Reporter Eric Johnston on McGowan victorious appeal

mytest

From: japantimes Osaka
Subject: Re: Breaking News: McGowan wins High Court appeal
Date: October 19, 2006 12:29:18 PM JST
To: debito@debito.org

Debito,

If you wish, you’re free to post this on your site:

By ERIC JOHNSTON
Special to Debito.org

On Oct. 18th, the Steve McGowan case ended with a partial victory, when the Osaka High Court awarded him 350,000 yen. McGowan had sued Takashi Narita, the owner of an eyeglass store in Daito, Osaka Pref. for racial discrimination after Narita barred him from entering his store and told McGowan he didn’t like black people.

The court’s decision was welcomed by McGowan and his lawyers were, if not completely satisfied, at least relieved that the High Court did not simply repeat the District Court ruling which, as Debito has detailed so well elsewhere on this site, can be summed up as: McGowan “misunderstood” Narita and there is no evidence of racial discrimination.

But many of those who followed the case, especially human rights activists, were worried. The High Court avoided ruling whether or not Narita’s words and actions constituted racial discrimination, a point that both McGowan’s lawyer and some of his supporters hammered home to reporters in the post-verdict press conference.

So what was the verdict? It was a very, very carefully, vaguely worded ruling that said Narita’s words and deeds were an illegal activity outside social norms. But, and this is the crux of the problem, it cited no written precedents. The phrase “outside social norms” smacks of paternalism, of a stern father privately scolding the bully. What social norms are we talking about, Dad, and could the court please provide all of us a list of the ones that are legal and illegal?

Furthermore, the phrase used in ruling about the social norms, “fuho koi” can mean both “illegal activities” or “activities not covered by the scope of current laws on the books.” In this case, given the overall tone of the ruling and because the court ordered Narita to pay, the closer meaning in spirit is “illegal activities”.

But anybody familiar with the Japan works can see the potential problem ahead. What is going to happen when the next person, Japanese or not, is barred entry into a store whose Japanese owner tells them to leave and then says they don’t like the color of their skin? Using the McGowan High Court ruling as a precedent, some future High Court can simply decide what the “social norms” are based only on what the judge or judges feel the norms are. They then have the power to decide, in the absense of clear, written precedents, whether or not those social norms have been violated to the extent that, even though there is nothing on the books, somebody should be punished.

In fact, using the logic of the Osaka High Court, the decision could have just as easily gone the other way. In other words, the High Court could have simply chosen to use the second possible defination of “fuho koi”, and say that, although Narita’s comments may have been outside social norms, there is nothing on the books. Therefore, we cannot say that what happened was “illegal.” Therefore, plaintiffs motion denied.

It is to the eternal credit of the Osaka High Court that their judges made a decision far more moral and ethical than the District Court. However, good intentions often make bad law. By avoiding ruling on the crux of McGowan’s complaint, that Narita’s remarks were, in fact, a form of illegal discrimination, the more fundamental issue remains unaddressed –namely, whether or not the McGowan case constitutes racial discrimination in a written, legal sense as opposed to unwritten “social norms” where determination about their violation, and authority for their punishment, is controlled by the whims of a few judges.

The McGowan ruling simply reinforces the importance of having a national, written, easily understandable law banning racial discrimination, a point made by a range of people from McGowan, to 77 human rights groups, to the United Nations itself. As of this writing, it appears unlikely that McGowan will appeal to the Supreme Court to push for a clear ruling on the question of racial discrimination. Many of his supporters pushing for a national law banning discrimination don’t appear to be eager to take his case further and are, rather, content to let McGowan remain a symbol of the need for such a law. In the meantime, the basic question about what constitutes racial discrimination in Japan and what does not remains unanswered.

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

Eric Johnston covered the Steve McGowan case for The Japan Times. The opinions expressed in this article are his, and not necessarily those of The Japan Times.

ENDS

McGowan Case: Steve wins case on appeal at Osaka High Court

mytest

Good news at last. Comment follows at bottom:

ARTICLE BEGINS
==========================

African-American wins Y350,000 in damages for being denied entry into Osaka shop
Japan Today, Wednesday, October 18, 2006 at 19:41 EDT
http://www.japantoday.com/jp/news/387820/all
Courtesy Kyodo News

OSAKA — The Osaka High Court ordered an Osaka optical shop owner to pay 350,000 yen in damages to an African-American living in Kyoto Prefecture for denying him entry to the shop in 2004, altering a lower court ruling in January which rejected the plaintiff’s damages claim.

Presiding Judge Sota Tanaka recognized the owner told Steve McGowan, 42, a designer living in the town of Seika, to go away when he was in front of the shop, and acknowledged damages for McGowan’s emotional pain, saying the entry denial “is a one-sided and outrageous act beyond common sense.”

However, the remark “is not enough to be recognized as racially discriminatory,” he said. McGowan had demanded 5.5 million yen.

According to the ruling, the owner told McGowan to go away to the other side of the road in a strong language several times when he was about to enter the shop with an acquaintance in September 2004.

The plaintiff had claimed the owner said, “Go away. I hate black people,” but the ruling dismissed the claim, as the possibility that he misheard the owner cannot be eliminated.
A plaintiff attorney said, “It’s unreasonable that discrimination was not recognized, but the court ordered a relatively large amount of damages payment for just demanding the plaintiff leave the shop. It seems that the court shows some understanding.”
==========================
ARTICLE ENDS

COMMENT:
I am very happy Steve McGowan appealed his case, as it shows just how ludicrous the previous District Court ruling was last January.

Full information on the case at
http://www.debito.org/mcgowanhanketsu.html

The previous decision disqualified McGowan and his wife as credible witnesses to any discrimination, by ruling:

1) McGowan’s testimony inadmissible, as he apparently does not understand enough Japanese to reliably prove that the store-owner used discriminatory language toward him.

2) McGowan’s wife’s testimony as negatively admissable. In her follow up investigation, McGowan’s wife didn’t confirm whether the store-owner had excluded McGowan because he is black (“kokujin”); she apparently asked him if it was because her husband is *foreign*.

Put another way: A guy gets struck by a motor vehicle. The pedestrian takes him to court, claiming that getting hit by a car hurt him. The judge says, “You weren’t in fact hit by a car. It was a truck. Compensation denied.”

This was a huge step backward. As I argued in a Japan Times column (Feb 7, 2006, see http://www.debito.org/mcgowanhanketsu.html#japantimesfeb7), the McGowan decision thus established the following litmus tests for successfully claiming racial discrimination. You must:

* Avoid being a foreigner.

* Avoid being a non-native speaker of Japanese.

* Have a native-speaker witness with you at all times.

* Record on tape or video every public interaction you have 24 hours a day.

* Hope your defendant admits he dislikes people for their race.

Actually, scratch the last one. The eyeglass shop owner did admit a distaste for black people, yet the judge still let him off.

Now this High Court reversal sets things back on kilter, although it pays McGowan a pittance (35 man yen will not even cover his legal fees!) and will not acknowledge the existence of racial discrimination.

That’s a shame. But it’s better than before, and far better than if he did not appeal. Gotta pray for the small favors.

Thanks to Steve for keeping up the fight! Arudou Debito in Seattle, USA

Mainichi Oct 10 06: BBS 2-Channel’s Nishimura still on the lam

mytest

(Article courtesy M. Update on 2-Channel lawsuit and Defendant Nishimura’s continuing lam. More on this issue at http://www.debito.org/2channelsojou.html –Arudou Debito in Vancouver)

Operator of notorious bulletin board lost in cyber space
Mainichi Daily News, Oct 10, 2006

http://mdn.mainichi-msn.co.jp/waiwai/news/20061010p2g00m0dm020000c.html

All sorts of mail is bulging out of the postbox, but the thick wads of legal
letters stand out. A peep inside through the windows of the Tokyo apartment
provides no hint that anybody has lived inside for a while.

It’s the home of Hiroyuki Nishimura, the 29-year-old webmaster of
Ni-Chaneru, the huge bulletin board that is arguably the Japanese language
Internet’s most popular — and most notorious — site.

Nishimura has been reported by Japan’s tabloid media as “missing” — with
the strong implication that he’d run away from massive debts brought on by a
huge number of lost lawsuits that he consistently refused to contest by
showing up in court. But the women’s weekly says it has managed to track him
down and find out about the rumors of his disappearance.

“I’m just hanging out like I always do,” Nishimura tells AERA with a blog
posting that serves as answers to its e-mailed questions.

Nishimura defends his decision not to contest the myriad of lawsuits filed
against Ni-Chaneru.

“I’ve been sued in the north as far as Hokkaido and the south as far as
Okinawa. It’s simply not possible to attend every court case where I’ve been
named as a defendant. I figure if I can defend myself in every case, it’s
exactly the same as not turning up in my defense,” he tells the weekly
indirectly.

[ED’S NOTE: HUH??]

Nishimura also strongly denies suggestions that he’s gone bankrupt, which
many have speculated may be the main reason nobody seems able to find him
now.

“I have no idea what you’re talking about,” he writes when questioned about
his financial state.

AERA, however, begs to disagree. It says that Nishimura, as Ni-Chaneru’s
administrator, was sued in May by a man claiming to have been defamed on the
bulletin board by postings listing his name and accusing him of molestation
and bankruptcy. The man was seeking to have Nishimura release details of
those who had posted the messages on the site. Nishimura did not turn up in
court for the case, nor did he accept the injunction ordering him to make
the information available.

“I asked the court to impose a fine of 50,000 yen for every day he failed to
comply and it did. He already owes more than 2 million yen,” the plaintiff
tells AERA. “Because he hasn’t paid that, I applied to have him declared
bankrupt.”

Unlike companies, which are regularly shut down by creditors, it’s rare for
a creditor to bring about an individual’s bankruptcy. But Nishimura now
faces the prospect of a receiver being appointed to look into his financial
affairs and selling off whatever he has to repay what he owes, according to
the weekly.

The plaintiff took the drastic step because Ni-Chaneru has consistently
refused to pay up when courts have declared it a loser in court cases. It
has already been ordered to fork out more than 20 million yen over lost
lawsuits.

“If they put the Ni-Chaneru domain up for auction, it’d reap tens of
millions of yen for sure,” the man tells AERA. “There’s bound to be a
company out there that would buy it.”

It’s still unsure whether the court will order a receiver be appointed to
oversee Nishimura’s finances. Surely, he wouldn’t be able to ignore the
courts again if that happened? Others who’ve won court cases against him
aren’t so sure.

“We tried everything from property seizures to forced execution of rulings,
but we could get no more than 2 million yen,” says a spokesman from DHC, a
cosmetic company awarded 7 million yen in a court battle with Nishimura.
“We’d welcome the chance to get more if bankruptcy proceedings go ahead, but
have our doubts about whether this will really happen.”

A lawyer involved in a number of Ni-Chaneru-related lawsuits says that the
current attack on Nishimura is nothing new.

