Japanese territory, the Chinese will announce to the world that this is what a former Japanese prime minister thinks, and indeed world opinion will be formed as though there really is a dispute’.

鳩山元首相は「国賊」=小野寺防衛相

時事通信 1月17日(木)22時37分配信

 小野寺五典防衛相は17日夜、BSフジの番組に出演し、「尖閣諸島を係争地と認めることが大事だ」との鳩山由紀夫元首相の中国での発言について「日本にとって大きなマイナスだ。言ってはいけないが『国賊』という言葉が一瞬、頭をよぎった」と述べ、強く非難した。
防衛相は「係争などなく(尖閣は)固有の領土なのに、中国側は、日本の元首相はこう思っていると世界に宣伝し、いかにも係争があるかのように国際世論がつくられてしまう」と懸念を示した。

http://headlines.yahoo.co.jp/hl?a=20130117-00000197-jij-pol

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So this is what it’s coming to.  Dissent from prominent Japanese (who, in Hatoyama’s case, are no longer even political representatives) who act on their conscience, deviate from the saber-rattling party line, and show any efforts at reconciliation in this era of regional brinkmanship get decried as “traitors”.

Check out this photo essay link from the Sankei showing Hatoyama and missus provocatively bowing and praying at Nanjing (text of article follows):

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鳩山元首相が「南京大虐殺記念館」訪問 中国、「安倍内閣牽制」に利用も
産經新聞 2013年1月17日
http://photo.sankei.jp.msn.com/kodawari/data/2013/01/17hatoyama/

【上海=河崎真澄】中国を訪問中の鳩山由紀夫元首相は17日、日中戦争で旧日本軍による南京占領で起きたとされる「南京事件」の資料などを展示する江蘇省南京市の「南京大虐殺記念館」を訪問した。日本の首相経験者が同館を訪れるのは、海部俊樹、村山富市両元首相に続いて3人目。

中国版のツイッター「微博」などでは、「もっと日本に鳩山元首相のような人が増えればいい」といった同館訪問を歓迎する発言に加え、「記念館で鳩山はざんげしろ」「日本人は歴史を直視しろ」などとの書き込みもある。鳩山氏と対比する形で、東南アジア歴訪中の安倍晋三首相を「右翼的思想だ」と警戒感をむき出しにした発言も目立つ。

歴史認識をめぐって植民地支配と侵略を認めた「村山談話」を継承しつつ、新たな談話の作成を進める安倍内閣に対し、中国側はいわば同館への鳩山氏訪問のタイミングを利用し、牽制する狙いもありそうだ。

鳩山氏は16日の賈慶林全国政治協商会議主席ら中国要人との会談で、沖縄県の尖閣諸島について、日本政府の公式見解と異なり中国との「係争地」と発言、波紋を広げている。
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Doesn’t seem like there is much space for tolerance of moderate or diverse views (or people) anymore.  Arudou Debito

Interesting lawsuits: French “Flyjin” sues employer NHK for firing her during Fukushima Crisis, 8 US sailors sue TEPCO for lying about radiation dangers

mytest

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Hi Blog.  Here’s a couple of interesting lawsuits in the pipeline:  A French woman being fired from NHK (despite 20 years working there) apparently for leaving Japan during the Fukushima crisis, and eight US Navy sailors suing TEPCO (from overseas) for lying about nuclear fallout dangers and exposing them to radiation.

No matter what you think about the act of litigation (and there are always those, such as House Gaijin Gregory Clark or tarento Daniel Kahl (see Komisarof, “At Home Abroad”, p. 100) who decry anything a NJ does in court, saying “they’re suing at the drop of a hat like the litigious Westerners they are” — even though millions of Japanese in Japan sue every year), these cases have the potential to reveal something interesting:  1) Blowing the lid off the Flyjin Myth of “fickle NJ leaving their work stations” once again, this time in the Japanese judiciary; and 2) showing whether international effects of GOJ negligence (and irradiating the food chain both domestically and internationally counts as such) is something that can be legally actionable from afar.

Anyway, power to them.  I doubt the outcome of these cases will appear much in the J media, so keep an eye out for their potential appearance in the English-language media when the decisions get handed down within the next year or two.  Arudou Debito

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French woman who fled during nuclear crisis sues NHK for firing her
January 16, 2013 (Mainichi Japan), courtesy of JK
http://mainichi.jp/english/english/newsselect/news/20130116p2g00m0dm023000c.html

TOKYO (Kyodo) — A French woman on Tuesday sued public broadcaster Japan Broadcasting Corp., or NHK, for dismissing her after she left Japan in response to a French government warning issued during the Fukushima nuclear crisis.

Emmanuelle Bodin, 55, who had engaged in translation and radio work, said in a complaint filed with the Tokyo District Court that she had told her boss that she would return to work on March 30, 2011, but received a termination letter on March 22.

Two days after the earthquake-tsunami disaster triggered the accident at the Fukushima Daiichi plant on March 11 that year, the French government advised its citizens to leave the Tokyo area.

Bodin, who is demanding her dismissal be rescinded and damages be paid, had worked at NHK for over 20 years as a contract staffer, renewing her contract every year, according to the complaint. She said in a news conference no other employee in the French language section who left Tokyo at the time was fired.

NHK said the termination of her contract was not made in an unfair manner but refrained from elaborating on reasons for the dismissal.
ENDS

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The Japan Times, Friday, Dec. 28, 2012

Eight U.S. sailors sue Tepco for millions for falsely downplaying Fukushima radiation exposure

http://www.japantimes.co.jp/text/nn20121228a3.html

Bloomberg — Tokyo Electric Power Co. is being sued for tens of millions of dollars by eight U.S. Navy sailors who claim that they were unwittingly exposed to radiation from the Fukushima No. 1 nuclear plant meltdowns and that Tepco lied about the dangers.

The sailors aboard the nuclear-powered aircraft carrier USS Ronald Reagan were involved in the Operation Tomodachi disaster relief operations following the March 11, 2011, earthquake and tsunami that devastated the Tohoku region and led to the nuclear catastrophe, according to their complaint filed in U.S. federal court in San Diego on Dec. 21.

Tepco and the Japanese government conspired to create the false impression that radiation leaking from the Fukushima No. 1 plant didn’t pose a threat to the sailors, according to the complaint. As a result, the plaintiffs rushed to areas that were unsafe and too close to the facility, exposing them to radiation, their lawyers said.

The Japanese government was “lying through their teeth about the reactor meltdown” crisis, as it reassured the USS Reagan crew that “everything is under control,” the plaintiffs’ lawyers said in the complaint. “The plaintiffs must now endure a lifetime of radiation poisoning and suffering.”

The sailors are each seeking $10 million in damages, $30 million in punitive damages and a judgment requiring the creation of a $100 million fund to pay for their medical monitoring and treatments.

“We can’t comment as we have not received the complaint document yet,” Yusuke Kunikage, a Tepco spokesman, said Thursday. “We will consider a response after examining the claim.”

In July, the Nuclear Damage Liability Facilitation Fund took control of Tepco in return for a ¥1 trillion capital injection after the disaster left the utility on the brink of bankruptcy. The utility received ¥1.4 trillion in state funds to compensate those affected by the disaster.

ENDS

Japan Times JUST BE CAUSE Column 59: The year for NJ in 2012: a Top 10

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justbecauseicon.jpg

Hi Blog. Thanks everyone for putting this article in the Top Ten Most Read once again for most of New Year’s Day (and to the JT for distinguishing this with another “Editor’s Pick”). Great illustrations as always by Chris Mackenzie.  Here’s hoping I have more positive things to say in next year’s roundup… This version with links to sources. Enjoy. And Happy New Year 2013.  Arudou Debito

=================================

The Japan Times: Tuesday, Jan. 1, 2013

The year for non-Japanese in ’12: a top 10

By ARUDOU DEBITO

Back by popular demand, here is JBC’s roundup of the top 10 human rights events that most affected non-Japanese (NJ) residents of Japan in 2012, in ascending order.

10. Keene’s naturalization (March 7)
News photo

This should have occasioned great celebration in Japan’s era of crisis, but instead, scholar Donald Keene’s anointment as a Japanese citizen became a cautionary tale, for two reasons. One was his very public denigration of other NJ (despite their contributions as full-time Japan residents, taxpayers and family creators) as alleged criminals and “flyjin” deserters (JBC, Apr. 3), demonstrating how Old Japan Hands eat their young. The other was the lengths one apparently must go for acceptance: If you spend the better part of a century promoting Japanese literature to the world, then if you live to, oh, the age of 90, you might be considered “one of us.”

It seems Japan would rather celebrate a pensioner salving a wounded Japan than young multiethnic Japanese workers potentially saving it.

9. Liberty Osaka defunded (June 2)
News photo

Liberty Osaka (www.liberty.or.jp), Japan’s only human rights museum archiving the historical grass-roots struggles of disenfranchised minorities, faces probable closure because its government funding is being cut off. Mayor Toru Hashimoto, of hard-right Japan Restoration Party fame (and from a disenfranchised minority himself), explicitly said the divestment is due to the museum’s displays being “limited to discrimination and human rights,” thereby failing to present Japan’s children with a future of “hopes and dreams.”

In a country with the most peace museums in the world, this politically motivated ethnic cleansing of the past augurs ill for cultural heterogeneity under Japan’s right-wing swing (see below).

Sources:  http://www.debito.org/?p=10619 http://japanfocus.org/-Tessa-Morris_Suzuki/3818

8. Nationality Law ruling (March 23)
News photo

In a throwback to prewar eugenics, Tokyo District Court ruled constitutional a section of the Nationality Law’s Article 12 stating that a) if a man sires a child with a foreigner b) overseas, and c) does not file for the child’s Japanese citizenship within three months of birth, then citizenship may legally be denied.

Not only did this decision erode the 2008 Supreme Court ruling that granted citizenship to international children born out of wedlock, but it also made clear that having “foreign blood” (in a country where citizenship is blood-based) penalizes Japanese children — because if two Japanese nationals have a child overseas, or if the child is born to a Japanese woman, Article 12 does not apply. The ruling thus reinforced a legal loophole helping Japanese men evade responsibility if they fool around with foreign women.

Sources:  http://www.debito.org/?p=10060 http://www.debito.org/?p=1715

7. No Hague signing (September 8)
News photo

Japan’s endorsement of the Hague Convention on the Civil Aspects of International Child Abduction became a casualty of months of political gridlock, as the opposition Liberal Democratic Party blocked about a third of the ruling Democratic Party of Japan’s bills.

The treaty outlines protocol for how children of broken marriages can avoid international tugs of war. As the Community Pages have reported umpteen times, Japan, one of the few developed countries that is not a signatory, remains a haven for postdivorce parental alienation and child abductions.

Since joint custody does not legally exist and visitation rights are not guaranteed, after a Japanese divorce one parent (regardless of nationality) is generally expected to disappear from their child’s life. Former Diet member Masae Ido (a parental child abductor herself) glibly called this “a Japanese custom.” If so, it is one of the most psychologically damaging customs possible for a child, and despite years of international pressure on Japan to join the Hague, there is now little hope of that changing.

Sources:  http://www.japantimes.co.jp/text/nn20120908a2.html
http://www.debito.org/?p=10548

6. Immigration talks (May 24-August 27)
News photo

In one of the few potentially bright spots for NJ in Japan this year, the Yoshihiko Noda Cabinet convened several meetings on how Japan might go about creating a “coexistence society” that could “accept” NJ (JBC, July 3). A well-intentioned start, the talks included leaders of activist groups, local governments and one nikkei academic.

Sadly, it fell into old ideological traps: 1) Participants were mostly older male Japanese bureaucrats; 2) those bureaucrats were more interested in policing NJ than in making them more comfortable and offering them a stake in society; 3) no NJ leader was consulted about what NJ themselves might want; and 4) the Cabinet itself confined its concerns to the welfare of nikkei residents, reflecting the decades-old (but by now obviously erroneous) presumption that only people with “Japanese bloodlines” could “become Japanese.”

In sum, even though the government explicitly stated in its goals that NJ immigration (without using the word, imin) would revitalize our economy, it still has no clue how to make NJ into “New Japanese.”

Source:  http://www.debito.org/?p=10396

5. Mainali, Suraj cases (June 7, July 3)
News photo

2012 saw the first time an NJ serving a life sentence in Japan was declared wrongfully convicted, in the case of Govinda Prasad Mainali. The last time that happened (Toshikazu Sugaya in 2009), the victim was released with a very public apology from public prosecutors. Mainali, however, despite 15 years in the clink, was transferred to an immigration cell and deported. At least both are now free men.

On the other hand, the case of Abubakar Awudu Suraj (from last year’s top 10), who died after brutal handling by Japanese immigration officers during his deportation on March 22, 2010, was dropped by public prosecutors who found “no causal relationship” between the treatment and his death.

Thus, given the “hostage justice” (hitojichi shihō) within the Japanese criminal prosecution system, and the closed-circuit investigation system that protects its own, the Japanese police can incarcerate you indefinitely and even get away with murder — particularly if you are an NJ facing Japan’s double standards of jurisprudence (Zeit Gist, Mar. 24, 2009).

Sources: http://www.debito.org/?p=9265
http://www.debito.org/?p=10407
“Hostage justice”: http://www.debito.org/?p=1426

4. Visa regimes close loop (August)
News photo

Over the past two decades, we have seen Japan’s visa regimes favoring immigration through blood ties — offering limited-term work visas with no labor law rights to Chinese “trainees” while giving quasi-permanent-residency “returnee” visas to nikkei South Americans, for example.

However, after 2007’s economic downturn, blood was judged to be thinner than unemployment statistics, and the government offered the nikkei (and the nikkei only) bribes of free airfares home if they forfeited their visa status (JBC, Apr. 7, 2009). They left in droves, and down went Japan’s registered NJ population for the first time in nearly a half-century — and in 2012 the Brazilian population probably dropped to fourth place behind Filipinos.

But last year was also when the cynical machinations of Japan’s “revolving door” labor market became apparent to the world (JBC, March 6) as applications for Japan’s latest exploitative visa wheeze, “trainee” nurses from Indonesia and the Philippines, declined — and even some of the tiny number of NJ nurses who did pass the arduous qualifying exam left. Naturally, Japan’s media (e.g., Kyodo, June 20; Aug. 4) sought to portray NJ as ungrateful and fickle deserters, but nevertheless doubts remain as to whether the nursing program will continue. The point remains that Japan is increasingly seen as a place to avoid in the world’s unprecedented movement of international labor.

Sources: http://www.debito.org/?p=10010
http://www.debito.org/?p=10497
http://www.debito.org/?p=10340
International labor migration stats http://www.oecd.org/els/internationalmigrationpoliciesanddata/internationalmigrationoutlook2012.htm

3. New NJ registry system (July 5)
News photo

One of the most stupefying things about postwar Japan has been how NJ could not be registered with their Japanese families on the local residency registry system (jūmin kihon daichō) — meaning NJ often went uncounted in local population tallies despite being taxpaying residents! In 2012, this exclusionary system was finally abolished along with the Foreign Registry Law.

Unfortunately, this good news was offset by a) NJ still not being properly registered on family registries (koseki), b) NJ still having to carry gaijin cards at all times (except now with potentially remotely readable computer chips), and c) NJ still being singled out for racial profiling in spot ID checks by Japanese police (even though the remaining applicable law requires probable cause). It seems that old habits die hard, or else just get rejiggered with loopholes.

Sources:  http://www.debito.org/?p=10414
http://www.debito.org/?p=9718
Remotely readable computer chips http://www.debito.org/?p=10750

2. Post-Fukushima Japan is bust
News photo

After the multiple disasters of March 11, 2011, there was wan hope that Japan’s electorate would be energized enough to demand better governance. Nope. And this despite the revelations in December 2011 that the fund for tsunami victims was diverted to whaling “research.” And the confusing and suppressed official reports about radioactive contamination of the ecosystem. And the tsunami victims who still live in temporary housing. And the independent parliamentary report that vaguely blamed “Japanese culture” for the disaster (and, moreover, offered different interpretations for English- and Japanese-reading audiences). And the reports in October that even more rescue money had been “slush-funded” to unrelated projects, including road building in Okinawa, a contact lens factory in central Japan and renovations of Tokyo government offices.

Voters had ample reason for outrage, yet they responded (see below) by reinstating the original architects of this system, the LDP.

For everyone living in Japan (not just NJ), 2012 demonstrated that the Japanese system is beyond repair or reform.

Sources:  http://www.debito.org/?p=9745
http://www.debito.org/?p=9756
http://www.debito.org/?p=10706
http://www.debito.org/?p=10428
http://www.debito.org/?p=9698
http://japanfocus.org/-Iwata-Wataru/3841

1. Japan swings right (December)
News photo

Two columns ago (JBC, Nov. 6), I challenged former Tokyo Gov. Shintaro Ishihara (whose rabble-rousing bigotry has caused innumerable headaches for disenfranchised people in Japan, particularly NJ) to “bring it on” and show Japan’s true colors to the world in political debates. Well, he did. After a full decade of successfully encouraging Japanese society to see NJ (particularly Chinese) as innately criminal, Ishihara ratcheted things up by threatening to buy three of the privately-owned Senkaku islets (which forced the Noda administration to purchase them instead, fanning international tensions). Then Ishihara resigned his governorship, formed a “restorationist” party and rode the wave of xenophobia caused by the territorial disputes into the Diet’s Lower House (along with 53 other party members) in December’s general election.

Also benefiting from Ishihara’s ruses was the LDP, who with political ally New Komeito swept back into power with 325 seats. As this is more than the 320 necessary to override Upper House vetoes, Japan’s bicameral legislature is now effectively unicameral. I anticipate policy proposals (such as constitutional revisions to allow for a genuine military, fueling an accelerated arms race in Asia) reflecting the same corporatist rot that created the corrupt system we saw malfunctioning after the Fukushima disaster. (Note that if these crises had happened on the LDP’s watch, I bet the DPJ would have enjoyed the crushing victory instead — tough luck.)

In regards to NJ, since Japan’s left is now decimated and three-quarters of the 480-seat Lower House is in the hands of conservatives, I foresee a chauvinistic movement enforcing bloodline-based patriotism (never mind the multiculturalism created by decades of labor influx and international marriage), love of a “beautiful Japan” as defined by the elites, and more officially sanctioned history that downplays, ignores and overwrites the contributions of NJ and minorities to Japanese society.

In sum, if 2011 exposed a Japan in decline, 2012 showed a Japan closing.

Sources: http://www.debito.org/?p=10854
New arms race:  http://www.bbc.co.uk/news/world-asia-20302604 (Watch the video from minute 5.30:  the Hyuuga, Postwar Japan’s first new aircraft carrier is now in commission, two new big aircraft carriers are in production.)

Bubbling under (in descending order):

• China’s anti-Japan riots (September) and Senkaku-area maneuvers (October to now).

• North Korea’s missile test timed for Japan’s elections (December 12).

• NJ workers’ right to strike reaffirmed in court defeat of Berlitz (February 27).

• NJ on welfare deprived of waiver of public pension payments (August 10), later reinstated after public outcry (October 21).

• Statistics show 2011’s postdisaster exodus of NJ “flyjin” to be a myth (see JBC, Apr. 3).

Sources: http://www.debito.org/?p=10055
http://www.debito.org/?p=10081

Debito Arudou and Akira Higuchi’s bilingual 2nd Edition of “Handbook for Newcomers, Migrants, and Immigrants,” with updates for 2012’s changes to immigration laws, is now on sale. Twitter @arudoudebito. Just Be Cause appears on the first Community Page of the month. Send your comments to community@japantimes.co.jp.
The Japan Times: Tuesday, Jan. 1, 2013
ENDS

Good news: Rightist sentenced to a year in jail for harassing company using Korean actress in their advertising

mytest

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Hi Blog.  A bit of good news.  A member of a nasty Rightist group was sentenced to a year in jail for harassing a Japanese company for using a Korean actress in its advertising.  That’s hopeful, as we are seeing examples of xenophobia in Japan going beyond internet and political-arena bile (as well as signposted exclusionism) and into the street for race-bating and interpersonal confrontation.  Without some kind of brake like this court decision, it’s only a matter of time before somebody goes too far and we have race riots in Japan.

I would have liked to have seen a little more detail in the article below about the timeline of the harassment.  I can speak from personal experience that it can take a year or more between an event and a conclusive court decision in Japan, so how responsive is Japan’s judiciary being here?  Also, note that this case is not punishing somebody for hate speech against an ethnic group or a person in Japan — it’s protecting a Japanese company against threatening behavior, a bit different.  I will be more reassured when we have a (similarly criminal, not civil) case involving arrest, prosecution, and jail time for an individual threatening an individual on the grounds of his/her ethnicity/national origin.  But I don’t think that will happen under the current legal regime, as “the government does not think that Japan is currently in a situation where dissemination of racial discriminatory ideas or incitement of racial discrimination are conducted to the extent that the government must consider taking legislative measures for punishment against dissemination of racial discriminatory idea, etc. at the risk of unjustly atrophying lawful speech…

That assessment was made by the MOFA to the UN more than a decade ago.  Given what I see are xenophobic tidings in Japan these days, I think it’s time for an update.  Arudou Debito

////////////////////////////////////////

Nationalist sent to jail after harassing company using Korean actress in advertising
By Adam Westlake / December 18, 2012 / Courtesy JK
http://japandailypress.com/nationalist-sent-to-jail-after-harassing-company-using-korean-actress-in-advertising-1820111

A court in Japan has sentenced an extreme nationalist to one year in jail after he began a hate-based harassment campaign against a Japanese company that used a popular South Korean actress in its magazine and television advertising. The situation peaked when 44 year old Hitoshi Nishimura, along with three other men, forced their way into the Osaka headquarters of the pharmaceutical firm and demanded to know why the company was using someone with an anti-Japanese background.

Nishimura said the actress Kim Tae-Hee was a South Korean activist herself when he entered the Rohto Pharmaceutical building and began making angry threats. He stated Kim participated in activities that asserted Seoul’s claims over the disputed Dokdo / Takeshima Islands, which are located in between Japan and South Korea, and have been the source of tensions for decades. In video footage of the intrusion, Nishimura is seen as yelling at the company’s officials and claiming to represent “angry Japanese throughout the country.”

The court sentenced Nishimura to a one-year jail term for making threatening acts, but no information has been released on the other three men. While somewhat overshadowed by the eruption of escalating tensions between China and Japan, the latest round of the territorial dispute with South Korea was kicked off in August when President Lee Myung-Bak made an unexpected visit to the islands. This resulted in protest from the Japanese government, as well as back-and-forth displays of nationalism on both sides. In one example, a group of South Korean swimmers, including a celebrity athlete, swam in a relay to the islands. Vocal groups in Japan began criticizing television broadcasters that showed Korean dramas, and even recently Korean pop-music acts have been left out of events and getting less airtime.

[via My Sinchew]

ENDS

Resurrecting Gregory Clark’s embarrassingly xenophobic Japan Times column on “Global Standards” Nov 1, 1999, quietly deleted without retraction from JT Online archives

mytest

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Hi Blog.  When doing research last blog entry, on how Japan Times columnist Gregory Clark led the Apologist counterattack on criticism of Japan for institutionalized racism (as witnessed at the time by the Ana Bortz Case of 1998-9 and the Otaru Onsens Case of 1999-2005), I discovered that one of his most xenophobic columns, entitled “Problematic Global Standards” of November 1, 1999 (weeks after the Bortz verdict in Shizuoka District Court made clear that racism, none other, existed within these shores) has long been deleted from the Japan Times archive.  I think after reading it you might understand why a publisher would be embarrassed for ever publishing it, but deletion from a newspaper archive without a retraction is simply not on.  I happen to have a hard copy of it in my archives:

Let me also type it out in full now, so it becomes word-searchable by the search engines for posterity.  Bigots, media fabricators, and profiteers like Clark deserve to be hoisted by their own petard.  Enjoy.  Arudou Debito

/////////////////////////////////////////////////

PROBLEMATIC GLOBAL STANDARDS
By Gregory Clark
The Japan Times, Monday, November 1, 1999

The Japanese are preoccupied nowadays with something called “global standards.” Spelled out clumsily in “katakana” English, “gurobaru sutandaado” has every implication of a backward, inferior Japan rightly despised by the civilized world for its failure to reform itself in our Western image.

It is true there are some Japanese standards that need to be reformed. The apathy towards social evils like “yakuza,” bike gangs and tobacco is one. Corruption in conservative political and business circles seems endless.

The education system could learn much not just from the West, but also from Taiwan or Singapore, particularly at the tertiary level.

But for every Japanese minus there is usually more than a more-than-compsenating plus. Over the years, the Japanese have evolved a value system that for all its faults has created the advanced and reasonably stable society that most of us come here to enjoy.

Or, to put it another way, for all the global standards that Japan should be emulating, there is usually any number of Japanese standards that the rest of us should emulate — particularly the ones that say people should be honest and reasonably polite to each other.

Which is where the sad story of the Hamamatsu jewelry shop owner fined recently for racial discrimination becomes relevant.

That Japan is remarkable for its lack of organized theft is no secret. One result is that even jewelry merchants feel little need to take little precautions.

Another is that Japan has become a paradise for Chinese, Vietnamese, Middle-Eastern and Latin American gangs keen to exploit this lack of precaution. To date they have managed to pull off close to 100 major jewelry heists, not to mention any number of big-haul raids on pachinko parlors.

With jewelry thefts, one ploy is to have someone, often a female accomplice, visit the targeted store in advance and pretend to show a purchasing interest while checking out details for the planned theft later.

Another is for the accomplice to create a disturbance, and while Japan’s fuss-sensitive shop assistants have their attention diverted, others in the gang pretending to be customers empty the unlocked display boxes.

Needless to say, this gives Japan’s jewelry merchants something of a problem. That some may have decided that their best defense is to ban all foreign-looking would-be customers from their stores is not very surprising.

But that, precisely, is where the man in Hamamatsu came unstuck. His district has a large Latin American-origin workforce. Having already suffered two robberies, he saw fit to deny entrance to a woman of Latin appearance who turned out to be a Brazilian journalist.

She also happened to be legalistic (another “global standard” Japan need not rush to adopt) and since Japan did not have a relevant law, the shop owner was charged under a U.N. antidiscrimination convention that Japan had signed. Found guilty, he was fined Y1.5 million.

No doubt the judge involved saw the U.N. connection as the ultimate in global standards. Many in the media here were equally enthusiastic. Few seem to have considered the corollary, namely that from now on not just the jewelers but anyone in the merchandise business will have to embrace another “global standard” — the one that says they should regard all customers as potential criminals to be welcomed with guns, guards, overhead cameras, and squinty-eyed vigilance.

True, discrimination against foreigners can be unpleasant, and in Japan it includes refusals to rent property. But as often as not, that is because they do not want to obey Japan’s rules and customs.

Refusal to respect the culture of a host nation is the worst form of antiforeign discrimination.

This clash between “global standards” and Japanese standards leaves its detritus in other areas.

Japanese standards say that there are times when an economy functions better if rival companies can get together, sometimes with customers, to agree on prices and market share. Unfettered competition can easily lead not just to monopolies, but also to very damaging “over-competition” (“kato kyoso”) as Japanese firms, with their strong survivalist ethic, struggle to keep alive.

But the “global standards” imposed on postwar Japan say otherwise. They insist that competition has to be free and unfettered. All and any cooperation between companies — the dreaded “dango” phenomenon — is a crime.

So Japan compromises. Dango that happen to be exposed are evil. The others are OK. What it should be doing is preventing dango that aim simply to jack up prices, while encouraging those that bring order to markets and help customers.

A recent victim of this expose standard was a small group of cast-iron pipe makers that had colluded on prices, mainly to rescue a weak competitor from bankruptcy. For its generosity, the group had its executives arrested and paraded as criminals.

Curious, the United States, which helped impose this anti-dango standard also condemned Fujitsu’s famous Y1 bid for a large Hiroshima computerization contract. The bid was a typical result of what can happen in Japan when competition is free and unfettered.

Nagging Western demands for unfettered competition in Japan’s finance industry and an end to government control over the banking system also led indirectly to the bubble economy and Japan’s current economic plight.

The same standards also managed to wreck the Asian economies two years ago, and then endorsed strong criticisms of Malaysia and Hong Kong for the state interventions that were crucial for rescuing those two economies from the wreckage imposed on them by Western speculators.

It’s time Japan, and much of the rest of the world, worked out their own standards.

===================
Gregory Clark is president of Tama University
ENDS

Japan Times on reaffirmed J workers’ “right to strike”, thanks to judicial precedent set by defeated 2012 nuisance lawsuit from eikaiwa Berlitz Inc.

mytest

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Hi Blog. In one important NJ legacy, Japan’s courts have, according to the Japan Times, reaffirmed the right to strike for “laborers” (roudousha) in Japan’s private sector. Note that the right to strike has been denied to public-sector laborers — a legacy of SCAP’s “Reverse Course” of 1947-8 (Akira Suzuki, “The History of Labor in Japan in the Twentieth Century”, in Jan Lucassen, ed. “Global Labour History”, pg. 181), when the American occupiers were worried about Japan “going Red” like China and North Korea; to maintain administrative order, bureaucrats were explicitly denied the right to strike or engage in political activities (fortunately, they retained the right to vote; thanks for small favors). But in the face of eroding labor rights over the past few decades (when, for example, the rights of permanently-contracted workers to not have instant termination without reason, were being abused by unilateral contract terminations of NJ educators), a nuisance lawsuit by Berlitz against its eikaiwa workers fortunately ended up in the reaffirmation of their right to strike last February. Since we have talked about it on Debito.org at great length in the past, I just wanted to note this for the record.  And say thanks, good job, for standing your ground for all of us.  Arudou Debito

/////////////////////////////////////

The Japan Times, Tuesday, July 17, 2012
LIFELINES: LABOR PAINS
Courts back workers’ rock-solid right to strike (excerpt)
By HIFUMI OKUNUKI, professor of constitutional and labor law at Daito Bunka University and Jissen Women’s University
http://www.japantimes.co.jp/text/fl20120717lp.html

[…]

One large company recently lost its claim of ¥110 million in damages against its union and union executives (see “Berlitz Loses Suit Over Union Teacher Strikes,” Feb. 28, The Japan Times).

Over 100 Berlitz Japan teachers struck over 3,000 lessons between December 2007 and November 2008 in order to win a 4.6-percent pay hike and one-off one-month bonus.

The language school claimed the strikes were illegal mainly because the union gave little notice of the impending strikes. While case law stipulates that prior notice must be given for a strike, it does not set a minimum time. Berlitz teachers often gave less than five minutes’ notice. This probably created a headache for management, because they had less time to send replacement teachers to cover the struck classes.

The school also claimed that a union executive, Louis Carlet (full disclosure: Carlet is the current president of Tozen Union), had admitted to wanting to damage the company in a Sept. 30, 2008, Zeit Gist column in The Japan Times (“Berlitz Strike Grows Despite Naysayers“).

Tokyo District Court dismissed the entire case in its Feb. 27, 2012, verdict, reaffirming the powerful guarantee of the right to strike in Japan. The court rejected the company’s contention that the union was striking to destroy the company and agreed with the union’s assertion that the only purpose of the strikes was to realize its demands.

Management appealed the verdict and Tokyo High Court is currently overseeing reconciliation talks between the two sides.

Full article at http://www.japantimes.co.jp/text/fl20120717lp.html

===================================

Related sites:

ENDS

Asahi: Tokyo District Court rules denying J citizenship to children born overseas with one J parent constitutional

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Hi Blog. In an important decision regarding how Japanese nationality is granted, the Tokyo District Court ruled constitutional on March 23, 2012, that if a person with Japanese blood is born overseas and has another nationality, and if the parents have not registered the child with Japanese authorities within three months of birth, Japanese nationality will be denied.

This fruity ruling is in contrast to the Supreme Court’s June 2008 landmark ruling regarding Japanese-Filipina plaintiffs in a similar situation, where their Japanese nationality would be recognized despite similar bureaucratic registry snafus (as in, Japanese paternity not being recognized within a certain time frame, and if the child was born out of wedlock). That ruling was justified in part by the judges candidly admitting that lack of Japanese nationality would mean clear and present discrimination in Japan towards these people.  (In a related note, the GOJ months later declared a “false paternity” panic, and declared countermeasures were necessary; wheels turn slowly within the Japanese judiciary — perhaps this ruling is a countermeasure to keep the Half riffraff out.)

The possibility of discrimination seemed to make no difference in this ruling, as paternity and wedlock don’t seem to be an issue.  Place of birth is, meaning this ruling erodes the primacy of Japan’s jus sanguinis (citizenship by blood) conceits in favor somehow of jus soli (citizenship by birthplace).

Granted, Japanese judges are a fruity lot, and District Court rulings are often overturned for their fruitiness (see the McGowan Case, where an African-American plaintiff was refused entry to an eyeglass store by a manager who expressly disliked black people, and the judge said it was unclear that refusal was due to him being black; and the Oita Zainichi Chinese Welfare Case, which tried to rule that foreigners were not eligible for social welfare, despite it being made legal by the Japanese Diet since 1981! — see here also under item six). Let’s hope there is an appeal and this gets taken before a less fruity court. Arudou Debito

////////////////////////////////////////////////

Court rules nationality law on foreign country-born children legal
Asahi Shimbun March 25, 2012, courtesy of JK
http://ajw.asahi.com/article/behind_news/social_affairs/AJ201203250003

A Tokyo court ruled as constitutional March 23 a clause in the nationality law which stipulates that children of Japanese nationals born overseas who have acquired foreign nationality cannot get a Japanese passport unless their parents take steps to obtain nationality within three months of birth.

