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Tuesday, February 07, 2006

Rapid-deportation policy draws flak

Asahi Shimbun

When two Kurdish teenagers in Saitama Prefecture were turned down for refugee status in late January, they hoped to take their cases to court--a right guaranteed by the Constitution.

Instead, that same day, they were given two plane tickets, taken to the airport and put onto a flight to Turkey. Officials threatened to tie them up if they resisted.

The case is the second confirmed instance of the controversial new rapid-deportation policy of the Justice Ministry's Immigration Bureau.

Under the new approach, some asylum seekers are deported immediately following the rejection of their refugee applications, giving them no time to appeal in court.

Legal experts say this violates foreigners' constitutional right to trial.

The Kurdish teenagers came to Japan in 2002 and 2004, respectively. They applied for refugee status in 2004, arguing they could be persecuted in Turkey because of their Kurdish ethnicity.

In September 2005, the Justice Ministry turned down their applications and detained them at an immigration facility in Ibaraki Prefecture. They then filed a legal appeal of the decision with the ministry.

Then in late January they were told their appeal had been rejected, too.

Surprisingly, ministry officials had their plane tickets in hand, and shipped the pair back to Turkey that same day.

Officials threatened to tie up the teenagers in blankets if they resisted, according to their lawyer, Takeshi Ohashi.

"The ministry apparently withheld notifying (the pair) that their appeals had been rejected until it had completed legal steps and arranged the flight to Turkey, in an attempt to block them from filing lawsuits that could take a couple of years," Ohashi said.

"The move obviously infringed on their constitutional right to receive a trial here," Ohashi said.

He fears rapid deportation will become the norm, and says his clients will file for damages from the government.

The ministry has recently been cracking down on visaless foreigners, in accordance with Prime Minister Junichiro Koizumi's 2003 campaign pledge to halve their number from 250,000 within five years.

A similar case occurred in January 2005, when eight Bangladeshi men were deported the day their ministry applications were rejected.

The eight, now in their late 30s and 40s, came to Japan in toward the end of the 1980s.

After working in Tokyo for more than a decade without valid visas, they finally decided in 2004 to apply for special permission from the justice minister to stay in Japan, a last resort for foreigners who have overstayed their visas.

In the early morning of Jan. 21, 2005, they were told at Tokyo's immigration detention facility that their applications had been rejected.

Within the hour, they were handcuffed, packed into two buses, driven to Narita Airport and put on a flight to Bangladesh, their lawyers said.

Six of them plan to file damages suits with the Tokyo District Court this month, asking for 3 million yen each for violation of their right to trial, and unnecessary physical restraint during the deportation process.

The six had wanted to file administrative litigation before their deportation, their lawyers say, but had no time because of what they call the "cruel" and "sneaky" move.

In 2005, a revision to the Administrative Litigation Law extended the statute of limitations for filing that kind of suit from three to six months from the time of the original decision.

The revision was made to "properly secure the opportunities for Japanese people to restore their rights or interests" should those be damaged by government actions.

But Immigration Bureau officials apparently believe that those rights do not apply to foreign nationals.

"(We) cannot allow foreigners who have overstayed their visas to remain in Japan for such a long period, even if they plan to file litigation," said a senior official of the bureau's enforcement division.

"We do not believe we violated foreigners' rights to file lawsuits," the official added. "They could have prepared for filing lawsuits before they were notified of the ministry's rejection of their application, or consulted their lawyers within the day."

But their lawyers say some clients did indeed ask to talk to their lawyers, but were refused.

They also argue that preparing for litigation beforehand is impossible because the time and result of the decision are unpredictable.

Wednesday, February 01, 2006

Man loses racial discrimination suit against shop

The Japan Times

OSAKA -- In a case that human rights lawyers and activists worry could condone racial discrimination against foreigners by Japanese businesses, the Osaka District Court rejected a lawsuit Monday that was filed by a black American man who was denied entry to a store apparently due to his color.

Steve McGowan, 41, a resident of Kyoto Prefecture, filed the 1.5 million yen suit after he was denied entry in September 2004 to a store in Osaka Prefecture that sells eyeglasses. He claimed the owner shouted at him to leave and told him he hated black people.

But presiding Judge Yoshifumi Saga ruled that, while it was inappropriate for McGowan to have been asked to leave, there was no evidence the store owner had made discriminating remarks against blacks and said it was questionable whether McGowan had understood what the owner had said.