“People have suggested bankruptcy proceedings before,” the lawyer says. “The
issue revolves around whether the court will recognize him as bankrupt with
debts of only a few million yen. It might be different if everybody who’s
won court cases against him joined forces and fought together.”

Even then it’s no certainty — Ni-Chaneru’s revenue is all controlled
completely by a separate advertising company, making the bulletin board’s
accounts something of a black hole.

“If the receiver can get their hands on that,” the plaintiff tells AERA,
“everything will become totally clear.” (By Ryann Connell)

October 10, 2006

More on this issue at
http://www.debito.org/2channelsojou.html
ENDS

Temple U Prof: “Japan’s Criminal Libel Laws vital for police intervention and arrest” (???)

mytest

Here’s something I don’t quite understand: A Temple University professor is publishing a paper in the University of Colorado Law Review asserting that, quote, “In Japan, however, criminal libel laws have become vital tools in policing injurious speech on the Internet. Defamatory posts lead to police intervention and even arrest.”

Not according to the 2-Channel Lawsuit, which I think proves Dr Mehra’s assertions quite inaccurate. I haven’t read the entire paper (I don’t have it), but the abstract is enclosed below. If he is aware of our case (it came down last January, and we offered an update in September), not to mention the many others cases successful against 2-Channel BBS, yet to this day unpaid and unprosecuted, how can he assert this?

I have contacted Dr Mehra, Temple University, and the University of Colorado Law Review. I hope Dr Mehra can reply with a clarification.

Arudou Debito, Plaintiff, 2-Channel Lawsuit
Full documentation on the case in two languages at
http://www.debito.org/2channelsojou.html

Dr Mehra’s Abstract: (Courtesy http://papers.ssrn.com/sol3/papers.cfm?abstract_id=802887)
=========================================================
Post a Message and Go to Jail: Criminalizing Internet Libel in Japan and the United States

SALIL MEHRA
Temple University – James E. Beasley School of Law
University of Colorado Law Review, Forthcoming

Abstract:
In the United States, criminal libel is, to paraphrase Ross Perot, the crazy aunt we keep in the basement. American law professors write about it to denounce the continued existence of rarely enforced criminal libel statutes. In Japan, however, criminal libel laws have become vital tools in policing injurious speech on the Internet. Defamatory posts lead to police intervention and even arrest. Because the United States is considering regulation of online speech, including, potentially, criminal penalties, we can learn from the experience of Japan. From a positive perspective, this Article explains why Japan would apply such laws to the Internet. From a normative perspective, the Article addresses why criminal libel is not a good choice for Japan. Finally, from a comparative law perspective, this Article also discusses why criminalizing online libel would be an even worse choice for the United States than Japan.

Keywords: Defamation, libel, cyberlaw, criminal, private ordering, social norms, Internet, police
=========================================================
ENDS

DR MEHRA RESPONDS:

=========================================
From: smehra@Temple.edu
Subject: Re: Civil law enforcement in Japan–Cannot understand Dr Mehra’s argument
Date: October 1, 2006 2:14:14 AM JST
To: debito@debito.org
Cc: shibaike@hg-law.jp, tlawrev@temple.edu, cololrev@colorado.edu

Mr. Debito,

Thanks for your input.

Respectfully, I think you are misreading the sentence you quote.

The point is not that defamatory posts “always” or “universally” lead to police intervention and even arrest. Similarly, I do not say that “ALL 2Channel” defamatory posts lead to police arrest. The point is that THERE ARE reported cases where defamatory posts DO lead ot police intervention and even arrest. I cite these reports and statistics within the paper; they are also publicly available.

I think you are having a problem of perspective. In other developed countries, such as the US and the EU nations, criminal libel is completely dead. For example, in America, nobody gets arrested for criminal libel, Internet-based or otherwise. The divergence of the Japanese experience is interesting. That is the point of the article, and that is why it is aimed at a Western audience.

For an unsatisfied plaintiff such as yourself, enforcement probably looks half-empty of consequences. For someone from a background where libel is no longer a criminal matter, it looks decidedly half-full.

Best regards,
Salil Mehra
=========================================

I REPLY:
=========================================
From: debito@debito.org
Subject: Re: Civil law enforcement in Japan–Cannot understand Dr Mehra’s argument
Date: October 1, 2006 9:17:52 AM JST
To: smehra@Temple.edu
Cc: shibaike@hg-law.jp, tlawrev@temple.edu, cololrev@colorado.edu

Good morning from Sapporo, Japan, Dr Mehra, and thank you very much indeed for your answer!

I am admittedly not a specialist in this topic, as you are of course, and I would indeed be happy to be corrected.

However, in my cursory study of the subject for use in my own case, I’ve not heard of a single case of Internet libel resulting in criminal arrest. If there was a procedure in place (to enforce contempt of court through the police, for example), I’m sure I could have implemented it in my case (and in all those other court victories against 2-Channel which still remain unenforced and unpaid). 2-Channel owner and administrator Nishimura Hiroyuki, as you know, continues to speak, write, and publish without any serious repercussions, let alone arrest. Given that this is Japan’s largest BBS (the world’s actually), employing every existent legal loophole possible in Japanese law, this appears a stark and seriously undermining exception to your assertions (in your abstract, anyway) regarding criminalization of Internet libel.

I’m not sure if your paper is available yet, but please may I read it? I would like to see the reports and statistics publicly available as well. Do you cite our 2-Channel case?

Again, thank you very much for your answer, Dr Mehra. The reason I even heard about your report was because of a student who contacted me to ask why my lawyers hadn’t contacted the police and had them enforce our court decision. I replied that I’m sure my lawyers, being professionals, had thought of that, and knew that it was meaningless–which means the information on the ground over here in Japan seems to contradict your paper’s thesis. If I am in any way misreading it, I would enjoy the correction, as I would certainly like to have Nishimura arrested, the court award paid, the offender’s IP address released, and all the libelous statements (which remain online to this day, proliferating) deleted, as per the court decision.

Sincerely yours, Arudou Debito
(Arudou is my last name, and if you had heard of me and our case, you might have known that.)
Sapporo, Japan
http://www.debito.org
=========================================

NO IMMEDIATE ANSWER FROM DR MEHRA. (he answers later at the very bottom)
CLARIFICATION ON THE ISSUE FROM SOMEBODY IN THE KNOW:
=========================================

In regards to the concepts discussed, I believe there may be a misunderstanding regarding the meaning of enforcement of criminal libel. You had an successful experience in winning a civil libel suit brought by a plaintiff (yourself) but have had difficulty in seeing enforcement of that civil judgment against the defendant.

Criminal libel, on the other hand, can only by handed by the police and by a public prosecutor in a very similar way to a crime of theft. The most a citizen can do is to point it out and ask them to investigate (just like for any suspected crime). The result might be that the case is dropped or, if it goes to trial, the defendant might get a prison sentence, have to pay a fine, or have his sentence declared to have been met by the prison time he has already endured (after arrest).

Essentially, these are two completely separate and non-exclusive avenues towards addressing libelous speech (one initiated by a citizen and another initiated by the government). The police never have anything to do with a civil case unless the plaintiff can get them to enforce a judgment against a deliquent defendant. My understanding is that criminal libel cases are still rare, but the fact that there are some is a marked difference from the United States.

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

I REPLY:
========================

Yes, quite. I appreciate very much the clarification. I wished that Dr Mehra could have been bothered to explain that to me, or better yet send me a copy of his paper (or at least explain why he cannot) so I can see exactly what information the thesis is based upon.

Instead, I got from him what I felt to be a half-baked response about glasses being half-full, and the insinuation that I was just a sore loser with a limited, unimportant experience. I do not like incorrect information being perpetuated about Japan in US academia (lordy knows, I’ve seen enough of it over the years!), and Dr Mehra’s response struck me as diffident and irresponsible.

I have not invested more than a year and 360,000 yen in this case (so far) just to be told by an overseas academic (who seems so unfamiliar with the case that he gets the Plaintiff’s name wrong), when it seems that evidence contrary to his thesis is dismissable as a problem with the Plaintiff’s perspective!

I have done plenty to bring this case to the fore, including putting all original documentation and commentary in two languages online to show how Internet libel goes unpunished in Japan. When a thesis states exactly the opposite without any mitigators, I would like to know how that conclusion was arrived at. Here’s hoping that Dr Mehta will kindly share his research with a person who would like to know more. –Arudou Debito, October 2, 2006.
===============================

ANSWER FROM DR MEHRA:

===============================
From: smehra@Temple.edu
Subject: Re: Civil law enforcement in Japan
Date: October 3, 2006 1:00:51 AM JST
To: debito@debito.org
Cc: cololrev@colorado.edu, shibaike@hg-law.jp

Hello Prof. Debito,

The full text of the paper is available at the link below.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=802887

There have been a number of cases involving arrest due to online libel in Japan. Probably the most famous (in the sense that it got news coverage) involved an individual in Kochi who was arrested in 2003 after maligning a local politician on a local government message board.

I had heard of your case. If I understand correctly, I think it is a civil case and not a criminal case and that you are pursuing the Nishimura, the founder of 2-Channel because he provides a forum where you are defamed. Also, if I understand correctly, you are not alleging that Nishimura himself makes defamatory statements against you. Based on Criminal Code 230 and the Internet Service Providers Law in Japan, he probably escapes criminal liability because there is no “contributory criminal libel” and because the ISP law may limit 2Channel’s exposure since, like an ISP, it does not actually have prior knowledge of what participants will post.

Also, if I understand correctly, you have a civil judgment in your favor which Nishimura ignores. You may already know that there is a debate about how weak Japanese judges’ injunctive power is — weak or very weak.

Best regards,
Salil Mehra
===============================

MY QUICK RESPONSE:

===============================
From: debito@debito.org
Subject: Re: Civil law enforcement in Japan
Date: October 3, 2006 1:08:45 AM JST
To: smehra@Temple.edu

Hello Dr Mehra. Thank you very much for your response, and for clarifying your point. I will enjoy reading your paper and look forward to learning something, which I hope will help me bring Nishimura to bear for the forbearance he’s shown for years now regarding online libel. With best wishes, Arudou Debito in Sapporo
===============================

ENDS

J Times Sept 23 2006: Tokyo Court rules against “forced patriotism” in schools

mytest

COMMENT: A blow against the tendency (especially in Tokyo, as you can see in Ishihara’s comments below) towards (re-)enforced patriotism in schools. Tokyo District Court, which is usually quite conservative, actually ruled against the enforced (with noncompliers punished) standing and singing the Japanese national anthem etc., calling it “a violation of the freedom of thought guaranteed by the Constitution”. Bravo. No word, however, on whether this ruling actually reinstates the suspended teachers or reverses their punishments (I suspect not). More in the LA Times at http://www.latimes.com/news/nationworld/world/la-fg-flag22sep22,1,314185.story?ctrack=1&cset=true — Arudou Debito

========================
City Hall to appeal ‘Kimigayo’ ruling
Japan Times, Sept 23, 2006
Courtesy http://search.japantimes.co.jp/cgi-bin/nn20060923a2.html

KYODO PHOTO Tokyo teachers face the media with their lawyers Friday after filing a request for the Tokyo Metropolitan Government to retract disciplinary actions them, based on a court decision that confirms are not obliged to sing the national anthem while facing the national flag. KYODO PHOTO

Tokyo Gov. Shintaro Ishihara said Friday that City Hall will appeal Thursday’s 12.03 million yen district court ruling against the “Kimigayo” directive, which obliges Tokyo’s teachers to sing the national anthem before the national flag at school ceremonies.