The district court was ruling in a lawsuit filed against the Japanese government by 27 Philippine nationals who were fathered by Japanese between 1986 and 2007.

They were unable to gain Japanese nationality because their parents were unaware of the requirements in the nationality law.

The clause on stating intentions within three months of birth was added to Article 12 of the revised nationality law in 1985.

The decision was the first concerning the law’s clause, according to the Justice Ministry.

The plaintiffs argued that the stipulation was discriminatory because it amounted to reserving nationality based on birthplace, thereby going against the spirit of Article 14 of Japan’s Constitution, which guarantees equality for all.

In the ruling, Presiding Judge Makoto Jozuka explained the legislative purpose of the clause was to prevent individuals from holding dual nationality without a legitimate reason to claim Japanese nationality.

However, the court granted the request of one plaintiff on grounds that the individual had taken steps to acquire Japanese nationality.

One of the plaintiffs, Hiroko Ishiyama, 21, broke down in tears at a news conference after the ruling.

“My father is Japanese,” she said. “I have the right to become Japanese.”

She said her father did not know of the provision in the nationality law and missed the three-month deadline to file for Japanese nationality by one week.

Her younger sister has Japanese citizenship, as her parents filed the request within the prescribed period.

“I want to work and live in Japan,” Ishiyama said. “If there is a chance to acquire Japanese nationality, even if it is 1 percent, I want to get it.”
ENDS

////////////////////////////////////////////////

国籍確認訴訟:国籍法12条「合憲」 外国生まれ、留保3カ月以内に--東京地裁初判断

毎日新聞 2012年3月24日 東京朝刊

http://mainichi.jp/select/jiken/news/20120324ddm041040084000c.html

外国で生まれ、外国籍と日本国籍を持つ子供が3カ月以内に日本国籍留保の意思表示をしないと日本国籍を喪失すると定めた国籍法12条は憲法に違反するとしてフィリピン生まれの男女27人が国に日本国籍の確認を求めた訴訟の判決で、東京地裁(定塚誠裁判長)は23日、「立法目的は合理的で違憲とは言えない」として合憲判断を示した。その上で26人の請求を棄却した。同12条に対する憲法判断は初めて。(3面に「質問なるほドリ」)

原告はいずれも日本人父とフィリピン人母の間の嫡出子で4~25歳。国籍が確認された1人は日本在住の21歳の男性で、国籍喪失後、再取得の届け出をした事情が考慮された。

判決は同12条の立法目的を「形骸化した国籍との重国籍を防止することにある」と指摘。日本と結びつきの薄い人に国籍が与えられると、国内法で定められている義務や権利の実効性が確保されなかったり、外交上の保護権を巡り国際的摩擦が生じる恐れがあり、立法目的は合理的と判断した。

原告は国内出生者との不公平を主張したが、定塚裁判長は「出生地に国との結びつきを見いだすことは、不合理ではない」とした。

また原告は、08年の国籍法改正で未婚の日本人父と外国人母との子は、父親の認知があれば20歳まで、「出生から3カ月」などの期限にかかわらず国籍取得が可能になった規定と比べて不均衡と主張した。だが、判決は「認知の時期を制限していない以上、非嫡出子の国籍取得時期を制限しないのは当然」と述べ、不合理な差別はないと判断した。【野口由紀】

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国籍法:フィリピン人原告「どうして認められないの」

http://mainichi.jp/select/jiken/news/20120324k0000m040073000c.html

判決後、記者会見で涙を流すヒロコ・イシヤマさん(左端)。左から2人目は父親の石山博美さん=東京・霞が関の司法記者クラブで2012年3月23日、竹内幹撮影

判決後、記者会見で涙を流すヒロコ・イシヤマさん(左端)。左から2人目は父親の石山博美さん=東京・霞が関の司法記者クラブで2012年3月23日、竹内幹撮影

国籍法12条を合憲とした東京地裁のフィリピン人の日本国籍確認訴訟で、原告2人と日本人の父親たちが判決後の23日午後、東京・霞が関の司法記者クラブで記者会見した。

原告の一人でマニラ在住のヒロコ・イシヤマさん(21)は判決日に合わせて父親の石山博美さん(73)と来日した。石山さんは長女のヒロコさんの出生時に規定を知らず国籍留保の届け出をしなかったが、次女は届け出をしたため姉妹で国籍が違う。ヒロコさんは「父を責めることはできない。私の父は日本人なのに、どうして私には国籍が認められないのか」と涙を流した。

同法では国籍を喪失した人も、20歳未満であれば「日本に住所を有する」という条件で再取得できるが、ヒロコさんは「フィリピンで通う学校を長期間休み、日本で生活するのは無理だった」とハードルの高さを指摘した。

日本国籍確認の判決を受けたマニラ出身のマサミ・ツネタさん(21)も「27人で闘ってきたのにみんなで勝てずに残念」と肩を落とした。【野口由紀】

毎日新聞 2012年3月23日 20時56分(最終更新 3月23日 21時00分)

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質問なるほドリ:外国生まれの日本人の国籍は?=回答・伊藤一郎

 <NEWS NAVIGATOR>

http://mainichi.jp/select/wadai/naruhodori/news/20120324ddm003070121000c.html

 ◇紛争避け重国籍排除 22歳までに選択、外国では例外も

なるほドリ 父親が日本人なのに外国で生まれて3カ月以内に届けないと日本国籍を失うという規定を巡る判決があったけど、なぜそんな規定があるの?

記者 日本と外国の国籍を両方同時に持つことを「重国籍」といいます。生地の外国で生活し、日本に戻るつもりもないのに日本国籍を持っていても意味がないですよね。そうした形だけの日本国籍を持っている人を増やさないようにすることが規定の目的の一つとされます。また、重国籍は、さまざまな弊害を起こす恐れがあるため、そうした人を増やしたくないという考え方もあるようです。

Q 重国籍だとどんな弊害があるの?

A 例えば国家間の紛争を招く恐れがあるとされます。重国籍者が一方の国で迫害を受けた際、もう一方の国が保護に乗り出そうとすれば国同士の争いに発展しかねないという指摘があります。また重国籍者が二つの国に異なる名前を登録することで、本名以外の偽名を用いるように、犯罪などの不正行為に悪用する恐れもあるとされます。

Q 出生3カ月以内に届け出ずに日本国籍を失った場合、二度と取得できなくなるの?

A いいえ、20歳未満で日本に住所があることを証明できれば、改めて日本国籍を取得できる制度があります。ただし、観光や親族を訪ねる目的で一時的に日本に滞在しただけでは住所があるとは認められません。再取得するためには「生活の本拠が日本にある」ことを証明する必要があります。

Q 重国籍の状態になった人は一生そのままなの?

A 日本の国籍法は原則として22歳までにどちらかの国籍を選択する義務があると定めています。正当な理由もなく期限までに選択せず、さらに法相による催告にも応じなければ、最終的に日本国籍を失います。ただし、外国には例外的に重国籍を認めている国もあります。

Q 国籍取得の考え方って、日本と外国で違うの?

A 日本は親の国籍が子の国籍になるという「血統主義」と呼ばれる考え方を基本とし、多くの国も血統主義を採用しています。一方、親の国籍にかかわらず生まれた国の国籍を取得する「生地主義」を採用している国もあります。ただ、どちらの主義の国で生まれても、一方の親が日本人、もう一方が外国人の場合、原則的にどちらかの国籍を選択しなければなりません。(社会部)

==============

◆国籍取得に関する各国の考え方◆

<血統主義>

日本、中国、韓国、フィリピン、ドイツ、フランス、ロシアなど

<生地主義>

米国、カナダ、ブラジル、英国(条件付き)など

==============

なるほドリコーナーへの質問をお寄せください。〒100-8051(住所不要)毎日新聞「質問なるほドリ」係 naruhodori@mainichi.co.jp

毎日新聞 2012年3月24日 東京朝刊

My Japan Times JUST BE CAUSE Column 47: 2011’s Top 10 Human Rights Issues affecting NJ in Japan

mytest

IN APPROPRIATE, A novel of culture, kidnapping, and revenge in modern Japan, By ARUDOU Debito
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justbecauseicon.jpg

The Japan Times, Tuesday, Jan. 3, 2012
JUST BE CAUSE, Column 47

Kim to ‘flyjin,’ a top 10 for 2012

Illustrations by Chris Mackenzie
Version with links to sources

Here’s JBC’s fourth annual roundup of the top 10 human rights events that affected Japan’s non-Japanese (NJ) residents last year. Ranked in ascending order of impact:

10.  Kim Jong Il dies

News photo

This might rank higher with the benefit of hindsight, but right now it’s unclear how things will settle after the succession. Still, potential regime change in Asia’s most wild-card country might improve things for NJ in Japan. The biggest counterargument to granting NJ more rights has been, “If resident Chinese or North Koreans get any power over Japanese, Japan will be lost.”

Kim’s demise may not silence the alarmists (China will still be seen as a threat, especially now; more below), but even a tamping down of the standard foaming-at-the-mouth invective was impossible while “Dear Leader” was still around.

9.  Child abductor Emiko Inoue nicked

News photo

Emiko who? You might not know this case because Japanese media have intentionally omitted her name (even pixelating out her face in photographs) — and the fact she is a convicted felon in America — in their reports. But Inoue is one of the many Japanese who, following a separation or divorce, have abducted and then attempted to alienate their children from their former spouse. In the case of international relationships (because Japan is still not a signatory to the Hague Convention on Child Abduction), no child, according to activists, has ever been extradited from Japan and reunited with an NJ parent.

But check this out: After abducting daughter Karina in 2008 to Japan from husband Moises Garcia (who was then awarded custody in America), Inoue had the nerve to drop by Hawaii last April and try to renew her green card. Arrested and sent to Wisconsin to face trial, Inoue was given a choice in November by the court: spend a decade or so in jail, or return Karina to Garcia by Christmas. Inoue chose the latter, and Karina was back by Dec. 23 (the mother, incidentally, will remain in the U.S. with visitation rights — a better deal than NJ in Japan ever get in custody battles).

The Karina Garcia case brought further attention to Japan’s insane system of child custody (see Zeit Gists, Aug. 9, 2011Sept. 21 andSept. 28, 2010Jan. 26 , and Feb. 2, 2010; and Just Be Cause Oct. 6, 2009), and made it clear to Japanese abductors that outstanding arrest warrants will be enforced.

Unfortunately, the Japanese public is again getting the pixelated version (e.g., Yomiuri Shimbun, Dec. 24): Poor Karina, who reportedly wants to live in Japan, is forced to live in America to “save her mother” (never mind that her irresponsible mother put everyone in this position in the first place). A victory for the rule of law is yet again spun into victimhood for Japanese.

8.  Olympus whistle-blowing

News photo

The slimy practices of Olympus Corp. garnered a great deal of press this year, thanks to former CEO Michael Woodford’s refusal to go quietly. After raising questions about odd corporate expenditures, Woodford was sacked in October for “a management style incompatible with traditional Japanese practices” — meaning Woodford, whose superhuman tenacity got him from entry level in 1980 to corporate head, was fired for not abdicating his responsibilities.

That an international company would immediately invoke culture to defend their criminality is testament to so much of what is wrong with Japanese corporations. But also consider the plight of NJ employees like Woodford, promised during the bubble years that fluency in Japanese, hard work, sacrifice and company loyalty would bring opportunities. Decades later, it turns out their contributions matter not one whit if they ever speak up with integrity; in the end, they’re just another gaijin out on their ear. “Tradition,” indeed.

As it is unlikely this scandal will lead to any cleanup of Japan’s tribal (and consequently corrupt) corporate culture, the unfortunate lesson is: Don’t work for a Japanese company as an NJ and expect equality and upward mobility.

7.  Death during deportation

News photo

Whatever you might think of visa overstayers, few would argue it is a capital offense. Yet the death of Abubakar Awadu Suraj (ZG, Nov. 1) in March 2010, while being bundled onto an airplane back to Ghana, raised eyebrows not only because of the brutality of his treatment by government officials, but also because of the predictable results when it went to court this year: The domestic media either downplayed or ignored it, foreign media were stonewalled, and investigations by both police watchdogs and the judiciary stalled.

This horrific event confirmed, along with the suspiciously unsolved deaths of Scott Kang and Matthew Lacey (ZG, Sep. 6), that foreigners’ lives are essentially held in low regard by Japan’s police forces (ZG, March 24, 2009) and media (in contrast to the hue and cry when a Japanese is murdered overseas, or by a foreigner in Japan). The point is, once Japan’s unaccountable police get their hands on you, your very life is potentially in jeopardy.

6.  Oita denial of benefits overturned

News photo

In 2008, Oita Prefecture heartlessly rejected a welfare application from a 78-year-old Chinese (a permanent resident born in Japan) because she is somehow still a foreigner. Then, in a shocking ruling on the case two years later, the Oita District Court decreed that NJ are not automatically eligible for social welfare. Finally, in November, this stubborn NJ, in her 80th year, won a reversal at the Fukuoka High Court — on the grounds that international law and treaty created obligations for “refugees (sic) (to be accorded) treatment at least as favorable as that accorded to their nationals.”

What caused the confusion was that in 1981, the Diet decided that revising the public welfare law to eliminate nationality requirements was unnecessary, since practical application already provided NJ with benefits. Three decades later, Oita Prefecture and its district court still hadn’t gotten the memo.

Bravo for this NJ for staying alive long enough to prize her case away from xenophobic local bureaucrats and set congruent legal precedents for all NJ.

5.  Japan as No. 3

News photo

2011 was the year that China’s GDP conclusively rose to second place behind the United States’, meaning Japan had to deal with no longer being the largest, richest and apparently most attractive economy in Asia. Marginalization sank in: More NJ studying Mandarin than Japanese, world media moving offices to Beijing, rich Chinese starting to outspend Japanese worldwide, and the realization that a recessionary/deflationary spiral for two (yes, now two) full decades had enabled others to catch up, if not surpass Japan.

It was time for a rethink, now that Japan’s mercantilist economy, largely intolerant of any standards but its own, was being seen as an untenable modern Galapagos. But fresh ideas from long-ignored resident NJ weren’t forthcoming. For they seemed to be leaving.

News photo

 4.  NJ population drops, again

After an unbroken rise between 1961 and 2009, it was announced last June that the total population of registered foreign residents dropped again in 2010, by another 2.4 percent.

Brazilians, once the workhorses of Japan’s most competitive exporters, fell the most in raw numbers (more than 16 percent), while Chinese, already the largest NJ contingent in Japan, still managed to grow a smidge. But that was before the events of last March . . .

 

News photo

3, 2, 1.  The Fukushima nuclear disaster

A no-brainer, this. The chain reactions set in motion on March 11 illuminated so many things that are wrong with Japan’s current system.

Let’s start with the obvious examples: The unwillingness of TEPCO to come clean with their data, of politicians to forsake petty political games of interference, and of administrators to give proper guidance to people in danger- all of this devastated public faith and trust.

Then the abdication of accountability of people supposedly in charge reached new heights as irradiated land and water spread (e.g., Tepco claimed in court (Aera, Nov. 24) that it no longer “owned” the radiation, and was therefore not liable for decontamination).

Meanwhile, despite a huge amount of volunteer work at the grassroots, official relief efforts were so bungled and corrupted that reconstruction funds were even proposed for free tourist plane tickets and whaling!

Then we get to the outright nastiness and hypocrisy of Japan’s media (and the self-hating gaijin toadies) who accused NJ residents (aka “flyjin”) of deserting their work stations ( JBC, May 3). Never mind that under the same conditions Japanese do the same thing (even encourage others to do so; remember, Japan imported Thai workers during Bangkok’s floods), and that NJ contributions before and during the Tohoku disasters were insufficiently reported and praised.

But the most profound realization of 2011 — arguably the worst year for Japan in my lifetime — is how this society cannot fix itself. As I have argued before ( JBC, April 5 and Oct. 4), the culture of ganbatte (do your best), flippantly said to victims by people largely unaffected by the disaster, is once again giving way to expectations of their gaman (silent endurance). Backed up by a dynamic discouraging people from “spoiling things for everyone else” by daring to speak out or complain, activism gets hamstrung.

Meanwhile, the muzzling of investigative journalism, independent academic research and credible criticism outside of official channels further disempowers the public of their right to know.

Conclusion: Generations under Japan’s control-freak “nanny state” have accustomed people to being told what to do. Yet now the public has been deserted, with neither reliable instructions nor the organization to demand them.

Nothing, short of a major revolution in critical thinking and public action (this time — for the first time — from the bottom up), will change Japan’s destructive system of administration by unaccountable elites.

========================

2011 was the year the world realized Japan has peaked. Its aging and increasingly-conservative public is trapped in a downward spiral of economic stagnation and inept governance. It is further burdened by an ingrained mistrust of the outsider ( JBC, Oct. 7, 2008) as well as by blind faith in a mythology of uniqueness, powerlessness as a virtue, and perpetual victimhood.

Japan has lost its attractiveness as a place for newcomers to live and settle, since they may be outright blamed for Japan’s troubles, if not ostracized for daring to fix them. Now, thanks to the continuous slow-burn disaster of Fukushima, anyone (who bothers to listen anymore) can now hear the doors of Japan’s historically cyclical insularity slowly creaking shut.

ARUDOU Debito’s novel “In Appropriate” is now on sale (www.debito.org/inappropriate.html) Just Be Cause appears on the first Community Page of the month. Twitter @arudoudebito. Send comments on this issue to community@japantimes.co.jp
ENDS

UPDATE: Post-divorce J child abductor Inoue Emiko DOES get book thrown at her in Milwaukee court, will return abducted child to custodial NJ father

mytest

IN APPROPRIATE, A novel of culture, kidnapping, and revenge in modern Japan, By ARUDOU Debito
New novel IN APPROPRIATE, on child abductions in Japan, by ARUDOU Debito

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Hi Blog. As was reported on Debito.org last October 28 regarding the issue of Japan as safe haven for international child abductions, the US courts looked like they actually might start enforcing their arrest warrants against Japanese child abductors.  In this case, against a Japanese woman named Inoue Emiko who reportedly whisked the kid off to Japan despite a US court awarding the father, Moises Garcia, custody.  Then Inoue used the time-honored tactic of abducting the kid anyway and getting a Japanese court to award her the kid instead regardless (with a gracious 30-day per year visitation allowed; thanks a heap).  Then she presumptuously decided to have her cake and eat it too, coming back to Hawaii last April to renew her Green Card, whereupon the authorities honored the arrest warrant against her and sent her to stand trial in Wisconsin (leaving the kid in limbo with the grandparents in Japan).

Back in October I said that enough is enough, and that the American judiciary should throw the book at her.  Well, guess what — they did, and it looks as though the mother will return the child to the custodial father.  Bravo!  Read on.  Let that be a lesson to you, child abductors, and let that be an incentive for Japan to sign the Hague Convention. Note, however, the update regarding the J-media’s domestic spin after the article. Arudou Debito

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Plea agreement reached in international custody case

Mother agrees to have daughter returned from Japan to Wisconsin
Nov. 21, 2011, Journal Sentinel (Milwaukee, Wisconsin), courtesy of SC
http://www.jsonline.com/news/crime/plea-deal-may-be-struck-in-custody-case-3135858-134270968.html

Karina Garcia’s mother agreed in court Monday to have the girl home in Fox Point by Christmas.

If she makes it, the 9-year-old would be the first of what advocates say are more than 300 children around the U.S. abducted to Japan in violation of American court orders to be returned through legal intervention.

She also could become a poster child for how to solve a growing problem as international marriages increase in the global economy.

The girl’s father, Moises Garcia, was pleased but cautious in talking to reporters after the hearing, where his ex-wife, Emiko Inoue, pleaded no contest to the felony charge of interfering with child custody by other parent. She was found guilty, but a plea agreement could leave her with only a misdemeanor conviction if Karina returns and Inoue completes other conditions.

Garcia has been working to bring his daughter home since Inoue fled with her to Inoue’s native Japan in February 2008, shortly after Garcia, 39, filed for divorce.

“Divorces are tough for everybody, but when there are cultural differences, it’s very hard to deal with that,” said Garcia, a physician and native of Nicaragua. The couple’s daughter was born in Wisconsin.

He said Inoue, 43, has brainwashed his daughter and alienated her affections for him during the time in Japan, but he’s confident that if the child comes home, she will be able to get the help she needs to deal with the psychological impact of the ordeal.

Japan is the only G7 country not part of an international compact about child abduction. Japan does not assist in returning children to parents with legal custody in other countries, nor does it extradite Japanese charged with crimes related to child abduction or custody interference elsewhere, such as Inoue.

Global Future, a group that advocates for parents whose children have been taken by their other parent to foreign countries, claims Japanese officials in the United States assist in such crimes by granting new passports and visas to Japanese trying to flee with their children.

The group’s founder and secretary, both Californians trying to get children back from Japan, attended Inoue’s hearing in Milwaukee. So did officials from the foreign ministry office of the Japanese consulate in Chicago. They declined to comment on the Global Future claims, or about Inoue’s case.

“We’ve had children returned from South Korea, Iran, Cameroon, Libya and Egypt, but we can’t get any back from a supposedly friendly country, Japan,” said Patrick Braden, CEO and founder of Global Future. His 11-month-old daughter was kidnapped and taken to Japan in 2006.

“This case really does have worldwide implications,” Braden said.

Fuji TV, a Japanese network, also was covering Monday’s hearing.

Inoue was arrested in April when she visited Hawaii to renew her U.S. permanent residency status. She was extradited to Wisconsin and was being held in the Milwaukee County Jail. She appeared in court Monday with her attorney, Bridget Boyle, wearing a dark blue jail suit and glasses.

In response to questions from Milwaukee County Circuit Judge Mel Flanagan, Inoue said she didn’t agree that she had committed all the elements of the crime, but agreed the state could prove her guilty. The felony is punishable by up to 7½ years in prison. If Inoue ultimately were convicted of a misdemeanor, she would likely be sentenced to the time she’s served since her arrest.

District Attorney John Chisholm noted that a felony conviction would probably also have prevented Inoue from remaining in the U.S. He said he thinks Inoue’s prosecution may still deter others, while allowing a chance for Karina to benefit from contact with both parents.

Inoue still has the option to seek visitation rights or changes in custody through family court.

Monday was to have been the continuation of a nonjury trial that began in October, but Boyle told the judge that during nearly four hours of discussion with her client, she agreed to the plea arrangement.

“Hopefully, this is an action in the best interests of the child,” Flanagan said.

Karina is currently living with her maternal grandparents in Japan. Garcia was granted full legal custody in Milwaukee County Circuit Court in 2008. He’s gone further than most people in his situation, said his attorney, James Sakar, and won legal custody from Japanese courts.

The problem, Sakar and Braden explained, is that the centuries-old Japanese civil legal system does not give those courts any enforcement powers.

Sakar said the particulars of Karina’s return to Wisconsin had not yet been worked out.

Braden, who has lobbied dozens of high-ranking officials in Washington, D.C., about the problem, said Monday’s deal was “almost there.” He said advocates for left-behind parents would have preferred a guilty plea and really would like to see U.S. authorities prosecute Japanese diplomatic officials and anyone else who assists noncustodial parents in taking children abroad.

“It’s a great step in the right direction,” he said.

ENDS
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UPDATE: Here’s what I’m hearing on my Facebook as feedback:

“A quick search on youtube came up with a great news report of her in cuffs as well http://www.youtube.com/watch?v=UeUqio_GDdw

“Some of the Japanese media (like the Mainichi) didn’t bother mentioning her name while I heard Fuji pixled out her face.”

“TBS report says the mother is claiming domestic violence as the reason for the abduction.”

So then there’s this whole other dimension about how the Japanese press is going to encircle and protect their own, as has been mentioned here both above and before, I haven’t found any Japanese media which will call this event a “kidnapping”, despite the ruling by this American court. Yomiuri’s NNN TV has even blocked out her face and refused to mention her name at all as a felon:

Well, for the record, here is a picture of Inoue Eriko in all her glory, courtesy Sentinel Journal. Including handcuffs. Live with it, Japan — child abduction is a crime and those who engage in it are criminals, even if they are Japanese. Trying to reflexively make a victim out of a criminal just makes our media look biased and incongruous.


ENDS

UPDATE TWO:  Convicted felon Inoue Emiko returns the child and gets released from the clink.  Bravo.  And of course, the Japanese media still refuses to use her name in the domestic press. Or even call what she did a crime. Check out the wording below: “arrested on suspicion of taking her 9-year-old daughter to Japan in violation of the father’s parental rights, the father’s lawyer said“. Those pesky lawyers and their allegations; never mind the conviction and sentencing by a judge. She abducts the kid, tries to game the USG by coming back to renew her Green Card, and after all that still has visitation rights in America. All right for some, isn’t it? Try getting this fair a deal in Japan. But again, fairness is not a highly-prized cultural conceit for Team Japanners. Now how about that biased and incongruous reportage.  As can be expected, the disingenuous slant is that the Japanese are the victims and sacrificers.  The Japanese article claims the daughter “wanted to live in Japan”, but once told of the situation, “went to America to save her mother” according to the very different headline.  What a trooper!  Especially after being put in this position by her irresponsible mother in the first place!

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Japan woman freed in U.S. after returning daughter
The Yomiuri Shimbun, December 25, 2011, courtesy of AR
http://www.yomiuri.co.jp/dy/national/T111224002655.htm

A Japanese woman has been released from custody in the United States as a result of a plea bargain after being arrested on suspicion of taking her 9-year-old daughter to Japan in violation of the father’s parental rights, the father’s lawyer said Saturday.

Based on the plea bargain, the 43-year-old woman from Hyogo Prefecture returned the daughter to the girl’s 39-year-old Nicaraguan father. The girl had been staying at the home of the woman’s parents in the prefecture.

The woman took the girl to Japan from the United States during divorce proceedings in a U.S. court. The court later granted the divorce and gave custody of the girl to the man.

According to lawyers for the man and the woman, the girl left Japan with her grandmother on Friday and was handed over to the man at a U.S. airport.

The girl said at first that she wanted to live in Japan. However, when she was told about the plea bargain, she understood her return to the United States would “save her mother,” the lawyers said.

The woman will continue to live in the United States and will have visitation rights, according to the lawyers.

The woman was arrested in the United States in April after the father filed a criminal complaint in the case. After realizing she faced a possible long prison sentence if found guilty, she agreed to the plea bargain in November, lawyers said.
(Dec. 25, 2011)

====================================

9歳長女、母を助けに米へ…司法取引で釈放
http://www.yomiuri.co.jp/national/news/20111224-OYT1T00472.htm
米国でニカラグア出身の男性(39)と離婚した兵庫県の女性(43)が、離婚訴訟中に長女(9)を日本に連れ帰ったとして米国州法の親権妨害罪に問われ、身柄拘束されていた問題で、男性側の日本での代理人弁護士は24日、女性が釈放されたことを明らかにした。

同県内の女性の実家にいた長女を、米国の男性側に引き渡すことなどを釈放の条件にした米国の検察側と女性側との間で成立していた司法取引に基づき釈放された。

男性、女性双方の日本の代理人弁護士によると、長女は23日、祖母に付き添われて出国し、米国の空港で男性に引き渡された。長女は当初、「日本で暮らしたい」と訴えたが、司法取引を理解し、「ママを助けに行く」と納得したという。女性は釈放後米国で暮らすため、長女に面会できるという。

女性は4月に米国で身柄を拘束され、刑事裁判で無罪を主張してきたが、有罪なら刑務所に長期間収容される恐れがあり、11月下旬に司法取引に合意していた。
(2011年12月24日15時05分 読売新聞)

ENDS

The tug of war continues: Fukuoka High Court overrules Oita District Court that doubted, then affirmed, Oita Prefectural Govt’s denial of welfare benefits to superannuated NJ Permanent Resident

mytest

IN APPROPRIATE, A novel of culture, kidnapping, and revenge in modern Japan, By ARUDOU Debito
New novel IN APPROPRIATE, on child abductions in Japan, by ARUDOU Debito

Handbook for Newcomers, Migrants, and Immigrants to Japan\" width=「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb

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DEBITO.ORG PODCASTS on iTunes, subscribe free

Hi Blog. Last November I mentioned in my Debito.org Newsletter about this weird case of administrative exclusionism and atypical jurisprudence in Japan, thus:

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16) Kyodo: Court overrules Oita Pref who tried to deny a 78-year-old NJ welfare benefits

Kyodo: A Japanese court repealed on Thursday a decision by Oita Prefecture in southwestern Japan not to examine a request from a 78-year-old Chinese woman to look into a decision by Oita City that rejected her application for welfare benefits.

A three-judge panel at the Oita District Court acted on a suit filed by the woman, who has obtained permanent residency status in Japan, against the Oita prefectural government decision that turned away the woman’s request, filed in February last year, to examine the Oita municipal government decision not to provide welfare benefits to her.

The prefectural government dismissed the woman’s request without examining it, saying she was not eligible to seek benefits because she does not have Japanese nationality.

In Thursday’s ruling, the district court said the prefectural government must review the municipal government decision in line with the woman’s request, and decide whether she should be given benefits.

Presiding Judge Kenji Kanamitsu brushed aside the prefectural government’s argument that the city’s decision not to provide her with benefits was a ”unilateral administrative action” against a foreigner who has no right to seek welfare benefits, and not an ”administrative decision” as she claimed, whose appropriateness can be reviewed under the administrative appeal law.

Judge Kanamitsu said the woman is ”obviously” eligible to ask the prefectural government to review the municipal government decision.

”An application for welfare benefits has been rejected, and it means the same to the applicants, regardless of their nationalities,” the judge said…

http://www.debito.org/?p=7563

BUT

17) Mainichi: “NJ have no right to welfare payments”, rules Oita District Court two weeks later. Gee that was a quick kibosh.

After a half-month interlude of light and reason (as in September 30 to October 18), where it actually looked like a Japanese courtroom was actually going to be nice to somebody and rule against The State, another court has come along and put things back to normal:

Mainichi: The Oita District Court ruled on Oct. 18 that foreigners with the right to permanent residence but without Japanese citizenship are not entitled to welfare benefits, rejecting the claims of a 78-year-old Chinese woman who sued after being denied benefits by the Oita city government…

According to the ruling, the woman has Chinese nationality but was born in Japan and holds the right to permanent residence. In December 2008, the woman applied to the welfare office in Oita city for welfare payments, but was turned down with the reason that she had “a comfortable amount of money” in her savings.

The main issues of the trial became whether the woman held the right as a foreigner to receive welfare payments and whether her financial status justified her receiving aid…”

COMMENT: Gee, that was quick by Japanese judicial standards! I guess they know the value of putting the kibosh on something before the floodgates open: Can’t have all the goddamn foreigners expecting to have rights to something like our social welfare benefits, especially at an advanced age.

http://www.debito.org/?p=7639

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Then, as the clock continues to run out for this superannuated NJ, we now have another flip, fortunately in the more inclusive direction:

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Court rules noncitizens are eligible for welfare
The Yomiuri Shimbun (Nov. 17, 2011), courtesy of lots of people
http://www.yomiuri.co.jp/dy/national/T111116006297.htm

FUKUOKA–The Fukuoka High Court ruled Tuesday that permanent residents in in Japan with foreign nationalities are eligible to receive public welfare assistance, overturning a lower court ruling.

The high court accepted an appeal by a 79-year-old woman who is a permanent resident in Japan with Chinese nationality. She filed the lawsuit, claiming that the Oita city government illegally rejected her request for public welfare assistance.

Presiding Judge Hiroshi Koga said in the ruling, “Foreign citizens with permanent residency [in Japan] are legally guaranteed the same status as Japanese citizens who receive the same treatment.”

The high court overturned the Oita District Court’s ruling and nullified the Oita city government’s decision not to grant the woman public welfare benefits.

According to a lawyer for the plaintiff, it is the nation’s first court ruling to present a legal basis for foreign permanent residents in Japan to receive public welfare benefits.

According to the ruling, the woman applied for the public welfare at the Oita city government in December 2008, but the city government rejected her request.

The point at issue in the lawsuit was whether the Daily Life Protection Law can be applied to noncitizens.

Article 1 of the law limits recipients to Japanese citizens. As for non-Japanese residents, each local government has made respective judgments based on a 1954 notice issued by the then Health and Welfare Ministry, which said the law would be applied with some modification.

Though there are many foreign permanent residents in Japan who receive public welfare benefits, their eligibility has not been legally guaranteed.

The high court ruling noted Diet deliberations in 1981 on ratifying the U.N. Convention Relating to the Status of Refugees, which stipulates that countries “shall accord to refugees within their territories treatment at least as favorable as that accorded to their nationals.”

At the time, the Diet presented a view that Japan would not need to revise the Daily Life Protection Law to eliminate nationality clauses in it because the government has already been applying the law with necessary modifications.

The high court judged that the Japanese government had at that moment become obliged under international law to provide public welfare assistance to foreign residents in the country.

The high court also pointed out that the central government in 1990 limited the range of noncitizen recipients to those with permanent resident status in terms of management of the public welfare system.