The court noted that the plaintiff claimed he was told to get out and not to touch the door or show window, but added that neither the plaintiff nor his friend were in the shop at the time, so there was no reason they would have been told to "get out."

"There are doubts about the plaintiff's Japanese ability. . . . and the defendant himself has said he recognizes he has limited freedom in Japanese," the court said. "Therefore, testimony from the plaintiff about what the defendant said can't be trusted."

In a news conference immediately following the ruling, a visibly shocked McGowan warned that a dangerous precedent was being set.

"Today I felt as if I was not in Japan, but in the Alabama of the 1950s. I've been made to feel less than human, like an animal," said McGowan, choking back tears. "This case was not just about me. With this ruling, the judge has given store owners the right to discriminate based on color."

Masao Niwa, a human rights attorney and lead lawyer for McGowan's legal team, expressed disbelief that the court failed to address the most basic issue of all.

"Nowhere does the ruling attempt to answer the question of why he was refused," Niwa said. "This decision is extremely unfair."

That question was also on the minds of rights activists who warned the ruling was tantamount to condoning "commercial apartheid" against foreigners.

"The judge missed the point," Sapporo-based activist Debito Arudou said after the ruling. "The issue is not, 'Did Steve understand properly why he was being refused?' The issue is, 'Why did the shop refuse Steve entry?' "

"Now public-space shops can act like private clubs, refusing anyone they don't like, especially foreigners," Arudou said. "Shops can just claim, 'There was a misunderstanding -- because of his Japanese abilities.' "

McGowan said he will decide whether to appeal in a few days.

Thursday, January 19, 2006

Inoguchi: Gender equality needed to increase birthrate

Japan must act now to encourage parents to have kids: minister
Wed Jan 18, 2005

Women may have made inroads in corporate Japan since the days they were expected to serve tea and look for husbands, but much more must be done to reverse a falling birthrate, the woman tackling the problem says.

Japan should improve gender equality to let people enjoy both family and work lives and stop the population from shrinking further, according to minister Kuniko Inoguchi.

Some 70 percent of working women quit their jobs after their first pregnancy as they face difficulties balancing their homes and careers, while young people shun having children due to economic worries, she said.

"Japan is a resource-poor country and human resources are the only treasure we have here on this land," Inoguchi told AFP in an interview.

"Every child that wants to be born in this land must be given the opportunity to be born," she said. "Many young people willing to get married and have a family are deterred from making this decision."

"You shouldn't be asked, if you are born in an affluent democracy, that you can only have work or life," she said.

"I believe Japan is rich enough, affluent enough to provide citizens with both goals."

Inoguchi, a 53-year-old expert on international politics and security, was first elected to parliament with backing from Prime Minister Junichiro Koizumi's Liberal Democratic Party last September.

A mother of twin daughters, Japan's former ambassador for disarmament was appointed to be the nation's first minister primarily tasked with addressing the falling birthrate.

Japan has come a long way from just a few decades ago, when women were referred to as "flowers" in the office who would find husbands and leave.

But Inoguchi said Japan also needed to focus on women who have left the workforce and who take care of children without the help of husbands toiling long hours.

"They are very lonely, they are up against the wall with a tiny baby," she said.

"All these days we have been addressing working mothers' problems, but the real problem could be those mothers who gave up their positions," she said.

Japan's population fell this year for the first time since World War II, a census showed, raising concerns for the future of the workforce in the world's number two economy.

The mostly homogenous [sic] country has resisted boosting its population by accepting wide-scale immigration.

"We have to reintegrate women fully to the labor force before we look into immigrants" and other measures, Inoguchi said.

Japan is racing against the clock, with the babyboomers' children remaining in their prime child-rearing age only for the next five years.

"So in terms of changing this declining birthrate, I have to work really hard up against the time limit.

"So you can't really postpone many of the political and administrative initiatives. It's not something that you would make in a 15-year plan. You have to work year by year with the best judgment that you could have."

"Everybody is for my program. Everybody is for the goal I aim for," she said.

But with Japan trying to trim a budget imbalance, Inoguchi was aware that financial limitations could give the government less room to maneuver in providing incentives to have children.

She said the government's cost-cutting drive could bring about "dividends" to be used elsewhere.