“We will appeal as a matter of course,” the well-known nationalist said at a regular press conference. “The judge should see what the situation is like at places such as metropolitan high schools.”

He also said punishing teachers for not obeying the directive from the Tokyo Metropolitan Government board of education was “only natural because they neglected their duties as teachers.”

Having students and teachers “pay respect to the national flag and anthem is one way to restore discipline” to the schools, the governor said.

Meanwhile several ministers said they were surprised by the ruling.

Justice Minister Seiken Sugiura said Friday that it was “unbelievable” a lawsuit could be filed over the raising of the national flag and the singing of the anthem.

While saying it was his “personal view as a lawmaker,” the justice minister told a news conference that “Kimigayo” and the Hinomaru have been accepted as Japan’s national anthem and flag since the 1868 Meiji Restoration.

The Hinomaru did not officially become the national flag until 1999, when “Kimigayo” became the official anthem.

Referring to the part of the ruling that said, “The Hinomaru flag and ‘Kimigayo’ anthem were the spiritual backbone that supported imperialism and militarism until the end of World War II,” the minister said the flag and anthem have nothing to do with events that led to the war.

Sugiura, who is also a member of the House of Representatives from the Liberal Democratic Party, also said that Britain’s national flag is called “the bloodstained Union Jack” but that the British people have never changed it.

In recent years, the government and politicians have been making steady efforts to promote patriotism.

Education minister Kenji Kosaka said at a separate news conference that the court’s decision was unexpected, given past rulings in similar lawsuits.

Kosaka declined to comment on the disciplinary action Tokyo metes out to teachers who refuse to obey the directive. “It is up to the judicial authorities to decide whether it is legal,” he said.

Meanwhile, about 50 of the 401 plaintiffs in the lawsuit and their lawyers went to the metro board of education Friday to demand it repeal punishments imposed on 345 teaching staff. They also asked the board not to appeal the district court ruling.

In Thursday’s ruling, presiding Judge Koichi Namba said the Tokyo school board cannot force teachers to sing “Kimigayo” before the flag or punish them for refusing to do so, because that infringes upon the freedom of thought guaranteed by the Constitution.

The Japan Times: Saturday, Sept. 23, 2006
ENDS

DEBITO.ORG NEWSLETTER SEPT 23 2006

mytest

Good evening all. Arudou Debito in Sapporo here, with a roundup of recent articles I’ve been blogging recently:

Table of Contents:
////////////////////////////////////////
1) 2-CHANNEL’S DEFENDANT NISHIMURA “DISAPPEARS” (SHISSOU)
2) J TIMES: FUTURE CONFLICTS ON FOREIGN “OLDCOMERS” AND “NEWCOMERS”
3) YOMIURI: CRACKDOWN ON FOREIGN BUSINESSES IN COUNTRYSIDE
4) TOKYO GOV ISHIHARA TO RUN FOR THIRD TERM, DISSES “FOREIGNERS” AGAIN
5) ASAHI: MURDER SUSPECT TRIES TO BLAME CRIME ON “BLOND” MAN
6) KITAKYUSHU PROF BLAMES BAD ENGLISH EDUCATION ON FOREIGNERS WHO STAY TOO LONG
7) AKITA INTERNATIONAL UNIVERSITY ADDED TO BLACKLIST
////////////////////////////////////////

Newsletter dated September 23, 2006
Freely forwardable

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

1) 2-CHANNEL’S DEFENDANT NISHIMURA “DISAPPEARS” (SHISSOU)

I updated you last week (http://www.debito.org/?p=30 ) about my lawsuit against Japan’s largest Internet BBS, 2-Channel. Although they lost a libel suit to me last January, Owner and Adminstrator Defendant Nishimura Hiroyuki still hasn’t paid the court-ordered damages, moreover has ignored another series of paperwork my lawyers have filed to enforce the decision. Full details on the lawsuit at http://www.debito.org/2channelsojou.html#english

The news is that I just heard that Nishimura, with his invisible income, numerous personal blogs and online columns, and books published by the likes of Kodansha and Asukii, has made himself invisible. Yes, he’s just plain disappeared. Witness this newspaper article (translation mine):

============== BEGINS ==================
On September 22, it was established that Nishimura Hiroyuki (29), aka “hiroyuki”, administrator and operator of giant Internet BBS “2-Channel”, has disappeared (shissou joutai). This BBS is being run by Nishimura as an individual. Even after government organs have demanded that inappropriate posts be removed, and posters have their whereabouts revealed, [Nishimura] has let these things slide and not responded to orders to appear before courts. The worst case scenario is that “2-Channel”, an emblematic site to Internet industries, may even be shut down.
=============== ENDS ===================

I don’t know in what newspaper this appeared (it looks like a screen capture from a TV news show), but it is the genuine article, and visible at http://www.debito.org/nishimuradisappears.jpg

I have also heard rumors that Nishimura was about to declare personal bankruptcy, and has a gaggle of lawsuits following him to zap any above-board income (royalties etc.) he might legally receive. However, he’ll never be able to open and register a real company. If he does resurface (if he’s even still in the country) and declare himself bankrupt, he’ll apparently even lose the right to vote.

For the record, I do not support closing 2-Channel down (it is for millions a very valuable network). I only want it to take responsibility for filling the media with irresponsible information, so bad that even Japan’s cautious courts have determined in several cases to be libelous. Continuous evasion of these responsibilities as a member of the media may mean Nishimura gets his in the end. Keep a weather eye on this story…

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

2) J TIMES: FUTURE CONFLICTS ON FOREIGN “OLDCOMERS” AND “NEWCOMERS”

Reporter Eric Johnston has done it again–another prescient scoop on what may become a pressing domestic issue in future: How a probable influx of foreign labor may cause frictions between foreigners themselves, i.e. the “Oldcomers” (the Zainichi generational foreigners) and the “Newcomers” (overseas-born immigrants, whose numbers are rising as the Zainichis’ fall). Excerpt:

============== EXCERPT BEGINS ==================
“I don’t think you’d see a level of violence between different ethnic groups that you see in other parts of the world because Japanese authorities and society would not tolerate it,” said former Tokyo Immigration Bureau chief Hidenori Sakanaka. “But it’s likely that established foreign residents would discriminate against groups of new foreigners, barring them from apartments, restaurants, or jobs.

“It’s already happening in cities like Tokyo, but it could become a much bigger problem nationwide in the future,” he said.

And newcomers facing job discrimination in particular, be it from long-term foreign residents or from Japanese, could find that groups like labor unions that have often been at the forefront of protecting the rights of foreigners may change their attitude if they begin to see foreign labor as a threat.

“I can see a large influx of foreign workers sparking opposition from Japan’s labor unions,” Sakanaka said.

“Compared to the Justice Ministry and the Ministry of Economy Trade and Industry, opposition within the Health, Labor and Welfare Ministry to large numbers of foreigners is quite strong, and much of this opposition reflects the opposition that exists in labor unions.” (Japan Times, Sept 12, 2006)
============== EXCERPT ENDS ====================

It also addresses issues such as education, discrimination, public policy, and a lingering ostrich mentality even amongst “progressive” (and Prime-Ministerial-aspiring) Dietmembers such as Kouno Taro. Blogged in full at
http://www.debito.org/?p=28

Speaking of internationalization tensions:

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

3) YOMIURI: CRACKDOWN ON FOREIGN BUSINESSES IN COUNTRYSIDE

Here’s a harbinger of future foreign entrepreneurialism:

============== EXCERPT BEGINS ==================
The Toyama prefectural government has instructed two businesses
targeting foreign residents to improve their business practices after
discovering they had disregarded the city planning law, The Yomiuri
Shimbun has learned.

The prefectural government intends to issue similar instructions for
seven other businesses in the near future. If the conditions of the
instructions are not met, the businesses will be ordered to cease
operations. If the orders are again ignored, the prefectural
government will file criminal complaints against them.

The Construction and Transport Ministry is demanding the prefecture
also investigate the about 170 such businesses in the area that are
believed to be on the edge of the law as part of a clampdown on
businesses encroaching on the countryside…

The nine businesses for which the guidance has been issued or
scheduled comprise five used-car dealerships, a mosque, a real estate
office targeting foreigners, a money exchange business and a
used-appliance store. The operators of the locations include Japanese,
Bangladeshis and Pakistanis, among others…

[And of course, the perfunctory allusion to foreign crime…]

In the neighboring areas, there are a large number of robberies,
burglaries and traffic violations committed by foreigners….

(Yomiuri Sept 13, 2006, http://www.debito.org/?p=29 )
============== EXCERPT ENDS ====================

Goes without saying, but I would expect any businessman regardless of nationality to follow Japan’s zoning laws. But based upon the number of these “shack businesses” I see springing up in the Hokkaido countryside (where our foreign population is miniscule), I can’t help but think that crackdowns and criminal procedures wouldn’t be so considered without the foreign element. Let’s hope these proceedings also target places without mosques and Russian customers…

Now for a man who really wants foreigners to come to his town–as long as it’s for the Olympics…

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

4) TOKYO GOV ISHIHARA TO RUN FOR THIRD TERM, DISSES “FOREIGNERS” AGAIN

Yes, the man who never misses an opportunity to slag somebody off (how dare the Fukuoka mayor put in an Olympic bid and compete with Tokyo, the center of the universe!) has decided to run for a third term as Tokyo Governor. Expressly so that he can shepherd his plans through for the 2016 Tokyo Olympics: Tokyo won the bid to be Japan’s champion on August 31.

That’s fine. But then Ishihara decided to punch below the belt when a critic just happened to be “foreign”:

============== EXCERPT BEGINS ==================
However, Ishihara’s trademark volatility came to the fore when Fukuoka supporter Kang Sang Jung, a professor of political science at the University of Tokyo–and a second-generation Korean born and raised in Japan–criticized Tokyo’s Olympic bid.

In his pre-vote speech, Kang provoked Ishihara’s ire by asking, “Can we win over world competitors with an Olympics of the rich, by the rich and for the rich?”

Ishihara replied in his speech, saying: “A scholar of some foreign country said earlier Tokyo has no philosophy. I do not know why.”

The governor then went on to make his displeasure clear later at a celebratory party, when he dismissed Kang as both “impudent” and an ayashigena gaikokujin (dubious foreigner).