ENDS

======================================

永住外国人に生活保護受給権認める、大分市逆転敗訴

(2011年11月16日 読売新聞)

http://kyushu.yomiuri.co.jp/news/national/20111116-OYS1T00215.htm

大分市が生活保護申請を却下したのは違法として、永住資格を持つ中国籍の女性(79)が市を相手取り、却下取り消しなどを求めた訴訟の控訴審判決が15日、福岡高裁であった。古賀寛裁判長は「永住資格を持つ外国人は日本人と同様の待遇を受ける地位が法的に保護されている」として、原告敗訴の1審・大分地裁判決を覆し、市の却下処分を取り消した。原告弁護団によると、永住外国人に生活保護を受ける法的根拠を示した判決は全国で初めて。

判決によると女性の両親は中国人で、1932年に京都市で生まれた。夫の親族から預金通帳などを取り上げられて生活資金に困り、2008年12月、大分市に生活保護を申請。市は「銀行に預金が相当額ある」として却下した。

訴訟の争点は生活保護法が外国人に適用されるかどうかだった。同法1条では対象を国民に限定し、外国人については旧厚生省が54年に出した「法を準用する」との通知に基づき、各自治体が適否を判断してきた。自治体の裁量に任されており、外国人の権利は法的に保障されていない。

今回の高裁判決は、政府が81年、「難民などに対し自国民と同一待遇を与える」とする国連難民条約への批准に伴う国会審議で、法が準用されているため国籍条項撤廃などの改正は必要ないとの見解を示した点を重視。この時点で、国は外国人への生活保護について国際法上などでの法的義務を負ったと認定した。

ENDS

======================================

大分・生活保護訴訟:永住外国人も対象 福岡高裁、法的根拠認める判決
毎日新聞 2011年11月16日 東京朝刊
http://mainichi.jp/select/jiken/news/20111116ddm041040099000c.html

永住資格を持つ大分市の中国籍の女性(79)が、外国籍であることなどを理由に生活保護申請を却下した大分市の処分取り消しを求めた訴訟の控訴審判決が15日、福岡高裁であった。古賀寛裁判長は「一定範囲の外国人も生活保護法の準用による法的保護の対象になる」と述べ、1審判決を取り消し、市の却下処分を取り消した。原告側弁護団によると永住外国人について生活保護を受ける法的根拠を示した判決は初めて。弁護団は「外国人の保護申請や不服申し立てに影響する画期的判決」と評価している。

判決によると、女性は日本で生まれ育ち母語も日本語。夫とともに不動産業で生活していたが夫は病気になり、親族から預金通帳を取り上げられ、生活に困窮。08年12月、市に生活保護を申請したが「女性名義の預金が相当額ある」として却下されたため提訴した。

生活保護法は受給者を日本国民に限定しているが、旧厚生省は1954年、外国人に生活保護法を準用するよう都道府県に通知。更に81年の国連難民条約批准を受け、90年には対象を永住外国人に限定するよう通知し「贈与的性格の行政措置」として永住外国人には事実上、生活保護費を支給した。

1審・大分地裁は昨年10月、生活保護法が国民に限定していることなどから女性の請求を却下した。

控訴審判決で古賀裁判長は、政府が通知などで永住外国人に生活保護費を支給し続けてきた経緯に言及。「国が一定範囲の外国人に対し日本国民に準じた生活保護法上の待遇を与えることを認めた」と指摘し、原告女性を保護対象と判断した。【岸達也】

ENDS
////////////////////////////////////////////////

COMMENT: Okay, that’s good news and a good precedent. Glad they took it away from the denizens of Oita, who clearly started saying “Chotto…” to the petty bureaucrats, then backtracked within two weeks as the wagons encircled to rule against the alleged foreigner (I would like to hear more about her, i.e., if she is in fact a Zainichi or not — there is a difference between ippan eijuusha and tokubetsu eijuusha, after all, and that will be noted by any legal exceptionalists who want to stop further positive precedent building). But the fact that she’s born here, raised here, speaks Japanese as her native language, and is approaching eighty years of age, yet STILL was denied benefits by heartless bureaucrats, backed up by the judiciary, is more than a bit scary. If this gets appealed to the Supreme Court (after all, the GOJ is a sore loser in court), I hope the judges are in a good mood when they start deliberating. Maybe we should send them sweets. Arudou Debito

Yomiuri: Muslims file suit over National Police Agency antiterror investigations

mytest

IN APPROPRIATE, A novel of culture, kidnapping, and revenge in modern Japan, By ARUDOU Debito
New novel IN APPROPRIATE by ARUDOU Debito

Handbook for Newcomers, Migrants, and Immigrants to JapanForeign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb

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Hi Blog.  As a follow-up to what Debito.org covered last November, here is a Yomiuri article showing how those targeted by the Japanese police for investigation simply due to religious practices are taking action in court to defend themselves.  Here’s hoping the police are found culpable, for a change.  Big Japan Times expose on this issue here.  Arudou Debito

////////////////////////////////////////////////////

Muslims file suit over antiterror investigations

The Yomiuri Shimbun (May. 18, 2011)
http://www.yomiuri.co.jp/dy/national/T110517004955.htm
Courtesy of JK

A group of 14 Muslims has filed suit against the central and Tokyo metropolitan governments, demanding 154 million yen in compensation for violations of privacy and religious freedom after police antiterrorism documents containing their personal information were leaked onto the Internet.

The lawsuit filed at the Tokyo District Court accused the Metropolitan Police Department and the National Police Agency of systematically gathering their personal information, including on religious activities and relationships, merely because they are Muslims.

The lawsuit also alleged that after the information was leaked last October, the MPD failed to take sufficient action to prevent its spread.

In late November, a Tokyo-based publisher released a book carrying the leaked documents.

After the leak, “The plaintiffs were presumed to be international terrorism suspects. They were forced to leave their jobs and live apart from their families,” the petition filed Monday at the court claimed.

The MPD has said it is highly likely the leaked documents included internal information from its Public Security Bureau, and has been investigating the leak on suspicion of obstruction of police operations since December.

At a Monday press conference in Tokyo, one plaintiff said: “It’s been six months since the leak, but there’s been no [official police] apology. I haven’t been able to see my family and my life is full of anxiety.”
ENDS

Chris Savoie wins US court award of $6.1 million against ex-wife for breach of contract, emotional distress, and false imprisonment of his children in Japan

mytest

IN APPROPRIATE, A novel of culture, kidnapping, and revenge in modern Japan, By ARUDOU Debito
New novel IN APPROPRIATE by ARUDOU Debito

Handbook for Newcomers, Migrants, and Immigrants to JapanForeign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb

UPDATES ON TWITTER: arudoudebito
DEBITO.ORG PODCASTS on iTunes, subscribe free

Hi Blog. Congratulations to Chris Savoie on his massive U.S. court victory against his ex-wife for, inter alia, false imprisonment of his children in Japan.

Debito.org has talked about the Savoie Case for quite some time now (do a search), but I devoted a Japan Times JUST BE CAUSE column to it back in October 2009. I’m personally glad he’s staying the course, and seeking judicial recourse that is amounting to legally-binding agreement. This is setting an important precedent regarding the issue of international child abduction, and drawing attention to a long-neglected problem. Arudou Debito

PS: Note the lame (if not just plain inaccurate) headline by the Japan Times/Kyodo News on this, “Wife fined for taking children to Japan“; makes it sound like she got punished for being a tourist. Get on the ball. Call it what it is: Child abduction.

//////////////////////////////////////////

Order for ex-wife to pay millions doesn’t make up for time lost with kids, says Franklin father
Court rules mom who took kids to Japan owes $6.1M
The Tennesseean, May 10, 2011
http://www.tennessean.com/article/20110510/NEWS03/305100033/Dad-whose-ex-wife-moved-kids-to-Japan-says-6M-win-bittersweet-

A mother who left Middle Tennessee with her two young children to live permanently in her native Japan — leaving behind an ex-husband with joint custody rights — has been ordered to pay the father $6.1 million in damages.

But Christopher J. Savoie of Franklin said the money alone is a hollow victory. He hopes the ruling will help end a battle he has waged since 2009 to bring the children home.

“Anything about this just reopens a lot of wounds. It’s bittersweet,” said Christopher Savoie, who said he hasn’t been allowed even to speak to Isaac, 10, and Rebecca, 8, in more than a year. “At the end of the day, I’d much rather have one afternoon in the park with my kids than one penny of this judgment.”

Shortly after Noriko Esaki Savoie permanently moved with the children to Japan, a Williamson County court gave Christopher Savoie full custody, and the Franklin Police Department issued an arrest warrant for Noriko Savoie charging her with custodial interference. But because of domestic laws pertaining to custody and divorce, Japan will not help the United States resolve parental abductions to the country. The U.S. Department of State’s Office of Children’s Issues reports that it “does not have a record of any cases resolved through a favorable Japanese court order or through the assistance of the Japanese government.”

In March, Noriko Savoie was charged in federal court with unlawful flight to avoid prosecution, and an arrest warrant was issued. That effort also has failed so far.

“My understanding is we don’t have an extradition agreement with Japan as it relates to parental kidnapping,” Assistant U.S. Attorney Carrie Daughtrey said. “As far as I know, nothing has been done.”

Christopher Savoie believes Monday’s ruling may open a door. His attorney, Joseph A. “Woody” Woodruff of Waller Lansden Dortch & Davis, said that while Japan won’t enforce U.S. judgments that pertain to custody or otherwise order Japanese citizens to “do the right thing,” they will enforce money judgments.

“They will enforce orders that assess damages for breach of contract and civil wrongs,” Woodruff said. “This is a tool we’re going to try to use to convince Noriko Savoie she needs to do the right thing.”

Williamson County Chancery Court Judge Tim Easter announced the damages Monday, having previously found Noriko Savoie guilty of three crimes in September. Easter ordered Noriko Savoie to pay Christopher Savoie more than $1 million for breach of contract and the intentional infliction of emotional distress. She was ordered to pay Christopher Savoie $1.1 million, to be held for the benefit of the children, for falsely imprisoning them since August 2009. Easter ordered Noriko Savoie to pay additional damages for each day she continues to falsely imprison the children up to a maximum of $4 million.

“Every day, she has another chance to lower the amount of damages,” Christopher Savoie said. “Noriko is not an enemy here. She’s just got to do the right thing here.”

Noriko Savoie was not represented at the hearing. Marlene Moses, an attorney who represented Noriko Savoie in 2009, said she no longer represents her and is unfamiliar with the latest developments.

“She chose to ignore these proceedings,” Woodruff said. “She was served in person in Japan.”

In a related proceeding, Savoie is suing Williamson County Judge James G. Martin III for negligence and violations of his constitutional rights. Martin was the judge who lifted a restraining order on the children’s passports so that Noriko Savoie could take them on a six-week trip to Japan. He did so after Noriko Savoie promised at a hearing that she would not permanently move there. She returned from the trip as scheduled, but left again shortly thereafter and has remained in Japan since.

U.S. District Court Judge Aleta A. Trauger dismissed the case in December after ruling that Martin has judicial immunity. Savoie has taken the case to the U.S. 6th Circuit Court of Appeals.

Woodruff said Christopher Savoie’s lawyers in Japan are working to “domesticate” Easter’s orders. Christopher Savoie said he is frustrated the laws of Japan have left him with no other choice than to seek a large money judgment against his ex-wife, but hopes it will compel her to at least talk to him.

“I would much rather her return the kids than see 1 cent of this money,” he said. “I feel disappointed that the only thing we can do is ask for money. Even God can’t buy me back the year and a half I’ve missed. I feel bad for the judge even having to put a number on it.”

Contact Brandon Gee at bgee@tennessean.com

ENDS

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Ex-R.I. man wins $6.1 million in custody case
The Providence Journal, Tuesday, May 10, 2011
By Richard C. Dujardin, Journal Staff Writer
http://www.projo.com/news/content/JAPAN_CUSTODY_05-10-11_3JO0LTA_v14.348c536.html

Christopher Savoie, a former Rhode Islander who drew international attention when he was thrown into a Japanese prison in 2009 for trying to recover his two children from his Japanese ex-wife by grabbing them as they walked to school, has won a $6.1-million judgment against his former wife.

But in an interview from his home in Franklin, Tenn., the University of Rhode Island and Bishop Hendricken High School graduate called the award issued by Franklin Chancellor Timothy Easter a “two-edged sword” in that it gives his ex-wife a strong financial incentive “to do the right thing” and allow him to see his two children, but there is no guarantee that he’ll see his 10-year-old son, Isaac, and 8-year-old daughter, Rebecca, before they reach 20, the age of majority in Japan.

“It’s bittersweet, because rather than getting any money, I’d much rather be in the park playing with my kids. No amount of money can compensate for that time with the kids,” said Savoie.

Along with his second wife, Amy, another former Rhode Islander who began a career in immunology at URI, Savoie, 40, became enmeshed in an international custody battle that unfolded two years after Christopher, who had achieved international stature as an innovator in biotechnology, returned to the United States with his children and Japanese wife, Noriko, in the hope of starting another business.

Not long after the couple arrived, Christopher sued for a divorce, and two months after being granted the divorce decree in January 2009, married Amy, whom he had known since his days at URI. Savoie says that, as part of the settlement, his ex-wife agreed to provide him custody of the children in exchange for a monthly payment of $5,500 along with other payments for their education.

Then, just days after Christopher and Amy gathered with friends and relatives and their two young children at a waterside restaurant in East Greenwich to celebrate their six-month wedding anniversary, Noriko told Savoie and the judge in Tennessee that she wanted to take the children on a brief vacation in Japan before they resumed school in the United States. It was only when the Savoies saw that there was no planned trip back that they began to suspect that their children had been abducted.

Savoie says that contrary to some reports in the media, his two children had always been brought up in an English-speaking environment. Isaac, who was born in California and went to preschool in the United Kingdom, scored in the 98th percentile on the standardized English test in Tennessee, and Rebecca was doing well, also.

In fact, he says, when he came upon their children on the street in Japan, their mother was walking closely behind because she needed to interpret for them because they were not fluent in Japanese. Savoie thought he could whisk them off the street, carry them off to the U.S. Consulate and bring them back to the U.S., only to see his plan foiled when officials at the consulate did not open the door and allowed him to be arrested by Japanese police.

Despite the exposure provided by his nearly three-week imprisonment, Savoie said he has not seen his children again. Every time he attempts to reach the children by phone, their grandparents hang up on him.

Savoie said his anxieties increased significantly after the Japanese earthquake and nuclear disaster. He said that while he was told the children are safe, by his calculations, “they are within the nuclear fallout zone.”

Savoie said the events of the last few days have given him some new hope. The judgement issued by a Tennessee court on Monday is designed to get his ex-wife’s cooperation by cutting off any future financial payments by her as soon as she agrees to return the children.

Although the court system in Japan recognizes that he has been awarded custody of the children by a Tennessee court, the problem is that Japan has no way of enforcing the custody settlement, Savoie said, but it does have a method of enforcing the financial penalties. “We have a set of lawyers waiting in the wings” to put in the mechanism to see the judgment implemented.

Savoie said he has also been buoyed by what he says is a recent announcement by Japan that it plans to sign the Hague Convention on international child abduction, a move that would make it easier for international parents to recover their children who have been taken in custody disputes.

In the meantime, Savoie said the international custody battle has caused him and Amy to reconsider their calling. Instead of immunology, both are now students at Nashville School of Law in the hope that they may be able to help parents of other children — including some 300 in Japan alone — who have been abducted by spouses and are being held in Japan.

rdujardi@projo.com
ENDS

JT’s Philip Brasor on BBC QI show and atomic-bombings and “victim ownership of historical narrative”

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
UPDATES ON TWITTER: arudoudebito
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Hi Blog.  Here’s an excellent column on the recent “humor” segment on the BBC show QI, derided by officials and family as “insensitive” because it was connected to the Japan atomic bombings.  The author then links it to the issue of DPRK abductions of Japanese, where deviation from the official line of “they’re still alive over there” is taboo, and comes up with an interesting conclusion:  He who owns the “narrative” on this history (particularly as a victim) gets to dictate how it is represented in the media.  Very insightful indeed.  I can see how this analytical paradigm can be applied to the realm of human rights and racial discrimination in Japan — how NJ are often not allowed to “own” their own narratives in Japan.  Worth a think about.  Arudou Debito

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MEDIA MIX
Cultural insensitivity no laughing matter
By PHILIP BRASOR

The Japan Times, Sunday, Jan. 30, 2011
http://search.japantimes.co.jp/cgi-bin/fd20110130pb.html

The tempest in a teapot whipped up by a segment on the British quiz-cum-comedy show “QI” has prompted debate on cross-cultural sensitivity. The BBC has apologized for the segment, which, contrary to a statement issued by Foreign Minister Seiji Maehara, did not make fun of its subject, the late Tsutomu Yamaguchi, who was a victim in both the Hiroshima and Nagasaki atomic bombings. If anything, it made fun of the British railway system, which was found wanting in comparison to Japan’s.

The main complaint is that any exploitation of the atomic bombings for the purposes of levity is hurtful to the survivors, their families and the Japanese people in general, regardless of the content or target of the joke. The laughs, in this instance, were evinced by the irony of the situation: A man who was burned in one atomic bombing was able to board a train to go to a city where he suffered — and survived — another. Depending on your threshold for humor, insult was added to injury when some of the guests on the show tried to make jokes (“He never got the train again, I tell you”), which is what they’re paid to do.

Just as there’s no accounting for taste, it’s difficult to make a case for comedy that may strike some as being in bad form, especially when the gag isn’t particularly funny; but the argument here is not really about whether Yamaguchi’s fateful journey qualifies as a cosmic joke. The point is: Who gets to say how people should react to it?

Yamaguchi’s daughter told Kyodo News that her own family had joked about her father’s experience, but that doesn’t mean British people can do the same. The reason they can’t, she said, is that Great Britain is a “country that has nuclear weapons.” But it’s not within the purview of “QI” to make such distinctions. Britain may possess nukes, but the guests on the show certainly don’t; and for all we know they may be opposed to their country’s policy of deterrence. No, the real reason they don’t have a right to joke about Hiroshima, at least from the Japanese critics’ point of view, is that they aren’t atomic bomb victims themselves.

Rest of the article at
http://search.japantimes.co.jp/cgi-bin/fd20110130pb.html
ENDS

Weekend Tangent: Elderly J activists sue GOJ to allow different last names after marriage

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog.  As a Weekend Tangent, let me direct your attention to an upcoming lawsuit (Japanese do sue too, as activists and awareness-raisers) regarding two issues that are dear to Debito.org:  1) issues of self-determination of personal identity, and 2) the evils of the Koseki system, which not only separate parent from child post-divorce, but also make a person’s name and family relationships and entitlements the domain of The State.  Other people find this objectionable too — enough to brave all the social opprobrium towards lawsuits in this society.  Good luck to them.  I hope they can stay alive long enough to outlast the slow machinations of the Japanese judiciary.  Arudou Debito

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Japan government to face first suit on surnames
Reuters, Tuesday, January 11 2011, By Yoko Kubota, courtesy SR

http://uk.news.yahoo.com/22/20110111/tsc-oukoe-uk-japan-surnames-011ccfa.html

After nearly fifty years of persevering with a life under her husband’s surname, 75-year-old Kyoko Tsukamoto is taking the Japanese government to court so that she can at least bear her own name when she dies.

“My husband and I still love each other, but this and the issue of Tsukamoto are different,” she said.

The former teacher uses her maiden name, but due to Japanese civil law requirements she had to take her husband’s name when she married to make the union legal.

But debate over the surname issue, long a sore point with some women, has heated up as more women stay in jobs after marriage and juggle two names — their maiden name at work and their registered name on legal documents.

“I thought that I would get used to my husband’s name, but I could not, and a sense of loss grew inside me,” Tsukamoto said.

“Now I am 75 and I was shocked to realise that I can’t do things anymore that I used to be able to do last year. That’s when I thought that I am Kyoko Tsukamoto and I want to die as Kyoko Tsukamoto.”

Tsukamoto is one of five people planning to file a lawsuit against the government and local authorities as early as February, saying the civil code that requires married couples to register under the same surname violates equal rights among married couples, as well as personal rights.

Men are allowed to take their spouses’ name, but it is rare.

The group will seek compensation for what it says is the legislature’s failure to enact change, the first such case to be debated in open court in Japan, the only country in the Group of Eight major industrialised nations with such a surname rule.

Hopes grew that the government would submit a bill to amend the civil code after the Democratic Party of Japan, which has advocated letting married couples keep separate names if they wish, took power in 2009. But opposition from a coalition ally caused the plan to stall.

“There were expectations that it could be enacted but unfortunately this did not take place. They do not want to wait any longer,” said Fujiko Sakakibara, lead lawyer for the group.

TRADITIONAL FAMILY

The rule is tied to Japan’s traditional concept of the family, which in the past ensured that property, businesses, and surnames were passed on to men within the family unit.

Some say it is outdated. In certain cases, couples repeat marriages and divorces between each other to avoid having to register their children as out of wedlock births, partly because the civil code limits inheritance rights for such children.

Tsukamoto, with her husband since 1960, is going through her second marriage with him after divorcing once in 1965 to get her maiden name back. They re-married when they had their third child but her husband has rejected requests for a second divorce.

Those against change say it’s a matter of family unity and are wary of the impact on children’s identities. They also warn of a possible increase in divorce.

Tsukamoto began studying women’s issues at the age of 63, after she was freed of duties to nurse her parents. She has since taken up an activist’s role.

“Others were getting by well in society and I have thought that perhaps I was stupid to insist on this … Now things are changing in a good direction, unimaginable in 1960,” she said.
ends

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Japanese marital surname law faces legal challenge
A lawsuit against the government is being launched by five people who claim their constitutional rights are being violated
Justin McCurry in Tokyo, courtesy of the author’s Twitter feed
guardian.co.uk Tuesday 11 January 2011

http://www.guardian.co.uk/world/2011/jan/11/japan-marital-surname-law-challenge?CMP=twt_gu

Five people in Japan are poised to launch an unprecedented lawsuit against the government, claiming that a civil law forcing them to choose a single surname after marriage violates their constitutional rights.

If they succeed, married men and women will for the first time be able to retain their own surnames, dealing a blow to one of the few remaining legal obstacles to gender equality.

In the vast majority of cases, women are required to relinquish their maiden name after marriage, although a small number of men take their wife’s name.

Critics say the time has come to modernise the law in Japan, the only G8 nation with laws governing marital surnames.

The plaintiffs argue that the civil code’s requirement that a single surname be chosen contradicts articles of the constitution guaranteeing individual liberty and equal rights to husband and wife. The five are also seeking ¥1m (£7,727) each in compensation from the government.

Kyoko Tsukamoto, who changed her maiden name in the family registry after marrying in 1960 but retained it in daily life, said the law had contributed to a “strong loss of self” and caused psychological damage.

“My husband and I still love each other, but this and the issue of Tsukamoto are different,” said the 75-year-old former teacher. “I thought I would get used to my husband’s name, but I couldn’t. I felt a strong sense of loss growing inside me.”

Opposition from conservative politicians delayed previous attempts to change the law. In 1996 the justice ministry devised an amendment that would give married women the right to retain their maiden names, but the move was blocked by MPs who said it would undermine the family unit.

The current government, led by the centre-left Democratic party, supports a change in the law but has yet to act amid opposition from a minor coalition ally.

“There were expectations that it could be enacted, but unfortunately this did not happen. They do not want to wait any longer,” said the plaintiffs’ lawyer, Fujiko Sakakibara.

The law has forced some couples to take drastic action. Tsukamoto and her husband divorced in 1965 so that she could regain her maiden name, but remarried when she became pregnant because civil law can impinge on the inheritance rights of children born out of wedlock.

Critics say the civil code, enacted in 1896 and amended by the US occupation forces after the second world war, ignores dramatic postwar changes to the role of women in the home and workplace.

The movement for change gathered pace in the 1980s when more women entered the workplace. Many complained that changing their names after marriage was detrimental to their career prospects and affected relationships with colleagues.

Yet the Japanese are divided over the issue: in a 2009 survey 49% said they supported a change in the law, while 48% were opposed.

Women still have to use their registered surnames on official documents such as passports and health insurance cards.

Many companies allow married women to retain their maiden names at work, but for Tsukamoto, who married in 1960, unofficial acceptance is not enough.

“Now I am 75, and I was shocked to realise that I can no longer do the things I was able to do even last year,” she said. “That’s when I thought, I am Kyoko Tsukamoto … and I want to die as Kyoko Tsukamoto.”
ends

////////////////////////////////////////////////

Historical article on the issue (2004) showing how little the debate has changed in nearly a decade:

The Japan Times, Sunday, March 14, 2004, courtesy Justin McCurry
MEDIA MIX
The twisted terminology in Japan’s marriage system
By PHILIP BRASOR

…Marriage as a legal contract allows the state to regulate what goes on in the bedroom. This is basically the argument put forth by Sumiko Tanaka and Noboru Fukukita, a Japanese couple who live together without the state’s blessing and who have an 18-year-old daughter. Because Tanaka and Fukukita are not married, their daughter’s out-of-wedlock status was indicated in both their residence certificate (juminhyo) and family register (koseki). They have been fighting to have such designations changed since 1988, and while they’ve lost lawsuits in court, their efforts have moved the government to change these discriminatory terms. Justice Minister Daizo Nozawa announced last week that children born out-of-wedlock would be designated in family registers in the same way as children born to married couples, though nothing has really changed. Anyone who reads the family register will be able to tell if a child is born in or out of wedlock. The ministry has made the terms less discriminatory, but the register, which codifies parent-child relationships, is unchanged.

Because the United States sees itself as part of a Judeo-Christian heritage, it can couch the marriage debate in moral terms, even if it’s the authorities who decide who can marry. In Japan, the state is the only arbiter and the koseki the instrument of that arbitration. Immorality, therefore, is defined by the government, and has been since the Meiji Period, when the koseki was established for the purposes of census and tax collecting.

Many Japanese couples, therefore, bridle at the idea that they need the state’s permission to cohabit and have children. Some people may think that the controversy over separate names (bessei) is based on the same thing, but it isn’t. In 1996, the Justice Ministry proposed revisions to the Civil Code that would allow married partners to retain separate surnames. As it stands, a married couple must decide on one name (98 percent take the husband’s).

Conservative politicians have repeatedly shot down any effort to allow separate surnames, saying that bessei undermines the integrity of the family, even though it’s clear that the vast majority of Japanese couples will opt for one name even if they can have separate ones.

The irony is that more couples would get married if they were allowed separate names…

Rest of the article at:
http://search.japantimes.co.jp/cgi-bin/fd20040314pb.html

“To De-Sign or Not to De-Sign”: A debate about what to do re exclusionary signs

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog. There’s a debate going on between Debito.org Reader OG Steve and myself that is too good to leave buried in a Comments Section. It was occasioned by a recent blog entry about a sign, up at an outlet of bargain haircutter QB House in Tameike Sannou, Tokyo, requiring Japanese language ability for service. OG Steve made the point that he was happy to see an exclusionary sign up that proclaimed clear and present exclusionism (as opposed to the hedging wording of “we reserve the right to refuse service to anyone”), which in his view actually made discriminatory policies harder to stamp out. I disagreed, as in my view clear and present exclusionary policies, especially in the form of signs like these, encourages proliferation and copycatting, institutionalizes the discrimination, and further weakens civil society’s ability to take action against exclusionism. OG Steve replied that it makes the evidence and case clearer, and thus strengthens the hand of people who wish to take judicial action. I replied… well, read on. Then we’ll open the floor to discussion. It’s a worthy topic, so let’s have at it, and see if we can get some conclusive arguments from other Debito.org Readers as well.

///////////////////////////////////////////

OG STEVE WRITES:
2011/01/11 at 5:13 pm

Let’s remember that ironically, American businesses DO often have signs which say “We reserve the right to refuse service to anyone”. D’oh!

http://www.google.com/images?q=“We+reserve+the+right+to+refuse+service+to+anyone”

So when business owners write a sign which gives a reason they are going to refuse service to you (whether it be race, language, whatever) we of course, rightly, get upset about the fact the company is openly announcing their discriminatory practice, but… when business owners write a VAGUE sign which doesn’t give an exact reason they are going to refuse service to you (like “We reserve the right to refuse service to anyone”) we strangely DON’T complain about these vague signs.

Why don’t we complain about those vague signs? Are we so naive to believe that business owners who put up those vague signs are only going to use their self-proclaimed “right to refuse” strictly in “the appropriate, right, correct” situations?

Of course not, business owners who put up those vague “right to refuse” signs can and do successfully play the ugly game of discrimination like this:

“Yeah, Mr. Lawyer, I hear what you said, you’ve come here to ask me why I kicked your client out of my shop. Well as you can plainly read the sign on the wall says ‘We have the right to refuse service to ANYONE’, it doesn’t specifically say ‘Anyone who does something dangerous’ or ‘Anyone who does something bad’ (which is what you perhaps are naively assuming it to mean) nope, it simply says ‘ANYONE’.

“Now, it seems to me that you are trying to claim that I kicked out your client based on his race, now that’s a serious claim there partner, and furthermore you want me to admit this crime right now to you verbally, so that you can take me to court and easily win a discrimination lawsuit against me.

“Well, my answer is simple: our business never, ever, ever, would do anything illegal, we never have, never do, and never will. Whenever we utilize our god-given supreme-court-upheld Right to Refuse ANYONE from standing on our property and doing business with us, we always refuse for one of the LEGAL reasons, of course, whatever they may happen to be, and finally Mr. Lawyer: we don’t have to answer your questions about the DETAILS of what we we’re thinking during any particular refusal, neither to you nor to a police officer. And even if the police officer, without any admitting testimony from us, were somehow legally able to arrest us on the charge of suspected racial discrimination based on someone’s sob-story, when court time comes around we’ll simply answer “Not guilty”. We don’t have to prove our innocence. This isn’t some country with Napoleonic justice like Japan. This is America. (And worst case, if the judge really wanted to hear a denial, I can claim that the customer’s eyes were darting back and forth suspiciously like someone about to commit a crime or something, and that’s why we kicked him out.) Good luck PROVING that I was thinking racist thoughts, you don’t know what goes on in my mind. That’s why I chose this vague sign. That’s why clubs in America use bouncers who are given secret orders to discriminate about who gets in and who doesn’t get in. See, we have learned how to continue discrimination while simply pretending the discrimination doesn’t exist. You just need a vague sign, or a bouncer who will hide the owners orders about which races are allowed, and which races aren’t.

“Now Mr. Lawyer, you too, it’s your turn to see my utilize my Right to Refusal. Get off my property immediately. And have a nice day!” 🙂

OK, I’ll relate that rant back to the blog post in question by concluding as follows:

At least that branch manager is ADMITTING that he or she discriminates, and that the discrimination is specifically against non-speakers of Japanese.

That’s much more honest than the places in America with those vague refusal signs that DON’T admit the real reason they are going to kick you out, and that’s much more honest than the places who DON’T post the discrimination reality at all: by using Bouncers who refuse entry to certain races using phrases like “club capacity”, “guest list”, and “dress code”.

If the truth of the matter happens to be that that manager of that branch has decided to ban foreigners simply because he doesn’t like them, and the “language” reason on his sign is simply tatemae instead of honne, then forcing him to take down the sign isn’t going to solve the real problem, he’s simply going to throw up the “batsu” sign whenever a “whitey” or “darkey” tries to walk in.

Problem solved for him, he can simply take down the legally dangerous sign while covertly continuing the discriminatory practice. Great. We won, we stopped discrimination! Or will se simply take down the signs and make the discriminators become more covert as in America? 🙂

//////////////////////////////////////////////////////

DEBITO REPLIES:
2011/01/11 at 7:24 pm

— It’s not clear what you are advocating here.

Are you extolling the virtues of having clearly exclusionary signs up because the exclusionary attitudes are clearly more “honest”… therefore more honorable? And a therefore a good thing?

OR

Are you decrying the fundamental “dishonesty” of people who really have to work much harder in other societies (“we reserve the right… to refuse service … to anyone”) in order to discriminate — wording their signs or rules more carefully, so as to avoid the mechanisms of societies where anti-discrimination legislation and enforcement authorities are in place?

It’s not as easy as you make out in the second case (i.e. just put up a vague sign and presto, covert and unfettered discrimination). There are plenty of means to make sure the exclusionism is not for reasons related to race (“no shoes, no shirt, no service” — put those on and there’s no excuse; “not on the guest list” — if you can gather enough evidence to make the case that guests are being selected by race, then you’ve got a case for court or for local anti-discrimination authorities to investigate), not to mention entire societies sensitized to the issue to the degree where other extralegal means of applying pressure (boycotts, pickets, bad press, and anti-defamation leagues) are also present. There are plenty of means to investigate and tamp down on discrimination once alleged, and it’s not as much an uphill battle when society clearly frowns upon exclusionary activity — keeping a beady eye on potential transgressors.

But if you prefer the first case just because it’s somehow more “honest” (and you seem to be advocating that the exclusionary sign should stay up — for forcing it to come down merely drives discrimination underground and makes the rules covert), then all those knock-on anti-discrimination means go out the window, since inaction (or action by a tiny vocal minority) makes any protest seem ineffectual, and clear and present exclusionary signs become “the acceptable thing to do”. As history shows, discrimination left untouched merely grows, mutates, and ultimately assumes a self-justifying dynamic of “everyone else is doing it; hey, it’s so widespread that it’s a cultural thing now; it’s just how we do things, and what keeps our society running smoothly and orderly…”

So let’s be clear. You want exclusionary signs to stay up?

///////////////////////////////////////////////

OG STEVE REPLIES:
2011/01/12 at 1:12 am

I want the victims to be able to make the discriminators PAY, via successful lawsuits.

When a discriminator puts up a sign announcing that he is discriminating against “all foreigners”, a photo of this sign becomes easily admissible evidence of his discriminatory POLICY.

Of course, unfortunately, one needs to be a naturalized Japanese citizen to successfully sue (because the Japanese constitution translators changed “people” to “citizens”) but the main point is this: AT LEAST, with the signs up, a naturalized Japanese citizen can successfully make the discriminators pay, as you did.