"I'm asking Mr Koizumi to give me the dividends in my policy area because we have waited for a long time," she said.

Less than four percent of Japan's social security expenses are spent on policies for children and families, with 70 percent going for care of the elderly.

Inoguchi is one of a small number of women in Japanese politics.

The number of female lawmakers has not risen much since Japanese women won the right to vote six decades ago. Forty-four women were elected in September, making up only nine percent of the 480-seat lower house.

Tuesday, January 17, 2006

Japan fingerprinting plans spark opposition

Japan fingerprinting plans spark opposition
Wed Jan 11

TOKYO (Reuters) - Japan's plans to fingerprint foreigners at immigration checkpoints, aimed to prevent terrorism, risk breaching human rights and invading individuals' privacy, a lawyers' group said on Wednesday.

Stricter checks at immigration, including the compulsory photographing and fingerprinting of foreigners on arrival, are laid down in a revised immigration bill the Justice Ministry will present to parliament in the next few months, Isao Negishi of the ministry's Immigration Bureau said in an interview.

The revised law would allow Japan to deport any arriving foreigner it considers to be a terrorist, Negishi said.

A Japanese newspaper reported last month that a member of a radical Islamist group banned in Pakistan had entered Japan two years ago to try to establish a foothold in the country. A police report also released last month said the country was at risk of attack because of its close links with the United States.

Japan's Federation of Bar Associations said in a statement on its Web site that the plans should be abandoned because the fingerprinting of foreigners violated a constitutional requirement to treat people with respect.

The use of biometrics -- identifying individuals through techniques such as retinal scanning, face recognition and fingerprinting -- raises questions about privacy and control of personal information, the lawyers' group said.

"The proposal says the information will be used for criminal investigations as well," said Masashi Ichikawa, the deputy head of the committee on human rights for the lawyers' group.

"So the authorities could match footage from CCTV cameras to digitised pictures to work out exactly where an individual had been on a particular day," Ichikawa added. "We don't think that should happen to people just because they are foreign. Japanese people do bad things too."

The lawyers' group also expressed concern over the difficulty of defining "terrorism."

The Immigration Bureau's Negishi defended the constitutionality of the proposed law.

"We are aware that this information must be treated extremely carefully," he said. "But we do not consider the act of taking fingerprints a violation of the constitution in itself."

He added that the issue of whether an individual could be labeled a terrorist would likely be decided by discussion between various government agencies.

Fingerprinting and photographs were introduced at U.S. immigration checkpoints in 2004.

But the issue is a particularly sensitive one in Japan, where local governments were long required to fingerprint all resident foreigners, including "special permanent residents" of Korean and Chinese origin.

Many of these residents are descendants of those brought to Japan as forced labor before and during World War Two.

Local government fingerprinting was halted in 2000 and special permanent residents are to be excluded from the new rules.

Tuesday, January 03, 2006

Lawsuit-free land a myth

from the The Japan Times
Who says people don't sue in Japan? They do, and sometimes it makes a difference.


Japan is not renowned for its courtroom dramas. But occasionally a landmark ruling does make the front pages.

Witness the Sep. 14, 2005, Supreme Court decision on absentee voting. Plaintiffs sued the government for not guaranteeing their constitutional right to vote from overseas, and won.

This is big. Big enough maybe, believe it or not, to have a profound effect on human rights for foreigners in Japan.

Non-Japanese residents already have a history of taking racial discrimination cases to court.

To wit: The Ana Bortz case of 1999, where a woman was thrown out of a Hamamatsu jewelry store for being Brazilian; the Otaru onsen case of 2001-2005, where three Caucasians (one a naturalized Japanese) were barred from a bathhouse for having the wrong physical appearance; a case in 2003, where a Saitama realtor screened an Indian renter for the appropriateness of his skin color; and a 2004 case, where a naturalized Chinese was refused entry at a Tokyo bar ostensibly for being foreign.

Early this year, the Osaka District Court will opine on the Steve McGowan case (Zeit Gist: Nov. 30, 2004), regarding an American who was refused entry to a Kyoto eyeglass shop because the manager "doesn't like black people."

No doubt the future portends more suits of this ilk, as "Japanese Only" signs and policies continue to proliferate nationwide. Racial discrimination, lest you forget, is not illegal in Japan.