(Asahi Sept 1, 2006, http://www.debito.org/?p=27 )
============== EXCERPT ENDS ====================

Aim high, shoot low. This caused quite a furor with human rights groups, since Ishihara promised to stop making these types of discriminatory remarks in 2000 after the firestorm wreaked by his “Sankokujin” (basically meaning “lesser-nation foreigners” in vernacular use) Speech to the Self Defense Forces (where he called for foreigner round-ups in the event of a natural disaster). For good measure, on September 15, Ishihara then talked about illegal immigration from the, quote, “sankokujin” all over again.

People have filed complaints, for what they’re worth (links in Japanese):
http://news.goo.ne.jp/news/asahi/shakai/20060916/K2006091504340.html?C=S
http://news.goo.ne.jp/news/asahi/shakai/20060920/K2006092004280.html
http://www3.to/kmj1

Can hardly wait to see how Ishihara assesses all the foreigners who come to spend money here during the Olympics… Given Japan’s overreaction to world-class sporting events, viz. the World Cup in 2002, I’m not optimistic.
http://www.debito.org/WorldCup2002.html

I’m also not all that optimistic about Ishihara getting the boot in the next election. But one can dream.

Meanwhile, the beat goes on with people blaming foreigners for their ills:

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

5) ASAHI: MURDER SUSPECT TRIES TO BLAME CRIME ON “BLOND” MAN

It’s quite a famous case up here in Hokkaido, where a kid from a broken family in Wakkanai, Japan’s northernmost city, apparently tried to get his friend to help kill his mom. It’s a pretty sad case, covered assiduously by the Wide Shows, of yet another example of Japan’s apparent decline in morals. It’s further complicated (as far as this newsletter is concerned) by the following fact:

============== EXCERPT BEGINS ==================
The victim’s son had initially told investigators that he saw a man with blond hair running away from his home, and the first-floor living room appeared to have been ransacked. Investigators suspect that the two attempted to cover up their involvement.

(Mainichi, Aug 29, 2006, http://www.debito.org/?p=32 )
============== EXCERPT ENDS ====================

Fortunately, the police saw through this. But given the NPA’s long history of targeting foreigners (got lots of links, but I’m not going to include them all in this already long-enough post), I’m happy that they didn’t jump to conclusions (especially given the often-sour relationship between Japanese seaports and disembarking Russians, which I have also catalogued in great detail in the past).

The point I’m trying to make is this: This is yet another attempt to pin Japanese crime on foreigners. It didn’t work this time, but how many crimes in Japan which are suspected to be committed by “foreigners” are thusly red-herringed? Does wonders for the foreign crime rate. And this is not alarmism–I have archived two other cases in 2004 of “gaijin nasuri tsuke”, one involving a youth gang attack, the other an indolent trucker:
http://www.debito.org/aichibikergangpatsy.html

By the way, an interesting note about this article. The original Japanese at
http://www.mainichi-msn.co.jp/shakai/jiken/news/20060829k0000e040014000c.html
does NOT mention the blond man at all. It only says that the suspect saw “an unknown man” (mishiranu otoko) running away from the house’s genkan. Well, maybe both the media and the police are becoming more careful about how they investigate things nowadays. Good.

Now, how about some specious research from our intellectual best and brightest?

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

6) KITAKYUSHU PROF BLAMES BAD ENGLISH EDUCATION ON FOREIGNERS WHO STAY TOO LONG

Professor Noriguchi Shinichiro of Kitakyushu University (whom I have on very good authority is a very progressive individual) does himself few favors, with one of those navel-gazing essays on how bad Japan’s English-language education is.

After lashing out at unqualified Japanese teachers, Noriguchi then lumps in foreign instructors as a factor–not for any qualifications they lack, but rather because of qualifications they apparently lose over time:

============== EXCERPT BEGINS ==================
In particular, native speakers who have lived in Japan for more than 10 years tend to have adapted to the system and have become ineffective as teacher–this is also partly because their English has become Japanized and is spoken to suit the ears of their Japanese students.

(Asahi, Sept 15, 2006, http://www.debito.org/?p=34 )
============== EXCERPT ENDS ====================

I see. A foreigner who is less adjusted is axiomatically more effective. Hmm. Damn those foreigners for becoming used to the system, getting their bearings, and “Japanizing” themselves. How dare they? It’s even unprofessional.

I guess we can also assume that this means we should not give permanent tenure to foreign faculty in Japanese Universities, because they have a shelf life (instead of a learning curve). It certainly is logic that would happily be used by unscrupulous university employers (I have a list of them at http://www.debito.org/blacklist.html).

This argument, by the way, is quite similar to the one used by Asahikawa University in a famous precedent-setting lawsuit called the Gwen Gallagher Case (who was fired after more than a decade of service for no longer being, quote, “fresh” enough, see http://www.debito.org/activistspage.html#ninkiseigallagher). I wonder if Noriguchi would enjoy being lumped in this kind of company.

So it’s one prof’s opinion, BFD. Unfortunately, Noriguchi’s essay appeared in one of Japan’s most influential, well-read, and prestigious columns called “Watashi no Shiten” in the Asahi.

I think he should issue a retraction. You can encourage him to do so via email at
snori@kitakyu-u.ac.jp
http://www.kitakyu-u.ac.jp/foreign/in/noriguchishinichiroin.htm

Speaking of universities:

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

7) AKITA INTERNATIONAL UNIVERSITY ADDED TO BLACKLIST

The Blacklist of Japanese Universities, a list of tertiary-educational employers who refuse to employ full-time foreign faculty on permanent-tenure terms (i.e. without contract–unlike most universities, which tenure full-time Japanese from Day One of hiring), has just gotten one addition.

It’s AIU–which has Gregory Clark as its Vice President. More on Clark at
http://www.debito.org/PALEspring2000.html
http://www.debito.org/gregoryclarkfabricates.html
http://www.debito.org/onsensclarkjtimes122599.html

It’s a bit of a surprise. Akita International University was opened a couple of years ago to offer “a radically new approach to education in Japan”–with classes entirely in English, overseas immersion, and other progressive educational strategies.

Which is sad because it seems to have lapsed back into bad old systemic habits:

==============================================
NAME OF UNIVERSITY: Akita International University (Private)
LOCATION: 193-2 Okutsubakidai, Yuwa, Tsubakigawa, Akita-City, Akita
http://www.debito.org/blacklist.html#aiu

EMPLOYMENT ABUSE: Despite wanting PhDs (or the equivalent) for faculty, AIU offers 3-year contracted positions with no mention of any possibility of tenure, plus a heavy workload (10 to 15 hours per week, which means the latter amounts to 10 koma class periods), a four-month probationary period, no retirement pay, and job evaluations of allegedly questionable aims. In other words, conditions that are in no visible way different from any other gaijin-contracting “non-international university” in Japan. Except for the lack of retirement pay.

SOURCE OF INFORMATION: Job advertisement in the Chronicle of Higher Education, dated September 2, 2006. http://chronicle.com/jobs/id.php?id=0000469416-01 (or visit http://www.debito.org/aiudata.html).

Other unofficial sources of dissent available on the Chronicle’s forums at
http://chronicle.com/forums/index.php?topic=28632.0
==============================================

There will be more additions to make to my lists (including the Rogues’ Gallery of Exclusionary Businesses) when there’s time. They’ll be on my blog first, of course. Again, to receive things in real time, subscribe at http://www.debito.org/index.php
////////////////////////////////////////

All for today. Thanks very much for reading!

Arudou Debito
Sapporo, Japan
debito@debito.org
http://www.debito.org
NEWSLETTER SEPT 23 ENDS

2ちゃんねる管理者被告西村氏は失踪状態となった様

mytest

 皆様、きのう送った2ちゃんねるのことについて追加文ですが、新聞記事によると、2ちゃんねる管理者被告西村博之氏は失踪状態になったようです。

 出典はこちらです。新聞記事の原稿は
http://019.gamushara.net/tv/data/vi5889218087.jpg
テキストを以降に書き直します。

ーーーーーーーーーーーーーーーーー
 インターネットの巨大匿名掲示板「2ちゃんねる」の管理運営者「ひろゆき」こと、西村博之氏(29)が失踪状態にあることが22日までにわかった。同掲示板は西村氏個人が管理しちえる。当局が不適切な書き込みの削除や投稿者の情報を求めようにも行方知れずで放置され、裁判所からの呼び出しにしも応じていない。ネット会社の象徴的な存在でもある「2ちゃんねる」は、最悪の場合、「掲示板閉鎖」という事態まであり得る情勢だ。
ーーーーーーーーーーーーーーーーー

 ご参考まで、宜しくお願い致します。

 2ちゃんねる名誉毀損勝訴した原告 有道 出人
http://www.debito.org/2channelsojou.html
ENDS

プレスリリース:2ちゃんねる名誉毀損勝訴アップデート(Sep 21 2006)

mytest

プレス リリース

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

2ちゃんねる訴訟 アップデート
原告 有道出人が本年1月に勝訴したものの、
被告 西村博之氏は未だに判決に従わず、
命じられた賠償未払いかつ名誉毀損文章を削除せぬ

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

原告 有道 出人(あるどう でびと)著

2006年9月21日公開 転送歓迎

目次:

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

1)経緯

2)アップデート

3)関わる論点

4)なぜこの問題について意識高揚が必要なのか

5)取材のための連絡先

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

1)経緯 

 2004年から現在まで、日本一のインターネット巨大掲示板「2ちゃんねる」(www.2ch.net) にて利用者が匿名で、原告の名義を使用して捏造した「原告のコメント」を載せました。例えば(サイトから引用):

———————

 アメリカ白人 デビッド・アルドウィンクル(米国籍) の主張:

 ● アメリカ白人の利益のためには非白人の虐殺は数十万人までは何の問題も無い。

 ● 下等国、日本では 無資格のアメリカ白人がアルドウィンクルのように英語教師の職を得て優遇されるのは当然である。

 ● アメリカ白人の利益のためには非白人に対する人種差別は ある程度 許される。

 ● 下等民族、日本人がアメリカ白人に対して差別することは、どんな些細なことでも許されない。

———————

 (注:「デビッド・アルドウィンクル」は原告が帰化する前の名称でした)

 云々。捏造文全文は http://www.debito.org/2channelsojou.html。この文章は「外国人」に関するスレッドに必ずと言って良いぐらい上記の文をそっくりコピー・ペーストされて、意図的に原告の名誉を棄損しようとしたと言えます。

その後、2004年末から2005年4月に渡り、原告と原告の弁護士は電子メールと書留郵送で2ちゃんねるの管理人と代表西村博之氏(写真はhttp://ja.wikipedia.org/wiki/西村博之)に数回も連絡して削除を頼みました。が、返事がなくそのまま放置されたスレッドはかえって多くなりました。(現在でも、googleで「アルドウィンクル」、「イラク」と「2ch」で検索すると、1000サイト以上が出ます。このサイト数を本年1月の判決日の状態と比較すれば、2倍以上増加です。)

結局、提訴しても被告西村氏は返答せず、裁判所に一切出頭せず黙殺しました。そして、2006年1月20日、北海道の岩見沢地方裁判所は平成17年(ワ)第39号で原告に名誉毀損の根拠で110万円の賠償命令を下しました。判決文よりの命令:

———————

 一、被告(2ちゃんねる管理人の西村博之氏)は原告に対し、110万円(賠償金の100万プラス弁護士費用の10万)を支払え

 一、被告は「2ちゃんねる」と題するホームページにおける判決文に載った発言目録記載の各文言を削除せよ

 一、被告は原告に対し判決文に載った発言者情報目録を出した人の情報(IPアドレス)を開示せよ

 一、第一項に限り仮に(控訴は判決日の2週間後までに)執行することができる

———————

(訴状全文はhttp://www.debito.org/2channelsojou.html#sojou)

 しかし、被告西村氏は現在に至って、一切この命令に従っていません:

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

2)アップデート

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

裁判所の判決命令を執行するために、原告の弁護士はそれぞれの申立をしました。タイムラインは以降の通りです(原告の芝池弁護士作成):

———————

2006年1月20日 原告有道は勝訴

2月3日  控訴締切 被告西村から返答なし

債権差押命令①(被告西村氏の会社の債権を差し押さえるために)

3月29日 債権差押命令申立(東京地裁)(第3債務者:東京プラス(株))

4月7日  債権差押命令

4月11日 第3債務者へ転送されず、再送達の上申書提出

4月28日 同上

7月14日 依然送達されず、債権差押命令②との兼ね合いから、取り下げた。

間接強制申立(賠償金が未納の状態、日々に賠償金が増加させるために)

4月5日  間接強制申立(岩見沢支部)

4月28日 債務者へ送達されず、再送達の上申書提出

債権差押命令②

 6月30日 債権差押命令申立(東京地裁)(第3債務者:(株)ニワンゴ)

7月20日 債権差押命令

4月11日 第3債務者からの陳述書届いた。(債務者へは送達されず)「差押に係る債権の存否なし」

———————

(全ての書類はここでご覧になります:http://www.debito.org/2channelsojou.html#updatesept06 )

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

3)関わる論点

要するに、被告西村氏は裁判所からの連絡ないし判決後それぞれの送達を全て受け取らなければ、被告の勝ちです。そして被告の貯金や債権や財産が不明であれば、判決命令を執行できないようです。(原告が自費で調べなければいけないようです。)これは日本の裁判制度にたいへん大きな問題となります。

あくまでも被告西村氏は敗訴しました。ならば被告は支払わないといけないのです。さもないと、司法府の公権力が問われます。裁判所や判決の意義すらなくなります。執行させるのは原告の責任ではなく行政府(警察庁)や司法府になるべきです。海外(例えばアメリカ)ではそうなります。判決命令を守らなければ、たいてい当裁判所は「contempt of court」(法廷侮辱罪)を決心して、地方の警察署を経て被告を逮捕します。そして被告の財産を確保して競売で販売して賠償金を集金するようです。日本はまだこの制度はありません。ならば原告の勝訴で得た権利が無効となります。

一応、法整備があります。例えば、プロバイダ責任制限法第4条は本判決文で言及されました。が、この判決で分かることは拘束力がないということのようです。

よって、多面的にかつ深刻な社会問題が発生します。メディアの読者へのお願いを、取り組んでいただけませんか。意識高揚が必要だと思います。

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

4)なぜこの問題について意識高揚が必要か

社会問題を取り組むのはマスコミの役割だと思います。犯人が放置されることは社会問題です。法を守らない人は犯罪者です。しかも裁判所が下した判決を守らない人は尚更そうです。しかし、被告西村氏は単行本等を発行し、メディア(例えば講談社:http://kodansha.cplaza.ne.jp/hiroyuki/)から注目や収入をもらえるし、被告人が所有しているそれぞれの名誉毀損を拡散しているサイトがあると裁判官さえ判断しました。これは責任を取らせることが必要で、それに強制執行制度の皆無であるのを指摘するべきであります。それを取り上げて、どこかに法整備の不足があるのかは意識高揚すると、様々なインターネット誹謗などを悩んでいる人の助けになりえると思います。

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

そして、ちょっと脱線かもしれませんが、「言論の自由に危機感があるでは?」という反論は起きえるかもしれません。この点につきましてひと事を申し上げます。2ちゃんねるのケースではその危険性がないと言えると思います。なぜなら:

一)2ちゃんねるのケースは裁判制度を通して「名誉毀損である」という結果が出ました。たいてい慎重な日本の裁判官は気軽にそうは決めません。遥かに明らかな名誉毀損だと言えます。

二)このメディアは新型です。これはインターネットなので、名誉毀損防止に関わるルールや法整備はまだ不徹底です。他のメディアは違います。印刷と放送メディアは編集部があり、株式会社として財産や債権が登録されており、名誉毀損はここまで行かなくても誰かが責任を取ります。要は、他のメディアを「掃除する」方法は既に設置してあります。

ただ、2ちゃんねるの場合、管理者は「個人」のみと登録され、匿名で風評を流布することができて、名誉毀損に至ることも強制的に削除させられません。よってこのメディアを「掃除する」方法も足りません。2004年成立された「プロバイダー責任制限法」も起動性がないのであるようです。

最後に申し上げたいのは、「2ちゃんねるを廃止させろ」とは言っておりません。色々な方にたいへん役に立っているネットワークです。ただ、「言論の自由」は「ウソをつくこと、意図的に人にキズを付けることもOK」とまで及ぼしません。管理者は本人の削除願いや裁判の賠償命令も無視ができ、更に名誉毀損が削除されなければ、金銭的に責任を取るべきです。

インターネットでの誹謗中傷は明らかに社会問題になっています。誹謗中傷に予防注射を。皆様、一緒にメディアの信用性を守りませんか。

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

5)取材のための連絡先

原告の私、有道出人まで直接ご連絡下さい。

debito@debito.org

http://www.debito.org/nihongo.html

既にコメント、感想文、全ての関連書類や判決文はここにあります:

http://www.debito.org/2channelsojou.html

但し、法律等についてのご質問の場合、私の連絡弁護士芝池俊輝(しばいけ としてる)氏までお願い致します。

 北海道合同法律事務所 (011) 231-1888 (勤)FAX 231-1785    

 email: shibaike@hg-law.jp 

宜しくお願い致します。有道 出人

September 21, 2006

PRESS RELEASE ENDS

2-CHANNEL WEBSITE LAWSUIT UPDATE Sept 14 2006

mytest

====== 2-CHANNEL WEBSITE LAWSUIT UPDATE ===========
DEFENDANT STILL REFUSES TO PAY COURT-ORDERED DAMAGES
FOR INTERNET LIBEL.
LIBELOUS STATEMENTS REMAIN ONLINE TO THIS DAY
==============================================
By Plaintiff Arudou Debito
September 14, 2006 Freely Forwardable

Table of contents:
==============================================
1) QUICK RECAP OF THE CASE
2) WHAT IS 2-CHANNEL? REFERENTIAL LINKS
3) THE ISSUE
4) THE UPDATE
5) WHY THIS DESERVES MEDIA ATTENTION
6) APOLOGIA: What of issues of free speech?
7) CONTACTS
==============================================

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1) QUICK RECAP OF THE CASE: From early 2004 onwards, anonymous poster(s) began systematically copying and pasting statements on a Japanese Internet Bulletin Board System (BBS) called “2-Channel”, Japan’s most popular website, with around one million posts and 20 million hits per day. Said statements were about Plaintiff Arudou Debito, a human rights activist in Japan. Calling him inter alia a “White Supremacist”, the posts, which were added to just about any BBS thread regarding foreigners in Japan, attributed to him by name several fabricated statements, such as “he said he supports massacres of Iraqis”, “he said he supports discrimination against non-Whites”, with the clear aim of impugning his character and damaging his credibility in his campaign for racial equality in Japan.

Repeated requests both by electronic and registered mail were made by Plaintiff and his lawyers to remove these materials from the online archive, but were completely ignored by the founder and administrator of 2-Channel, a Mr Nishimura Hiroyuki. The posts in question to this day have been left up to spread further across the Internet. After Plaintiff sued for defamation of character, Defendant ignored all court communiques, and never appeared in before the judge to offer any explanation or defense. On January 20, 2006, Hokkaido’s Iwamizawa District Court ruled in favor of Plaintiff, awarding him 1,100,000 yen in damages for negligence in the face of libel, and ordered 2-Channel to remove all the libelous posts. However, Nishimura continued to ignore court orders, forcing Plaintiff’s legal team to take further litigious steps to enforce the court decision. Update below.
///////////////////////////////////////////////////////

REFERENTIAL WEBSITES:
What is 2-Channel?
1) “Japanese get real on 2 Channel” Japan Times, February 13, 2003
http://search.japantimes.co.jp/member/member.html?nc20030213mr.htm
2) Q&A with Defendant Nishimura on USC Japan Media Review, August 22, 2003
http://www.ojr.org/japan/internet/1061505583.php
3) “Log on to the Dark Side” Time Asia, June 18, 2001
http://www.time.com/time/asia/digital/magazine/0,9754,131020,00.html
4) “Net boards venue for faceless rightists” Japan Times, March 14, 2006
http://search.japantimes.co.jp/member/member.html?appURL=nn20060314f1.html

The libelous claims made about Plaintiff Arudou, and the court’s opinion about them.
http://www.debito.org/2channelsojou.html#english
Newspaper articles on the court decision in English and Japanese
http://www.debito.org/2channelsojou.html#kiji

The damage done: Do a Google search on”Arudouinkuru”, “Iraku” (both in katakana) and “2ch” (to eliminate most genuine news sites), and you will see that as of today there are more than 1000 sites with the abovementioned libelous posts. This is around double the number of sites with the posts when the decision came down in January, which means that 2-Channel has taken no steps whatsoever to follow the court order.

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THE ISSUE: Does a media outlet, owned and run by an individual (as opposed to a corporate entity with a tax home and registered assets), have to take responsibility when anonymous users make false, damaging, and irresponsible public claims about people? The Iwamizawa District Court ruled yes. But what if the Defendant, even after losing, refuses to follow the court decision to either a) pay the damages, or b) remove the libel? This is where the case diverges from issues of “freedom of speech”, and into questions regarding the ability of Japan’s judiciary to enforce its own court decisions.

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

UPDATE: Eight months after the verdict, I can now release information about what further measures we have taken. These steps, although they have brought us no closer to getting damages from Nishimura, illustrate what legal loopholes a new media can exploit to evade responsibility, and expose the need for legislation to deal with the problem.

