COURTING JUSTICE IN JAPAN
PART ONE:
FIRST "KOUTOU BENRON" COURT HEARING
By Plaintiff Arudou Debito
FOREWORD: IS FOREARMED
This is the first report on our court case against Yunohana Onsen and the City
of Otaru. Our goal in these reports is to keep records for future reference. Others
may also want to fight social injustices in Japanese court, since for cases of racial
discrimination a lawsuit is currently the only avenue available to enforce Constitutionally-guaranteed
protections. We hope that lessons we learn are shared with as many people as possible.
I will be writing up legal proceedings and developments in dekiru dake real time,
and we three three plaintiffs will pool our webbing skills as best we can by htmling
documents, statements, and streaming recorded audio/visual media in two languages
at our Otaru Lawsuit Website (http://www.debito.org/otarulawsuit.html).
Welcome to the dawn of the new century and democratized information dissemination.
Let's get to work.
FIRST COURT HEARING
MONDAY, MARCH 26, 2001, 1:30 PM
SAPPORO COURT HOUSE, 8F 3-GOU HOUTEI
It has been nearly two months since we formally filed suit on February 1, 2001, against
exclusionary bathhouse Yunohana Onsen and the City of Otaru for racial discrimination
(full background at Otaru Lawsuit Website), and a
lot has transpired in the interim. We faced over nine weeks of intense domestic press
coverage (this is no understatement: my address book bears 29 individual reporter's
names representing 25 separate press agencies, all of whom we have had interviews
with); predictably mixed signals from friends, professional colleagues, and family;
paper and electronic communications both supportive and threatening, and one
death threat against my children. We saw rifts both open and heal between human
rights groups we had interpersonally collaborated with, and worked on being both
direct yet disarming between us as plaintiffs and the public eye. Bringing an issue
before the court of public opinion is a complicated task. Now it was time to bring
the issue to a real court--of law.
For those who may never have the pleasure, let me try to take you to a Japanese courthouse.
One of the first things you notice about one when you walk in is just how Spartan
it is. I am used to the impressive Greco-Roman exteriors and marble-and-mahogany
interiors of American halls of justice, but Japanese Saibansho (at least as far as
I have seen in Asahikawa, Sapporo, and Kumamoto) are squeaky-clean zones of regular
Japanese office space housed in square-upon-square Stalinist-style architecture.
The only reason you know you are at a court and not in any other Japanese bureaucratic
institution is the doorways and moulding--with veneers of generically-colored ersatz
wooden panelling without a knot to be seen. The atmosphere for me is rigidity and
sterility, like a crematorium, and I have always felt like if people are present
they are intruding and are justsupposed to state their business and get the hell
out. Like courthouses anywhere, they are not democratic in tone, but I feel Japanese
courthouses lack any humanizing presence of being lived in.
Now join us as we walk that day's path inside.
It was 1PM on March 26, thirty minutes and counting before the start of the proceedings.
We met our lawyer, Itou Hideko, across the street from the courthouse. After truing
our neckties (we plaintiffs, that is) in a nearby shop window, we glanced ahead and
saw TV cameras swarming at the front and back entrances of the courthouse (the police
bring felons in the back way; fortunately we were to enter from the front). It would
yet again start us wondering, like that day we were backstage at TBS on February
25, 2001, listening to people at "Koko
Ga Hen Da Yo, Nihonjin" screaming at American panelists for their stupid
submarines, what we were getting into.
It was time. As we walked towards the front courtyard, the cameras took aim and got
their footage: the perfunctory establishing shot of all four of us approaching, then
parting the waters through them as we entered the building. The cameras didn't stop
rolling (even though they did not follow us through the doorway) when we stopped
inside, and I doubled back briefly to ask them if and where they would like an interview
after our hearing (they would, and just outside the gate of the courthouse would
be fine). I also asked if they had copies of our prepared statements (they did),
and then expressed gratitude for their coverage (natch). I then went back into the
atrium where people we knew--Jerry, Colin, Gwen, Masako, Jiichan (my father in law)
keeping steady with his cane--and more were trickling in and getting shoukaied around
to friends and family. After getting through a logjam by the elevator we advanced
to the eighth floor and found even more people upstairs, this time of all stripes.