However, the good news is that plaintiffs above have won their cases, penalizing private-sector businesses for their exclusionism.

That's encouraging. And not only because non-Japanese are slowly realizing that with copious time, money and willpower, they might sue and get some semblance of justice. They might even positively affect legal precedent in Japan.

Now, before detractors resume accusing these "foreign lawsuiters" of "cultural imperialism," of "foisting their Western litigiousness on Japan," consider some facts:

First, it's perfectly all right to sue in Japan. As the Japanese government told the U.N. in 1999, access to the courts is a constitutionally guaranteed right. (They also said Japan needs no laws against racial discrimination precisely because the judiciary will provide redress.)

Second, about that myth that "Japanese don't sue." Time it got a dirt nap.

According to the latest figures on the Prime Minister's Cabinet home page, in 1998 alone there were nearly 5.5 million suits filed in Japan ( ).

Filed by -- you guessed it -- Japanese people.

In fact, the Japanese judicial system is so clogged up that there is debate on how to speed things up -- by, say, lessening court deliberation time, or making it easier to pass the Bar exam.

It's not as if you haven't heard of any high-profile lawsuits here. Win or lose, here are a few:

Hansen's disease patients, Minamata mercury poisoning victims, Ienaga Saburo's textbook censorship, salary discrimination by gender, and various wartime issues left unresolved by any other means . . .

Again, these lawsuits were filed not by "litigious Westerners," but by Japanese and other Asians. People with strong senses of social justice, who wanted to be compensated for mental suffering, make public statements of discontent and even set a good judicial precedent.

Some, encouraged by Japanese legal support networks, even file what could be disparagingly labeled as "nuisance" lawsuits: Suing local and national governments for negligence ("fusakui"). Still, they are perfectly entitled to, under the State Reparations Law ("kokka baishou hou"). That's why it exists.

After all, filing suit against individual miscreants is like pounding moles in a mountain range. Suing the government for not serving their taxpayers may offer universal redress at a stroke.

But that's quite a challenge. You know the axiom, "you can't fight City Hall." It's even more true in Japan.

Traditionally, lawsuits against the government have been an exercise in creative illogic. Japanese courts have ruled that the public has no legal ground to expect laws to be passed to safeguard their constitutional rights.

Why? The argument runs: The judiciary cannot force the legislative branch to legislate. That would be a violation of the separation of powers.

But further lawsuits have fortunately eroded that. Let me take you down a line of precedents:

Once upon a time, there was a handicapped person in Sapporo. Unable to leave his house, he could not vote in elections because Japan had no absentee ballot system.

In 1971, he sued the national government for not taking sufficient measures to ensure his constitutionally guaranteed right of suffrage.

In 1985, the Supreme Court ruled that he had no case. Passing laws is, after all, "at the government's discretion."

It also ruled, incredibly, that public policy is a political matter, and that politicians have no absolute duty to protect the rights of individuals. (Ashibe Nobuyoshi, "Kenpou," page 347)

That's nuts. What's the point of having a Constitution, then? One would expect elected representatives to be first in line to follow it.

This affected future lawsuits.

In the onsen case, the Otaru city government was sued for negligence, i.e. for not taking effective measures to force businesses to cease unconstitutional "Japanese only" policies.

Citing the 1985 precedent, courts ruled that a local government had no absolute duty to protect its foreign residents (or its Japanese citizens, for that matter) from racial discrimination. Sapporo High Court made the most sophistic, er, sophisticated argument:

"If there is a law out there, we can rule whether or not it is constitutional or against international treaty.

"However, if there is no law, there is nothing we can rule upon.

"Therefore, the nonexistence of a law is not actionable in court."

That's even more nuts. This gives governments an incentive to avoid passing a law because doing so will take away their "discretionary power," moreover make them liable in court. So do nothing. This ruling demonstrated there's no penalty for that.

Should be cause for defenestration. But take heart. If enough people file suit, eventually something good gets through.

As an example, let's go back to that decision in September, where plaintiffs sued over the lack of absentee voting for overseas Japanese.

When the Supreme Court agreed, it created the legal precedent to say the government can be held responsible for not passing laws.

This opens an avenue for Japan's foreign community. The lack of a racial discrimination law is now technically legally actionable.

Slow. My legal consultants caution against over-optimism. The right to vote is rightly seen as the cornerstone of Japan's postwar democracy. Judges will see this right as more deserving of special protection than most.