TIMELINE:
Jan 20, 2006: Iwamizawa District Court decision for Plaintiff Arudou.
Feb 3: Deadline passes for Defendant Nishimura to appeal; no response.
Mar 29: We file motion (saiken sashi osae moushi tate) with Tokyo District Court to seize Nishimura’s assets at his company, Tokyo Plus KK.
Apr 5: We file motion (kansetsu kyousei moushi tate) with Iwamizawa District Court to force Nishimura’s to follow the court decision, with a compounding financial penalty for every day the decision is not carried out.
Apr 7: Tokyo District Court grants motion of Mar 29.
Apr 11: Registered communiques from Tokyo District Court to Tokyo Plus KK returned unopened because nobody went to the post office to claim them. We refile motion.
Apr 28: Registered communiques from Tokyo District Court again returned unopened. (We drop motion against Tokyo Plus KK on Jul 14 to contact a different company.) Also, Apr 5 motion from Iwamizawa District Court returned unopened.
Jun 30: We file separate motion with Tokyo District Court to seize Nishimura’s assets at another one of his companies connected with 2-Channel, KK Niwango.
Jul 20: Tokyo District Court grants motion of Jun 30.
Jul 27: KK Niwango answers motion in official court statement: denies paying Nishimura any salary, therefore has no assets to seize.

(All documents will be available presently in Japanese at
http://www.debito.org/2channelsojou.html#updatesept06 )

And that’s it. Which means all Nishimura and his corporate allies have to do is ignore orders from the court (by not officially receiving them, therefore not being “served with papers”), or else deny that there is any financial connection between them, and Nishimura can avoid taking any responsibility. No police will arrest Nishimura (because this is a Civil Court case, not a violation of the Criminal Code). Also, there is no judicial oversight commission in Japan which can audit or raid the companies, or ferret out Nishimura’s bank accounts. (In fact it becomes Plaintiff’s responsibility, at his own expense, to hire a private detective–for around 500,000 yen, with no guarantee of success).

This is the route taken by Nishimura so far in the thousands of (many successful) lawsuits raised against him. If you want to sue 2-Channel, you have to sue its representative, as the company is registered to him individually. But you cannot find his assets, because they are not properly registered (like they would be for any other established non-cyberspace media outlet). He technically has no income, and only he knows his bank accounts (which may be under different names or untraceable titles). Meanwhile, Nishimura can continue to meet media, write books, make public speeches, and get away with running a venue that causes social damage judged illegal by a court. All because Japan’s court system is unempowered with the investigative mechanisms to enforce its own court rulings, or equipped with cyberspace-specific legislation to keep the media clean.

Point is: Nishimura had his day in court. He lost. Now pay up.

Now that we have exhausted all judicial means (we can only file more papers against more companies, and they answer at their whim, again with no judicial sanction), our next step is for me to bring the problem to the fore, and hope we get some media attention.

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

WHY THIS DESERVES MEDIA ATTENTION

Because this is not the only place in which Japan’s judiciary has loopholes. Civil Court decisions are often unenforced, and short of filing angry letters, the judiciary won’t get the police involved. Other cases, such as issues of child custody and support (two I know something about), are also without legal sanctions of enforcement.

However, with media attention, legislative remedies can occur. For example, in the bad old days, there was no way, say, to force a deadbeat spouse to pay child support if he kept his bank accounts secret; after some awareness raising by journalists, now there is a law which says you can force the spouse’s employer to pay alimony directly from his salary. This is what press coverage does for social problems, and I believe my case uncovers one. I will also be sending this issue to the domestic press in due course.

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

APOLOGIA:
Many readers in the media are probably wondering if my court decision constitutes some sort of threat to free speech. This I strongly doubt because for two reasons. One: Remember that this passed through a court of law. I’m sure any Japanese judge can distinguish between information based upon fact and unsubstantiated rumor motivated by malice–especially given the general cautiousness of Japanese judges. Two: Consider the nature of the media in this case–the Internet. All other media formats–print or broadcast–have editors, registered corporations, credibility-checkable sources, and people who are in charge and can take responsibility if somebody goes too far. However, with the Internet, and in particular places like anonymous Bulletin Boards, there is nobody who will take responsibility, either on the moderator’s side or on the poster’s side. Thus, with complete poster anonymity, coupled with a media which will not delete libel, irresponsible messages of some
permanence will inevitably get through and stick; there is simply no mechanism to clean things up.

What makes 2-Channel peerless in this respect is that, according to my lawyers, it has been sued repeatedly, and lost in court due to negligence. Yet 2-Channel can ignore those court decisions, refusing to pay severances, reveal IP addresses, and lets the libel stick. How? Because, again, unlike other media, 2-Channel’s assets are privately owned, secretly stashed, and thus unfreezeable should they lose in court and refuse to pay. Which means Japan’s “Provider Responsibility Guidelines Law”, mentioned in the court decision, is unenforceable.

In sum, winning against 2-Channel will not affect other, more responsible media, because other media has mechanisms in place to ensure it never goes as far.

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

CONTACTS
My lawyer, SHIBA-IKE Toshiteru can be contacted at shibaike@hg-law.jp
(He speaks, reads, and writes English)
Phone number Sapporo (011) 231-1888, Fax (011) 231-1785
My email, as always: debito@debito.org

Thanks for reading. Arudou Debito in Sapporo, Japan
debito@debito.org
http://www.debito.org
September 14, 2006
ENDS

DEBITO.ORG NEWSLETTER OF SEPT 10, 2006

mytest

Arudou Debito in Sapporo here. Welcome back from summer break, everyone. Got quite a backlog of articles for this newsletter.

Let me briefly open with my summer break: Two weeks cycling 940 kms (Sapporo to Wakkanai to Abashiri), averaging around 100 kms a day, and a trip average of 16.9 kms an hour, on a mountain bike. Friend Chris accompanied me for the entire trip, and he’ll soon have a site up with a report and photos. And yes, I as usual lost no weight on this cycletrek (my third, see my first at http://www.debito.org/residentspage.html#cycletreks), but I feel great, and wish I lived in a climate with no winter so I could do this all year round.

On to the updates. As I said, there’s a backlog, so apologies if you have seen some of these articles before:

////////////////////////////////////////////////////////
1) PROGRESS ON “JAPANESE ONLY” ESTABLISHMENTS
2) YOU TUBE: “JAPAN DOESN’T LIKE YOU!” VIDEO ON EXCLUSIONARY SIGNS
3) NEWSWEEK JAPAN ON NATURALIZATION IN JAPAN
4) METROPOLIS: DIETMEMBER TSURUNEN MARUTEI
5) ASAHI: RACIALLY-MOTIVATED BULLYING FUKUOKA COURT CASE RULES FOR VICTIM
6) SF CHRONICLE: CHILD CUSTODY IN JAPAN IS NOT BASED ON RULES
7) KYODO: NEW “FOREIGN CRIME” CAMPAIGN HITS SNAG: DISSENT
8) CALLING ALL NATURALIZED CITIZENS: NEW BOOK FORTHCOMING
… and finally… NEW DEBITO.ORG BLOG
////////////////////////////////////////////////////////

September 10, 2006, Freely forwardable.
Full text of all articles below blogged at
http://www.debito.org/index.php

1) PROGRESS ON “JAPANESE ONLY” ESTABLISHMENTS

The reason I opened with our cycletrek is to segue nicely into this topic: Upon reaching northern cities Wakkanai and Monbetsu, Chris and I did the rounds of “Japanese Only” signs on public establishments. Photo archive, eyewitness reports, and links to newspaper articles international and domestic available at:
http://www.debito.org/roguesgallery.html#Wakkanai
http://www.debito.org/roguesgallery.html#Monbetsu

WAKKANAI
Chris and I went by public bath “Yuransen”. An egregious entry in this gallery, Yuransen for years has violated the Public Bath Law to refuse all foreigners (including foreign taxpayers) entry. Then it built a separate “gaijin bath” with separate entry and separate prices (2500 yen, six times the entry fee of 370 yen, and without male and female sections). This attracted international attention, even making the New York Times in April 2004:
http://www.debito.org/iht042304.html

Well, guess what. Yuransen went bankrupt in March 2006. So much for its claim that letting foreigners in would drive them out of business. Meanwhile, its rival onsen some miles away, Doumu, does a brisk trade. And it has never refused foreigners. Does anyone else see a lesson here? Current photo of Yuransen’s storefront at the above Rogues’ Gallery link.

MONBETSU
has also had “Japanese Only Store” signs up since the previous century. Despite demands from the Ministry of Justice for them to be taken down in July 2000, some signs (we counted four) are still up to the present day, with the city government turning a blind eye to repeated requests and petitions for resolution.

Well, Chris and I dropped by a yakiniku restaurant and got the manager to take one of the signs down. It took less than a minute! Photos up soon at the Rogues’ Gallery. Bonus: if you’d like to hear me in action negotiating the sign down, courtesy of Chris’s mp3 player/recorder, download a soundfile at

Best part: Hear me stuttering in surprise at how easy it was, and Chris giggling at the very end.

Y’know, we’re going to win this battle. Not least because this issue has legs:

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2) YOU TUBE: “JAPAN DOESN’T LIKE YOU!” VIDEO ON EXCLUSIONARY SIGNS

In a similar vein, somebody has been filching photos from the Rogues’ Gallery, to create a YouTube photo gallery entitled “Do you like Japan? Japan doesn’t like you!” Japanese national anthem included. A two-minute vid, it has been viewed as of this writing about 25,000 times, with more than 700 comments, and the dubious honor of being one of the top ten most accessed “Travel and Places” videos in YouTube history.

http://www.youtube.com/watch?v=xCeK0Trz9E0&mode=related&search

And before you ask: No, I didn’t have any part in creating this video, and knew nothing about it until a friend notified me a few weeks ago.

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3) NEWSWEEK JAPAN ON JAPAN NATURALIZATION

Newsweek Japan this week has two articles (English and Japanese each) entitled “The New Face of Japan–Foreigners are not only coming–They’re staying”. Friends Kaoru and Kiichi (formerly Coal and Jayasinghi), are featured on the very cover. Get a copy of both issues quickly while they’re still on the newsstands!

For those who cannot, text at
http://www.msnbc.msn.com/id/14640269/site/newsweek/

Excerpt (included not because it quotes me, but because it luckily encapsulates the spirit of the article nicely):

———ARTICLE EXCERPT BEGINS———————
Meanwhile, so-called permanent residents–foreign born people who have chosen to live in Japan for the long term–are steadily growing. “It shows that immigrants, not generational foreigners, are now becoming the more common permanent residents in Japan, meaning they’re not going to leave,” says human-rights activist Debito Arudou, a former American turned Japanese citizen. “I used to say half of the foreigners in Japan were born here. Now it’s more like a quarter.”

And the fundamental consequence, says Arudou, is clear. “We’re going to see people who don’t look Japanese being Japanese. That’s undeniable.”
———ARTICLE EXCERPT ENDS———————–

(NB: Those who would like to see some substantiation for this sea change in Permanent Residency, see my essay on this last January at http://www.debito.org/japanfocus011206.html )

A couple of quick corrections to the article, if I may: The figure of 15,000 people cited as the total number ofnaturalized people in Japan is the rough estimate of the YEARLY intake of naturalized citizens. According to the Minister of Justice, around 300,000 foreigners (mostly the Zainichis) took citizenship between 1968 and 2000. Update the number by 15K per year and you’re closing in on 400,000 newly-minted Japanese of diverse ethnic backgrounds.