If the bathhouse HADN’T stupidly post that sign stating their company policy, if they simply had quietly refused service one-by-one to “gaikoku-DNA-people” that tried to enter, by throwing up the “batsu” sign with their hands WITHOUT explaining why, it would have been MUCH harder for you to have received that 111 man yen.

WITHOUT the sign, if you took them to court, the company could reply, “No no, it’s not our company policy to discriminate against foreigners, not at all. There are a million and one legal reasons why one of our staff might have refused entry to you. And we don’t have to prove which one it was. Just for conversation, here are 2 examples: It’s company policy to follow fire safety rules, and on that day perhaps we simply might have been at capacity. Who knows. And no, we don’t have to prove that we were. Did you happen to collect any proof that we WEREN’T at capacity on that day? No? Then you don’t have proof of a discriminatory policy, you simply have a sob-story and speculation about our inner thoughts. Case closed. It’s also company policy to protect our staff from anyone who “appears” or “seems” to be possibly dangerous, regardless of race, gender, age, etc., and on that day perhaps one of our staff simply might have made a case-by-case judgment call, which is both his right as an employee, and our right as a company. (As they say in America, “We have the right to reserve service to ANYONE, we don’t have to prove the reason each time, we simply can no longer post those explicit ‘No Coloreds’ signs like we used to.) So, did you collect any proof that the staff member who refused you DIDN’T feel you looked dangerous? Of course not. To re-iterate, our company does NOT discriminate against foreigners, and we don’t have to prove our innocence, the onus is on YOU the PLAINTIFF to prove that we have a racially discriminatory policy, and without any sign on the wall… it’s going to be very hard for you to prove. And worst case, even if you prove that the staff member was racist, even if you recorded a verbal conversation with that staff member telling you to get out because you don’t look Japanese, you STILL can’t prove that it was company policy unless you have a photo of a sign or a company manual, so we’ll just quietly “fire” the isolated racist staff member for his “disobeying” our official company policy of “non-discrimination” (and perhaps we’ll rehire him a few months later, after he has been “counseled” and “reformed”, but the main point is, you lose the lawsuit, because you have no proof of a racially discriminatory COMPANY POLICY.”

Debito brother,

I want the naturalized Japanese citizens to take photos of signs which stupidly admit the policy of discrimination, so that the judges will be more likely to rule that the business with the policy of discrimination has to pay the plaintiff.

After we naturalized Japanese citizens get properly paid for the stress of these businesses with openly posted policies of discrimination (say, 7 successful lawsuits per naturalized Japanese citizen = 777 man yen, ka-ching), THEN those racist loser company owners will take down their stupidly-honest signs and start using the clever-hidden legally-unprovable discrimination-techniques: by putting up signs that say “ANYONE” without ever admitting the reason, or by foregoing the signs all together and simply refusing folks one-by-one, case-by-case, without ever admitting the reason.

PS – As I recall, the Japanese constitution doesn’t even forbid PRIVATE COMPANIES from discriminating against Japanese citizens, it simply forbids GOVERNMENTS from discriminating against Japanese citizens. Oops, thanks a lot for that limiting qualification, American writer of Japanese Constitution.

And as I recall, even the American constitution itself doesn’t forbid PRIVATE COMPANIES from discriminating against customers, there simply are STATUTES that forbid discriminatory HIRING practices, which is why companies throughout America openly post signs that say, “Right to refuse ANYONE.”

Final Re-cap:

If the sign says “We refuse Foreigners”, the racist policy is thus posted, it is easy for naturalized citizen victims to get compensation for feelings hurt due to being refused.

If there is no sign, if the racist policy is thus hidden, it becomes almost impossible for victims to get compensation for feelings hurt due to being refused.

And if the sign cleverly says “Right to refuse Anyone”, the racist policy is thus hidden, it becomes almost impossible for victims to get compensation for feelings hurt due to being refused.

I hope you feel me, I’m not trying to be argumentative at all, I’m simply pointing out some facts are ironic, embarrassing, surprising, unjust, often unnoticed, and painful to admit. 🙂

//////////////////////////////////////////

DEBITO REPLIES
January 12, 2010, 8AM JST

Thanks for the reply. Some answers:

1) You don’t need to be a naturalized citizen to win against these exclusionary establishments. Ana Bortz (a NJ) won against her exclusionary store without J citizenship. I believe we would have won against Otaru Onsen Yunohana even if I had not naturalized. My being a citizen closed one potential loophole, but it could go either way depending on the judge. And that leads me to my point:

2) Leaving it up to the Japanese judiciary to resolve this situation is extremely risky. We have had at least one other case (Steve McGowan) where we had the manager of a business saying on tape that he doesn’t like black people and he refused Steve because he is black. The judge still refused to rule in Steve’s favor, discovering a technicality he could exploit (which was later fortunately overturned in High Court). Build up enough of these precedents, and you’ll actually arm the defense. I’d prefer not to leave it up to Japanese judges, rather to law enforcement authorities and a clear legal code (hence my need for a law).

3) Leaving it up to naturalized citizens to play “Japanese Only Sign Whack-a-Mole” is untenable, since court cases take years, cost money and great amounts of mental energy, and incur great social opprobrium (given the general distaste for lawsuits in Japanese society). Clear and present evidence is one thing. Advocating that signs stay up as lawsuit bait or legal entrapment is a losing strategy.

4) As I said earlier, exclusionary signs beget more of the same, through copycatting and clear institutionalization of an action. Exclusionary signs must come down, and a legal framework of protections against racial discrimination must be enshrined. That’s asking for a lot at this juncture, so I’ll accept the half-measure having the signs forced down for now, even if that allegedly deprives people of evidence to sue (it doesn’t: you get refused, threaten to sue, the sign comes down and you still sue, you still win, since you were still refused regardless of the present circumstances; the damage is done, as this is what happened in the Otaru Onsens Case).

If you haven’t read book JAPANESE ONLY yet Steve, I really suggest you do. It’ll also ground you in the dynamic of why your suggestions won’t stop the discrimination. Nothing will, short of a law backed up by sanctions. That’s why the UN CERD strongly advises one.

I’ll let the legal scholars out there comment more authoritatively on the “kokumin” aspects of the constitution and law enforcement, but my lawyers have told me repeatedly that Japanese Constitutional protections apply to non-citizens too, despite the wording, if you’d dare to push the issue in official mediating bodies.

Now let’s open the floor up for discussion. Pile on. Arudou Debito

My speech at Otaru Shoudai Dec 6, 2010, “The Otaru Onsens Case 10 years on”, now on YouTube in six parts

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog. I gave a series of speeches over the past week, the latest one at Otaru University of Commerce, on “The Otaru Onsens Case Ten Years On”. It’s in English (as it is a lecture series in English sponsored by the university for language students and exchange students), and available for view in several parts at the Otaru Shoudai Channel on YouTube. Have a look. Links to parts one through six below.  Enjoy.  Arudou Debito

Part One:

Part Two:
http://www.youtube.com/watch?v=mKz1fm5GdN4

Part Three:
http://www.youtube.com/watch?v=p15Vrg0X_y0

Part Four:
http://www.youtube.com/watch?v=nyP2JFlvDzI

Part Five:
http://www.youtube.com/watch?v=Lw-MZ-8s7jI

Part Six:
http://www.youtube.com/watch?v=v1quOHWZUBE

ENDS

Speaking Dec 2 at Sophia University on Liberal Democracy and Japanese Judiciary

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Liberal Democracy and the Japanese Judiciary System
Is Japan’s Judiciary System Befitting a Modern Democracy?

Chris Pitts (Kyoritsu Women’s University (共立女子学園)/ AITEN (Amnesty International Tokyo English Network)

Mr. Pitts will be examining the general framework of the criminal investigation procedure in Japan and the trial process; how these structures fail to protect the rights of the accused; and the extent that these shortcomings have been criticized by Japanese Federation of Bar Associations & the UN Committee on Torture.

Arudou Debito 有道 出人 (Hokkaido Information University (北海道情報大学)

The outspoken foreigners’ rights activist will then discuss the ways in which certain elements within a modern democratic judiciary system can work to undermine the civil liberties of the individuals within that democracy; and ask: Are there authoritarian elements within the Japanese judiciary system? And are they undermining the civil liberties of those living within Japanese society?

Sophia Political Society
Thursday, December 2, 2010
From 5:30-7:00 in Bldg 4 Rm 175

COMMENT FROM DEBITO: I offer the standard disclaimers of “I am not a lawyer or a legal expert, just someone with some interesting experiences in the Japanese judiciary offering his opinions”, so don’t come expecting necessarily definitive views!  Will give it a go.  Arudou Debito

Weekend Tangent: What Canada does about racial slurs and abuse in public: jail time

mytest

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Hi Blog. Here’s what a place like Canada does when you have a thing like racially-motivated slurs and abuse: They give the abuser jail time.  In fact, more than the prosecution was seeking.  Fancy that.  I’ve been told on more than one occasion to “go back to my own country” (even after naturalization, and once by a professor in my own university), and nobody has ever anything about it.  Sad, innit?  Arudou Debito

ENDS

Mainichi: “NJ have no right to welfare payments”, rules Oita District Court two weeks later. Gee that was a quick kibosh.

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Hi Blog. After a half-month interlude of light and reason (as in September 30 to October 17), where it actually looked like a Japanese courtroom was actually going to be nice to somebody and rule against The State, another court has come along and put things back to normal. Read on below.

Gee, that was quick by Japanese judicial standards! I guess they know the value of putting the kibosh on something before the floodgates open: Can’t have all the goddamn foreigners expecting to have rights to something like our social welfare benefits, especially at an advanced age.  Arudou Debito

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Foreigners have no right to welfare payments, rules Oita District Court
(Mainichi Japan) October 18, 2010, Courtesy of KS, JK, and lots of other people

http://mdn.mainichi.jp/mdnnews/national/news/20101018p2a00m0na013000c.html

OITA — The Oita District Court ruled on Oct. 18 that foreigners with the right to permanent residence but without Japanese citizenship are not entitled to welfare benefits, rejecting the claims of a 78-year-old Chinese woman who sued after being denied benefits by the Oita city government.

In the ruling, Presiding Judge Yasuji Isshi said, “The Livelihood Protection Law is intended for Japanese citizens only. Welfare payments to non-citizens would be a form of charity. Non-citizens do not hold a right to receive payments.”

The court rejected the woman’s requests that it overturn the city’s decision and order the commencement of payments. The woman intends to appeal. The ruling is the first in the country to deal with the issue of welfare payments to people with foreign citizenship and permanent residency in Japan.

According to the ruling, the woman has Chinese nationality but was born in Japan and holds the right to permanent residence. In December 2008, the woman applied to the welfare office in Oita city for welfare payments, but was turned down with the reason that she had “a comfortable amount of money” in her savings.

The main issues of the trial became whether the woman held the right as a foreigner to receive welfare payments and whether her financial status justified her receiving aid.

“Excluding foreign citizens from the protection of welfare benefits is not unconstitutional,” said Isshi. He did not say anything about the woman’s financial status in the ruling, effectively indicating that any such discussion was overruled by the issue of nationality.

ENDS

——————————–

Original Japanese story

大分・生活保護訴訟:永住外国人、受給権なし 地裁が初判決
毎日新聞 2010年10月18日 東京夕刊
http://mainichi.jp/select/jiken/archive/news/2010/10/18/20101018dde041040058000c.html
外国籍であることなどを理由に大分市が生活保護申請を却下したのは違法として、同市の中国籍の女性(78)が処分取り消しや保護開始決定を求めた訴訟の判決が18日、大分地裁であった。一志泰滋裁判長は「生活保護法は日本国籍者に限定した趣旨。外国人への生活保護は贈与にあたり、受給権はない」として女性の請求をいずれも退けた。永住外国人の生活保護受給を巡る判決は初めてという。女性側は控訴する方針。

判決によると、女性は日本生まれで永住資格を持つ中国人。08年12月、大分市福祉事務所に生活保護申請をしたが「女性名義の預金が相当額ある」として却下された。

外国人の受給権の有無と、経済状態などからこの女性が要保護者に当たるかが争点だった。

一志裁判長は受給権について「永住外国人を保護対象に含めないことが憲法に反するとは言えない」と述べ、女性の経済状態についての判断まで示さず、事実上の門前払いとした。【深津誠】
ENDS

Kyodo: Court overrules Oita Pref who tried to deny a 78-year-old NJ welfare benefits

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Hi Blog.  Here’s a bit of good news, albeit a bit incomplete based upon this article alone.  May there be more outcomes like this.  Pity these things happen to the elderly too.  Arudou Debito in Sapporo

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Decision not to examine foreigner’s request on welfare benefits repealed in Oita
Japan Today/Kyodo Friday 01st October, 2010, Courtesy of Clankshaft

http://www.japantoday.com/category/national/view/decision-not-to-examine-foreigners-request-on-welfare-benefits-repealed-in-oita

OITA — A Japanese court repealed on Thursday a decision by Oita Prefecture in southwestern Japan not to examine a request from a 78-year-old Chinese woman to look into a decision by Oita City that rejected her application for welfare benefits.

A three-judge panel at the Oita District Court acted on a suit filed by the woman, who has obtained permanent residency status in Japan, against the Oita prefectural government decision that turned away the woman’s request, filed in February last year, to examine the Oita municipal government decision not to provide welfare benefits to her.

The prefectural government dismissed the woman’s request without examining it, saying she was not eligible to seek benefits because she does not have Japanese nationality.

In Thursday’s ruling, the district court said the prefectural government must review the municipal government decision in line with the woman’s request, and decide whether she should be given benefits.

Presiding Judge Kenji Kanamitsu brushed aside the prefectural government’s argument that the city’s decision not to provide her with benefits was a ‘‘unilateral administrative action’’ against a foreigner who has no right to seek welfare benefits, and not an ‘‘administrative decision’’ as she claimed, whose appropriateness can be reviewed under the administrative appeal law.

Judge Kanamitsu said the woman is ‘‘obviously’’ eligible to ask the prefectural government to review the municipal government decision.

‘‘An application for welfare benefits has been rejected, and it means the same to the applicants, regardless of their nationalities,’’ the judge said.

The Chinese woman has filed a separate suit against the Oita municipal government seeking a repeal of its decision not to provide welfare benefits to her. The district court is scheduled to give a ruling on the suit on Oct. 18.

The Ministry of Health, Labor and Welfare has not recognized foreigners’ legal rights to seek welfare benefits but has instructed prefectural governments to act ‘‘similarly’’ with cases of Japanese nationals in deciding on applications for such benefits from foreigners.

ENDS

Japan Times “Richard Cory” on child custody woes part 2: Who abducts wins

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As part two to yesterday’s excerpt, here’s how Richard Cory managed to save one of his children from a cheating, insane, abusive mom — by simply abducting her. Too bad for the other two. Godspeed. Arudou Debito in transit

THE ZEIT GIST
Behind the facade of family law
Having been reunited with his daughter, Richard Cory faces a tougher battle for custody of his sons
By Richard Cory
The Japan Times Tuesday, Sept. 28, 2010

(excerpt): Look at my case (and what the judge wrote in her custody ruling in July). My wife had admitted to the following:

• More than three years of ongoing adultery (“The reason for the breakup of the marriage was the respondent’s adultery”); Giving large sums of money (¥7.7 million) to her lover to help him pay off his gambling debt (“Respondent lent a large sum of money to her colleague”);

• Taking my children on dates to bet on horse racing;

• Being currently on medication for various disorders (“Respondent became mentally ill and started seeing a doctor in or around January 2010 and worried about her insufficient communication with the children”);

• Physically abusing her own spouse and children (“Respondent attacked petitioner . . . and used physical power that cannot be justified as discipline against the children”).

Her own daughter fled from her after being abducted, and then testified against her. Moreover, my wife did not even petition for custody of the children until four months after I filed for divorce and custody. I even submitted a video showing my wife with not one of the bruises or injuries she claimed to have sustained the day before the video was taken. And we even had eyewitness testimony of her trying to injure herself. Could my case be any stronger?

Nevertheless, when the judge awarded me physical custody of my daughter, she also awarded physical custody of the boys to their mother. The reason: “There’s no big problem (with the boys staying where they are).”

Based on such reasoning, you can bet the bank that this judge would have awarded custody of all three children to my wife had I not been able to rescue one. And the judge would probably have given me custody of them all had they all been able to get free.

Japan’s family court is simply a facade designed to make an unevolved system appear civilized.

Let’s not kid ourselves. In Japan, “possession of the children” trumps the “best interests of the children” every time, particularly when the “best interests of the children” are never even addressed. And when you have a country that is pouring great sums of money into a system that shuffles children off to hidden locations whenever a parent makes an unverified DV claim, the state, in essence, becomes complicit in the abduction of the children…

Full article at http://search.japantimes.co.jp/cgi-bin/fl20100928zg.html

Thrice-convicted crooked Dietmember Suzuki Muneo gets his: Supreme Court rejects appeal, jail time looms

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Hi Blog.  Good news.  Former LDP kingpin (now in his own little Hokkaido-based Party of One) Suzuki Muneo, who was twice convicted in lower courts of corruption charges, has just been convicted a third time by having his appeal rejected by the Supreme Court.

This ‘orrible little man has been of concern to Debito.org for many years now, because he has shown just how some people (one of us Dosanko, no less) are above the law.  His life as case study demonstrates how in Japanese politics, a bent LDP bigwig could manipulate public policy (he was once known as the Shadow Foreign Minister, establishing under-the table kickback relationships — using GOJ discretionary budgets — with places like Russia and Tanzania, putting “Muneo Houses” in places like the Northern Territories (which he claimed were within his electorate in Outback Hokkaido). Not only that, he could get reelected despite repeated convictions just by appealing to a higher court.  See more on Muneo here, and here’s a contemporary essay from 2002 (shortly before his downfall) depicting what shenanigans he was up to in real time.

Well, it only took eight years since his arrest to get this guy properly sentenced, but there you go: That’s how slowly our judiciary moves.  Muneo faces jail time and loss of Diet seat. Good. Sadly, we’re bound to see this guy turn up again like a bent yen coin in our pocket. He’ll be incarcerated for a couple of years, wait out his five-year ban on running again, and no doubt throw his hat back in the ring before he hits his seventieth birthday. Hokkaido people can be that desperate to elect this man (one of the most charismatic Japanese politicians I’ve ever met) and he’ll be back protesting the rapaciousness of the Public Prosecutor. Article excerpt from the Japan Times follows. Arudou Debito in Tokyo

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The Japan Times: Thursday, Sept. 9, 2010
Lawmaker Suzuki loses bribery appeal
Supreme Court decision means loss of Diet seat and prison time
Compiled from Kyodo, Staff report

The Supreme Court has turned down an appeal by Lower House member Muneo Suzuki to overturn a bribery conviction, meaning he will likely lose his Diet seat and go to prison.

The decision, which took effect Tuesday and was made public Wednesday, came nearly six years after the Tokyo District Court handed Suzuki a two-year prison term and an ¥11 million fine in November 2004 for four counts, including taking bribes from two Hokkaido companies. The Tokyo High Court upheld the ruling in February 2008.

Suzuki, 62, said Wednesday he will “keep fighting” in the courts, reiterating that he never took a bribe.

“Under any environment, I will keep fighting against the power of prosecutors,” he said…

Rest at http://search.japantimes.co.jp/cgi-bin/nn20100909a1.html

Japan Times Community Page on “Trainee” Jiang karoushi, how employer Fuji Denka Kogyo is trying to get away with it

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Hi Blog. The Japan Times once again makes Tuesdays a must-buy day, as the Community Page once again puts out another good article of investigative journalism, this time about the death of NJ from overwork under the aegis of the GOJ’s “Trainee” visa program.

We’ve already talked here about the Jiang Xiaodong death being the first officially acknowledged as a NJ karoushi. The latest development on that is, according to the article:

The labor office ruling has been passed to the public prosecutor, but it is unknown at this stage whether criminal charges will be laid against Fuji Denka Kogyo or the company’s president, Takehiko Fujioka. Furthermore, lawyers representing Jiang’s wife and family, who are suing for compensation, are claiming the company falsified work records by creating a new time card that showed Jiang worked considerably less overtime than he actually did. Their investigators were able to determine that in the year up to his death, Jiang did an average of more than 150 hours overtime per month — meaning he spent a combined monthly total of 310 or more hours on the factory floor.

But the investigation goes deeper now in the Japan Times. Excerpt:

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The Japan Times, Tuesday, Aug. 3, 2010
THE ZEIT GIST
Dying to work: Japan Inc.’s foreign trainees
By SIMON SCOTT

…Recent amendments to the Immigration Control Act, which also included changes to Japan’s alien registration card system, have improved the situation for participants of the internship program, although arguably it is a case of too little, too late.

Under the old system, those in the first year of the program were officially classed as “trainees,” not workers, meaning they were unable to claim the protections Japanese labor law affords regular employees.

For example, the minimum wage in Japan varies according to prefecture, and currently the national average is ¥713 per hour. But as foreign trainees are not technically “workers,” employers are not obliged to pay them even this. Instead, they receive a monthly “trainee allowance,” which for most first-year trainees falls between ¥60,000 and ¥80,000 — the equivalent to an hourly wage in the range of ¥375 to ¥500 for a full-time 40-hour week.

For first-year trainees, trying to survive on such a low income is a real struggle, so most have to do a great deal of overtime just to make ends meet.

Although the “trainee” residency status still exists for foreign workers who arrived before 2010, it is currently being phased out, and from 2011 all first-year participants in the program will be classed as technical interns. This a significant step forward, as the Labor Standards Law and the Minimum Wage Act apply to foreign migrant workers with technical-intern residency status. However, whether migrant workers are actually able to access the protections they are entitled to is another matter, and the issue of oversight — or the lack of it — is still a long way from being resolved.

Abiko believes this absence of proper oversight has grown out of the internship program’s weak regulatory structure and a general lack of government accountability. The government entrusts most of the operations of the internship program to JITCO, an authority that lacks the power to sanction participating organizations or companies, says Abiko.

“JITCO is just a charitable organization. It is very clear that JITCO is not appropriate to regulate and monitor this program.”

In addition, she argues, the financial relationship between JITCO and the collectives or companies under which trainees work makes JITCO’s role as a regulatory body even more untenable. JITCO’s total income for the 2008 financial year was ¥2.94 billion. More than half this amount, ¥1.66 billion, came from “support membership fees” paid by the companies themselves.

“How can JITCO appropriately regulate and monitor their support members when they are dependent on them for membership fees?” she said.

Full article at
http://search.japantimes.co.jp/cgi-bin/fl20100803zg.html

ENDS

Shame on Berlitz Japan for its court harassments, firing teacher for having cancer

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Hi Blog. Shame on Berlitz Japan for its harassment of employees in court, and for firing people for their union activities (illegal under labor law) and for having cancer. This sort of thing should not be allowed in a civilized labor union market. But of course, especially in Japan’s Eikaiwa market, that’s assuming a lot. Arudou Debito in Sapporo

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The Japan Times Tuesday, July 27, 2010
ZEIT GIST: UPDATE
Talks drag on, teachers fired in Berlitz case
By JAMES McCROSTIE, courtesy of Kevin (excerpt)

http://search.japantimes.co.jp/cgi-bin/fl20100727a1.html

After 20 months of legal wrangling, neither side has managed to snag a win in Berlitz Japan’s ¥110 million lawsuit against five teachers and their union, Begunto.

On the recommendation of the case’s lead judge, the company and union have been in court-mediated reconciliation talks since December. The agreement to enter the talks came after a year of court hearings into the suit…

Louis Carlet, one of the union officials being sued, describes progress at the once-a-month, 30-minute negotiating sessions as “glacially slow.”…

The battle between Berlitz Japan and Begunto began with a strike launched Dec. 13, 2007, as Berlitz Japan and its parent company, Benesse Corp., were enjoying record profits. Teachers, who had gone without an across-the-board raise for 16 years, struck for a 4.6-percent pay hike and a one-month bonus. The action grew into the largest sustained strike in the history of Japan’s language school industry, with more than 100 English, Spanish and French teachers participating in walkouts across Kanto.

On Dec. 3, 2008, Berlitz Japan claimed the strike was illegal and sued for a total of ¥110 million in damages. Named in the suit were the five teachers volunteering as Begunto executives, as well as two union officials: the president of the National Union of General Workers Tokyo Nambu, Yujiro Hiraga , and Carlet, former NUGW case officer for Begunto and currently executive president of Zenkoku Ippan Tokyo General Union (Tozen)…

Another of the teachers named in the suit, Catherine Campbell, was fired earlier this month after taking too long to recover from late-stage breast cancer cancer. In June 2009, Campbell took a year of unpaid leave to undergo chemotherapy and radiation treatment. Because Berlitz Japan failed to enroll Campbell in the shakai hoken health insurance scheme, she was unable to receive the two-thirds wage coverage it provides and had to live with her parents in Canada during treatment. The company denied Campbell’s request to extend her leave from June to Sept. 2010 and fired her for failing to return to work.

Berlitz Japan work rules allow for leave-of-absence extensions where the company deems it necessary.

“If cancer is not such a case, what would be?” Campbell asks. “On one hand, I’m lucky to be alive and healthy enough to even want to go back to work, so everything else pales in comparison,” she explained. “But on the other, the company’s decision does seem hard to understand. The leave is unpaid, and I don’t receive any health benefits, so it wouldn’t cost Berlitz anything to keep me on; and for me, it’s that much harder to restart my life without a job.”

Rest of the article at http://search.japantimes.co.jp/cgi-bin/fl20100727a1.html

FCCJ No.1 Shimbun & Jiji on Japanese police’s extralegal powers, and how that power corrupts

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Hi Blog.  Further exploring the theme of the Japanese police’s extralegal powers and how power corrupts, here are two articles outlining cases where the Japanese police can arrest people they find inconvenient.  Arudou Debito in Sapporo

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6都府県の殺人現場に張り紙=「未逮捕おめでとう」男書類送検―軽犯罪法違反容疑
2010年6月24日13時51分配信 時事通信 Courtesy of XX
http://headlines.yahoo.co.jp/hl?a=20100624-00000099-jij-soci
東京都世田谷区の一家4人殺害事件などの現場付近に、「未逮捕おめでとう」などと書いた張り紙をしたとして、警視庁捜査1課は24日までに、軽犯罪法違反容疑で、会社員の男(29)=群馬県邑楽町=を書類送検した。
同課によると、男は「小さいころから警察が嫌いだった」と述べ、容疑を認めている。埼玉、千葉、東京、愛知、大阪、兵庫各都府県で「15件ぐらいやった」とも話しているという。
送検容疑は今月初旬から中旬、一家4人殺害事件(2000年12月)と板橋区の資産家夫婦殺人放火事件(09年5月)、江東区の質店夫婦殺害事件(02年12月)の現場付近に、「故一家に捧ぐ」「犯人未逮捕一周年おめでとうございます」などと書かれた紙を張った疑い。
同課によると、板橋の現場には「あ」と書かれた紙と線香を「ハ」の字の形に並べ、笑い声を模したものもあった。

XX notes: So golly, apparently it actually is a crime to criticize the police. In this news item a man who does not like the police has been putting up notices near crime scenes that say “Congratulations on not catching the killer.” He was arrested and prosecutored for violating the Minor Crimes Act. Interestingly, the Minor Crimes Act does not seem to have any offenses which cover what he did. Minor technicality, I guess. Interesting law to read though – it is a crime to cut in line, among other things…
http://law.e-gov.go.jp/htmldata/S23/S23HO039.html

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On the Wrong Side of the Law
by Julian Ryall
Japanese Police Branded as ‘Criminals’ by One of their Own

Number 1 Shimbun, June 2010
http://www.fccj.or.jp/node/5758

Haruhiko Kataoka is remarkably composed. For a man who has only recently been released from prison after completing a sentence of one year and four months for a crime that he is adamant he did not commit, his self-control is admirable. Even more so when one takes into account Kataoka’s insistence that he was framed by the police for the death of one of their officers, and that the legal system colluded in sending an innocent man to prison.

When he spoke at a press conference at the Club in April, there was no disguising Kataoka’s determination to continue the fight to clear his name.

There have been a number of high-profile cases that have gone against the police and judicial authorities in recent months – perhaps most famously the exoneration of Toshikazu Sugaya in March after he served more than 17 years in prison on the strength of inaccurate DNA evidence and a coerced confession to the sexual assault and murder of a girl aged 4 in Ashikaga in 1991. But Toshiro Semba, a former police officer who is supporting Kataoka’s claims, says these cases involving the Japanese police – which he describes as “a criminal organization” – are just the tip of the iceberg.

Kataoka’s head-on collision with the forces of law and order here began on the afternoon of May 3, 2006, as he was behind the wheel of a bus containing 22 students and three teachers on National Route 56 in Kochi City. After slowly pulling out of a restaurant parking lot – and observing all the appropriate safety precautions, he insists – a motorcycle being driven by a uniformed member of the Kochi Prefectural Police drove into the right side of his vehicle.

At the instant the accident happened, Kataoka says the bus was at a complete halt, a claim that he says has been backed up by the students and teachers aboard the vehicle as well as the principal of Niyodo Junior High School, who was in a passenger car following the bus.

As he tried to help the injured motorcyclist, another police officer who happened to be passing intervened and arrested Kataoka on the spot. When he reached the local police station, he was told that the officer on the motorcycle had died.

Taken back to the site of the accident later in the day, he was told to describe what had happened, but was not permitted to get out of the police patrol car. Kataoka says he could not even see the part of the road where the collision occurred. After being questioned for two days – and repeatedly told that the officer’s death was his fault – Kataoka was released.

“It was only eight months later that I was given an opportunity to explain what had happened, after I was summoned to the Kochi District Prosecutors’ office,” he said. “But the description of the accident they gave me then was beyond my belief.”

The prosecutors told Kataoka the accident had been entirely his fault due to his negligence to confirm that the road was clear, and that he was being charged with professional negligence resulting in death. To support their case, the police showed him photos of tire skid marks on the road.

“Since the bus was stopped, I told them, there was no way it could have made the skid marks,” he said. “It was then that I realized I was in a very problematic situation.

TESTIMONY DISMISSED

“From the moment the accident happened, the police had a scenario in which all the blame was put on me, and they didn’t even bother to carry out a proper on-site investigation.”

Kataoka had not given up the belief that his name would be cleared as, he reasoned, he would at least be able to explain what had really happened on Route 56 in court. He says he “had trust in Japan’s trial system.”

Instead, the testimony of the school principal and a teacher who had been aboard the bus were dismissed by Judge Yasushi Katata of the Kochi Local Court, on the grounds that their comments “lacked a realistic basis.” The testimony provided by the police officer who had been passing the scene of the accident on another motorcycle, however, was perfectly acceptable to the court because “testimony by a fellow officer is not necessarily unreliable.”

The court also accepted the tire skid marks put forward by the prosecution, which provided scientific analysis that the bus was moving at a speed of 14 kph while the motorcycle was traveling at between 30 kph and 40 kph. That contradicted another eye-witness statement that the police motorcycle was doing 60 kph. Judge Katata dismissed that suggestion as simply difficult to believe.

Kataoka was found guilty and sentenced to one year and four months in prison – with the judge taking a swipe at the defendant in his summing up by saying that he had failed to show feelings of remorse.

An appeal was immediately launched, with Kataoka’s lawyers carrying out exhaustive tests on an identical bus that revealed that even if the vehicle had been moving at the speed prosecutors insisted, it would only have left a skid mark measuring 30 cm long. Instead, police were presenting evidence of skid marks measuring 1 meter for the front right tire and 1.2 meters for the left tire. Kataoka says there are other discrepancies in the evidence, including the fact that the marks were not parallel. Fortunately for the police case, they claimed the marks had completely disappeared the day after the accident. And they refused to hand over the negatives of the photos of the skid marks, which could have been used to prove Kataoka’s innocence.

Even confronted with this evidence, the Takamatsu High Court dismissed Kataoka’s appeal.

“The judge said there was no reason to reopen the investigation,” Kataoka said. “He merely dismissed all the evidence that was unfavorable to the police and tried to cover up the criminal actions of the police against me.”

The Supreme Court reacted in the same way.

“I believe the courts have discarded the very principles of the judicial system and are only trying to cover up the wrongful actions of the police,” Kataoka said. “But I cannot allow that to happen. This case is not special at all and there have been many victims of criminal actions by the police and the failure of the powers that be to carry out full investigations.

“How can I put my faith in the justice system when the facts of a case are fabricated?”

JAPANESE MEDIA SLAMMED

And Kataoka reserves a healthy dose of scorn for the Japanese media.

“It is up to the media to follow up on cases such as this, but they looked away,” he said. “I was interviewed by the local media in Kochi, but no stories ever appeared.

“It is the responsibility of the Japanese media to report these events, but they cannot face up to the police,” he added.

Sitting alongside him, Semba nodded in agreement, adding that the system of kisha clubs “exists to conceal what is problematic for the police.” And he added that the media’s failure to report on these issues means that every day, more false charges are filed against innocent people.

Semba retired from the Ehime Prefectural Police in March, after 36 years on the force. At 24, he had been the youngest officer in the history of the prefectural force to be promoted to the rank of sergeant, but he says his refusal to falsify expenses forms that were funneled into a vast slush fund meant that he was never promoted again, was regularly transferred between unappealing assignments and had his handgun taken away on the grounds that he might kill himself or pose a danger to others.

“The Japanese police are a criminal organization and the senior officers of the force are all criminals,” Semba said. “Of all the companies and organizations in Japan, only the ‘yakuza’ and the police commit crimes on a daily basis. That includes building up slush funds and it was because I refused to participate in that that I stayed in the same position for all those years.”

