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