And former Finn Tsurunen Marutei is not the only naturalized Japanese in the Diet. As friend Chris pointed out, “Renho, formerly of Taiwanese nationality, and Shinkun Park, formerly of Korean nationality, are two other naturalized Dietmembers.”
http://www.renho.jp/
http://www.haku-s.net/index.html

Newsweek has told me they will be issuing corrections in short order. Speaking of Tsurunen:

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4) METROPOLIS: DIETMEMBER TSURUNEN MARUTEI

Reporter friend Oscar did a bang-up job of an article on Tsurunen for Metropolis Magazine last August. Article available at
http://www.crisscross.com/jp/newsmaker/345

Soon up for re-election, Tsurunen gives his views on Yasukuni, foreign crime, assimilation, education, nationalism, and constitutional changes. Highlight:

———ARTICLE EXCERPT BEGINS———————
Tsurunen’s more than 30 years of naturalized citizenship–if not books he’s penned in Japanese with titles such as “I Want to be a Japanese,” “Here Comes a Blue-Eyed Assemblyman” and “Blue-Eyed Diet Member Not Yet Born”–speak to his vested interest in foreigner acceptance. But he’s no longer as optimistic as when he took office in 2002.

“Well, it is still my goal–or wish [to get suffrage for foreigners]–but I’m not sure I have been able to do much. For example, I am for the right of permanent foreign residents to vote,” he says of a bill now on ice that would allow them to do so in local elections. “But our party is not united on this issue. Last year, I was the leader of a committee that dealt with the issue of accepting more foreign laborers and we made some progress. But I’m not sure if it’s the best solution now. Japanese people are not ready to live with foreigners. There will be problems such as discrimination. We have some cities where 10% of the population is foreign and they already have these kinds of problems.”… “For foreigners this is not a very friendly country–it can be very cold. I’m one of the lucky ones.”
———ARTICLE EXCERPT ENDS———————–

COMMENT: I’ve met Tsurunen on several occasions, even had a chance to talk to him one-on-one (see my October 2003 interview with him at http://www.debito.org/tsuruneninterview.html ). I personally like the guy. I also understand that he’s trying to make his mark as a politician trumpeting more than just ethnic-rights issues (one of his biggest policy pushes is for recycling), and as a politician, he’s not in a position to please everybody.

However, I have qualms about the degree of his distancing. For example, when UN Special Rapporteur Doudou Diene came to Japan for a second time, talking about racial discrimination and the need for legislation to combat it (see http://www.debito.org/rapporteur.html ), Diene attended a 2PM meeting at the Diet’s Upper House on May 18, 2006. A few Dietmembers attended, and some of their offices sent secretaries to at least leave their office’s meishi business card behind as a sign of awareness or interest. Tsurunen’s office did neither. I find this deeply disappointing. This is, after all, a meeting with the United Nations–and on foreigner and ethnic issues. If Tsurunen’s office can overlook this, what kind of example does this set for the rest of Japan’s politicians?

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5) ASAHI: IJIME CASE IN FUKUOKA RULES IN FAVOR OF VICTIM

Elephant-minded readers of Japan’s media might remember the “Pinocchio” Case of 2003–where a grade-school teacher had a “thing” about the mixed racial background of a child in his class. He would pull on the boy’s nose until it bled, calling him “Pinocchio”, do the same thing with his ears with a “Mickey Mouse”, and devise all sorts of public punishments (even demanding he die for having “stained blood” (chi ga kegareta)) until the child became mentally unstable.

On July 28, 2006, Fukuoka District Court ruled positively that the PTSD the boy suffered deserved compensation–awarding 2.2 million yen (continuing to push up the “market value” of racial discrimination lawsuits from the generally-accepted 1 million yen or so).
Full report at
http://www.asahi.com/english/Herald-asahi/TKY200607290180.html
Original Japanese at
http://www.asahi.com/edu/news/SEB200607280015.html

The downside to this case is that the teacher only received a suspension from teaching for six months, and is now back on the job with full responsibilities. The man deserves, in my view, incarceration, if not institutionalization.

Moreover, this is not the first case of racially-motivated power harassment between teacher and student I am aware of by any means. I will soon be reporting on a future Kawasaki court decision regarding a Chinese-Japanese in similar straits. For now, info site at http://www.debito.org/kawasakiminzokusabetsu.htm (Japanese).

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6) SF CHRONICLE: “CHILD CUSTODY IN JAPAN ISN’T BASED ON RULES”

Friend and legal expert Colin has done an excellent article in the San Francisco Chronicle on another one of my hobby horses: Child custody after divorce in Japan, the weakness of courts to enforce their own decisions, and the “Who dares, wins” attitude behind many of the officially-mediated battles.
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2006/08/27/INGD3KO4C71.DTL

———ARTICLE EXCERPT BEGINS———————
Imagine discovering you have been living in an artificial world with rules designed to mask a terrible reality. This is, of course, the premise of “The Matrix,” but it is also an analogy I use to explain child custody and visitation in Japan, a subject in which I do research (and have had personal experience). Japan’s family courts have rules and procedures that hide a sad truth: They are powerless to protect the parent-child relationship when a divorce turns hostile… Child custody litigation is always sad, but particularly so in Japan. For starters, there is, quite literally, no law…

Those who seek cultural (as opposed to institutional) explanations for this state of affairs should be wary. In a recent book in Japanese on visitation, a widely published expert on family problems explained why visitation was different in Japan than in the United States or Europe. The book said Japan is a Confucian society where children are important for continuing the bloodline (but only within marriage), while Western countries had gun cultures, long histories of incest, and frequent cases of parents abducting, raping and even killing their children.
———ARTICLE EXCERPT ENDS———————–

Colin also talks about about the dynamic behind judicial decisionmaking–where judges who don’t toe the official current in their decisions are denied promotion and reappointment. It adds up to a horrifying state of affairs where children (especially those in international or intercontinental divorces) are the big losers, being technically kidnapped by one parent to Japan with no recourse whatsoever.

Fortunately, this issue is finally gaining some attention internationally. See report at Children’s Rights Network Japan about a recent protest at a Los Angeles film screening on the “Megumi Yokota Story”, drawing (stretched, but effective) comparisons between kidnappings to North Korea and child kidnappings to Japan:
http://www.crnjapan.com/events/2006/en/megumiyokotaprotest.html

A primer on this issue available from the Japan Times at:
http://search.japantimes.co.jp/cgi-bin/fl20060718z1.html

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7) KYODO: NEW “FOREIGN CRIME” CAMPAIGN HITS SNAG: DISSENT

You may have seen on the news a new slew of programs on “foreigner crime”. It’s periodical. The National Police Agency spoon-feeds the media every six months or so with new “foreigner crime” statistics, and special “tokushuu” shows doubling as public-service announcements appraise the public on how to avoid becoming victims of hordes of foreign criminals.

Some historical examples of how the NPA has finagled statistics and manufactured crime waves at
http://www.debito.org/japantimes100402.html
http://www.debito.org/opportunism.html
http://www.debito.org/foreigncrimeputsch.html
http://www.debito.org/TheCommunity/ihtasahi121502.html
http://www.debito.org/japantimes033004.html
http://www.debito.org/NPAracialprofiling.html
http://www.debito.org/TheCommunity/communityissues.html#police

This time around, however, there’s been a snag–in that “Chinese Criminal DNA” proponent Tokyo Governor Ishihara’s former deputy chief has even come forward to call all the grandstanding an exaggeration.

The text of the article available on my blog (no other extant link available) at

Aug 24, 2006 Kyodo: “Ex-deputy of Tokyo Gov. Ishihara cries foul over ‘safe town’ campaign”

———ARTICLE EXCERPT BEGINS———————
Hiroshi Kubo, who released a book titled ”Is Public Safety Really Deteriorating?” in June, said such measures could make people excessively wary, encourage prejudice against foreigners and benefit those in authority like the police…

Some analysts say these concerns are entirely reasonable and have urged authorities to work harder to get rid of factors threatening public order, such as the widening income disparity, instead of simply telling people to brace themselves for possible crimes.

Kubo, 59, was a senior bureaucrat in the Tokyo government. He led various crime prevention projects as a division chief in charge of public safety in the governor’s headquarters from August 2003 to March 2005, when he quit the municipality.

Kubo said he felt ”embarrassed” when he involved himself in or led projects he said were aimed at prompting people to think the community was becoming more and more dangerous and to rely on the authorities, especially the police, to deal with the situation.
———ARTICLE EXCERPT ENDS———————–

Finally, a voice of reason, even at the top…

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8) NEW BOOK ON NATURALIZED CITIZENS FORTHCOMING

Calling all naturalized Japanese readers:

Naturalized Chinese-Japanese Professor U Hoden, of Japan Women’s University, and myself will be collaborating on a new book over the next few months. We aim to feature the views of life in Japan from a “newcomer citizen” perspective, with essays in Japanese from those who have naturalized. This will be in their own words. We have a basic outline of questions ready, so if anyone is interested (Kaoru, Kiichi?), please let me know at debito@debito.org.

Meanwhile, my friend and I have just finished the fourth draft of our new GUIDEBOOK TO LIFE IN JAPAN, which we think should be coming out in the next six months or so. More on that later…

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

And finally, let me announce here my new blog at debito.org, to more easily archive these newsletters. Go to
http://www.debito.org/index.php
to see what’s going out. There is also RSS capability, for those who want to sign up for reports in real time, before I collate into an update. I’m still getting used to the technology, but I hope you like what you see.

As always, thanks for reading, and welcome back for what promises to be an eventful autumn!
Arudou Debito
Sapporo, Japan
debito@debito.org
http://www.debito.org
Sept 10, 2006
NEWSLETTER ENDS

SF CHRONICLE Aug 27 2006: “Child custody in Japan isn’t based on news””

mytest

Child custody in Japan isn’t based on rules

-By Colin P.A. Jones

San Francisco Chronicle, Sunday, August 27, 2006

[COMMENT AT VERY BOTTOM]

Imagine discovering you have been living in an artificial world with rules designed to mask a terrible reality. This is, of course, the premise of “The Matrix,” but it is also an analogy I use to explain child custody and visitation in Japan, a subject in which I do research (and have had personal experience). Japan’s family courts have rules and procedures that hide a sad truth: They are powerless to protect the parent-child relationship when a divorce turns hostile.

Take the case of Samuel Lui, whose Japanese wife took their 2-year-old son from California to Japan in violation of a California court order that gave him custody. The validity of his U.S. custody order was confirmed by Japan’s Supreme Court, yet his wife remained in control of the child. In the meantime, he had to file proceedings in the Osaka Family Court just to seek visitation with the child who was supposed to be living with him in California.

By this time, his wife had thoroughly poisoned the child against him, and he ultimately had to agree to a mediated settlement whereby he gave up custody in exchange for limited (and unenforceable) visitation.

Child custody litigation is always sad, but particularly so in Japan. For starters, there is, quite literally, no law. A couple of articles in the Japanese Civil Code give Japan’s judges the authority to decide custody in divorce cases based on the best interests of the child. But there are virtually no provisions expressing what those interests are (California’s Family Code, by comparison, states clearly that best interests of a child involve frequent and continuous contact with both parents regardless of their marital situation).