Semba alleges that ¥40 billion is systematically racked up from falsified travel expenses and fictitious payments to individuals who assist the police in their investigations. Pretty much every officer in the country is involved in the scam, he claims, and they do not speak out because they are all too busy climbing the ranks to try to get their hands on a larger share of the pie.

“The money is spent by senior officer on purchasing cars, buying homes and entertainment,” he said, pointing to the example set by Takaji Kunimatsu, the former commissioner general of the National Police Agency who was shot by an unidentified assailant outside an apartment amid the Aum Shinrikyo cult investigations in 1995.

Even though Kunimatsu was on a civil servant’s wages, Semba alleges, he had two apartments worth a combined ¥80 million. And Semba says the gunman was able to get close enough to nearly kill him because Kunimatsu’s bodyguards had apparently been given the night off (for reasons that discretion prevents Number 1 Shimbun from mentioning).

“Japanese journalists all know this but they won’t report it,” Semba said.

Similarly, he said they know that the charges against Kataoka are based on falsified evidence, but the police are not held accountable.

Semba has written a series of books about police corruption and given 88 lectures around the country on his experiences, the vast majority of them while he was still a serving officer. He was never disciplined for his whistle-blowing, he believes, because the police do not want a court case in which all their dirty laundry can be aired in public.

Semba is still clearly a thorn in the side of the force – two plainclothes officers attended the press conference at the Club and took notes on what was said – and he half-joked that it is “a miracle that I am still alive.”

“If I was in a senior position in the police, I would definitely eliminate Semba,” he said. “I’m the police’s worst enemy. But it is those who have already given up their lives that are the strongest.” ❶

Julian Ryall is the Japan correspondent of The Daily Telegraph.

ENDS

Japan Times’ Colin Jones on Japanese enforcement of vague laws: “No need to know the law, but you must obey it”

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog. In one of the best articles I’ve ever read in the Japanese media, here we have legal scholar Colin Jones finally connecting the metadots, laying bare how things work in Japanese jurisprudence and law enforcement.  It’s an excellent explanation of just how powerful the police are in Japanese society.  God bless the Japan Times for being there as an available forum (I can’t imagine any other English-language paper in Japan publishing this) for this research. Arudou Debito in Sapporo

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The Japan Times Tuesday, June 29, 2010
THE ZEIT GIST
No need to know the law, but you must obey it
Colin P.A. Jones tells us why it’s hard to get clear answers when dealing with Japan’s legal system (excerpt)
http://search.japantimes.co.jp/cgi-bin/fl20100629zg.html
By COLIN P.A. JONES (excerpt) courtesy of the author and John in Yokohama

A few months ago I met with some Western diplomats who were looking for information about Japanese law — in particular, an answer to the question, “Is parental child abduction a crime?” As international child abduction has become an increasingly sore point between Japan and other countries, foreign envoys have been making concerted efforts to understand the issue from the Japanese side. Having been told repeatedly by their Japanese counterparts that it is not a crime, some diplomats may be confused by recent cases of non-Japanese parents being arrested, even convicted for “kidnapping” their own children. I don’t think I helped much, since my contribution was something along the lines of “Well, it probably depends on whether the authorities need it to be a crime.”

Of course, the very question “Is x a crime?” reflects a fairly Western view of the law as a well-defined set of rules, the parameters of which people can know in advance in order to conduct themselves accordingly. However, there is a Confucian saying that is sometimes interpreted as “The people do not need to know the law, but they should be made to obey it.” This adage was a watchword of the Tokugawa Shogunate, whose philosophy of government was based in part on neo-Confucian principles.

It is also a saying that could provide some insights into why it sometimes seems difficult to get a clear answer about what exactly the law is in modern Japan. I am not suggesting that Japanese police and prosecutors have Confucian platitudes hanging framed over their desks, but knowing the law is a source of power. Being able to say what the law means is an even greater one, particularly if you can do so without being challenged. In a way, clearly defined criminal laws bind authority as much as they bind the people, by limiting the situations in which authorities can act. Since law enforcement in Japan often seems directed primarily at “keeping the peace,” laws that are flexible are more likely to serve this goal…

Rest at http://search.japantimes.co.jp/cgi-bin/fl20100629zg.html
ENDS

Claiming workplace harassment is “The Japanese Way” costs Eikaiwa GEOS in NZ NZD 190,000 in court

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog.  Here’s something that should raise a smile this Saturday morning.  Somebody working in an administrative position as a NJ in a Japanese company (GEOS, an Eikaiwa!) gets harassed in the workplace (gosh, what a surprise).  Then when taken to court, the company tries to claim this harassment is “The Japanese Way”!  Guess what:  They forgot this ain’t a Japanese courtroom where this actually might wash.  They lose.  Just goes to show you that what are considered working standards in Japan towards NJ (or anybody, really) aren’t something that will pass without sanction in other fellow developed societies.  Attitudes like these will only deter other NJ from working in Japanese companies in future.  Idiots.  Arudou Debito in Sapporo

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‘Japanese way’ costs $190,000
By Joseph Barratt, Courtesy of CM
New Zealand Herald Sunday May 30, 2010

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10648373

The boss of a multi-national English language school in Auckland has been awarded $190,000 after an employment tribunal dismissed claims he was used to being treated “the Japanese way”.

David Page was stripped of his job as regional director of GEOS New Zealand at a conference in 2008 and demoted to head of the company’s Auckland language centre.

In April last year, he was fired by email after being given “one last chance” to make the school profitable.

Page launched an unfair dismissal claim against GEOS, which comes under the umbrella of the GEOS Corporation founded by Japanese businessman Tsuneo Kusunoki.

But the company responded by claiming that Page “accepted understanding of the ‘Japanese way’ of doing business”. They went on to say he was used to Kusunoki “ranting”, “berating” and “humiliating” people “so this was nothing new”.

But the Employment Relations Authority said the company’s failings were “fundamental and profound”.

Member Denis Asher said the final warning was “an unscrupulous exploitation of the earlier, unlawful demotion”. He said: “A conclusion that the ‘Japanese way’ already experienced by Mr Page was continuing to be applied is difficult to avoid.”

Page, an Australian, started with the company as general manager for GEOS Gold Coast, Australia, in July 1999.

He moved to Auckland in March 2006, to take on the role of regional director. He was informed of his demotion at a regional conference in Thailand in November 2008.

Four months later he received a final warning that if the Auckland language centre was not in profit by the end of May his employment would be terminated.

Asher also said “an entirely unfair, unilateral process was applied” by the company in the decision to dismiss Page.

Page was awarded $55,000 for loss of income, $21,000 for hurt and humiliation, and $31,849.99 for long service leave. The total amount, including superannuation, under-payment of salary, holiday pay and bonuses came to more than $190,000.

The parent company, GEOS Corporation, went bankrupt in April owing $121 million. The New Zealand branch has been taken over by New Zealand Language Centres Limited. They refused to comment last night.

ENDS

Savoie Child Abduction Case: Father sues judge and lawyer that enabled ex-wife to abduct

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog. Taste the difference in jurisprudence between Japan and the US here. We have Christopher Savoie suing his former lawyer — and the judge in his case — for enabling his ex-wife to get her passport back and take their kids for a visit to Japan, whereupon she abducted the kids despite her court promises. Imagine being able to sue a judge in Japan for negligence! We’ll see where this goes. Arudou Debito in Sapporo

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WSMV.com Nashville Tennessee USA
Franklin Dad Sues Judge After Japanese Arrest
Lawsuit Filed Against Williamson County Circuit Court Judge James G. Martin

http://www.wsmv.com/news/23277866/detail.html
Associated Press
POSTED: 10:43 am CDT April 27, 2010
UPDATED: 4:37 pm CDT April 27, 2010

FRANKLIN, Tenn. — A Tennessee man who was arrested in Japan when he tried to take his children back from his ex-wife is suing the local judge and an attorney who handled the divorce.

Japanese prosecutors eventually dropped the case against Christopher Savoie of Franklin after he tried in September to enter the U.S. Consulate with his 9-year-old son and 7-year-old daughter. Ex-wife Noriko Savoie had violated a U.S. court custody decision by taking the children to her native Japan a month earlier.

The lawsuit says the children are still living in Japan with their mother.

Savoie filed a federal lawsuit this month against Williamson County Circuit Court Judge James G. Martin, who served as both the mediator during the divorce and then later as the judge that lifted a restraining order barring the ex-wife from taking the children to Japan.

Savoie claims that Tennessee Supreme Court law states that mediators should refrain from acting in a judicial capacity in cases in which they mediated. He also claims negligence because the judge was aware of the risk of child abduction in this case.

He also filed a state lawsuit in Williamson County against his former divorce attorney, Virginia Lee Story, arguing she failed to object to having Martin hear the case as a judge. He claims she was negligent and asks for compensatory and punitive damages.

Messages left for Martin and Story on Tuesday were not immediately returned.
Sharon Curtis-Flair, a spokeswoman for the Tennessee Attorney General’s Office, said her office typically represents state officials in lawsuits relating to their official duties, but they had not yet been served with this lawsuit.

Timothy Tull, Savoie’s attorney, said that judges should be aware of child custody issues that have resulted from Japan’s refusal to join an international agreement three decades ago on the matter.

An arrest warrant issued in Tennessee for Savoie’s ex-wife has no effect in Japan because the country hasn’t signed the 1980 Hague Convention on International Child Abduction, which seeks to ensure that custody decisions are made by the appropriate courts and that the rights of access of both parents are protected. Japanese law also allows only one parent to be a custodian — almost always the mother.

“Our goal is to educate and help the judiciary understand they need to heed the State Department’s warning that every measure should be taken to preclude this from happening,” Tull said.

Court records show that Savoie filed for divorce in June 2008 and Martin served as the mediator in multiple sessions before the couple agreed to a marital dissolution agreement and parenting plan. The plan allowed for Noriko Savoie to take the children to Japan on vacation, but required that she continue to live with them in Tennessee.

Savoie said in the federal lawsuit that he grew increasingly concerned that his ex-wife would take the children to Japan permanently and turned over an e-mail as evidence and asked for the court to intervene.

In March 2009 soon after their divorce was final, another Williamson County Judge Circuit Court judge issued an emergency restraining order barring her from traveling with the children. The case was initially assigned to another judge, but then was transferred to Martin, who lifted the travel restriction and returned the children’s passports.

The lawsuit said Christopher Savoie spent 18 days in custody after he went to Japan to get the children back and said he has “little hope of future reunification.”
ENDS

Swiss woman acquitted of crimes yet denied bail due to being NJ, then barred as “visa overstayer” anyway

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
UPDATES ON TWITTER: arudoudebito
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Hi Blog.  Bringing this old article up as a matter of record:  I mentioned on Debito.org back in early 2008 about a Swiss woman who came to Japan as a tourist and was arrested on drug charges.  She got acquitted not once but twice in Japanese courts, yet was not released on bail because NJ and are considered more of a flight risk.  While actual convicted felons are released in the interim if they are Japanese.

Again, foreigners aren’t allowed bail in Japan. Unlike Japanese: When Japanese defendants appeal guilty verdicts, they are not detained (see Horie Takafumi and Suzuki Muneo; the latter, now convicted of corruption twice over, is still on the streets, even re-elected to the Diet!).

So despite being incarcerated as an innocent NJ since 2008, she finally gets booted out for “overstaying her visa” (oh, sure, she could have gone to Immigration any time and renewed, right?) and barred from reentry.  Rights of the defendant and “Hostage Justice” depending on your nationality.  What a swizz.  Arudou Debito in Sapporo

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Held despite acquittal, now barred from re-entry, woman slams legal system
The Japan Times, Friday, Oct. 10, 2008, courtesy of MMT (excerpt)

http://search.japantimes.co.jp/cgi-bin/nn20081010a3.html

CHIBA (Kyodo) A Swiss woman who was detained by Japanese authorities for seven months after being acquitted of a drug charge expressed anger over the Japanese legal system in a recent written message to Kyodo News.

“I was put under continuous detention because of shortfalls in Japanese law and alien policies,” wrote Klaudia Zaberl. “I have been filled with despair and anger.”

Upon arriving in Japan from Malaysia as a tourist in October 2006, Zaberl, 29, was arrested for allegedly smuggling about 2.2 kg of amphetamines hidden in a suitcase into Narita airport.

She denied the allegation, saying she was not aware the suitcase she had been handed by a stranger in return for money contained the drugs, but was later indicted.

The Chiba District Court cleared Zaberl of the charge in August 2007, saying there was reasonable doubt she was aware of the drugs.

However, following the ruling she was transferred to an immigration facility instead of being freed, as her visa had expired during her detention.

Prosecutors soon appealed the ruling and obtained court permission to detain her again to block her deportation.

In April, the Tokyo High Court ruled that she was not guilty of the charges, leading prosecutors to drop the case. She returned to Switzerland later in April.

Rest of the article at: http://search.japantimes.co.jp/cgi-bin/nn20081010a3.html

A personal hero, Chong Hyang Gyun, retires her nursing post at 60

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog.  Although I like to devote Mondays to “bigger news”, I’d like to take this day to salute a personal hero of mine, former nurse Chong Hyang Gyun, a Zainichi Korean who, like any other qualified civil servant in Japan, expected to be promoted commensurate with her experience and dedication.

But not in Japan.  She in 1994 was denied even the opportunity to sit the administrative civil service exam because, despite her being born in Japan, raised in Japan, a native speaker of Japanese, and a taxpayer in and contributor to Japan like any other, she was still, in the eyes of the Tokyo Metropolitan Government, a “foreigner”, therefore not to be trusted with administrative power over Japanese (the old “Nationality Clause”, kokuseki joukou, struck again).

So she sued for the right to sit the exam nearly twenty years ago.  Over more than ten years she lost, won, then ultimately lost in the Supreme Court, which, in a landmark setback for civil rights and assimilation, ruled there was nothing unconstitutional in denying her the right to chose her occupation and employment opportunities.

Now she’s retired as of April 1 (although rehired and working fewer hours).  I’m just grateful that she tried.  Some occupations are completely denied to NJ, including public-sector food preparation (for fear that NJ might poison our bureaucrats) and firefighting (for fear that NJ entering Japanese houses and perhaps damaging Japanese property might cause an international incident), that it becomes ludicrous for NJ to even consider a public-service job in Japan.(*)  Especially if the “glass ceiling” (in fact, an iron barrier, thanks to the Supreme Court) means you can never reach your potential.  The Chong-san Case made that clear, to Japan’s shame.

A report on workplace discrimination in Japan from Chong-san (Japanese) archived on Debito.org here.  Arudou Debito in Sapporo

(*) Apologies for the lack of links to substantiate the firefighting and food preparation claims.  My source was “Darling wa Gaikokujin” mascot Tony Laszlo’s Issho Kikaku website, which dozens of activists worked on in the late 1990’s, whose historical archives have all since mysteriously disappeared now that Issho Kikaku is moribund.

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Korean worker who sued Tokyo govt retires
The Yomiuri Shimbun Apr. 3, 2010, Courtesy of JK
http://www.yomiuri.co.jp/dy/national/20100403TDY03T02.htm

Public health nurse Chong Hyang Gyun was all smiles when she retired from the Tokyo metropolitan government recently, even though it had refused to let her seek promotion because of her South Korean nationality.

A second-generation Korean resident of this country, Chong sued the metropolitan government in 1994, demanding she be allowed to take a promotion exam for a managerial post. The trial went on for 10 years of Chong’s 22-year career with the metropolitan government.

Ultimately, Chong was not able to be promoted because the Supreme Court overturned her victory in a lower court. Upon her retirement, however, she smiled and said, “I have no regrets.”

Chong officially retired Wednesday, as she had reached her mandatory retirement age of 60.

Chong was born in Iwate Prefecture. In 1988, she was hired as the first non-Japanese public health nurse to work for the metropolitan government.

Her application to take the internal exam to become a manager was refused, however, because of the metropolitan government’s “nationality clause,” which prohibits the appointment of non-Japanese employees to managerial posts.

The Tokyo District Court decided against her in 1996, ruling that the metropolitan government’s action was constitutional.

In 1997, the Tokyo High Court ruled that the metropolitan government’s decision violated the Constitution, which guarantees the freedom to choose one’s occupation, and ordered the Tokyo government to pay compensation to Chong.

The metropolitan government appealed this decision and in 2005, the Supreme Court nullified the high court ruling and rejected Chong’s demand.

After Chong openly expressed her disappointment at a press conference about the Supreme Court ruling, she received critical e-mails and other messages. Chong also said she sometimes felt it was hard to stay in her workplace.

However, a sizable number of her colleagues and area residents understood her feelings.

“I was supported by many people. I enjoyed my job,” Chong said.

For two years from 2006, Chong worked on Miyakejima island, helping residents deal with difficulties resulting from their prolonged evacuation.

Just before her retirement, Chong visited health care centers in Tokyo and other related facilities as chief of a section for preventing infectious diseases and caring for mentally handicapped people.

She was rehired from April as a nonregular employee at her workplace’s request, but she will work fewer days.

“I’ve been tense ever since filing the lawsuit, trying not to make any mistakes in other areas. Now I can finally relax,” Chong said.

Chong recently has been interested in supporting Indonesian nurse candidates in Japan. During the New Year holidays, she held a gathering to introduce them to Japanese culture.

“Now that a greater number of foreigners are in Japan, society as a whole should think about how to assimilate them,” Chong said.

She said she believed her lawsuit has helped raise those kind of questions.
ENDS

在日保健師定年「悔いなし」…昇任に国籍の壁
http://www.yomiuri.co.jp/national/news/20100327-OYT1T00524.htm
(2010年3月28日20時29分 読売新聞)
管理職試験の受験資格を求めて勤務先の東京都を提訴し、最高裁で逆転敗訴した在日韓国人2世の保健師、鄭香均(チョンヒャンギュン)さん(60)が3月末で、定年を迎える。

22年間の在職中、10年を裁判に費やし、結局昇任は果たせなかったが、「悔いは全くない」と語る表情は晴れやかだ。

岩手県生まれの鄭さんは、1988年に都の外国籍保健師第1号として採用された。管理職試験に挑戦しようとしたが、外国人を登用しないという都の「国籍条項」を理由に拒否され、94年に提訴した。

96年の東京地裁判決は、都の措置を合憲と判断して請求を棄却。97年の2審判決は都の措置を「職業選択の自由などを定めた憲法に違反する」と判断し、慰謝料支払いを命じたが、都が上告。最高裁は2005年、2審の違憲判決を破棄し、請求を棄却した。

記者会見で落胆を率直に口にした鄭さんに、批判のメールなどが多数届いた。職場で「居づらい」と感じることもあった。

一方で、同僚や地域には、思いを理解してくれる人も多く、「多くの人に支えてもらった。仕事は楽しかった」と振り返る。

06年から2年間三宅島で勤務し、長期の避難生活を経て様々な悩みを抱える島民らの支援にあたった。現在は係長として都内の保健所などを回り、感染症対策や精神障害者のケアに携わる。

4月からは職場の要望もあり、都に再任用されるが、勤務日数は少なくなる。「提訴以来、ほかのことでつまずいたらいけないと常に緊張していた。やっとほっとできる」と笑顔で語る。

最近は、来日したインドネシア人看護師候補者らの支援に関心があり、正月に自宅で日本文化を紹介する集いを開いたことも。

「これだけ外国人が増えたのだから、どう受け入れるのか社会全体で考えなければ」。自分の裁判がそうした問題の提起につながったのでは、と思っている。

(2010年3月28日20時29分 読売新聞)
ENDS

Colin Jones and Daily Yomiuri on J judiciary’s usurpingly paternal attitudes re families post-divorce

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog.  One more piece in the puzzle about why divorces with children in tow in Japan are so problematic.  As we’ve discussed here before umpteen times, Japan does not allow joint custody (thanks to the Koseki Family Registry system etc.), nor does it guarantee visitation rights.  Following below is another excellent article by Colin Jones on why that is — because Japan’s paternalistic courts and bureaucrats believe they know more than the parents about what’s best for the child — and another full article from the Yomiuri illustrating how this dynamic works in practice.  It’s one more reason why I believe that without substantial reforms, nobody should marry (Japanese or NJ) and have children under the Japanese system as it stands right now.  Arudou Debito in Calgary

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The Japan Times Tuesday, Feb. 2, 2010
THE ZEIT GIST
Children’s rights, judicial wrongs
By COLIN P. A. JONES Last in a two-part series (excerpt)

http://search.japantimes.co.jp/cgi-bin/fl20100202zg.html

Parents, lawyers and activists alike understandably frame the problems of parental child abduction and parental alienation in Japan in terms of children’s rights. While it would be easy to conclude from what I wrote in last week’s column that Japanese courts simply do not care about them, this would probably be a mistake.

On the contrary, family courts and their specially trained investigative personnel are held out as the “experts” on children, their welfare and rights…

Thus, in my view, the fact that courts might be inclined to ignore Civil Code provisions that describe parental authority as including parental rights is understandable for the same reason that they might not be keen on referring to the Children’s Rights Convention: It is probably personally and professionally more satisfying to tell other people what they should be doing than the other way around.

With rights being the principle way in which parents and other citizens could tell the courts and other government institutions what to do, their conversion into duties is also understandable. While in other countries courts provide a mechanism by which people assert their rights against bureaucracies, in Japan the courts tend to be more like bureaucracies themselves. The same logic may also explain why the Japanese government is able to advance plans to make it easier to terminate the rights of abusive parents at a time when growing calls for the adoption of joint custody, enforceable visitation and joining the Hague Convention on international child abduction remain unaddressed.

Consequently, parents and activists trying to address the problems of child abduction and parental alienation in Japan using arguments framed in terms of children’s rights may not get very far with family courts or other bureaucracies. After all, they are the experts in the subject, and if you are in court they may presume you are a bad parent anyways. That being the case, they will tell you what is best for your child, not the other way around.

Full article at: http://search.japantimes.co.jp/cgi-bin/fl20100202zg.html

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WHEN FAMILIES BREAK UP / Divorced parents fighting for right to see own children
The Yomiuri Shimbun Feb 3, 2010, courtesy of TC

http://www.yomiuri.co.jp/dy/national/20100203TDY01303.htm

We live in a time when divorce has become commonplace. In Japan, a couple gets divorced every two minutes. Consequently, the number of divorced parents filing requests with the courts for visitation rights is increasing.

There is also a growing number of conflicts resulting from breakups of couples from different countries. Due to differences in interpretation regarding child custody, parents have been accused of abducting their own children and taking them to another country.

As families and people’s values diversify, certain problems have become difficult to resolve under the existing system.

Starting today, we will look at some of the problems divorced parents face as they struggle to win the right to see their children.

After separating from her husband five years ago, a 51-year-old woman in Tokyo began a long struggle to see her 15-year-old son.

The woman, a temporary worker, has only been able to see her son twice in the five years that have passed. The meetings, held in a court and in the presence of a court personnel, totaled just 95 minutes.

On both occasions when the woman saw her son, she was unable to stop tears welling up.

“My son, who is taking piano lessons, put his hand on mine to compare the size,” she said. “As I saw him staring at me while talking, I felt we were deeply bound inside.”

Desperately wishing to see her son more often, in July 2007 she applied to the family court for mediation on the issue of visitation rights.

However, the woman’s former husband initially resisted all requests to allow her to visit her son, citing the boy’s need to focus on his schooling, including preparing to move up to the next grade.

As part of the mediation process, in which a voluntary settlement is sought with the help of commissioners, the court initially set up two short meetings between the woman and her son as a way of determining the format future meetings should take.

The two met for 50 minutes in March 2008 and 45 minutes in April 2009.

“My son remembered the meeting we had a year earlier,” the woman said.

While the court advised that the woman be allowed to visit her son every two months, the couple failed to reach an agreement. As a result, the mediation process moved to the next stage, which will see a final decision issued by a judge.

“I’m so worried that I might never be allowed to see my son again,” she said.

===

Children caught up in disputes

The number of divorces nationwide reached 250,000 in 2008, according to a Health, Labor and Welfare Ministry survey. Of those divorced couples, 140,000 had children aged under 20, which numbered more than 240,000.

The rising number of divorced couples is accompanied by an increasing number of conflicts involving children.

According to an annual survey compiled by the Supreme Court, family courts across the country mediated in 6,261 cases concerning disputes over meetings between divorced parents and their children and judges were forced to deliver a final decision in 1,020 of those cases. Both figures were triple the numbers a decade ago.

Even through such court-mediated procedures, only half of the parents involved in the cases won permission to see their children.

In addition, regardless of an agreement or court order reached on visitation, if the parent who lives with the child strongly resists allowing meetings, it remains difficult for the other parent to see the child.

===

Maintaining contact important

Several years ago, a 40-year-old man from Kanagawa Prefecture seeking the right to see his then 1-year-old son applied for court mediation.

He had helped his wife take care of the baby, feeding him milk and changing his diapers at night. On his days off, he took the boy to a park to play. “I had no inkling I’d be prevented from meeting my son after the divorce,” he said. “But I was completely wrong.”

He said that even after the official mediation procedure started, his former wife maintained she would never allow him to see their son. She even pushed back the scheduled date for the mediation. Time passed and no decisions were made.

Desperate to see his son, the man even visited the neighborhood where the boy lived with his mother.

The former couple failed to reach a compromise through the court-led mediation process and began proceedings that would lead to a decision by a judge. Two years later, the court concluded that the man should be allowed to see his son once a month, for half a day. Nevertheless, the former wife broke the appointment set for the first meeting, leaving the man unable to see the boy.

After repeated negotiations with the woman through lawyers, he finally managed to ensure he could regularly see his son. “I believe it’s important for children’s growth to maintain a relationship with both parents,” the father said. “I think adults shouldn’t deprive their children of this right due to selfishness.”

Waseda University Prof. Masayuki Tanamura argues the existing system no longer meets society’s changing needs. “It was previously believed that divorced parents had to accept they couldn’t see children they’d been separated from,” Tanamura said. “In recent years, however, men have become more involved in child rearing and the number of children born to couples has declined. Because of this, many divorced parents have an increased desire to maintain their relationship with their children even after a divorce.”

What needs to be done to ensure that parents can see their children after a divorce? There is a growing need for this nation to find an answer to this question.

===

Sole custody causing headaches

A key factor behind disputes involving divorced couples over their children’s custody is a Civil Code stipulation that parental prerogatives are granted to either the mother or father–not both.

The parent who obtains custody assumes rights and duties for his or her child, such as the duty to educate the child and the right to control any assets they might have. However, the parent without parental authority can claim almost no rights concerning their children.

In fact, mothers win in 90 percent of court decisions concerning the custody of a child–known as mediation and determination proceedings.

There is no provision in the Civil Code referring to the visitation rights of a parent living separately from his or her child, so whether the absent parent can meet the child depends on the wishes of the former partner who has been granted custody.

If the parent who has custody refuses to let his or her child meet with the former spouse in a court mediation, it is difficult to arrange visits.

Even if the parent living separately from his or her child or children is allowed to visit, the chances are limited–for example, to once a month. Moreover, if the parents who have custody ignore the court’s decision to grant their spouses visiting rights, there is almost no legal recourse to implement such visits.

Waseda University Prof. Masayuki Tanamura said: “The current system strongly reflects the Japanese family system established in the Meiji era [1868-1912]. Since that time, parental authority has been regarded as the right of the parents to control their children, so couples fight over it.”

Meanwhile, as the number of divorces increased from the 1970s to the ’90s in Europe and the United States, such countries began allowing joint custody, in which former couples cooperate in bringing up their children even after breaking up.

Lawyer Takao Tanase, who also serves as a professor at Chuo University, said: “[In such countries,] the rights of parents who live separately from their children after divorce to visit and communicate with their children are recognized, and such visits occur regularly. For example, there are cases in which such parents meet with their children once a fortnight and spend the weekend together.”

The number of international marriages is increasing yearly–reaching a record high of 18,774 cases in 2008–and the difference in the custody system between Japan and foreign countries causes serious problems when a Japanese splits from his or her foreign spouse.

Cases in which Japanese living in foreign countries take their children back to Japan after divorcing a foreign spouse have become an international problem. The Foreign Ministry confirmed 73 such incidents in the United States, 36 in Canada, 35 in France and 33 in Britain.

There is an international law to deal with such disputes. The Hague Convention on the Civil Aspects of International Child Abduction stipulates that if a former husband or wife takes his or her child or children to another country without the consent of the former spouse, the spouse can apply to bring the child back to the country where they were living. Member countries assume an obligation to cooperate in bringing the child back to the home country.

Many European countries and the United States have joined the convention, but Japan has yet to ratify it. International pressure on Japan to adopt the convention is growing.

“We need to separate the problems of parent-child relationships from the problems between couples. We need to establish laws enabling children to meet with the parent who is living separately after divorce, with the exception of cases in which the child is exposed to potential physical danger by meeting the parent,” Tanase said.

“In Japan, divorce is becoming increasingly common, and it’s important to accept the idea that divorced couples will share child-rearing duties even after divorce,” he added.

(Feb. 3, 2010)

Kyodo: NJ “Trainees” win ¥17 million for trainee abuses by employer and “broker”

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog.  Here’s some more good news.  After a nasty dispute some moons ago involving Chinese “Trainees” that ended up with a court ruling in their favor (the inspiration for the movie SOUR STRAWBERRIES), here we have another one that holds not their client, but also their pimp accountable.  Good.  Pity it the system as designed means it has to come to this, but I’m glad to see it happening.  Arudou Debito in Edmonton

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The Japan Times Saturday, Jan. 30, 2010
Foreigners win ¥17 million for trainee abuses

http://search.japantimes.co.jp/cgi-bin/nn20100130b2.html

KUMAMOTO (Kyodo) The Kumamoto District Court awarded more than ¥17 million in damages Friday to four Chinese interns who were forced to work long hours for low wages in Kumamoto Prefecture.

The court ordered that the union Plaspa Apparel, which arranged the trainee work for the four, to pay ¥4.4 million and that the actual employer, a sewing agency, pay ¥12.8 million in unpaid wages.

It is the first ruling that held a job broker for foreign trainees liable for their hardships, according to lawyers representing the four interns.

The four female Chinese trainees, aged 22 to 25, engaged in sewing from early morning to late evening with only two or three days off a month after arriving in Japan in 2006, according to the court.

ENDS

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中国人実習生「過酷労働」 業者らに賃金など支払い命令

朝日新聞 2010年1月29日
http://www.asahi.com/national/update/0129/SEB201001290003.html

外国人研修・技能実習制度で来日した中国人女性4人が、熊本県天草市の縫製工場で不当に過酷な労働を強いられたとして、業者や受け入れを仲介した1次機関などに未払い賃金や慰謝料など計約3600万円を求めた訴訟の判決が29日、熊本地裁であった。高橋亮介裁判長は業者と受け入れ機関の計3者に計1725万円の支払いを命じた。原告弁護団によると、制度をめぐる労働裁判で、外国人を直接雇用しない1次受け入れ機関にも不法行為責任を認めたのは初めて。

賠償命令を受けたのは、熊本県天草市の縫製会社スキールと個人事業所のレクサスライク(いずれも廃業)の2業者と、両者に実習生をあっせんした同県小国町の1次受け入れ機関プラスパアパレル協同組合の3者。制度を支援する財団法人国際研修協力機構(JITCO)に対する訴えは退けられた。

原告は中国・山東省出身の22〜25歳の女性4人。2006年4月に来日して研修を始めたが、休日は月1回程度で、午前2時まで働かされたこともあったという。給料は最低賃金より少なく、労働基準法で禁じられた「強制貯金」もさせられたと訴えた。

ENDS

Oguri’s “Darling wa Gaikokujin” becomes a movie, with parody cartoon about the “Darling Dream” being sold by all this

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog.  I want to offer my congratulations to Oguri Saori, very successful author of the “Darling wa Gaikokujin” series (translated as “My Darling is a Foreigner”, but officially subtitled “My Darling is Ambidextrous”), for the news just out this month that the first book in the series will be made into a live-action movie (starring Inoue Mao and Jonathan Share as Saori and Tonii respectively).  The empire built upon the dream being sold to Japanese women for marrying a white foreigner keeps on gathering strength.  See the movie trailer here.

More interesting to me is the mutation of the Tonii character.  It’s apparently based upon Tony Laszlo, one-time unicyclist, “journalist”, “activist” and self-proclaimed leader of unregistered NGO “Issho Kikaku” (a long-defunct group — you can’t even find their once-copious archives on the Wayback Machine because they have been blocked by the site owner — see what’s left of it at Issho.org), and now happy multimillionaire thanks to his partnership with and characterization by his very talented wife.

Although portrayed in the movie by the very handsome and disarming Jonathan as a “grass-eating man”, Tonii in real life is not as he is cartooned.  Laszlo is a big fan of putting his funds into threatening lawsuits, for one thing.  And of deleting internet archives.  And more.

It just so happens I found a cartoon parodying this phenomenon of the contrasts.  As the last post on Debito.org for this decade, enjoy.

Arudou Debito in Sapporo, wishing everyone a happy new year.  For Oguri Saori, it looks to be a fine one indeed, so, again, congratulations.

(click on image to expand in your browser)

ENDS

Int’l Child Abduction issue update: Chinese found guilty in J court of abducting daughters, MOFA sets up panel on issue

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatardebitopodcastthumb
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Hi Blog.  Three articles (two with original Japanese) below charting a couple of interesting developments regarding Japan as an international haven for child abductions.