More of our supporters had been hanging about (some had even entered the previous
hearing to make sure they got a seat), along with a couple of opponents (What do
you say when you face Defendant Otaru City bureaucrats in the hallway? "Good
morning", of course. They replied cordially in kind. Defendants from Yunohana
Onsen didn't bother to show up.) and lawyers (who interpersonally seem to confirm
the axiom that dogs match their masters). It was rather uncomfortable standing out
there, occasionally looking through the trapdoor porthole in the courtroom door to
see if we could enter. So we did what polarized people generally do for confirmation
and consolation: clumping into camps and keeping spirits high.
High spirits came naturally, given what we soon realized was immense attention and
an unanticipated level of public support. We had been asked a number of times by
courtroom managers how many people would show up--and since my constant splashing
of messages across the internet leaves me wondering how many readers were just glazing
over, I honestly said we didn't know. But it turned out that at least thirty supporters
(that we knew personally) attended, filling the Gallery beyond capacity. Our families
and the journalists were given priority seating, but the fact that, even after every
grade school kid had been positioned on laps, people were being turned away (since
standing spectatoring in the Gallery is not permitted) made an impression on the
attendees. Including the judges.
It became clear that nobody, including the court, was taking this case lightly. Most
Japanese court cases are like visits to a Japanese dentist's office--come in several
times, size up the situation, make some core drillings, and within a year or so you'll
have a cavity removed and a filling in somebody's life. Okay, it's a stretched metaphor.
The point is that many visits makes for a verdict somehow, and from what I have heard,
these visits are basically five minutes in duration: hand in papers to the judges,
receive confirmation from both sides that these are the documents or legal arguments
requested, make an appointment for another meeting in a couple of months, then watch
the judges retire through doors behind them to consider the evidence. We, however,
were given a whopping THIRTY minutes to read statements (chinjutsusho) before the
court--which, our lawyer's secretaries told me, they hadn't seen happen during their
employ. Thus we may in fact be ultimately getting our day (i.e. a full day total,
that is) in court.
A person in black judge garb at floor level called the court to order and had those
standing in the Gallery cleared. Then everyone rose for the judges, who entered from
doors behind their podiums and took their seats, a signal that everyone else may
as well. The lone TV camera in the room was then allowed to roll film for two minutes
(proceedings are not allowed to be recorded by moving picture--which is why on the
evening news one always sees a Japanese courtroom frozen in time, save for bolt-erect
blinking judges). The dead silence was a good time to look around and get a load
of the layout.
A Japanese courtroom, wallpapered in featureless white and fluourescent-lit, is separated
(like many of the world's courtrooms) into three distinct areas: 1) the Gallery
in back, with about 60 low-backed movie theater chairs (one third generally allotted
the media) for the public to witness as a non-voting jury, separated by a waist-high
fence from 2) the Battleground in center, where the aggreived sit facing each
other (i.e. not facing the judge) at tables running parallel to the walls, with a
seated rostrum in the dead center of the room, with its back to the Gallery and facing
3) the Law.
Center-stage in the Law Section is high castle wall of a rostrum with three chairs,
one for each judge. Designed to be at regular judge height (i.e. high above any possible
standing heights, which means everyone must look up and feel subordinate), the rampart
centers the senior judge, flanked by two younger judges, all in high-backed plush
black leather chairs; the justices had melted into their chairs via matching black
gowns ("black" to symbolize uncorruptability, because black will never
change into a different color no matter how you try to dye it. Not joking.). In front
of the castle wall at regular eye-level is a moat of a table, murus fosseque style,
where the legal scriveners sit; a waist-high barrier blocks potential transgressors
and Gallery views of their legs. At the corners of this fortress are regular table
turrets, where four students of the law were witnessing today's proceedings on once
side while a bailiff (I think) stood watch on the other. There was no jury box, by
the way. Trial by jury is still a highly-disputed procedure in Japan (and not in
practice as far as I know--though there are calls to institute jurors in criminal
cases). Thus this would not be a trial by our peers, which, in a society where chances
of foreign-background jurors are miniscule anyway, could cut both ways.
The center judge who had been assigned our fate, Mr Sakai, was a dignified-looking
man in his late fifities of some grey and wrinkles. His balanced weight, height,
and temperament indicated to me a life of discipline. His stern face had eyes sizing
things up quickly, never leaving those to whom he was addressing. The two other judges
were a man in his forties and a younger woman of maybe mid-thirties, who kept their
eyes deferential and never spoke throughout the proceedings. There were no nameplates
anywhere to give any sense of identity, and nobody talked to the judges directly
except the lawyers.