Visitation, a matter of course in most U.S. divorces, is in Japan a vaguely defined notion created by judicial precedent and only sometimes described as a right. In reality, both custody and visitation are effectively administrative decisions made at the discretion of judges and untrained mediators, some of whom may even regard visitation as harmful to children.

The judges are part of an elite bureaucracy. Chosen from a small minority of those who have passed one of the most difficult exams in the world, the Japanese bar (which until recently had a pass rate of 3 percent), judges usually enter the judiciary in their 20s and spend their careers in a variety of postings around the country, often living in government housing, isolated from the rest of society.

A judge’s postings reflect the progress of his or her career, which depends on annual reviews. Well-rated judges will end up in higher courts or become part of the judicial administrative apparatus.

While the criteria used by the judiciary in evaluating its members are not public, efficient docket-clearing is an important factor. So, it seems, is not embarrassing the judiciary as an institution.

In one recent case, a judge who wrote a popular book criticizing the excessive length of some judicial opinions was denied reappointment. The reason? His opinions were too short.

Disfavored judges may end up spending most of their time in lower courts outside of Tokyo or other major cities, or in family court, where excessive tenure may be a sign of a stalled career.

While some judges may seek out such postings, others may have joined the judiciary expecting to preside over cases of national importance rather than resolving marital bickering. Thus, other factors may be at work when the best interests of a child are adjudicated.

Because docket clearing is one of these factors, a judge may be too busy to participate in the mediation proceedings that by law must precede divorce and custody litigation in Japan.

If the mediation is deemed unsuccessful, however, the judge may issue a judgment based primarily on the recommendation of the mediators and a family court investigator (another employee of the judicial bureaucracy). A parent may thus lose custody and be denied virtually all meaningful parental rights in proceedings where the judge has barely heard the parties speak and has never seen the child in question.

Custody and visitation decisions also present the judiciary with a problem from the standpoint of preserving its status because they are generally unenforceable.

The Web site of the U.S. State Department Office of Children’s Issues warns that compliance with Japanese family court orders is essentially voluntary. Police rarely get involved in family disputes and courts do not have marshals who can enforce compliance.

The penalty for violating a family court order is at most a fine of less than $1,000. There are other remedies, but they also have limited efficacy, particularly against a party with limited financial resources or who cannot be located.

I interviewed one mother whose attempts to enforce visitation were thwarted when her ex-husband simply hung up the phone on the court officer who had been trying to persuade him to comply. “There is nothing more we can do,” the bureaucrat explained, apologetically.

From the standpoint of resolving cases without exposing the judiciary’s weakness, it is small wonder that family courts so often seem to find the status quo to be in the best interests of the child, particularly when it comes to visitation.

If this means no visitation when one parent refuses to cooperate, then it is often denied or terminated. If the child is too young, visitation may be detrimental. If the child is going through puberty, visitation might be upsetting. If the parents cannot get along, then it would be bad for the child to be exposed to their fighting (though courts do not seem to care about such exposure within a marriage).

If Dad buys too many expensive presents for the children, then that, too, is potential grounds for termination of visitation.

It doesn’t seem to take much for Dad to become optional: One man (who has become a fathers’ rights activist) saw his visitation terminated by the court because his ex-wife said thinking about the visits made her physically ill.

Fathers who insist on their rights may be told by family court mediators, “Children don’t need a father all the way to age 18.”

Those who seek cultural (as opposed to institutional) explanations for this state of affairs should be wary. In a recent book in Japanese on visitation, a widely published expert on family problems explained why visitation was different in Japan than in the United States or Europe.

The book said Japan is a Confucian society where children are important for continuing the bloodline (but only within marriage), while Western countries had gun cultures, long histories of incest, and frequent cases of parents abducting, raping and even killing their children.

Whatever the explanation, the sad dynamics of custody litigation can lead to a vicious downward spiral. If a wife moves out of the home with the children and files for divorce (most divorces in Japan are initiated by women), she might be inclined to allow visitation.

However, her lawyer is likely to recommend against it, seeing it as a potential opportunity for the father (or hostile ex-in-laws) to take possession of the children. The courts may be unable to intervene and the woman could lose custody.

Some lawyers actually recommend against visitation until the divorce is final — which may take months or years because of the mandatory mediation.

Nor will a family court want to order visitation if it might result in a new status quo it cannot remedy but will surely be blamed for. After months of not seeing his children, the father may come to view abduction as the only way of preserving their relationship. In a recent case, a former judge was arrested for abducting his own daughter.

One Japanese mother I interviewed had a custody order affirmed all the way up to Japan’s Supreme Court. Her ex-husband still has their son despite years of litigation. Since she lost almost all contact with the child when he was 1 year old, she hopes to have at least enough contact that he will remember his mother’s face.

Sadly, Japan’s courts cannot seem to help realize even this meager hope.

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Colin P.A. Jones is an associate professor at Doshisha University Law School in Kyoto. Contact us at insight@sfchronicle.com.

Page E – 3

URL: http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2006/08/27/INGD3KO4C71.DTL

COMMENT: Fortunately, this issue is finally gaining some attention internationally. See report at Children’s Rights Network Japan about a recent protest at a Los Angeles film screening on the “Megumi Yokota Story”, drawing (stretched, but effective) comparisons between kidnappings to North Korea and child kidnappings to Japan:

http://www.crnjapan.com/events/2006/en/megumiyokotaprotest.html

A primer on this issue available from the Japan Times at:

http://search.japantimes.co.jp/cgi-bin/fl20060718z1.html

end

ASAHI Jul 29 06: RACIALLY-MOTIVATED BULLYING FUKUOKA COURT CASE RULES FOR VICTIM

mytest

Elephant-minded readers of Japan’s media might remember the “Pinocchio” Case of 2003–where a grade-school teacher had a “thing” about the mixed racial background of a child in his class. He would pull on the boy’s nose until it bled, calling him “Pinocchio”, do the same thing with his ears with a “Mickey Mouse”, and devise all sorts of public punishments (even demanding he die for having “stained blood” (chi ga kegareta)) until the child became mentally unstable.

On July 28, 2006, Fukuoka District Court ruled positively that the PTSD the boy suffered deserved compensation–awarding 2.2 million yen (continuing to push up the “market value” of racial discrimination lawsuits from the generally-accepted 1 million yen or so).
Full report at
http://www.asahi.com/english/Herald-asahi/TKY200607290180.html
Original Japanese at
http://www.asahi.com/edu/news/SEB200607280015.html

The downside to this case is that the teacher only received a suspension from teaching for six months, and is now back on the job with full responsibilities. The man deserves, in my view, incarceration, if not institutionalization.

Moreover, this is not the first case of racially-motivated power harassment between teacher and student I am aware of by any means. I will soon be reporting on a future Kawasaki court decision regarding a Chinese-Japanese in similar straits. For now, info site at http://www.debito.org/kawasakiminzokusabetsu.htm (Japanese).

ARTICLES
City told to pay for teacher’s bullying
07/29/2006
http://www.asahi.com/english/Herald-asahi/TKY200607290180.html
THE ASAHI SHIMBUN
FUKUOKA–The district court here Friday ordered the city government to pay 2.2 million yen in compensation to the family of a boy who was bullied by his teacher at a municipal elementary school in 2003.

According to the Fukuoka District Court ruling, the teacher, now 49, repeatedly tormented the boy, who was then in his fourth-grade class, after learning the child had “mixed blood” because his great-grandparent was American.

The boy’s parents had demanded a total of 58 million yen in compensation from both the city and the teacher, saying their son, now 12, suffered from serious post-traumatic stress disorder as a result of the bullying.

But Presiding Judge Sumio Nojiri ruled that although the teacher’s continued harassment had caused the boy to suffer, he could not be made to pay under the State Redress Law.

The legislation stipulates that “when a public servant on duty illegally inflicts damage to others, the public organization that employs the individual must shoulder responsibility for payment of compensation.”

According to the ruling, the teacher was visiting the boy’s home on May 12, 2003, when he learned the student’s great-grandfather is American. At the time he said, “The boy’s blood is mixed, isn’t it?”

From then on, the teacher repeatedly harassed the boy at school and singled him out to follow orders other students were not subjected to. For example, he would often give the boy just 10 seconds to gather his belongings before leaving school. If the boy failed, he was made to choose from one of five punishments.

They included pulling on the boy’s cheeks, an action known as anpanman, for a popular Japanese character with a large face, or the “Mickey Mouse” punishment, which involved pulling the boy’s ears.

He also regularly dumped the boy’s school bag and other belongings into the classroom trash can.

The teacher also was found to have made discriminatory remarks to the boy, like: “As your blood is mixed with that of a foreigner, it is stained,” and, “Those who have stained blood are not qualified to live. Die immediately.”

The Fukuoka city board of education began investigating the case after the bullying first came to light and upheld the family’s claims.

Although the teacher disputed the findings and lodged a complaint with the city’s personnel affairs committee, he was handed a six-month suspension in August 2003.

He returned to full teaching duties in April this year.(IHT/Asahi: July 29,2006)
ENGLISH ARTICLE ENDS

——————————–
児童いじめ、福岡市に賠償命令 教諭への請求は棄却
朝日新聞 2006年07月28日13時34分
http://www.asahi.com/edu/news/SEB200607280015.html
 福岡市西区の市立小学校で03年、担任の男性教諭から体罰や「血がけがれている」など差別的な発言を繰り返し受け重い心的外傷後ストレス障害(PTSD)になったとして、当時小学校4年の男子(12)と両親が、教諭(49)と市を相手取り総額約5800万円の損害賠償を求めた訴訟の判決が28日、福岡地裁であった。野尻純夫裁判長は教諭が暴力をふるったことを認定し、220万円を賠償するよう市に命じた。

 原告側は教諭個人にも賠償責任があると訴えていたが、判決は「公務員が職務上違法に他人に損害を加えたときは公共団体が賠償責任を負う」とする国家賠償法に基づき、訴えを退けた。

 訴えによると、教諭は03年5月12日、男子宅を家庭訪問した際、母親から男子の曽祖父が米国人だと知らされ、「血が混じっているんですね」などと発言。翌日から、男子に10秒以内に荷物を片づけるよう命じ、できないとほおを強く引っ張る「アンパンマン」、耳を引っ張って体を持ち上げる「ミッキーマウス」など五つの「刑」から一つを選ばせて体罰を実行したり、ランドセルなど学習用具をごみ箱に捨てたりするなどのいじめを集中して繰り返すようになったとされる。

 体罰以外にも「外国人の血が混じっているので血がけがれている」「血がけがれた人間は生きている資格がない。早く死ね」など差別的な発言を繰り返したという。

 問題発覚後、同市教委は教諭ら関係者を調査。一部の体罰や差別発言を事実と認定し、同年8月、教諭を停職6カ月の懲戒処分とした。
JAPANESE ARTICLE ENDS