The first article is what happens when the shoe’s on the other foot, and the NJ parent goes on trial for allegedly abducting his or her child from Japan — the Japanese authorities eventually convict the NJ.  Asahi reports a Chinese father was found guilty (sentence suspended) in Japanese court of successfully, shall we say, “committing a Savoie” — actually getting his Japanese-Chinese daughters out of Japan (moreover after a J court awarded his ex-wife custody).  The story follows below, but one of the daughters came back to Japan from China and stayed on, and the father came over to get her — whereupon he was arrested and put on trial.  Now the mother wants Japan to sign the Hague Convention to protect Japanese from abductions (well, fine, but neither China nor Japan is a party, so there you go; oddly enough, accusations of spousal abuse — as in this case — are being leveled conversely as reasons for Japan NOT to sign the Convention).  Just sign the damn thing, already.

The second article is from the Mainichi highly critical of the Japanese consulate in Shanghai for renewing the daughters’ J passports without consent of the J mother overseas.  Even though this is standard operating procedure when a Japanese spouse wants to bring the children back to Japan from overseas.  It only seems to make the news when the valve is used against the Japanese spouse.

Final irony:  Quoth the judge who ruled in this case, “It is impossible to imagine the mental anguish of being separated for such a long time from the children she loved.”  Well, that works both ways, doesn’t it?  Why has there never been a child returned by a Japanese court to a NJ parent overseas?  Why didn’t this matter in, for example, the Murray Wood Case, when overseas courts granted custody to the NJ father yet the Saitama Family Court ruled against him?  And how about the plenty of other cases slowly being racked up to paint a picture that NJ get a raw deal in Japanese courts?

The third article (following the original Japanese versions of the first two) is how Minister Okada of the Foreign Ministry is setting up a special task force on this issue. Good.  But let’s see if it can break precedent by acknowledging that NJ have as much right to access and custody of their children as Japanese do.  Dubious at this juncture.  Arudou Debito in Sapporo

================================
Former Chinese husband found guilty of abducting daughters
THE ASAHI SHIMBUN 2009/12/4
, Courtesy GB, FG, and HH
http://www.asahi.com/english/Herald-asahi/TKY200912040352.html

In another case highlighting legal complexities if international marriages fall apart, a court found a Chinese man guilty of “abducting and taking overseas” his two daughters from their Japanese mother 10 years ago.

The Tachikawa branch of the Tokyo District Court sentenced Qin Weijie, 55, to two years in prison, suspended for three years, on Thursday.

According to the ruling, Qin and his Japanese wife were undergoing divorce procedures in June 1999, when he talked to their daughters, then 7 and 8, on a street in Akishima in western Tokyo. He took them on a flight to Hong Kong from Kansai Airport. The girls had been living with their mother at the time.

When the divorce was finalized, a Japanese court gave the mother sole custody of the children.

But Qin refused to hand over the daughters.

“(The defendant) disrespected the law, and his behavior was malicious. The circumstances after his criminal act were not good, either,” Presiding Judge Manabu Kato said.

According to Qin’s 44-year-old former wife, she was staying at a shelter with the two girls in 1999 to escape Qin’s physical abuse. She said she spent the next 10 years searching for her children, fearing that they may be abused.

But the presiding judge said the daughters “grew up with a proper amount of love.” He also noted that the younger daughter chose to live with her father in China, even after returning to Japan temporarily earlier this year.

After the ruling, Qin said: “In Shanghai, not only my second daughter but also my 1-year-old son from my remarriage are waiting. I’d like to go home soon and fulfill my duty as their father.”

He had told the court that he took the girls to China for their own sake because “their life was unstable” in Japan at the time.

Prosecutors had demanded a three-year prison term for Qin.

When the daughters returned to Japan in January to renew their passports, the second daughter returned to China on her own will, but the elder daughter decided to stay with her mother.

Qin was arrested in September when he entered Japan for the purpose of getting the older daughter back.

According to the mother, the older daughter broke down in tears when she passed by the site where she was taken away 10 years ago. The girl is also being treated for an eating disorder, the mother said.

“My daughter is afraid of my ex-husband, and she is emotionally hurt. How can we get back the lost 10 years?” the mother said.

Disappointed with the suspended sentence, the mother urged the Japanese government to sign the Hague Convention on international child abduction and adopt measures to protect mothers and children who have escaped from abuse.

Under the convention, when a child has been taken from his or her country of residence, the child must be returned to that country.

Neither Japan nor China is party to the Hague Convention.

In recent months, cases of legal problems have surfaced concerning divorced Japanese women bringing their children to Japan without the consent of their former husbands overseas.

When the mother reported the abduction to police, she was told there was nothing they could do.

After she obtained legal custody, she asked the Foreign Ministry, the Chinese government, Diet members and lawyers for support. She even traveled to China several times but could not get her daughters back, she said.

In 2004, Tokyo police finally accepted her criminal complaint against Qin.

According to the welfare ministry, there were 37,000 international marriages in Japan last year, as well as 19,000 divorces among international couples. (IHT/Asahi: December 4,2009)
ENDS
=============================

Japanese consulate renewed passports of children taken overseas without consent
Mainichi Shinbun Dec 4, 2009
, courtesy of TC
http://mdn.mainichi.jp/mdnnews/news/20091204p2a00m0na015000c.html

The Japanese consulate general in Shanghai renewed the passports of two girls without permission from their Japanese mother in violation of the Passport Law, after their Chinese father took them to China in the wake of a marriage breakup, it has been learned.

The consulate general renewed the passports of the girls, now aged 18 and 17, in 2004, despite their mother’s repeated requests to the Ministry of Foreign Affairs not to renew the passports.

As a result of the consulate general’s actions, the girls remained in China for five more years, and the situation was not resolved until the father came to Japan in September this year and was arrested on suspicion of child abduction.

“As a result of the government’s mistake, I had to wait five years for the return of my daughters,” the children’s mother, who is in her 40s, said. “I want the government to move actively to protect the rights of children.”

Passports for minors are valid for five years. Passport Law regulations state that permission must be obtained from a person who has custody of the children for the passports to be issued.

Representatives of the woman said that she and the Chinese man, 55-year-old Qin Weijie, married in 1988 and lived in Tokyo, but she left due to domestic violence by Qin. In June 1999, Qin met his daughters as they were traveling to school near the home to which his wife had moved, and he took them to China.

Qin and his wife divorced in 2000, and she was granted custody of the children. However, as she didn’t know where they were, she repeatedly asked the Foreign Ministry not to renew their passports. She also filed a criminal complaint against Qin accusing him of abducting the children and taking them overseas. However, the consulate general renewed the passports in January 2004.

About five years later, when the deadline for renewing the passports of the children was again approaching, Qin contacted his former wife asking her to sign a consent form for renewal, but she said she wanted to meet them directly and confirm what they wanted to do, so the two came to Japan in January.

Qin was arrested after entering Japan in September this year at Narita Airport, trying to take his elder daughter, who wanted to remain in Japan, back with him. His former wife said the eldest daughter was suffering from an eating disorder and panic attacks, due in part to violent behavior from Qin.

On Thursday, Qin was sentenced to two years’ imprisonment, suspended for three years, after going on trial facing international abduction and other charges. In handing down the ruling, Presiding Judge Manabu Kato criticized Qin’s actions, saying, “His act of taking the children away without notice deserves criticism,” but noted, “At the time Qin also held custody of the children.” Commenting on the wife’s position, the judge stated: “It is impossible to imagine the mental anguish of being separated for such a long time from the children she loved.”

The Ministry of Foreign Affairs’ Japanese Nationals Overseas Safety Division admitted the mistake in renewing the passports without consent, but said it could not provide detailed background information on individual cases.

(Mainichi Japan) December 4, 2009

国際結婚破綻:母に無断で子の旅券更新…上海日本総領事館
毎日新聞 2009年12月4日
http://mainichi.jp/select/wadai/news/20091204k0000m040117000c.html
国際結婚した日本人妻との生活が破綻(はたん)した後、2人の娘(18歳と17歳)を母国に連れ去ったとして、国外移送誘拐などの罪に問われた中国出身の会社員の事件に絡み、在上海日本総領事館が04年、2人の旅券を、旅券法の規則に反し、親権者である元妻(40代)の同意を取らないまま更新していたことが分かった。元妻は外務省に対し更新しないよう繰り返し要請していた。

更新で2人はその後5年間中国にとどまることになり、元夫が今年9月に来日し逮捕されるまで解決が遅れる結果となった。元妻は「国のミスで5年間も娘の帰りを待たされた。国は子の人権を守るため積極的に動いてほしい」と訴えている。

未成年者の旅券の有効期限は5年間で、旅券法施行規則は発給を受ける際には親権者の同意書が必要と定めている。

元妻の弁護士らによると、夫婦は88年に結婚し東京都内で暮らしていたが、元妻は98年、夫だった中国出身の会社員、秦惟傑被告(55)による家庭内暴力に耐えかねて別居。秦被告は99年6月、元妻の別居先近くの路上で、小学校に登校途中だった娘2人(当時8歳と7歳)に声を掛けて連れ出し、中国に連れ去った。

離婚は00年に成立、元妻は親権も認められた。居場所も分からない娘との再会を希望し、外務省に旅券を更新しないよう何度も要請。国外移送誘拐容疑で刑事告訴もした。しかし、上海日本総領事館は更新期限の04年1月、元妻の同意なしに2人の旅券を更新した。

秦被告は5年が経過し旅券の再更新時期が迫ったため、元妻に「親権者の同意書にサインしてほしい」と連絡してきた。しかし、元妻は「直接会って意思を確認したい」と一時帰国を求め、2人は1月に来日した。結局、秦被告が今年9月、日本に残ることを希望した長女を連れ戻そうと成田空港から入国、逮捕されたことで、元妻は10年ぶりに長女との暮らしを取り戻すことができた。元妻によると、長女は秦被告の家庭内暴力などの影響で摂食障害やパニックを起こしているという。

外務省海外邦人安全課は毎日新聞の取材に「同意書がないまま旅券を発行したのは確か」とミスを認めたが、原因については「個々の案件について詳しい経緯は話せない」としている。【青木純】

◇国外移送誘拐罪 父親に有罪判決
この件で国外移送誘拐などの罪に問われた秦惟傑被告(55)に対し、東京地裁立川支部は3日、懲役2年、執行猶予3年(求刑・懲役3年)の判決を言い渡した。加藤学裁判長は「黙って連れ去った行為は非難に値する」としたが、「当時は被告も娘の親権を有していた」などと述べた。

判決によると、秦被告は99年6月8日、別居していた妻の自宅から登校途中だった娘2人に声を掛け、同日中に国外に連れ去った。

加藤裁判長は判決で「長い間愛するわが子と離れることを余儀なくされた(元妻の)精神的苦痛は察するに余りある」と述べた。【青木純】

==================================

Foreign Ministry sets up division on child custody issue
Japan Today/Kyodo News Wednesday December 2 2009
, courtesy lots of people
http://www.japantoday.com/category/national/view/foreign-ministry-sets-up-division-on-child-custody-issue

TOKYO — The Foreign Ministry on Tuesday set up a division to handle such issues as whether Japan should sign the 1980 Hague Convention, seeking to protect children from the harmful effects of failed international marriages.

Japan is the only country among the Group of Seven industrialized nations that is not a party to the convention, which provides a procedure for the prompt return of children to their habitual country of residence.

‘‘I have heard opinions from European countries and America…and I would like to consider how to deal with the matter swiftly. But it is also a fact that there are difficult problems,’’ Foreign Minister Katsuya Okada said.

The Division for Issues Related to Child Custody will consist of nine officials who are already serving the Foreign Ministry.

In a related move, the ministry held the first Japan-France liaison meeting aimed at promoting information exchanges and information sharing regarding specific cases that involve the two countries.

France is the first country with which Japan has set up such a bilateral mechanism in relation to the issue, a Japanese Foreign Ministry official said.

During the meeting, French officials handed a list of 35 cases in which Japanese women had returned to the country with their children after their marriages with French men failed.

The French officials also called for Japan to facilitate the process of identifying the children’s locations or their health condition.

ENDS

Asahi and Mainichi: J Supreme Court rules against Nationality Clause for employment in judiciary

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatar
UPDATES ON TWITTER: arudoudebito

Hi Blog.  In probably one of the most important legal decisions all year, the Supreme Court has ruled that the “Nationality Clause” (kokuseki joukou), often cited as a reason for barring NJ from administrative (and often, even stable noncontracted) jobs in the public sector, has been scrapped.  I’m not sure if that means it’s been ruled “unconstitutional”, but the clause in the Mainichi below, (“The citizenship requirement was eliminated because the courts could be seen as denying employment based solely on the question of citizenship,” the court stated.) could reasonably be stretched in future cases to say that barring NJ from jobs (currently allowed in places such as firefighting and food preparation, and also in Tokyo Prefecture for nursing) should not be permitted.  That would be excellent news for the long-suffering NJ academics in Japan’s higher-education system of Academic Apartheid.  Let’s hope some professor has the cojones to take it to court.  (Not me:  I’m tenured already, thank goodness.)  Arudou Debito in Sapporo

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Supreme Court scraps Japanese nationality requirement for legal training
THE ASAHI SHIMBUN 2009/10/29, Courtesy HH

http://www.asahi.com/english/Herald-asahi/TKY200910290213.html

Ending what has long been labeled discriminatory, the Supreme Court has scrapped a clause requiring Japanese nationality among those seeking legal training to start careers in the judiciary.

Non-Japanese who have passed the bar examination have, in fact, undergone legal training, but only under “exceptional” measures and if the Supreme Court deems them “adequate.”

Foreign nationals and officials at the Japan Federation of Bar Associations have said the clause has unfairly shut the door on many non-Japanese and demanded its elimination.

The clause stems from a Cabinet legislation bureau policy that states that Japanese nationality is a prerequisite for those applying for public service work that involves the execution of public power or has a bearing on the formulation of national intention.

That policy was extended to legal training based on the reasoning that trainees could attend prosecutors’ questioning of suspects or closed-door counsel discussions held by courts.

A Supreme Court official explained the court decided to “delete any mention that suggests that in principle (non-Japanese) cannot be accepted (for legal training).”

Tokuji Izumi, a lawyer and former Supreme Court justice, said he hopes the move will increase the number of foreign lawyers practicing in Japan and “will help in protecting the rights of foreign nationals.”

Izumi was involved in the top court’s acceptance in 1976 of Kim Kyung Duk, an ethnic Korean born in Japan, for legal training.

Kim had put consistent pressure on the Supreme Court, and became the first non-Japanese to enter legal training in 1977. He went on to become a prominent human rights lawyer in Japan before his death in 2005.

After lobbying by Kim and others, the Supreme Court agreed to allow “those deemed adequate to attend (legal training),” but it kept the nationality clause.

In 1990, the top court scrapped its policy of requiring foreign applicants to pledge to abide by the law. The court also widened the scope of those eligible for legal training to include foreign nationals who do not hold permanent residence status.

But the court still retained the nationality clause.

According to the Supreme Court, more than 140 foreign nationals who passed the bar examination have attended legal training.

In applying for legal training, applicants must submit copies of family registries known as koseki. Since foreign nationals do not hold koseki, the Supreme Court will request documents to prove their residency in Japan.

Non-Japanese are also barred from being employed as prosecutors or judges, which are national civil servant jobs.

Foreign nationals who complete legal training can enter the judiciary as lawyers, but they will have to acquire Japanese nationality before working as judges or prosecutors.

The Japan Federation of Bar Associations has also submitted a request that district and family courts accept foreign lawyers as judicial commissioners and mediators “regardless of nationality if they are qualified.”(IHT/Asahi: October 29,2009)

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Supreme Court eliminates Japanese citizenship requirement for articling students
(Mainichi Japan) October 30, 2009, Courtesy JK

http://mdn.mainichi.jp/mdnnews/news/20091030p2a00m0na012000c.html

The Supreme Court has eliminated the Japanese citizenship requirement for student articling positions at courts of law.

“The citizenship requirement was eliminated because the courts could be seen as denying employment based solely on the question of citizenship,” the court stated. The decision will first affect those taking up articling positions in November.

Those who pass the bar exam can go on to become articling students, after which they take a final graduation exam and, if they pass, may become courtroom lawyers, judges and public prosecutors. Until the ruling, Japanese citizenship was a requirement to become an articling student at the court as, in order to prepare for jobs as judges or prosecutors, they studied “the exercise of government power involved in being a civil servant.”

In 1977, the court created exceptions to the ban on foreigners holding legal positions. Foreigners may not become public prosecutors or judges, which as civil servants must hold Japanese citizenship, but may become courtroom lawyers.

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「司法修習生は日本国籍必要」条項を削除 最高裁
2009年10月29日8時1分 朝日新聞
http://www.asahi.com/national/update/1029/TKY200910280425.html

最高裁は11月から修習を始める司法修習生の選考要項から日本国籍を必要とする「国籍条項」を削除した。最高裁は外国籍の司法試験合格者には30年以上、特例の形で修習を認めてきたが、在日外国人や日本弁護士連合会などが「差別だ」として条項自体の削除を求めていた。

司法試験の受験資格には以前から国籍条項はない。だが合格者が実務を学ぶ司法修習では、検察庁で容疑者の取り調べをしたり、裁判所で非公開の合議に立ち会ったりする機会がある。そのため、最高裁は「公権力の行使や国家意思の形成に携わる公務員には日本国籍が必要」との内閣法制局の見解を準用。外国籍の合格者には日本国籍取得を修習生として採用する際の条件としてきた。

しかし、76年、司法試験に合格した在日韓国人の金敬得(キム・キョンドク)さん(故人)が韓国籍のままでの採用を希望。全国的に支援が広がり、最高裁は77年に国籍条項は残したまま「相当と認めるものに限り、採用する」との方針を示し、金さんの採用を決めた。

90年には、外国籍の希望者に提出を義務づけていた法律順守の誓約書の廃止を決めた。さらに、永住権がない人に対しても修習を認めるなど特例扱いでこの問題に対応してきたが、一方で、国籍条項はそのまま記載していた。

最高裁によると、これまで140人以上の外国籍の合格者が司法修習を受けたという。国家公務員である検察官と裁判官には任用されないため、外国籍の修習生は日本国籍を取得したうえで任官するか、弁護士になっている。

司法修習生の選考を申し込む際は戸籍抄本などが必要。外国籍の場合は戸籍がないため、最高裁は、日本に定住していることを示す資料などの提出は引き続き求めるという。要項から条項を削除した理由について最高裁は「原則として採用しないと読めるような記載は削除した」と説明している。(三橋麻子、中井大助)

最高裁事務総局の任用課長として、金さんの採用問題に取り組んだ元最高裁判事の泉徳治弁護士の話 自由に職業を選択し、自己実現をはかることは基本的人権の中核をなす。実質的には外国籍の人も司法修習生に採用していたとはいえ、国籍条項は外国籍の人からすれば、差別感を感じることもあっただろう。外国籍の弁護士が増えることは、外国人の権利の救済が進むことにもつながると思う。

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司法修習生:採用選考要項から国籍条項を削除 最高裁
毎日新聞 2009年10月29日
http://mainichi.jp/select/jiken/news/20091030k0000m040086000c.html
最高裁は、司法修習生の採用選考要項から「日本国籍が必要」との国籍条項を削除した。適用は、11月に司法修習を始める人たちから。外国籍の司法試験合格者は77年以降、特例として司法修習を認められているが、国籍条項は残ったままで、日本弁護士連合会などから削除を求める声が上がっていた。

司法試験合格者は、司法修習を終え卒業試験に合格して初めて、裁判官、検事、弁護士になれる。修習中には裁判官や検察官の実務を学ぶため、「公権力の行使などに携わる公務員は日本国籍が必要」として、司法修習生の採用選考を受けるには日本国籍の取得が必須とされていた。

しかし、在日韓国人の故金敬得(キム・キョンドク)さん(後に弁護士)が、「外国人に門戸を開かないのは不当だ」と韓国籍のまま採用を希望したことを受け、最高裁は77年に国籍条項を残しながらも「相当と認めた者」について採用を認める例外規定を設けた。【銭場裕司】

Global Post’s Justin McCurry on Savoie Child Abduction Case. Issue isn’t passe yet.

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatar
twitter: arudoudebito

Savoie’s choice: abduct or fight?
An American father wants his children back. Japan says no.
By Justin McCurry – GlobalPost.com

Published: October 27, 2009
http://www.globalpost.com/dispatch/japan/091026/child-abductions-japan
Courtesy of the author

TOKYO, Japan — Under normal circumstances it would be impossible to summon any sympathy for a man who snatches two young children as they walk to school with their mother.
But what if the “abductor” is the children’s father, and the mother, his former wife, herself the subject of an arrest warrant?

When Christopher Savoie, an American, went to these extraordinary lengths to regain custody of his children from his Japanese ex-wife last month, he not only landed himself in a police cell for more than two weeks, he also placed the spotlight firmly on Japan’s complicity in international parental child abduction — turning it from a minor irritant into a potential source of genuine tension between Washington and Tokyo.

Savoie was arrested after attempting to take his children, aged 9 and 6, to the U.S. consulate general in Fukuoka, southwestern Japan, in September.

The 38-year-old from Tennessee, and his former wife, Noriko, lived in Japan for several years before moving to the U.S. in 2008. When they divorced in the U.S. in January this year, Noriko was granted primary custody of the children.

Despite giving assurances that she would remain with the children in the U.S., in August she took them to Japan, without Savoie’s knowledge and in defiance of a court order. The U.S. authorities awarded Savoie full custody in Noriko’s absence and issued a warrant for her arrest on suspicion of “custodial interference.”

Yet Savoie has no legal right to see his children for as long as they remain in Japan, which refuses to sign the 1980 Hague Convention on International Child Abduction.

The treaty, with 81 signatories including every other member of the G7, states that a “child whose parents reside in different countries shall have the right to maintain on a regular basis … personal relations and direct contacts with both parents.”

Savoie’s is one of about 80 cases of international parental child abduction involving U.S. citizens, while France and Britain are dealing with 35 each.

The unofficial number is much higher, particularly when failed marriages between Japanese and people from other Asian countries are included. The Assembly for French Overseas Nationals for Japan estimates that 10,000 children with dual citizenship in Japan are prevented from seeing their foreign parent after separation or divorce.

Japanese courts habitually award custody of children to the mother. In many cases, they say they are simply trying to protect the rights of women fleeing abusive former husbands, a claim vigorously disputed by campaigners.

The country’s courts will be tested again later this week when Shane Clarke appeals in a custody battle with Japanese ex-wife.

The 39-year-old Briton has not seen his two young daughters since May 2008 after his ex-wife took them to Japan to visit their “ill” grandmother and never returned.

Though Britain’s media has taken an interest in his plight, Clarke says he has received little support from the authorities, despite a court order naming the U.K. as his children’s country of habitual residence.

“I have been writing repeatedly to more than a dozen government ministers, and not a single one has had the common decency to reply,” he told GlobalPost.

Legal precedent indicates that Clarke, who was denied custody at a hearing in Japan last year, will again return home without his daughters.

“We are talking about two British citizens, and no one will help me. The message our government is sending out to foreign nationals is that it’s perfectly all right for them to commit a crime on British soil, and as long as they leave the country quickly enough, they’ll get away scot-free.”

Left-alone parents in the U.S. have fared better. Chris Smith, a New Jersey congressman, recently urged the Japanese prime minister, Yukio Hatoyama, to use the Savoie arrest as a “catalyst” to end Japan’s tacit approval of international parental child abduction.

Smith has drawn up legislation that would enable the U.S. to “more aggressively” pursue the rights of American parents, including imposing sanctions against countries that habitually refuse to cooperate on international child abductions.

Pressure is also mounting in Japan, where the ambassadors of eight countries, including the U.S., have urged the justice minister, Keiko Chiba, to sign the Hague treaty.

The foreign minister, Katsuya Okada, indicated he would speed up a study into the agreement’s pros and cons, although ratifying it will require changes to domestic laws that could take years to implement.

Savoie, meanwhile, says he is struggling to come to terms with the possibility that he will not see his children again until they are adults.

“If loving my kids so much that I really want to be with them is a crime, then, well, I’m guilty,” he told CBS News after returning to the U.S. “I’m guilty of loving my kids.”

Source URL (retrieved on October 28, 2009 01:16 ): http://www.globalpost.com/dispatch/japan/091026/child-abductions-japan
ENDS

Letter to Prime Minister Hatoyama regarding Child Abductions and legislative lag, from a Left-Behind Parent

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatar
twitter: arudoudebito
Forwarding, courtesy of EK. Arudou Debito in Sapporo

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What Are We Bargaining For?

Dear Prime Minister Hatoyama,
It’s important that left-behind parents understand what the Japanese Government mean when they say they “will need at least two more years before it will sign an international treaty (Hague Convention on the Civil Aspects of International Child Abduction) designed to settle child custodial disputes” and that “relevant legislative measures are unlikely to be submitted to the Diet until 2011 at the earliest”. The Yomiuri Shimbun article “Govt. unlikely to Sign Child Custody Pact for 2 Years” dated October 19, 2009 goes on to state that it will take “some time until the country is able to facilitate such a move by addressing the necessary domestic laws”.

Left-Behind parents have been denied access to their children for one second too long, now you’re asking us to be patient for two years. Well, What are we bargaining for? Will the process take only two years? and How will the process be carried out?

I’ll get straight to the point. There are those in the Foreign Ministry and the Justice Ministry that know very well the article written by Dr. Hans van Loon “The implementation and Enforcement of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction in Comparative Perspective: It’s Japan’s Move!” and the related article by Professor Yuko Nishitani. (Tohoku University 21st Century COE Program, Gender Law and Policy Annual Review, Vol.2 2004) Dr. Hans van Loon suggested seven (7) measures were necessary for Japan to implement the Hague Convention on the Civil Aspects of International Child Abduction. I will only remind you of the second, which states:

a high level Central Authority should be designated, equipped with a small but highly competent staff with broad international experience, excellent knowledge of the convention and its operation in other States Parties and expertise in conciliation and mediation. However, conciliation and mediation should not hold up legal proceedings.

In another article, The Judges Newsletter, Enforcement and Return of Access Orders, National Report by Fourteen (14) States and The Conclusion of the Noordwijk Judicial Seminar Vol. VII Spring 2004 Professor Yuko Nishitani writes the following:

A working group of Japanese scholars have proposed a draft statute to implement this Convention in view of Japan’s possible accession in the future. In this draft, the Foreign Minister is appointed as “Central Authority,” acting through the Minister of Justice, who further delegates his duties to other institutions (e.g. police and the youth welfare office) which are to be appointed separately. The “judicial authority” is the Family Court, which has the necessary resources to carry out the required investigations and order the return of child. However, in order to comply with the obligations prescribed by the Convention, the Family Court must be provided with authority to ensure expeditious procedures and coercive enforcement, even if this represents a tough challenge for the Japanese legislature as well as for judges and practitioners. This is also crucial for other Contracting States so that they will be able to trust and rely on the Japanese judicial system for securing the return of a child abducted to Japan.

Apparently the draft statute is here, 119-2 Minshô–Hô Zasshi 302-311 (1998), but I haven’t been able to find it. It appears the administrative duties will be carried out by the Foreign Ministry, while the Family Court under the Justice Ministry will carry out the implementation and enforcement. Professor Nishitani, along with Professor Colin P.A. Jones in his research, In the Best Interest of the Court What American Lawyers Need to Know About Child Custody and Visitation in Japan, has pointed out quite clearly how joining the Hague Convention on the Civil Aspects of International Child Abduction will favor Japan. As they say, the elephant in the room is how will Japan implement and enforce the treaty? The Justice Ministry, the Supreme Court Justices, the Judicial Review Council (JRC), and possibly the Japan Federation Bar Association (JFBA) will play a critical role in crafting any new legislation required to implement and enforce the treaty. What can we expect this time from the Judicial Review Council and the Supreme Court Justices?


In Japan’s first Judicial Reforms of the 21st century the Judicial Review Council and the Supreme Court Justices chose not to address parental rights issues directly, but instead chose to try and deal with the issue by expanding the jurisdiction of the Family Court and relying on the courts so called “expert knowledge” in dealing with human relationships. The Judicial Review Council’s Initial Report, The Points at Issue in the Judicial Reform was created December 21, 1999. The Personal Status Litigation Law was approved by the Diet on July 9, 2003 and went into effect April 01, 2004 nearly five years after the process began. The Family Court was granted authority to legislate contested divorces after they failed mediation. It was clear that Family Court Judges had the authority to award visitation based on their preference, but it was also widely known any award of visitation was unenforceable. Previously contested divorces were legislated in District Court by District Court Judges, but now they are being handled by Family Court judges. This means the Supreme Court swept parental rights issue under the rug and relied heavily on the Family Courts to deal with these issues. The Diet has to take some responsibility as well because they passed the Personal Status Litigation Law without any assurances that it would protect parental rights.


The Mediators, Investigators, and Councilors (Sanyoin) which the Supreme Court and the nation put so much trust in to uphold Japanese family values let down the Justices and embarrassed the country’s international reputation in dealing with parental rights. Professor Colin P.A. Jones’ research points out the ineptitude of Family Court Mediators and Family Court Investigators. The Family Courts have failed miserably in protecting parental rights and the Supreme Court Justices have been so wishy-washy on the issue they’ve left the non-custodial parent with no choice but to take self-help measures when the custodian of the child refuses any meaningful access. Professor Colin points out that up until the Abduction for the purpose of performing an obscene act, murder and abandonment of corpse, case number: 2000 (Kyo) No.5 of the year 2000 the lower courts’ interpretations of parental rights were widely held views that he narrowed down as the following:

(i) an inherent right arising naturally from the parent-child relationship; (ii) an aspect of physical custody; (iii) a right arising in connection with physical custody; (iv) a right of children to develop emotionally through contact with their parent; and (v) a right of both parent and child.

After the 2000 ruling parental rights came down to a right to demand versus a right to request, with the right to request becoming the de facto meaning of Parental Rights. It seems that up until the 2000 ruling some of the lower court judges were determining the meaning of rights as those similar to what is proscribed in the United Nations Convention on the Rights of the Child. One significant point, the Supreme Court Judges that made the 2000 ruling, Justice FUJII Masao, Justice ENDO Mitsuo, Justice IJIMA Kazutomo, Justice OHDE Takao, and Justice MACHIDA Akira are no longer on the bench. If a similar case is brought before the Justices today we could get a different ruling. Of course, you remember the Judicial Reforms that began in December of 1999, in my opinion the Justices were aware of how their ruling would affect The Personal Status Litigation Law that was being drafted at the time.


By reviewing the work of Nishitani, Colin, Han van Loons, Bryant, the Judicial Review Council, and others I’ve been able to create a timeline that could give the left behind parents some idea as to when Japan will start to implement and enforce parental rights. I’ve compared the time it took Japan to implement and enforce the Jury System with the Personal Status Litigation Law because both legislations have a profound affect on the nation, as will the implementation and enforcement of the Hague Convention on the Civil Aspects of International Child Abduction along with the enforcement of Parental Rights of Access.

Jury System Personal Status Litigation Law
• December 21, 1999 Initial Report from the JRC 1. December 21, 1999 Initial Report from the JRC
• November 12, 2000 Sixty Five (65) Page Interim Report by JRC 2. November 12, 2000 Sixty Five (65) Page Interim Report by JRC
• June 12, 2001 Final Recommendations to the Cabinet by JRC 3. June 12, 2001 Final Recommendations to the Cabinet by JRC
• May 28, 2004 Approved by the Diet 4. July 09, 2003 Approved by the Diet
• June 01, 2009 Law went into effect 5. April 01, 2004 Law went into effect
• 9 Years 6 months to enact 6. 4 Years 5 months to enact

For simplicity, I’ve rounded the number of years and concluded it will take between 5 to 10 years before implementation and enforcement of the treaty or parental rights of access will be legally enforceable. From the article in the Yomiuri Shimbun one can assume the reform process will be carried out similar to the Judicial Reform process that started in December 1999 and took two (2) years before it actually reached the Diet.
While I believe you, Prime Minister Hatoyama, are sincere about resolving this issue, the facts lead me to distrust the bureaucrats in the Ministry of Justice and the Foreign Ministry. The Judicial Review Council and the Supreme Court knew about these problems in the first Judicial Reforms that began 10 years ago but chose not to face the tough issue of Parental Rights head on. Now, Mr. Hatoyama, are you relying on these same bureaucrats again? Why, is it that Professor Nishitani refers to a draft statute created by Japanese Scholars that would have paved the way for Japan to implement the Hague Convention on the Civil Aspects of International Child Abduction and the bureaucrats are sounding as though we have to start from scratch? If the Judicial Reform Council is drafting this legislation then who are the current members? I hope it is not any of the retired Supreme Court Justices that made the 2000 ruling. Furthermore, the Democratic Party of Japan’s Manifesto states the cabinet will be the center of policy-making. What happens if the DPJ loses power in the next election, which will be in two years, do we start from scratch again? Let’s see what Professor Yuko Nishitani and the Japanese Scholars proposed; maybe the cabinet can start from there. If the government wants the international community and all left-behind parents to cooperate while reforms are being created we need to know, What Are We Bargaining For?

Sincerely,
IGOTCHU

Colin Jones in Japan Times: What the media attention from Savoie Child Abduction Case highlights

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Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatar
UPDATES ON TWITTER: arudoudebito

Hi Blog.  People have asked what the Savoie Child Abduction Case actually brought to light.  I’ll let lawyer Colin Jones explain that below.  Again, whichever side of the custody battle you support, you have to give Christopher credit for bringing the international spotlight on one of Japan’s dirty little secrets.  Excerpt follows.  Arudou Debito in Sapporo

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The Japan Times Tuesday, Oct. 20, 2009
THE ZEIT GIST
Signing Hague treaty no cure-all for parental abduction scourge
‘Best interests of the bureaucracy’ standard applies in Japan
By COLIN P. A. JONES

http://search.japantimes.co.jp/cgi-bin/fl20091020zg.html
Excerpt follows:

…Thus, the fact that police have recently started to arrest parents like Mr. Savoie despite the Japanese penal code remaining unchanged may simply reflect the police having decided that parental abduction is a problem they should do something about either in general, or in specific cases. Having made this decision, what the law actually says or is intended to address doesn’t really matter, so long as there is a vaguely drafted statute they can point to as justification.