Judge Sakai opened by confirming certain submitted documentation with the lawyers,
then signalled that we were to begin speaking. We three plaintiffs moved to a bench
in the center by the Gallery gate, and in turn sat before the judges at the central
lectern reading prepared statements, Olaf, then Ken, and me bringing up the rear.
The statements were each six minutes, so in the interests of a brevitized report
I won't repeat. You can read them in Japanese and translation at http://www.debito.org/chinjutsusho032601.html.
Olaf's and Ken's read aloud were very moving. When I read mine, I made sure to look
up and see how people seemed to be receiving it. Observation: The legal students
seemed to be emoting, but the trained judges betrayed no discernable emotion whatsoever--save
the Mr Sakai, whose eyes burned through me throughout on a soul probe. I have no
idea if he could sympathize at all.
Once I had finished, the court hearing switched off like a tap. Within one minute
the judge confirmed with the three lawyers that Monday, May 7, 10:30 AM was an amenable
time for the next hearing. Then without ceremony they rose and returned to chambers
at 1:56 PM, ahead of schedule.
Now came the unwinding as the front two thirds of the courthouse room instantly emptied.
Defendants and their representatives cleared out almost as fast as the judges, leaving
only us plaintiffs and a Gallery full of supporters, who came up to give us a recharging
gush of compliments. Other possible plaintiffs who chose different routes of protest
shook our hand and said we we were doing the good thing. As we exited to find more
latecomers in the hallway who had waited for us to appear, our kids acted relieved
that it was all over and made it clear they wanted to go home. But things were not
over yet. There were still about twenty reporters with cameras and mikes waiting
outside the front of the courthouse. Outside we three trooped to cross the T's and
dot the eyes.
After opening with thanks for waiting so long, I said we had no other prepared statements
and would welcome questions. They came: "What do you make of the Defendants'
counterarguments to your points in the legal brief?" I said that we need to
study those further and more closely before comment. "Why are you doing this?"
was answered by all three of us in turn, reiterating the things about Japan's future,
our children, and legal, international, and social obligations. I don't remember
specifically what else Ken and Olaf said, but when the interview looked a bit petering,
I broached the subject of the next step in all of this: legislation (houseika).
"What do mean by legislation? What's wrong with taking it to court and leaving
it at that?" asked one reporter. Softball question. I stressed again the 1995
treaty obligations that Japan has which call for us to institute anti-racial discrimination
legislation, especially as Japan is the only developed country without it. And taking
it to court just means case-by-case 'mole-bashing' (mogura tataki) of discriminators.
Instead, Japan should be enforcing the protections that our country (wagakuni)'s
Constitution guarantees us through enforcable laws. Japan has already reached the
social and legislative conclusion that in the cases of ijime (bullying) or stalking,
it is the victim who must be listened to and protected. Now listen to us, the discriminated
against.
I stressed that I had been negotiating over the past month to meet with Minshutou
leader and Hokkaido Diet rep Hatoyama Yukio's office, to discuss the possibilities
of legislation. However, I had been recently told that he would not meet me on his
next trip up here. That was disappointing, but I said I would be contacting other
political parties to see about their standpoints and will to protect all of Japan's
residents. I would be keeping the press posted on developments.
(My emails to Hatoyama's Sapporo office and the press may be read in Japanese at:
http://www.debito.org/hatoyamaemails.html)
And that was about it. We took our leave and the press went off to do their job.
Our case was featured in the newspapers this morning, March 27, but as the new information
was more aural this time around, we got soundbites on all the March 26 Hokkaido evening
news programs. HBC Radio featured us in a 30-minute broadcast at 8:30 PM last night
(already downloadable except the first ten seconds at http://www.debito.org/HBC20010326.ra
, streamable via freely downloadable Real Player.
If you prefer something in English, listen to an eight-minute interview with me on
Canadian Broadcasting CBC February 22 at http://www.debito.org/CBCAsItHappens20010222.ra).
HBC's soundbites from oldies, saying bathing with foreigners is impermissable because
they offend the nostrils and spread disease, shows the issue and discussion is fermenting
indeed.
And as I was waiting for the hourlong HBC documentary to come on at 2AM this morning
I got my first mysterious midnight phone call in over a month. It seems that things
are going back to normal, in a sense, as the machinery of the judicial system makes
its impression on the public. Maybe this is why the courts in Japan are so slow--to
let the Japanese public react to all the developments on a slow burn.
Next report after our second hearing, on May 7, 2001.
Arudou Debito
Sapporo
March 27, 2001
(go back to the Otaru Lawsuit website)