But courts didn't see that as so important 20 years ago. Or even last year.

So who knows what will happen if somebody takes the national government to court for not passing a law against racial discrimination? Despite 50 years of the postwar Constitution and a decade of treaty promises to do so?

Someone ought to. Because even lawsuits that get derided as "frivolous" and "nuisances" act as incessant drops upon the stone. Years later, an impression gets made.

Few things cause change faster than exposing for public critique the hitherto unspoken illogic that perpetuates flawed systems.

Sapporo Lawyer Toshiteru Shibaike contributed to this essay.

Monday, January 02, 2006

Japanese media and the arrest of Juan Carlos Pizarro Yagi

from The Guardian

The Japanese media have seized upon the arrest of a Peruvian man accused of murdering a young girl as evidence that the nation is in the grip of a foreign crime wave

Justin McCurry in Tokyo
Tuesday December 6, 2005
Guardian Unlimited

Juan Carlos Pizarro Yagi stands accused of a truly appalling crime. Late last month, it is alleged, he approached seven-year-old Airi Kinoshita as she walked past his apartment on her way home from school in Hiroshima.

Some time during the following 90 minutes he allegedly killed her, placed her body in a cardboard box and dumped it in a nearby car park.

The crime shocked Japan, a country known for its safe streets and relatively low rates of violent crime.

Momentary panic is a natural response to the murder of a child; but the media's loss of perspective is less forgivable.

No sooner had the suspect been identified as a Peruvian national, possibly of Japanese descent, than the media announced that the country was in the grip of a foreign crime wave.

Decent headline writers learn early on in their training that the nationality of a crime suspect is, in the vast majority of cases, irrelevant. Not so in Japan, where the "respectable" broadsheets were as guilty as the tabloids of pandering to their readers' xenophobic instincts.

The Asahi Shimbun, one of Japan's more liberal dailies, ran with "Manhunt for Peruvian". Almost without exception the print and broadcast media played up Yagi's nationality.

Rent-a-quote experts all but ignored the real issues raised by Kinoshita's murder, such as school security, preferring to focus on the threat foreigners apparently pose to their law-abiding Japanese hosts.

Grim-faced reporters on daytime television referred to the suspect as "Carlos", dispensing with the usual practice of using a suspect's surname. But then to do that would have drawn attention to his Japanese ancestry and diluted his "otherness".

The tactic has angered human rights campaigners. "The majority of people in Japan want to feel that the people committing these crimes are different from them," said Hideki Morihara, secretary general of the International Movement Against All Forms of Discrimination and Racism in Tokyo.

"If they think that way then they can be satisfied that the criminals are indeed different. That creates an atmosphere of xenophobia, and the media are facilitating it."

With official help, it appears. With impeccable timing the police chose the day of Yagi's arrest to release figures showing that a record 10,860 foreigners had been arrested during the first six months of this year.

In the space of a few days, the justice ministry announced a review of its policy of issuing long-term visas to foreigners (Yagi, who was sacked from his job in a car parts factory for absenteeism, had allegedly been carrying a false passport) and the government announced the formation of a panel to discuss measures to stamp out foreign crime.

Morihara believes the timing of the crime figures' release was no coincidence. "It was very much politically motivated," he said.

"Politicians want to strengthen their control over the population and one way they do it is to say to the majority that they are protecting them from danger - from foreigners."

He also questioned the value of the official statistics, which the local media faithfully reported with no attempt to put them in context.

"First of all the police only report the number of arrests. If you target a specific group (as the police have done with foreigners since 2003) then it is only natural that the number of arrests will rise," Morihara said.

"But if you look at the number of crimes proportionate to the size of the foreign and Japanese populations, the rate is about the same. It isn't right to say that foreign crime alone is the problem."

Many Japanese share his concerns. Yuki Takahashi, 18, said on the Japan Today website: "I think the Japanese media play a big role here - they are creating a stereotyped image of foreigners as a menace to our society. Japanese tend to discriminate against foreigners but it's nothing to be proud of."

But as long as the media-driven atmosphere of suspicion and ignorance continues, those views will remain in the minority.

"The government should be increasing opportunities to bring Japanese and foreign people together, to improve understanding," Morihara said. "But with the help of the media they are just driving them apart."