A similar dynamic plays out in Japanese courts. In custody disputes, courts purport to apply a “best interests of the child” standard. Fortunately for the courts, this standard remains undefined by either statute or clearly announced judicial rules, meaning that judges are free to resolve cases in whatever way is most convenient for the court — which more often than not is the status quo, which they have little power to change. Thus, the real standard being applied is probably what is in the best interests of the court.

A similarly bureaucratic approach may also explain the apparent willingness of Japanese courts to cooperate with other bureaucracies such as police and prosecutors by ratifying seemingly novel applications of criminal law arrests and prosecutions that seem to stretch the law. In another parental abduction case earlier this decade a Dutch man was arrested for trying to leave Japan with his daughter. He was prosecuted for violating an obscure human trafficking statute and duly convicted. In rejecting his appeal, Japan’s Supreme Court noted that there is a high degree of unlawfulness in taking a child whose life is established in one country to another country, even if the person doing so is one of that child’s parents. Apparently, neither this statute nor this logic has ever been applied to any of the scores of cases of abduction to Japan.

My own view is that as a matter of law, Japan could start returning abducted children tomorrow without having signed the Hague Convention — just as children who have been abducted to countries like the United States or England have been returned to Japan notwithstanding the country’s nonsignatory status. Mr. Savoie’s case clearly demonstrates that it is not actually necessary to waste time and money in futile family court proceedings to get your child back: The police will do it for you if it is in their interests to arrest the abducting parent. The converse is that they may not do anything if it is not, and this is also why it is conceivable that Japan could sign the Hague Convention and immediately appear on the U.S. State Department’s list of noncompliant treaty partners.

Whatever the law says, it is very hard to imagine it being in the interests of the police and prosecutors to be seen taking crying half-Japanese children away from distraught Japanese mothers.

This is why the media attention is so important on this issue. Because law in Japan tends to serve the bureaucrats first and the people second, legislation and litigation may not lead to solutions if the bureaucrats are part of the problem. Thus, it will likely be criticism — relentless pressure and attention from both domestic and foreign sources — that will probably carry the day in Japan shedding its shameful status as an abduction haven. If so, it will be because the criticism risks damaging the authority of the bureaucrats by making them look bad…

Full article at:
http://search.japantimes.co.jp/cgi-bin/fl20091020zg.html
ENDS

Joseph pieces together plausible timeline in Savoie Case, finds for Christopher

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatar
UPDATES ON TWITTER: arudoudebito

Hi Blog. I received this comment early this morning from “Joseph” regarding the Savoie Case, piecing together with a minimum of speculation (shame on all you online rumormongers) a probable plausible timeline for what happened between Christopher and Noriko. It’s too good to be buried as a comment, so I create a separate blog entry for it. He finds for Christopher, concluding:

In Japan, sole custody is awarded to one parent, and one parent only. This means that if there is a messy divorce, as it appears to be in this case, and the mother doesn’t want to allow the father to see his children, there is nothing that can be done. Period. Christopher was obviously well aware of this, and knew that if he wanted to have any access to his children, he needed to have his divorce here.

Noriko, with full knowledge of Amy, came here specifically for the purpose of getting that divorce – she was not “tricked” into it. She came here, she had her day in court, she received a large financial settlement, she repeatedly assured the court that she had no intention of removing the father from his childrens’ lives, and then she went ahead and did just that. She took the children away, took the money, and now she happily spends her days walking the children to and from school, while he spends his being interrogated in jail. He sits there knowing that, as the Japanese courts always favor the Japanese parent in these cases, he will in all likelihood never see his children again.

Read on. Arudou Debito in Sapporo

===============================
LETTER FROM JOSEPH BEGINS

Hello, This is a very confusing case due to all of the “facts” that are flying around. I have read everything that I can find, including the court transcripts (http://wtvf.images.worldnow.com/images/incoming/Investigates/savoie1.pdf and http://wtvf.images.worldnow.com/images/incoming/Investigates/savoie2.pdf) and I’m wondering whether anyone can add to any of this:

It has been reported that Noriko has either US citizenship or US permanent residency status. Some have suggested that this is false because she only just came here this year, and could not have gotten either in such a short amount of time. However, in the transcripts I mentioned above, Noriko states that she and Christopher have known each other for 18 years, and have been married for 14 years (See page 79 http://wtvf.images.worldnow.com/images/incoming/Investigates/savoie2.pdf).

This would mean that they met sometime in or around 1991, and married sometime in or around 1995. From reading around, it seems that they had lived in Japan from 2001 through 2008. That would mean that they met outside of Japan? This seems to corroborate the information relayed on this message board by Amy Savoie (http://www.topix.net/forum/source/wtvf/T40LV9OOMRME6BAHB/p2) Specifically, she stated that Noriko had been working in Silicon Valley, and that Isaac was born at Stanford University, in California. This suggests that the claims of Noriko’s US citizenship / permanet residency status might have some truth after all.

Combining those dates, with the other significant dates, allows one to contruct a possible timeline:

– 1991: Noriko and Christopher met in California, where Noriko was working? (Partial Speculation)

[correction from Joseph: -1995 ~ ? Christopher begins work at Kyushu University]
– 1996: Noriko and Christopher were married in California? (Partial Speculation)
– 2001: Issac was born at Stanford University, in California? (Partial Speculation)
– 2001: Noriko, Christopher, and Issac moved to Japan after Issac’s birth (Confirmed)
– 2003: Rebecca is born in Japan (Confirmed)
– 2005: Noriko and Christopher were separated. (Confirmed)
– 2005-2008?: Noriko asks for a divorce in Japan (Confirmed)
– January 2009: Noriko comes to Tennessee for the divorce (Confirmed)
– September 2009: Noriko takes children, and returns to Japan (Confirmed)

I will state outright that this timeline is partial speculation, but it fits the facts, and it does seem to paint a somewhat more sympathetic picture of Christopher.

He meets a Japanese woman in California in 1991. They are married, in California, in 1996. Their first child, Isaac, is born at Stanford University, in California, in 2001. Shortly after Issac’s birth, Noriko convinces Christopher to move to Japan. What the reasoning for that move was, only those two can know for sure, but knowing what I know of Japanese families (I am married to a Japanese national. My wife’s sister is a happily married Japanese woman, married to a Japanese man, and she and the children spend 75% of their time at her mother’s house. This is common over there), I am going to assume the reason was so that she could have lots of help raising Isaac (and eventually Rebecca) from her mother and extended family. Again, whatever the reason, the three of them move to Japan. Rebecca is born there three years later. Sometime between Rebecca’s birth and 2005, things fall apart, and he and Noriko are separated.

Once again, the reasons for the divorce are known only to Noriko and Christopher. People can speculate that it was because of Amy, but we do not yet know if the relationship with Amy started before or after the separation. Additionally, I have also read speculation or accusations that it was becasue Christopher was abusive, but the facts do not support this. Noriko was divorced here, and had her day in court. If he was abusive, she easily could have brought that up, received sole custody of the children, alimony, and carte blanche to return to Japan with the children permanently. She made no such claims, and Christopher was awared substantial visitation rights.

Either way, during this separation, Noriko asks Christopher for a divorce in Japan. Christopher knows that if he divorces in Japan, he will, with almost absolute certainty, have no contact whatsoever with his children, and refuses. He then talks Noriko into coming to Tennessee for the divorce, where he will receive the visitation rights he would never get in a Japanese court, and where she would recieve a large monetary settlement that she would never receive in a Japanese court.

She accepts this arrangement, comes to the US specifically for the divorce, and receives: (1) $800,000 in a lump sum; (2) $30,000 in an account for Isaac; (3) $30,000 in an account for Rebecca; (4) an unspecified (in the transcript) amount money for Noriko’s education; (5) unspecified (in the transcript) monthly alimony payments; (6) primary custody of the children (7) The right to take the children to Japan for 6 weeks every summer, with Christopher paying for all airfare (please see page 95-96 http://wtvf.images.worldnow.com/images/incoming/Investigates/savoie2.pdf)

While staying here, the two of them continuously spar via email, culminating in an email from Noriko in which she basically threatens to take the children to Japan, and cut off all contact with him. This causes Christopher to file for a restraining order preventing Noriko from taking the Children to Japan for the six week vacation awarded in the marriage dissolution agreement, out of fear that she will not return, and that he will never see his children again.

It is at that hearing (again, the transcripts can be found at http://wtvf.images.worldnow.com/images/incoming/Investigates/savoie1.pdf and http://wtvf.images.worldnow.com/images/incoming/Investigates/savoie2.pdf), that Noriko repeatedly lies to the court:

Pg 77————————————————————–

Q: And do you think it’s important for the children to visit their father?

A: Yes, of course.

Q: Do you have plans to move permanently to Japan since we signed the – since you signed the permanent parenting plan and the final decree was enacted?

A. No, I haven’t.

PG 88————————————————————–

Q. Ms. Savoie, you know that one of Dr. Savoie’s biggest fears is that you will take the children to Japan, and he will never see them again –

A. Right

Q. — you know that correct?

A. Yes, I do.

Q. And he’s expressed that to you many, many times?

A. Yes, he did.

Q. But even knowing that, you put in writing to him, february 12th that “it is very hard to watch the kids become American and losing their Japanese identity. I have tremendous fear for my children and myself. I’m overwhelmed without a problem. Therefore, please cooperate with me in order for us to stay here”?

A. Correct.

Q. The only way I can read that is that was a threat to him; that if you don’t do what I want you to do, I’m going to take your children away and you will never see them again. You understand the fear?

A. I do understand his fear, however –

Q. Well, what can you do today to alleviate that fear; what can you do, what can you say to Judge Martin, what can you say to their father that assures us that when you get to Japan –

A. Yes

Q. — you will not let your parents and your friends and your — as you said, all the people that came to the airport, influence you to just stay there, what assurance do we have?

A. Yes, actually that’s why I brought this here. First of all, I have never thought about taking children away from their father, never. And — but based on that –

Q. Well, let me ask you this — and I’ll ask the questions, if you would — do you have plans to take your children and move to Japan?

A. No, I don’t.

Q. And are your plans to take the children for a vacation and return home?

A. Return home means –

Q. To Tennessee.

A. Yes.

p 100————————————————————–

Q How can we know that when you go, that you won’t let your family persuade you to stay there;

A. Because I won’t; I mean, because I won’t stay there.
———————————————————————

In the end, it is that lying, and that dishonesty, that I have a real problem with. That, and the fact that the Japanese courts, with regards to this sort of thing, are a complete and total mess.

In Japan, sole custody is awarded to one parent, and one parent only. This means that if there is a messy divorce, as it appears to be in this case, and the mother doesn’t want to allow the father to see his children, there is nothing that can be done. Period. Christopher was obviously well aware of this, and knew that if he wanted to have any access to his children, he needed to have his divorce here.

Noriko, with full knowledge of Amy, came here specifically for the purpose of getting that divorce – she was not “tricked” into it. She came here, she had her day in court, she received a large financial settlement, she repeatedly assured the court that she had no intention of removing the father from his childrens’ lives, and then she went ahead and did just that. She took the children away, took the money, and now she happily spends her days walking the children to and from school, while he spends his being interrogated in jail. He sits there knowing that, as the Japanese courts always favor the Japanese parent in these cases, he will in all likelihood never see his children again.
ENDS

Wiegert Case of child custody awarded to NJ: In 1984! A precedent, anyway.

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatar
twitter: arudoudebito

Hi Blog.  I received this yesterday, and am forwarding this with permission, from a person by the name of James Wiegert, who tells his story of how he received custody of his then 8-year-old son from a Japanese court a quarter century ago as a NJ.

He points out a number of mitigators — the clear and present unreasonableness of the mother (who first said he could have custody and then took it back), his gainful employment in a major company in Japan (and generous offer of a settlement to her), and the fact the son could only have US citizenship (i.e. could only have the citizenship of the father, which was the law at the time),

His wife did receive visitation rights, which Mr Wiegert allowed to be enforced.

Although this case is to me the exception that proves the rule (even he says he’s not sure why he was granted custody), there is indeed a legal precedent for allowing NJ to get custody in court.  I hope that NJ parents in proceedings can cite this in order to tip the overwhelming one-sided judicial scales a little more in their favor.  Arudou Debito in Sapporo

=================================

Dear Debito san,

In your Japan Times article of 7 October ‘Savoie case shines spotlight on Japan’s “disappeared dads”‘ you said that you’d never heard of a non-Japanese man being granted custody of a child born to him and his Japanese wife by Japanese courts.

Well, now you have.

When my Japanese wife of nine years and I divorced in 1984, officials of the Tokyo Family Court gave me- a Caucasian of US citizenship who was then 41 years old, had lived in Japan for 14 years and spoke Japanese well enough to converse with court officials in Japanese- custody of our eight-year-old son, H.

I was given full legal custody and my former wife once monthly visiting rights.

She lived in Hitachi City in Ibaraki Prefecture where the three us had lived as a family before I moved to Tokyo. She filed suit against me in the Family Court in Mito City, the capital of Ibaraki Prefecture, I think it was. Officials of the Tokyo Family Court adjudicated because H was living with me in Tokyo at the time.

I prepared for the court proceedings as best I could and apparently said what I should’ve said because I was given custody of H, but I don’t know why I was, not really. (When I’d been notified that my wife had filed suit against me, I went to the Tokyo Family Court to ask about proceedings there and how to prepare for them, and I consulted a lawyer.)

Some facts mitigated in her favor, and some in mine.

My wife had Japanese citizenship, which was in her favor.

Our son was born at a time when Japanese law specified that children born of marriages where only one parent was of Japanese nationality had to take the nationality of the father, which meant that H had US citizenship, which, perhaps, was in my favor.

My wife had agreed to my taking custody of H and then disagreed with my doing so. Therefore, I took H to Tokyo against my wife’s wishes on a visit to Hitachi City when she was at a neighbor’s house. When I telephoned her from Tokyo to tell her what I’d done, she complained but never came after him, which, probably went against her.

Immediately after taking H to Tokyo, I enrolled him in the local elementary school. I took time off from work to attend PTA meetings and was even elected one of three parents from among those of the children in H’s class at the time to represent the others at school-wide PTA meetings, all of which was in my favor.

I was working as an editor of English language publications at the head office of the then Fuji Electric Company, Ltd.- now Fuji Electric Holdings Company, Ltd. Since that company, and companies related to it like Fujitsu Ltd., is well known, working there was probably in my favor. (My wife was working but I was making more money than she was.)

I agreed to pay my wife one million yen, even after I was given custody of H, and even though I had to cash a life insurance policy to do it, to clear the air, so to speak. That worked in my favor because I wasn’t required to do it. (During the year my wife and I were separated and before we divorced, I’d paid her expenses for once monthly visits to Tokyo to see H and had agreed to pay all his expenses for his visits to Hitachi City to see her after the divorce.)

The panel of three court officials who heard my and my wife’s versions of events was composed of two men and one woman. For her own reasons- which I can only guess at- the woman voiced very vocal support for me. When I said that I regularly attended PTA meetings and had even been elected to represent the parents of the children in H’s class at school-wide PTA meetings, she held me up as a model to the two men on the panel. They looked browbeaten, which I think helped me, though it was the judge who sat in on the final of the three meetings my wife and I had with court officials who decided I’d be given custody of H.

Also, during the year of monthly visits in Tokyo preceding our divorce, my wife never once spoke directly to me. When I spoke to her, she always said: ‘H, tell your father that …’ That put such pressure on H that I eventually refused further meetings, which is why my wife filed suit against me. The woman on the panel of court officials castigated my wife severely for speaking through H as she’d done, which worked very much in my favor.

The lawyer I consulted before Tokyo Family Court proceedings began told me that ‘Court officials will want to know that your son is well taken care of. Convince them that you can do better than she- your wife- can, and you’ll get custody. Fail to do so, and you won’t.’ So, I brought every question asked me and every answer given back to the same question: ‘What about my son?’ And, while I don’t know how much that helped, I think it did indeed help at least a little. At any rate I was given custody, after which my son and I continued to live in Tokyo where I raised him as a single parent while working at Fuji Electric Company, Ltd. (I say ‘I raised him,’ but no one raises a child alone. Friends I made among the parents at H’s school and other neighbors helped out when either H or I were sick, or I had to work late, and my mother came to visit during school summer holidays or H visited with her in the US.)

H and I left Japan together in the summer of 1998 when he was 24 years old. He lives in Maryland in the US now, and keeps in touch with me over the telephone, and with his mother too. She still lives in Hitachi City in Japan. I live in Malta. (My Japan interlude was from the summer of 1970 to the summer of 1998.)

I had permanent residence and, so, could’ve stayed but decided that since H wanted to leave, I’d leave too, even though I knew he wanted to go to the US and I didn’t.

(I lived in Japan for twenty-some-odd years before immigration officials decided I could finally be trusted, as it were, with permanent residence, and even then I needed a guarantor. Which is to say I could be trusted, but I couldn’t, not really. Which disappointed me- really- so I left. Not that there weren’t other reasons for leaving, but that was one of the major ones.

(I very much miss Japanese friends and foods. Of course, I can keep in touch with friends over the internet, but foods … I would love a meal of shimesaba no sashimi, akadashi and nukatsuke no oshinko right now, but I’d have to return to Japan for that. Perhaps for a visit someday …)

Sincerely,
James Wiegert

ENDS

Valentine Court Case re police brutality next hearing Tues Oct 6 2:30PM, Tokyo High Court Kasumigaseki

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatar
UPDATES ON TWITTER: arudoudebito

Hi Blog.  I heard word from Plaintiff Valentine last week that the latest hearing on his lawsuit against the Japanese police (which has lasted four years now) for police brutality will be happening next Tuesday.  Do attend if you can.  Here’s why:

You may not remember, but I wrote about the Valentine Case for the Japan Times:

ABUSE, RACISM, LOST EVIDENCE DENY JUSTICE IN VALENTINE CASE: Nigerian’s ordeal shows that different standards apply for foreigners in court” (Japan Times Zeit Gist August 14, 2007).

where I did a bit of sleuthing and described how the police’s claim that Nigerian citizen Valentine smashed his knee on a sign while running from them is pretty much impossible.  Then their denying him medical treatment during interrogation has left him crippled for life.  This is one major case of how a man (who has not been convicted to this day of any crime) can be abused due to the lack of accountability in the police system of criminal investigation, and have it covered up by negligent Japanese courts.  The outcome of this case will speak volumes.

More background from his supporters group follows.  Arudou Debito in Sapporo

============================

WHO MAY BE THE NEXT VICTIM?   Mr. Valentine   who was beaten up  with a broken knee by the uncovered police officers  4 years ago,  is calling on the foreign  community living in Japan to  attend his next  high  court  trial on 6th. tuesday 2009.  By  2:30pm.  Venue: Tokyo  High court. Kasumigaseki.   8th  floor. Room   808.

Why?  This  Case is very  important   to attend is because some  thing strange is  going on with this case.  On 6th. tuesday,  a  DNA professor.   Prof  Ishiyama.  is coming to  give  his expert opinion   about   the  cause of the broken knee. on behalf of the  Tokyo Govt.

We need  Justice  to be done.   Your presence is highly needed.  This  matter has  being going on for 4 years  now.

APPEAL BACKGROUND:

1st appeal hearing (July 17th,2007) A statement of reasons for appeal. Requests the court to provide order to submit a document(s) ( the Shinjuku ward police would have some inhouse documents that recorded how his injury was). Also requested a record(s) of monitoring video camera at the scene at Shinjuku.

2nd appeal hearing(Sep.25th,2007) Metropolitan Government (the Police) says these two evidences that he requested have never existed. Conversely, they asked the appellant to submit a ground(s) why he asks so. Also asked to order to let a new doctor(s) give an expert opinion.(This was to withdraw by the appellant himself after that and re-submit a doctor’s expert opinion).

3rd appeal hearing(Nov.20th,2007) The court requests more detailed statement of eyewitness and the appellant to be prepared again. Also the court asked the appellant to appeal against his original doctor’s expert opinion(already submitted)

4th appeal hearing(Feb.12th, 2008) Every orders to submit documents sorted out. Reply of Metropolitan Gov.:1)Detention name list->exist, but no need to submit 2) A report(s) from a chief investigator to a chief of detention-> no exist 3) a detentions’ medical report->exist, but no need to submit. For 3), the chief judge urged the Metropolitan Gov. to submit “with painting in black at the non related ”, and Gov. under examination.

5th appeal hearing(May.22nd, 2008)The court didn’t make any approval or decision for testimony of new eyewitness & 2nd doctor. A detention name list and a detentions’ medical report have submitted before this time. The appellant pursuited to release internal regulations to the court, that concerning a report(s) when the Tokyo Metropolitan Police Department arrested him. However, Metropolitan Gov. refused it and requested “in-camera” proceeding*1).
*1)”In-Camera” proceeding:”It is not submitted to court where opens to the public, and no chance to read it is given even to the person concerned, only the judge receives the presentation of the document. “

6th appeal hearing(Jul.8th, 2008)The chief justice instruct to conclude the appeal. The most point is the reason of his injury whether it is advantageous accident or others disadvantageous accident. This time an inhouse documents has submitted by the Shinjuku police station that might concern about it. The court wait for counterarguement from Tokyo gov. side (if any), then the chief justice to judge.

7th appeal hearing(Oct.28th, 2008)At last hearing, Mr.Tsuzuki instructed to conclude new proofs and new states during last 6 hearings, and the appallant submitted concerned documents, then Tokyo Gov. side submitted counterarguements following after that. This time the court confirmed these documents again, and also no other request has confirmed. Also the court confirmed no other documents to be submitted, and a witness and a docter witness accepted after consultation at the backyard of the court. Two witness to be stand at next hearing.

8th appeal hearing(Jan.27th, 2009)From appalent side, a witness who stayed close at scene of the accident and, a doctor who declare the cause of his fracture and also explained 10 day detention affection, stood for the court.

9th appeal hearing(Apr.21st, 2009)Most of people believed that conclusion of the hearings to be announced. However, Tokyo Gov. side submit a “Ishiyama Opinion” more than after one week of the closing date. Appallent side pursuit not to accept it because it is clealy expired, however the chief justice Mr Tsuzuki accepted it (as document No. Otsu-18) by the reason he want to compete the expert opinions, and also he called Prof.Ishiyama to the witness stand.

10th appeal hearing(Jul.21st, 2009)The plaintiff side submit Ishiyama’s second opinion and pre-documents, and the chief justice decided to call Prof.Ishiyama as a witness. FYI: Mr.Ikuo ISHIYAMA, a honorary professor to the Teikyo University, is a famous expert opinion. The 6th professor to a legal medicine class of the Tokyo University. He is a suceeder of Professor Furuhata who generate a lot of false charge by his attempt judge. Mr.Ishiyama also close to Police side.

Copyright (c) Valentine Trial Support Group/バレンタイン裁判支援会 All Rights Reserved.

Again, background on the case at http://www.debito.org/japantimes081407.html

More media on the Savoie Case (CNN, CBS, Stars&Stripes, AP, BBC, Japan Times, local TV). What a mess.

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japansourstrawberriesavatar
UPDATES ON TWITTER: arudoudebito

Hi Blog.  As more information comes to light about the Savoie Case, I will admit for the record, in all intellectual honesty, that there are a number of circumstances that, as commenters point out, detract from supporting husband Christopher as a “poster child” for the push to get Japan to sign the Hague Convention.  But unfortunately divorces are messy things.  I’ll probably write an apologia (not an apology, look up the word) tomorrow on the case.  However, I’ve got to write a different article for the Japan Times tonight on Tokyo’s Olympic Bid (depending on which way it goes), so I’ll be diverting my attention from this issue shortly.

Meanwhile, here is more media, courtesy of the Children’s Rights Network Japan (www.crnjapan.net) and lots and lots of friends.  Thank you all very much.  Feel free to add more in the Comments section.  Arudou Debito in Sapporo

==========================
MEDIA BEGINS:
CNN’s Kyung Lah reports on her fifteen-minute interview with Christopher in jail (or, rather, the police incarceration center during investigation, of course).
http://edition.cnn.com/video/#/video/world/2009/10/01/lah.japan.jailed.father.speaks.cnn?iref=videosearch

Other video links on CNN, all visible from

http://search.cnn.com/search?query=savoie&type=video&sortBy=date&intl=true

  1. Kidnapping your own kids? 11:45 CNN.com’s Blogger Bunch discusses the dad who was arrested in Japan for kidnapping his own kids.
  2. Savoie Custody Battle 2:09  An American dad is jailed in Japan for trying to reclaim his children. CNN’s Kyung Lah reports. 2:09
  3. Dad Jailed in Japan.  5:37  Amy Savoie, whose husband is jailed in Japan over a custody dispute, speaks to CNN’s Kiran Chetry.
  4. Dad wants custody, gets jail 1:48 American Christopher Savoie is in jail in Japan because he tried to get his children back. CNN’s Kyung Lah reports.

============================
CBS News weighs in, citing CNN:
October 1, 2009 11:33 AM
Christopher Savoie, Dad Jailed in Japan for Child Rescue, Speaks from Prison

http://www.cbsnews.com/blogs/2009/09/30/crimesider/entry5353939.shtml

============================

It looks as though Christopher was ready to take a stand on this issue a priori, with a previous interview before he went to Japan and got arrested:

Nashville Tenn TV station NC5 Investigates:

Abducted to Japan, Oct 1, 2009

(excerpt) “If [Japan joins] the Hague Treaty, then it would also be good for Japanese people in this situation because we could come up with an amicable — or even unamicable — arrangement where legally both parents could be guaranteed some time with their kids,” Savoie said.

On Wednesday, the U.S. State Department renewed its calls for Japan to sign the agreement after Savoie found himself locked up in a Japanese jail, accused of snatching his own children and making a run to the nearest U.S. Consulate.

“On this particular issue, the issue of abduction, we have different points of view,” said Assistant Secretary of State P.J. Crowley.

It’s a plight shared by non-Japanese fathers around the globe.

“There are a lot of Japanese fathers who need the same treatment,” Savoie said, adding that it highlights how — in Japan — men in general are cut out of the parenting process in the case of divorce.

“I happen to have been brought up in this country and I can speak English and I can live here, but that’s not an option for all the other Japanese Dads — and they are in the same shoes as me,” he added. “They have no rights in their own country.”

Ironically, Savoie also holds Japanese citizenship — so he spoke as fellow countryman when he asked Japan to join the world in protecting families and signing the Hague Convention.

Plus video interview at http://www.newschannel5.com/Global/story.asp?S=11236448

===================================

Hostile article to Christopher reports a friend saying that Noriko felt abused by courts (even though the court transcript indicates to me that the judge acted civilly towards her, and gave her the benefit of the doubt when dissolving the restraining order against her) and financially dependent on Christopher, even though it also reports that she received more than three-quarters of a million dollars from him for the divorce:

AP:  Friend: Japanese woman who took kids felt trapped
By TRAVIS LOLLER and ERIK SCHELZIG, Associated Press Writers
October 1, 2009

http://news.yahoo.com/s/ap/20091001/ap_on_re_us/as_japan_us_custody_battle
excerpt:
FRANKLIN, Tenn. – A friend says Noriko Savoie felt trapped — she was a Japanese citizen new to the U.S. whose American husband had just served her divorce papers (snip)

Noriko Savoie did not have court permission to bring the children to the country where they had spent most of their lives, and Christopher Savoie says he didn’t do anything wrong when he tried to get them back.

Court records and conversations with a friend, Miiko Crafton, make it clear that Noriko Savoie was hurt and angry from the divorce and chafing at the cultural differences.

She had no income when she moved to the U.S. in June 2008, divorce court filings show, and appears to have been totally dependent on Christopher Savoie, who was still legally her husband but was involved with another woman.

Crafton, a native of Japan who befriended Noriko Savoie during her short time in Tennessee, said her friend tried to get a divorce while the couple still lived in Japan, but her husband had refused and later persuaded her to move to the U.S. with the children.

“Everything was provided so she could begin a new lifestyle, but right after that he gave her divorce papers,” Crafton said. “So basically she was trapped.”

Although financially stable — she was awarded close to $800,000 in cash as well as other support in the divorce — Noriko Savoie was not free to return to Japan. She was given primary custody of the children, but her ex-husband was also awarded time with them.

She felt mistreated by the courts and emotionally abused by her ex-husband, Crafton said…

===================================

However: From the U.S State Department note on International Child Abduction-Japan:

… U.S. consular officers are prohibited by law from providing legal advice, taking custody of a child, forcing a child to be returned to the United States, providing assistance or refuge to parents attempting to violate local law…

Full document at:
http://travel.state.gov/family/abduction/country/country_501.html

Others:

CNN’s Wolf Blitzer and Anderson Cooper have each separately done programs on the arrest and the Japan abduction issue. Their videos have apparently not been posted yet (links welcome).

Japan Times article Oct 1, 2009: http://search.japantimes.co.jp/cgi-bin/nn20091001a2.html

Stars & Stripes, the US military’s daily newspaper:
http://www.stripes.com/article.asp?section=104&article=65109
notable excerpt:

“[Savoie] took the step that none of us have taken, but one that we’ve all thought about,” Navy Cmdr. Paul Toland said Tuesday from his home in Bethesda, Md.

Toland’s wife absconded with his daughter, Erika, from their home in Yokohama, Japan, in 2003 while he was stationed at Yokosuka Naval Base. She was not charged with child abduction and was able to prevent Toland from even visiting his daughter.

The U.S. and the international community for years have lobbied the Japanese government to sign the Hague Convention on the Civil Aspects of International Child Abduction of 1980. The treaty, which includes 81 countries as signatories, prevents parents from fleeing with their children to or within those countries to circumvent standing custody orders or before a court can determine custody.

“The problem has gotten so big that Japan is becoming known as a destination country for international parental kidnapping, even when no one in the family is of Japanese descent,” Smith wrote in a Sept. 24 letter to Hatoyama obtained by Stars and Stripes.

The Savoie case demonstrates not only the desperate measures parents can resort to, but also the hypocrisy of Japanese law, contend Toland and Paul Wong, an American attorney based in Tokyo who continues to fight for access to his daughter, Kaya.

“Japanese law says that parental [child] abduction is not a crime,” said Toland, whose daughter was taken by his in-laws after his Japanese wife died in 2005. “So it’s asinine that he’s being charged because he’s the biological father and his rights have not been terminated by a Japanese court.” (snip)

A spokesman for the Japanese Ministry of Foreign Affairs on Wednesday said it is aware of the Savoie case and had not been asked by the U.S. to release Savoie.

Embassy officials in Tokyo and Fukuoka would not comment on whether those discussions would take place.

As of August, the State Department had identified 118 Japanese-American children who are living in Japan and cut off from their American parents.

UK’s BBC about Shane Clarke’s abduction case,
which coincides with Christopher’s arrest arrest:
http://news.bbc.co.uk/2/hi/uk_news/england/8283948.stm

All for now. Updates in real time at
http://www.crnjapan.net/The_Japan_Childrens_Rights_Network/Welcome.html

And lots more stories on the Children’s Rights Network Japan website to show you why Savoie’s case is hardly unusual, although the actions leading to his arrest might be deemed to be:

http://www.crnjapan.net/The_Japan_Childrens_Rights_Network/res-perstor.html

ENDS

Court Transcripts of Christopher vs. Noriko Savoie re child abduction

mytest

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UPDATES ON TWITTER: arudoudebito

Hi Blog.  Obviously since yesterday the Savoie Child Abduction Case has gotten a lot more complicated.  So let’s go to the primary source information:  the sworn testimonies of the parties to the case.

Now, divorces are generally nasty messy affairs with both sides at fault and deserving of criticism. But the fact is that wife Noriko Savoie negotiated in bad faith, broke her promises, abducted the children, and committed a criminal offense, and she should not be allowed to get away with it. Or else it just encourages other Japanese to take the kids and run (or threaten to) whenever there’s a domestic dispute. This situation as it stands will also remain a deterrent to people marrying Japanese, and is ultimately defeating of Japan’s intent to stem the demographic juggernaut that is Japan’s falling population.

Courtesy of David in yesterday’s comments (thanks), here are the last seventy pages of testimony in Tennessee court.

http://wtvf.images.worldnow.com/images/incoming/Investigates/savoie2.pdf

Highlights:

There was a restraining order against Noriko Savoie filed due to various threats from Noriko to abduct the children (page 94).

She promised in court under oath that she would not do that.

She obviously lied.

She came to the US willingly, knowing how things would turn out (i.e. divorce, not reconciliation):

(pg 121)
THE COURT: And she clearly understood that when she was
coming to the United States, she wasn’t coming
here to reconcile . And it was clear she came here knowing that
her husband was involved with another woman, and
she came here knowing that he wanted a divorce.
.

and a social worker testified that she was in fact acclimatizing to the US and would probably stay (pg 109).

Noriko even tried to use the allegation of husband Christopher’s Japanese citizenship (which looks like it may be true, although given the relatively amount of time Christopher was in Japan it was gleaned awfully quickly) against him to say that he had the same rights as a Japanese. Which he technically would (but not positively, when Japanese have so few rights between them regarding child custody and visitation following divorce anyway), but then again probably not (as the court admits, see below).

