AND ITS POSSIBLE EFFECTS
THE OTARU LAWSUIT DECISION
AND ITS POSSIBLE EFFECTS
(opinions of one Plaintiff, Arudou Debito)
(made public Nov 12, 2002)
On Nov 11, 2002, the Sapporo District Court handed down its decision on the Otaru
Onsen Lawsuit (where Plaintiffs Olaf Karthaus, Ken Sutherland, and Arudou Debito
brought a civil suit against one "JAPANESE
ONLY" onsen bathhouse for racial discrimination, and the City of Otaru for
taking insufficient measures against it).
The headline is that Senior Judge Sakai ordered Defendant Onsen Yunohana to pay 1
million yen to each Plaintiff in damages.
The Court, however, rejected all Plaintiffs' claims of damages or legal obligations
against the City of Otaru.
Now for some legal arguments. There is good news and bad news.
THE DECISION ON DEFENDANT ONSEN YUNOHANA
THE GOOD NEWS
is that Yunohana's practice of excluding people simply because they look like
foreigners is indeed racial discrimination, and an illegal activity punishable by
a pretty large amount of compensation (by Japanese standards) in Japanese courts.
This may send a message across Japan that businesses
which practice this should desist.
THE BAD NEWS
is that the decision held that RACIAL DISCRIMINATION in itself is not the punishable
activity. On the bottom of page 23 it
reads (my translation):
=======================================
"Therefore, in this particular case of bathing refusals, refusing all
foreigners without exception is 'unrational discrimination' (fugouri na sabetsu).
As it can be said to go beyond permissable societal limits, this is illegal and thus
illegal activity."
(Original Japanese: Shitagatte, gaikokujin ichiritsu nyuuyoku kyohi no houhou ni
yotte nasareta honken nyuuyoku kyohi wa, fugouri na sabetsu de atte, shakai teki
ni kyoyou shiuru gendo o koeteiru mono to ieru kara, ihou de atte fuhou koui ni ataru.)
=======================================
The point being: "racial discrimination" per se is not the problem in this
case. It is the act of discriminating TOO MUCH that made this activity illegal (with
the underlying assumption behind "rational discrimination" being some discrimination
is unavoidable, if not logically justifiable, in society).
Nowhere in this judgment are questions clarified of "What is the 'socially permissible
limit' of discrimination?" and "When does it become 'too much'?" Nor
is the premise of "Rational Discrimination" defined. (I asked reporters
at our press conference to research and debate this.)
These statements effectively dilute the applicability of our case as a litmus test
for other discriminatory activities in Japan. For how does one define or sanction
against "racial discrimination"? Take it to Japanese court for a couple
of years with a hopefully watertight case, and let that particular judge decide?
Clearly not an option for all people in Japan.
Also, bear in mind that this is a court decision, not a law. It holds some precedent
force in the judiciary, but has no force in the legislative or administrative branches
of government. It is a signal of what might happen if one sues, no more.
Now how about the potential of legislation to make discrimination of this sort clearly
"illegal", enforcable by the administrative branch? This is dealt with
in the second part of our ruling:
THE DECISION ON DEFENDANT OTARU CITY
THE GOOD NEWS
is that the judges recognize that the City, as a local wing of public power,
is as "duty-bound" as the national government to bring racial discrimination
to an end. That resolves one possible loophole of the UN Convention on Racial Discrimination
being applicable only to national governments (as they are the ones who negotiated
the treaty).
However,
THE BAD NEWS
is that the government can indemnify itself, as it is under no legal obligation
to pass laws or local ordinances it would have to enforce to eliminate racial discrimination.
In the middle of page 25 it reads (my
translation):
=======================================
"Defendant Otaru City, as it is a regional public organization playing
a part in public administration, has the same duty as the national government to
prohibit and bring an end to racial discrimination. However, this duty is no more
than a political one, and concerning matters between individual citizens, this is
interpreted to mean that the [city government] is under no clear and absolute (ichigiteki)
obligation to prohibit or bring to an end concrete examples of racial discrimination
by establishing local laws (jourei)."
(Original Japanese: "...chihou koukyou dantai de aru hikoku otaru shi ga, koukenryoku
no ichiyoku o ninou kikan to shite, kuni to douyou ni, jinshuu sabetsu o kinshi shi
shuuryou saseru gimu o ou to shitemo, sore wa seijiteki sekimu ni todomari, koko
no shimin to no aida de, jourei o seitei suru koto ni yotte gutaiteki na jinshu sabetsu
o kinshi shi shuuryou saseru koto ga ichigiteki ni meikaku ni gimu zukerareru mono
de wa na to kai sareru."
=======================================
So this means they oughta, but as it is a political matter they don't hafta. Since
Japanese judical precedent holds that the abscence of formal domestic laws, international
treaties are binding in their place, this sets a bad precedent for further legal
application of the UN Convention against Racial Discrimination in Japan.
The backbone of this ruling is that "discrimination is not an illegal activity
unless a judge says so, since there is no specific law to eliminate this sort of
practice". Yet it is removing all pressure on the government to make that specific
law to eliminate it.
CONCLUSIONS FOR NOW:
1) ABOUT THE LEGAL HAIRSPLITTING: Word has it from legal scholars around me
that the judges in a lower court are of course chary of ruling against the city at
all--since they do not their judicial activism overturned in a higher court (hurting
their chances of promotion). This is why our judges leave things vague and apparently
let their superiors in appellate courts clarify things later.
2) ABOUT LITIGANTS' REACTIONS TO THE CASE: Otaru City is understandibly happy
with being exonerated. Onsen Yunohana is understandibly angry and (word has it) considering
an appeal. We Plaintiffs are unhappy with the City's loopholes and are considering
an appeal of our own. We have two weeks to decide if we want to file.
3) ABOUT POSSIBLE NEXT STEPS: If Plaintiffs do decide to pursue the matter,
there are two routes: 1) Appeal this case against the City, or 2) Bring suit against
the national government (which is more clearly bound to follow international treaty).
Our legal sources say that option 2) would more likely result in a positive outcome,
but option 1) is an unprecedented move and may have a larger impact.
4) ABOUT PLAINTIFFS' COMPENSATIONS: After paying back our supporters for their
contributions and covering any additional legal fees, etc., Olaf says he plans contribute
every yen to orphanages and other needy places in Cambodia, India, and The Philippines.
Debito plans to use it for projects involving human rights in Japan (such as, say,
an appeal of this case). Ken says he will give it to his wife. FYI.
All for now. Thanks for reading.
Arudou Debito, one Plaintiff, Sapporo
UPDATE NOV 15, 2002: ARUDOU DEBITO DECIDES
TO APPEAL
UPDATE DEC 4: DEFENDANT YUNOHANA
ONSEN ALSO DECIDES TO APPEAL, and gets a court order enabling them to avoid paying
Plaintiffs any damages until the decision comes down next time around (which may
take years).
RELATED LINKS:
International and national media reactions to this decision are available here:
http://www.debito.org/hanketsunewseng.html
The entire Court Decision (28 pages of jpgs) is up in Japanese at:
http://www.debito.org/otarulawsuithanketsu.html
Background to the case at:
http://www.debito.org/otarulawsuit.html
Other exclusionary practices by Japanese businesses:
http://www.debito.org/photosubstantiation.html
http://www.debito.org/misawaexclusions.html
On discrimination against non-Japanese in general:
http://www.debito.org/TheCommunity/communityissues.html
ENDS