Court testimony excerpts follow, then further commentary from me:

http://wtvf.images.worldnow.com/images/incoming/Investigates/savoie2.pdf

NORIKO SAVOIE:
I don’t have any plans to
return to Japan or move to Japan, I haven’t had
any plans to move to Japan since I entered the
final decree
. (page 80)

(page 88-89)
CROSS EXAMINATION OF NORIKO:
… you put in writing to him
February 12th that “it is very hard to watch the kids
become American and losing their Japanese identity . I
have tremendous fear for my children and myself . I’m
overwhelmed without a problem . Therefore, please
cooperate with me in order for us to stay here”?

A. Correct.

Q. The only way I can read that is that was a threat
to him ; that if you don’t do what I want you to do, I’m
going to take your children and you will never see them
again . You understand his fear?

A I do understand his fear; however —

Q. Well, what can you do today to alleviate that
fear ; what can you do, what can you say to Judge Martin,
what can you say to their father that assures us that
when you get to Japan —

A. Yes.

Q. — you will not let your parents and your friends
and your — as you said, all the people that came to the
airport, influence you to just stay there ; what
assurance do we have?

A. Yes, actually that’s why I brought this here .
First of all, I have never thought about taking children
away from their father, never . And — but based on
that —

Q. Well, let me ask you this — and I’ll ask the
questions, if you would — do you have plans to take
your children and move to Japan?

A . No, I don’t .

(pg 96-97)
NORIKO: Yes, I actually want to say because if you
talking about based on he has no authority in Japan,
however, he is Japanese citizen ; he is not — Hague
Convention has nothing to do with him, because that is
between American citizen and Japanese citizen .

THE COURT : Ms . Savoie, let me just say that
this kind of discussion concerns the Court . I
really don’t care what his rights are in Japan .
What I care about is ensuring that you don’t take
these children permanently to Japan .

THE WITNESS : Right .

THE COURT : You’ll never convince this Court
that this gentleman has the same rights that you
have in Japan to freely enforce the terms of this
order, because every bit of the law that I’ve
ever seen as mediator — and this case was
presented – and this case, by the way, was
discussed in mediation, so that’s not anything
new either .So for you to try to convince the Court now
that Dr . Savoie has the full ability to enforce a
foreign decree in Japan, is not going to be very
productive . That causes me concern that you
might have some intent to move that you said you
do not have . See what I’m saying?

THE WITNESS : Yes, Sir, I understand .

THE COURT: They’re inconsistent positions .
On the one hand you say, “I’m not moving, I’ve
made no plans to move, I intend to go on vacation
and return here and bring the children back
here”; on the other hand you’re saying, “but he
has full rights to enforce the decree in Japan .”
Well, if you have no intent to move, why do you —

THE WITNESS : Yes, Sir .

THE COURT: — try to convince the Court
that he has the full rights to enforce a foreign
decree in Japan . There’s no reason to try to go
there . You see what I’m saying?

(skip to page 100)

THE WITNESS : Yes . However, he won’t see
them again that — that part is that concern
before me that from a long time ago, like I said
I’ve never split children and father . I know how
important father is for children, and I am not
going to do that . I keep telling him I’m not
going to do that .

(skip to page 119-120)
THE COURT, IN SUMMATION:
I think Ms . Savoie understands that if she
elects to go to Japan and not return, she’s going
to lose her alimony, because the Court’s going to
pay it into court ; she’s going to have problems
with her child support ; she’s going to have
problems with her education fund ; she’s going to
be fighting her husband in the courts of Japan ;
and it just — it’s going to be a terrible mess
for her and the children if she pursues that, and
the Court has no reason to believe that she
doesn’t understand that or that she intends to
pursue that .

But on the other hand, obviously Dr . Savoie
is not convinced that his former wife is acting
with him in good faith . Frankly, I don’t know
that he will ever be convinced until time passes
and she’s made trips to Japan and she’s returned
from Japan, and the children seem to be
acclimating to the notion that they have two
cultures that form them ; one is a Japanese
culture and the other is an American culture, and
they’re part Japanese, they’re part American,
they have part Japanese heritage, they have part
American heritage, and they’re entitled to know
both heritages, they’re entitled to know
grandparents from their Japanese heritage .

And what she will do when she gets to Japan
and she’s under the pressure of her family and
friends to stay there and not return, remains to
be seen.

(pg 121)
THE COURT: And she clearly understood that when she was
coming to the United States, she wasn’t coming
here to reconcile . And it was clear she came here knowing that
her husband was involved with another woman, and
she came here knowing that he wanted a divorce .
(snip, pg 122)
And it’s clear to this Court that it’s in
the best interest of these children that these
children–and I’ll say it again–have a
relationship with their father, and that they
also understand their Japanese culture and
heritage, and it’s part of their makeup, and that
they unde, and their American culture and
heritage as part of their makeup .
So based on the limited issue that’s before
me, the Court’s going to dissolve the restraining
order.

COMMENT FROM DEBITO:  So the retraining order gets dissolved and Noriko breaks her sworn promises.  That is the background to the case.  Her current extraterritoriality notwithstanding, she broke the law, and now there’s an arrest warrant out on her.  That’s what occasioned Christopher taking the drastic actions that he did.

Now, speaking as a left-behind parent myself might be coloring my attitude towards this issue. But divorces are nearly always messy and fault can be found with both sides in mediations. And the fact remains that Noriko did what so many Japanese will do in these situations — abduct the children and claim Japan as a safe haven. Then the children are NEVER returned, and usually contact is completely broken off with the left-behind parent for the remainder of the childhood.

This is an untenable situation. And it must stop. For the sake of the children. This in my mind is undisputable. The children must be returned to Dr Savoie in order to discourage this sort of thing happening again. Anything else is just more encouragement for Japanese to abduct their children.

More media up on the case later today.  Arudou Debito in Sapporo

Otaru Onsens Case 10th Anniv.#1: News Station Oct 12, 1999 on Ana Bortz Verdict YouTubed

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UPDATES ON TWITTER: arudoudebito

OTARU ONSENS TAPE (1999-2003) PART ONE

All TV shows in Japanese (no subtitles or dubbing) with amateur editing

By Arudou Debito (www.debito.org, debito@debito.org)

Total time:  2 hours 20 minutes.  Recorded on one VHS tape in 3X format.

CONTENTS WITH TEACHING NOTES

1) TV ASAHI NEWS STATION on ANA BORTZ DECISION (Nationally broadcast October 12, 1999) (10 minutes).  National broadcast.  Describes the first court decision regarding racial discrimination in Japan, citing the UN Convention on the Elimination of Racial Discrimination, and the fact that Japan has no law against racial discrimination.

Imbedded video follows.  If you would like to download and watch this broadcast in mp4 format on your iPod, click here:  http://www.debito.org/video/anabortz101299.mp4 (NB:  if you want it to download as a file, not open up in a different browser:  right-click for Windows users, or Control + Click for Macs)

COMMENT:  What’s remarkable about this broadcast is how thoroughly it describes the Bortz Case and the UN CERD.  Also the videotape, from Sebido Jewelry Store security cameras in Hamamatsu, showing the owner refusing Ana quite forcefully.  It is the most sympathetic broadcast to come out during the Otaru Onsens Case, and unfortunately it would come at the very beginning, before the media really lost the point.

(Shortly after being YouTubed, there was a complaint from a viewer in Japanese that this report wasn’t balanced because it didn’t give the store’s perspective.  Actually, the store refused to comment for this broadcast.)

The Ana Bortz Lawsuit would inject new energy into the Otaru Onsens Case (which first started in earnest on September 19, 1999, about a month before), offering positive legal precedent for the onsens to take their signs down.  Shortly afterwards, one did (Onsen Panorama).  The other two, Onsen Osupa, would take until March 2000 and a lot of beers and making friends with the owner.  The last one (in Otaru, at least), Onsen Yunohana would take until January 2001, nearly fifteen months and a lot of events later, on the day that we announced that we would be suing them.  Then, and only then, and Yunohana only replaced it with a new set of exclusionary rules.  It would take several years to prove this, but these moves would be a losing formula for them in court.  More in my book JAPANESE ONLY.

Next up, the broadcasts which painted this issue as a matter of “cultural misunderstandings” and lost the point — that this discrimination is a matter of race, not culture.

Arudou Debito in Sapporo

Japan Times: New “lay judge” court system sentences first NJ

mytest

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Hi Blog.  Here’s an event worthy of mention on Debito.org:  Japan’s “Lay Judge” system (meaning jurors, kinda — see more here) pass their first ruling on an NJ defendant.

I am in support of jury systems (I’ve seen firsthand what aloof and removed judges can do even in the most commonsensical court cases), and they seem to have sped up the process for criminal cases (for better or worse).  It has also resulted, it seems according to the article below, in better court interpretation (one big problem with Japanese criminal procedure — there is no certification procedure for quality control).  Comments?  Arudou Debito in Tokyo

====================================

Lay judges hand prison term to first foreigner (Excerpt)
Saturday, Sept. 12, 2009

http://search.japantimes.co.jp/cgi-bin/nn20090912a9.html

SAITAMA (Kyodo) The first foreign defendant to be tried in a lay judge trial was sentenced Friday to five years in prison at the Saitama District Court for two counts of robbery resulting in injury.

The case involving the 20-year-old Filipino man was also the first in which interpreters were used in a lay judge trial.

The defendant, who cannot be named as he was a minor when he committed the crimes, was charged with assaulting two people, along with two other juvenile accomplices, on streets in Saitama Prefecture last December and taking a total of ¥37,000 in cash and other items in the two assaults…

The lay judge system, which debuted in May, requires courtroom participants to make their arguments orally so trials are easier for people who are not legal professionals to follow, which in turn means more work for the interpreters in cases involving foreign nationals.

Much of the focus in the latest case was on whether the two Tagalog interpreters could accurately convey the tone of the remarks and how their interpretation might affect the decisions of the lay judges.

As of April, there were some 4,000 courtroom interpreters covering 58 languages.
Full article at

http://search.japantimes.co.jp/cgi-bin/nn20090912a9.html

ENDS

Eikaiwa NOVA embezzler and former boss Saruhashi gets his: 3.5 years

mytest

Hi Blog.  Sorry to be so late in reporting this, but some good news a couple of weeks ago:  Eikaiwa NOVA embezzler and former boss Saruhashi gets his:  sentenced to 3.5 years in the clink.  No word if the employees are going to get their money back, however.

More background details on this case here (plug in the word “sahashi”) into search engine.  More on Debito.org here.

Arudou Debito in Nagoya

==============================

Nova boss handed 3 1/2 years
By ERIC JOHNSTON
Staff writer
The Japan Times Thursday, Aug. 27, 2009

OSAKA — Former Nova President Nozomu Sahashi was sentenced Wednesday to 3 1/2 years in prison by the Osaka District Court for his role in skimming off employee funds in 2007, just before the foreign language school giant’s bankruptcy that October.

Presiding Judge Hiroaki Higuchi’s severe sentence took some in the courtroom by surprise. Prosecutors had sought five years for the former president of what was once the country’s largest foreign language school chain and employer of foreign nationals. Sahashi is expected to appeal the sentence.

Sahashi was charged with funneling nearly ¥320 million from employee benefit funds to a bank account belonging to a Nova affiliate in July 2007. He denied embezzling the funds, telling the court he used the money on behalf of his employees.

He tried to portray himself as only one of a group of senior Nova executives responsible for the decision. But the judge said that given the amount of money and his authority, Sahashi bore a heavy responsibility for the crime.

Rest of the article at

http://search.japantimes.co.jp/cgi-bin/nn20090827a1.html

Peru’s Fujimori really really gets his: 25 years jail for death squads

mytest

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Hi Blog. In my humble but loud opinion, good news:

Former Peruvian Prez Alberto Fujimori, who ran a corrupt government, parachuted into Japan for sanctuary in 2000 (getting a Japanese passport without due process), lived the life of a Tokyo elite with full impunity (despite extradition demands and an Interpol warrant for kidnapping and murder), bogged off back to Chile on private jet in 2005 to run for election in Peru (not to mention run for election here in Japan; the fool lost in both places).  Then the fool was arrested upon landing and later extradited back to Peru for trial.  Yesterday he finally got his:  A jail sentence for a quarter-century for executive excesses.  As in death squads. In complement to the six years he got in December 2007 for lesser charges.

Good. Rot there, you dreadful man.

Debito.org has said time and again why I have it in for this creep.  It’s not just because he leapfrogged genuine candidates for Japanese citizenship (claiming it by blood and spoils within weeks of faxing a resignation letter to Peru, from a Tokyo hotel!). It’s because a person like this could spoil it for every other Nikkei in South America. What other country would want to elect another possible Fujimori after all this?   Sorry, as wrongfully racist as that sentiment is, clear criminal activity is not going to help the assimilation and social advancement of others like him.  That man is quite simply a destroyer of anything that gets in his way.

But Fujimori, like many leaders in Latin American countries (think Simon Bolivar, Santa Anna, the Perons, or Porfirio Diaz), seems to have nine lives. And his elected daughter is jockeying to become president and pardon him. (Chip off the old block. Now that’s an important national priority and a key campaign plank! Kinda like another president invading Iraq to avenge his father…)

BTW, I saw on the Discovery Channel on Tuesday night a Canadian documentary about the siege of the Japanese Ambassador to Peru’s house in 1996-7. When the commandos were on tiptoe for 34 hours ready to go in, deputy Montesinos was trying to contact Fujimori to get final approval. Guess what. It took a while to reach him, because he was dealing with personal stuff — his divorce hearing! One would think a looming assault on your biggest national donor’s sovereign territory would take ultrapriority for a president.  Not a president like FJ.

Ecch. Again, what a dreadful man. Stay tuned. Arudou Debito in Sapporo

—————————

Peru’s Fujimori gets 25 years for death squad

http://mdn.mainichi.jp/mdnnews/news/20090408p2g00m0in001000c.html

April 8, 2009. Courtesy lots of people.

LIMA, Peru (AP) — Former Peruvian President Alberto Fujimori was convicted and sentenced to 25 years in prison Tuesday for death squad killings and kidnappings during his 1990s struggle against Shining Path insurgents.

Outside court, pro- and anti-Fujimori activists fought with fists, sticks and rocks. About 50 people chanted “Fujimori killer!” while several hundred chanted “Fujimori innocent!” before riot police separated them.

The court convicted the 70-year-old former leader, who was widely credited for rescuing Peru from the brink of economic and political collapse, of “crimes against humanity” including two operations by the military hit squad that claimed 25 lives. None of the victims, the three-judge court found, were connected to any insurgency.

Presiding judge Cesar San Martin said there was no question Fujimori authorized the creation of the Colina unit, which the court said killed at least 50 people as the government battled Shining Path terror with a “parallel terror apparatus” of its own. He sentenced Fujimori to 25 years in prison, only five fewer than the maximum.

Victims’ family members nodded with satisfaction and shed tears in the courtroom as the verdict was read.

“For the first time, the memory of our relatives is dignified in a ruling that says none of the victims was linked to any terrorist group,” said Gisela Ortiz, whose brother was killed.

Fujimori, who proclaimed his innocence in a roar when the 15-month televised trial began, barely looked up, uttering only four words — “I move to nullify” — before turning, waving to his children, and walking out of the courtroom at the Lima police base where he has been held and tried since his 2007 extradition from Chile.

His supporters in the courtroom shook their heads in disgust and groaned in exasperation. Fujimori’s congresswoman daughter, Keiko, called the conviction foreordained and “full of hate and vengeance.” She said it would only strengthen her candidacy for the 2011 presidential race.

“Fujimorism will continue to advance. Today we’re first in the polls and will continue to be so,” she said outside the courtroom. She has vowed to pardon her father if elected.

But some political analysts think Keiko Fujimori, 33, is more likely weakened by the verdict and would become a one-issue candidate. Her party has, after all, just 13 seats in Peru’s 120-member congress.

“It’s one thing to capitalize on the romantic image of the daughter defending a presumably innocent father, another defending a sentenced criminal,” said Nelson Manrique, a Catholic University professor.

Human rights activists heralded the case as the first in which a democratically elected former president was extradited and tried in his home country for rights violations.

Although none of the trial’s 80 witnesses directly accused Fujimori of ordering killings, kidnappings or disappearances, the court said the former mathematics professor and son of Japanese immigrants bore responsibility by allowing the Colina group to be formed.

It said Fujimori’s disgraced intelligence chief and close confidant, Vladimiro Montesinos, was in direct control of the unit.

And it noted that Fujimori freed jailed Colina members with a blanket 1995 amnesty for soldiers while state security agencies engaged in a “very complete and extensive” cover-up of the group’s deeds.

The Colina group was formed in 1991. In its first raid, using silencer-equipped machine guns, the group killed 15 people at a barbecue, including an 8-year-old boy. The intended victims, it turned out, lived on a different floor. The following year, the group “disappeared” nine students and a leftist professor at La Cantuta University.

In both cases, the killers targeted alleged sympathizers of the Shining Path, which was killing Peruvians with nearly daily car bombings. The group was devastated by the September 1992 arrest of its charismatic leader, Abimael Guzman, but some 500 Shining Path remnants remain active in Peru’s jungle, financed by the cocaine trade.

Fujimori also was convicted of two 1992 kidnappings: the 10-day abduction of opposition businessman Samuel Dyer and the one-day kidnapping of Gustavo Gorriti, a journalist who had criticized the president’s shuttering of the opposition-led Congress and courts.

In the trial, prosecutors presented declassified cables showing that U.S. diplomats including then-Ambassador Anthony Quainton repeatedly questioned Fujimori and his aides about reports of extrajudicial killings by his military.

“He never wanted to talk about it very much. He always, of course, said that human rights abuses were not tolerated by his government,” Quainton, now an American University professor, told The Associated Press by phone from Washington.

Fujimori has already been sentenced to six years in prison for abuse of power and faces two corruption trials, the first set to begin in May, on charges including bribing lawmakers and paying off a TV station.

His 10-year presidency ended in disgrace in 2000, when videotapes showed Montesinos, now serving a 20-year term for corruption and gunrunning, bribing lawmakers and businessmen. Fujimori fled to Japan, then attempted a return five years later via Chile.

Fujimori remains remarkably popular and his successors have maintained his market-friendly policies. Peru had Latin America’s strongest economic growth from 2002-2008, averaging 6.7 percent. A November poll found two-thirds of Peruvians approve of Fujimori’s rule.

In his final appeal Friday, Fujimori cast himself as a victim of political persecution, saying the charges against him reflect a double standard. Why, he asked, isn’t current President Alan Garcia also being prosecuted, since it was from Garcia, who also preceded him in office, that Fujimori inherited the messy conflict that would claim 70,000 lives.

Garcia denies responsibility for human rights abuses during his 1985-90 administration — and has the power to pardon Fujimori.

Human rights advocates called the verdict historic.

“What this verdict says is that these crimes did in fact happen and that Fujimori was in fact responsible for them, and that’s something Peruvians needed to hear,” said Maria McFarland, senior Americas researcher at Human Rights Watch, who was in the courtroom.

“For so many years, certain sectors in Peru have said that you have to look the other way and refused to acknowledge what happened.”

(Mainichi Japan) April 8, 2009

ENDS

Japan Times ZEIT GIST Mar 24, 2009: “Punishing Foreigners, Exonerating Japanese”

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PUNISHING FOREIGNERS, EXONERATING JAPANESE
Growing evidence that Japan’s judiciary has double standards by nationality
By Arudou Debito
Column 47 for the Japan Times ZEIT GIST Community Page
March 24, 2009

http://search.japantimes.co.jp/cgi-bin/fl20090324zg.html
Based upon Debito.org Newsletter May 11, 2008 (http://www.debito.org/?p=1652)
DRAFT SIXTEEN, as submitted to Japan Times editor, version with links to sources

Examine any justice system and patterns emerge.  For example, consider how Japan’s policing system treats non-Japanese.  ZEIT GIST has discussed numerous times (Jul. 8 2008, Feb. 20 and Nov. 13 2007, May 24 2005, Jan. 13 2004, Oct. 7 2003) how police target and racially profile foreigners under anti-crime and anti-terrorism campaigns.

SOURCES:  http://www.debito.org/?p=1767

http://www.debito.org/japantimes111307.html

http://www.debito.org/japantimes022007.html

http://www.debito.org/japantimes052405.html

http://www.debito.org/japantimes011304.html

http://search.japantimes.co.jp/member/member.html?fl20031007zg.htm

But the bias goes beyond cops and into criminal prosecution, with Japanese courts treating suspects differently according to nationality.  We’ve already discussed how judges discount testimony from foreigners (ZG Aug. 14 2007), but here’s the emerging pattern:  If you are a Japanese committing a crime towards a non-Japanese, you tend to get off lightly.  Vice versa and you “haven’t a Chinaman’s chance,” as it were.

http://www.debito.org/japantimes081407.html

http://en.wikipedia.org/wiki/Chinaman’s_chance

For example, consider the Hiroshi Nozaki Case.  In 2000, Nozaki was caught flushing a Filipina’s body parts down a public toilet.  However, he was not charged with murder — only with “abandoning a corpse” (shitai iki).  That got him all of three-and-a-half years in jail.  By 2008 he was stowing another dismembered Filipina corpse, that of Honiefaith Ratila Kamiosawa, in a train station locker. 

http://www.debito.org/?p=1633

We’ve had plenty of cases where Japanese men kill and mutilate Japanese women (e.g.  Yoshio Kodaira, Kiyoshi Okubo), and they tend to get the hangman’s noose.  Not Nozaki.

Contrast this with the case of Nigerian Osayuwamen Idubor, convicted on appeal in 2008 of sexually assaulting a Japanese woman.  Sentenced to two years plus time served during trial, Idubor asserts that his confession was forced, that police destroyed crucial evidence, and most importantly that there was no material evidence.  Didn’t matter:  He got about as much jail time as Nozaki.  Which means, pardon the ghoulish tone, that if Idubor had been Japanese and the woman foreign, he could have chopped her up without adding much to his sentence.  If there was material evidence, that is.

SOURCE:  http://www.debito.org/?p=1630

Hyperbole?  Consider other crimes against non-Japanese women, like those by convicted serial rapist Joji Obara.  His connection with the Lucie Blackman murder has been well-reported, particularly the botched police investigation despite ample material evidence — even video tapes of his rapes.  Regardless, in 2007 Obara was acquitted of Blackman’s murder due to “lack of evidence”. 

Obara did get life imprisonment (not death), since he was only charged with “rape leading to death” of nine other women (one of them foreign).  But only after strenuous appeals from Blackman’s family was the acquittal overturned in 2008.  Obara became guilty of “dismembering and abandoning” her corpse.  Again, guilty of crimes to their dead bodies, not of making them dead.

http://www.debito.org/?p=2098

http://www.debito.org/?p=356

Lousy investigation http://search.japantimes.co.jp/cgi-bin/nn20070424f1.html

Now triangulate that with the case of Lindsay Ann Hawker, who was allegedly murdered by Tatsuya Ichihashi in 2007.  The evidence here is damning too:  video evidence of her accompanying him to his apartment building, her beaten and strangled body found in a tub of sand on his apartment balcony, and his fleeing barefoot when police visited to investigate.  He’s still at large today.  You can see his mug shot on police posters for people wanted for “murder” (satsujin).  That is, except for Ichihashi.  He’s just accused of “abandonment of a corpse”, again.

http://www.debito.org/?p=356

http://search.japantimes.co.jp/cgi-bin/nn20071211a5.html

http://search.japantimes.co.jp/cgi-bin/nn20070424f1.html

ichihachimugshot090309

wantedposter090309

Last week I called Chiba Police inquiring about Ichihashi’s charges.  An investigator entrusted with the case wouldn’t comment on specifics.  Asked about the process of determining murder or abandonment, he said if the suspect admits “homicidal intent” (satsu-i), it’s murder.  However, it’s unclear how at least one of the  crimes shown on the poster are significantly different from Ichihashi’s, or how some suspects indicated their homicidal intent before escaping.  Police did not respond to requests for further clarification.

Clearer is the exceptional treatment given Atsushi Watanabe, who in March 2008 choked to death an allegedly irate Scott Tucker at a Tokyo bar.  Generally, in these situations the survivor goes down for “too much self defense” (kajou bouei), regardless of intent.  That precedent was set in the 1980s by Steve Bellamy, a British martial artist, who intervened in a drunken altercation and killed someone.  Bellamy was acquitted of wrongdoing, then convicted on appeal, then acquitted again.

Although asphyxiating somebody is arguably overdoing it, media anticipated the case was “likely to draw leniency”.  They were right.  Last November Tucker’s killer got a “suspended sentence” of three years.  Moreover, public prosecutors, normally pit-bulls in these situations, unusually decided not to appeal.

http://www.debito.org/?p=1412

http://www.debito.org/?p=2060

http://www.debito.org/?p=83

http://en.wikipedia.org/wiki/Steven_Bellamy

Even less tenacious were the police prosecuting Peter Barakan’s case.  Barakan, a famous British commentator on Japanese TV, was assaulted with pepper spray by a masked assailant in 2007.  Police tracked down the getaway van, found the driver, and found mace cans in the back.  Yet no one was given that 23-day-maximum marathon of interrogations granted for investigating lesser crimes (such as foreigners who don’t cooperate with police ID checks).  Barakan tells me the police have since done “absolutely zilch” about his case.

http://www.debito.org/?p=830

http://www.debito.org/?p=1635

Maybe police were too busy to pursue Barakan’s macing, but I doubt the relatives of American Matthew Lacey would sympathize.  As the Japan Times reported in 2007, Lacey was found dead in his apartment in a pool of blood in 2004.  Fukuoka Police declared the cause of death to be “dehydration”.  When his family insisted on an autopsy, the cause was updated to “cerebral hemorrhage”, apparently from an accidental fall.  The police, however, refused to issue Lacey’s full autopsy for independent inspection.  Public prosecutors and the US Embassy have not pursued the case.  It’s a busy world.

http://www.debito.org/?p=1204

So does this mean that authorities have it in for foreigners?  You could make that case.  This is a land with a policing regime instead of an immigration policy, where under the Foreign Registry Law (Article 18) only foreigners can be arrested, fined up to 200,000 yen, and incarcerated for up to a year just for not carrying ID 24-7.  Severe criminal penalties for something as easy to misplace as a library card or car keys?

http://www.cas.go.jp/jp/seisaku/hourei/data/ARA.pdf (Article 18)

You could counterargue that this system affects everyone regardless of nationality.  Masayuki Suo’s excellent movie “I Just Didn’t Do It” depicts how the judicial process overwhelmingly favors the prosecution.  Don’t forget that 99.9% conviction rate. 

But you’d be wrong.  Non-Japanese are particularly disadvantaged because 1) there is no certified quality control for court and investigative language interpretation, 2) public prosecutors can have negative attitudes towards non-Japanese, and 3) non-Japanese cannot get bail (hoshaku).

Item 1 creates obvious communication problems for non-natives, especially given how heavily Japan’s judiciary relies on confessions, so let’s not dwell further.  The next item, attitudes of prosecutors, has received due attention from scholars.

Professor David T. Johnson writes in his  book “The Japanese Way of Justice” that prosecutors consider “crimes committed by foreigners” as “one of the three main challenges facing the procuracy”.  Tokyo University law professor Daniel H. Foote was cited saying that criminal justice officials “have stepped up their surveillance and prosecution of [foreign workers]”, and the foreign influx poses “the greatest external challenge” to Japan’s “benevolent paternalism” in criminal justice.  Thus foreigners, in Foote’s view, have “a separate track” for criminal prosecution.

CITES:  Johnson pp 137, 157, 181

http://books.google.com/books?id=qIHNWWx0ZOIC&dq=David+T+Johnson+The+Japanese+Way+of+Justice&printsec=frontcover&source=bn&hl=en&ei=llS-SeKFO4_akAWdjIWnCA&sa=X&oi=book_result&resnum=4&ct=result

As for bail, it’s not only difficult for Japanese to get — it’s impossible for non-Japanese to get.  Standard reasons for denial are fears that the suspect might flee or destroy evidence.  However, that didn’t stop twice-convicted-yet-bailed businessman Takafumi Horie or Diet member Muneo Suzuki (who even got reelected during his perpetual appeal).

Horie:  http://search.japantimes.co.jp/cgi-bin/nn20080729a3.html

Muneo:  http://search.japantimes.co.jp/cgi-bin/nn20080227a3.html

Non-Japanese, however, face an extra legal layer:  status of residence.  Stuck in Japanese jug means you can’t renew your visa at Immigration.  Therefore, the logic goes, if a foreigner is bailed, even if they don’t flee, they might get deported before their trial is finished.  So they remain in custody for the duration of the case, no matter how many years it takes.  Then they can be released for deportation.

http://www.debito.org/?p=1659

http://www.debito.org/?p=1202

Released then deported: http://www.debito.org/?p=1659

And it will indeed take years.  For example, a Swiss woman, declared innocent twice in court of drug smuggling, has been incarcerated since October 2006.  Even though an acquitted Japanese would have been released during the appeal, the Supreme Court upheld the denial of her bail.  Same with Nepalese man Govinda Prasad Mainali, acquitted of murder in 2000, yet detained until his conviction in high court that same year.  Thus for foreign defendants, all a public prosecutor has to do is file an appeal and it will void any court acquittal.

CITES: Johnson 158

http://www.debito.org/?p=1447

So let’s summarize.  If you’re a foreigner facing Japan’s criminal justice system, you can be questioned without probable cause on the street by police, apprehended for “voluntary questioning” in a foreign language, incarcerated perpetually while in litigation, and treated differently in jurisprudence than a Japanese.

Statistics bear this out:  According to Johnson, 10% of all trials in Japan had foreign defendants in 2000.  Considering that non-Japanese residents back then were 1.3% of the Japanese population, and foreign crime (depending on how you calculate it) ranged between <1% to 4% of the total, you have a disproportionate number of foreigners behind bars in Japan.

CITES:  Johnson page 181

http://www.moj.go.jp/PRESS/010613-1/010613-1-1.html

http://www.debito.org/crimestats.html#caveats

Feeling paranoid?  Don’t.  Just don’t believe the bromide that Japanese are a “peaceful, law-abiding people by nature”.  They’re actually scared stiff of the police and the public prosecutor.  So should you be.  For until official government policy changes to make Japan more receptive to immigration, non-Japanese will be treated as a social problem and policed as such.

1528 WORDS

Debito Arudou is coauthor of the “Handbook for Newcomers, Migrants, and Immigrants.”  A version of this essay with links to sources can be found at debito.org.  Send comments to community@japantimes.co.jp

ENDS

Thoughts on Suo Masayuki’s movie “I just didn’t do it”: A must-see.

mytest

Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japan

Hi Blog.  Sunday’s tangent:  Suo Masayuki’s movie “Sore de mo, boku wa yatte nai” (I just didn’t do it), some quick thoughts:

Saw the movie on TV last week, I think it’s a must buy (I’m angling for the special edition, with 200 or so minutes of extras).  I agree with the January 2008 Japan Times review by Mark Schilling:  “…the Japanese are a law-abiding people for a very good reason — once the system here has you in its grips you are well and truly in the meat grinder. True, safeguards exist for the accused, who are entitled to a defense lawyer, but the legal scales are tipped in favor of the police and prosecution, who want to save face by convicting as many “criminals” as possible — and nearly always succeed.”

You can see more on Debito.org about the nastiness of criminal procedure here.  

Soreboku is an excellent illustration of how court procedure in Japan grinds one down (remember, Asahara Shoko, correctly judged guilty, was on trial for more than a decade (1995-2006); it drove him nuts, and calls into the question the Constitutional right to a speedy trial in Japan (Article 37)).  I fortunately have not been involved in a criminal court case (I have done Civil Court, with the Otaru Onsens Case (1999-2005) and the 2-Channel Case (2005-present day), and can attest that it’s a long procedure), but am not in any hurry to.  Soreboku — long, drawn-out, well researched, and necessarily tedious — is one vicarious way to experience it.

What came to mind mid-movie was Michael Moore’s SICKO.  One very salient point he made was how rotten the health insurance system is in the US:  If you get sick in the US, given how much things cost and how insurance companies enforce a “culture of no” for claimants, you could lose everything.

Japan’s got health insurance covered.  But the “SICKO Syndrome” here in Japan is the threat of arrest, given the enormous discretion allowed Japan’s police forces.  You will disappear for days if not weeks, be ground down by police interrogations, face months if not years in trial if you maintain innocence, have enormous bills from court and lawyers’ fees (and if you lose your job for being arrested, as often happens, you have no income), and may be one of the 0.1 percent of people who emerge unscathed; well, adjudged innocent, anyway.

The “SICKO Syndrome” is particularly likely to happen to NJ, too.  Random searches on the street without probable cause are permitted by law only for NJ.  If you’re arrested, you will be incarcerated for the duration of your trial, no matter how many years it takes, even if you are adjudged innocent (the Prosecution generally appeals), because NJ are not allowed bail (only a minority of Japanese get it as well, but the number is not zero; NJ are particularly seen as a flight risk, and there are visa overstay issues).  And NJ have been convicted without material evidence (see Idubor Case).  Given the official association with NJ and crime, NJ are more likely to be targeted, apprehended, and incarcerated than a Japanese.

Sources:  Research I’m doing for my PhD thesis; subsection I’ve written on this is still pretty rough.  But in the meantime, see David T. Johnson, THE JAPANESE WAY OF JUSTICE.

See Suo’s Soreboku.  It’s excellent.  And like Michael Moore’s SICKO, a good expose of a long-standing social injustice perpetuated on a people that think that it couldn’t happen to them.  Be forewarned.

Arudou Debito in Sapporo