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PRELIMINARY REPORT
ON THE OTARU ONSENS LAWSUIT
SAPPORO HIGH COURT DECISION
HANDED DOWN SEPT 16, 2004
By Arudou Debito, Plaintiff

This is a preliminary report on the High Court Decision on the Otaru Onsens Lawsuit.
Freely forwardable. Version dated September 16, 2004

THE VERDICT
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1) ONSEN YUNOHANA
Yunohana Onsen's Appeal was rejected by the High Court, i.e., the bathhouse would have to pay each plantiff 100 man yen (one million yen), same as before.

All other legal arguments made in the District Court were essentially affirmed, i.e. that "unrational discrimination" (discriminating "too much") was illegal, not "racial discrimination" per se. Thus Court once again avoided clear guidelines for litmus-testing other cases.

There is good news, however, in the sense that Yunohana's demand to have the compensation reduced was rejected. Otherwise, it would send a message to future discriminators that it pays to appeal.

The Yunohana part of the case ends here, as the Supreme Court only hears constitutional issues and will no doubt reject any further appeals.

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2) CITY OF OTARU
My appeal against the City was rejected, for logic convoluted enough to have me mulling the afternoon away. It goes kinda like this. Bear with me.

a) All of the arguments made by the District Court exonerating Otaru City were affirmed, i.e. that the local governments have no absolute duty under the UN Convention on Racial Discrimination (CERD) to pass a law in specific against racial discrimination. (see <http://www.debito.org/otarulawsuithanketsu.html#25>)

In other words, despite what the CERD expressly says, whether or not to create or pass a law is a political matter, and no law passed does not mean that the government may be held culpable in court. This activity is at the discretion (sairyou) of the government.

The High Court's new spins were:

b) Under Civil Court Case Vol 39 No 7 page 1512 (this precedent might sound obscure, but it is often cited), dated Nov 21, 1985, the State cannot be held culpable for not creating a law. (This refers to a case of a handicapped person suing a local government for not creating a local ordinance for barrier-free facilities. Rejected.)

c) Although the CERD says, "Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination", this wording does not give concrete codification for how to pass a law. Therefore it is merely a guideline, something to shoot for, not a law to follow.

That's about it, really.

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THE PROBLEMS WITH THIS NEW PRECEDENT

Let me walk you through this.

The Court's argument, at its strongest, is about the separation of powers (Administrative, Legislative, and Judicial). The Court (Judicial Branch) cannot force the government (legislatively) to make laws. The Judicial Branch can only enforce what the Legislative Branch creates.

However, the Japanese government stated to the UN in Oct 2001 (in its response to UN criticism in CERD A/56/18 (2001), see <http://www.debito.org/japanvsun.html#UNmarch2000>)

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Item 4 (2) Article 98... of the Constitution of Japan provides that "The treaties concluded by Japan and established laws of nations shall be faithfully observed." Therefore, treaties, etc. which Japan concluded and published have effect as domestic law. There is no express provision concerning relation between treaties concluded by Japan and laws in the Constitution of Japan, however treaties are considered to be superior to laws.
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Which means that the CERD is a law, in fact superior to a law, especially since Japan has no laws of its own which cover racial discrimination.

Therefore (and this High Court Decision recognizes this), if the government were to make a law which contravened the CERD, and somebody took them to court, the Judicial Branch could rule on this. It would be, in the jargon, "justicable" ("kihansei ga aru" in Japanese).

However, since there is no law (apart from the CERD, ahem), the Judical Branch cannot rule.

Which means there is obligation to follow UN Treaty, but NON-ACTION is not "justicable". The Court cannot rule on the illegality of non-action.

Moreover, this ruling even goes so far as to say that individuals cannot sue the State (something averred in the District Court ruling), because the CERD does not cover interactions between individuals. (This is to stop somebody suing their neighbor because they called them an ethnic slur. The defendant must be an organization or a legal entity--such as a bathhouse. Or the government, nudge.) Moreover, according to that abovementioned pesky 1985 domestic ruling, individuals cannot sue the government for non-action.

Hence, the government, which can take our taxes yet not be legally obligated to protect our rights, is exonerated from doing anything. Despite UN Treaty, which has the force of law, but alas is not binding because it is not properly codified.

That argument has not held water in other signatory countries to the CERD. All other signatories, according to my lawyer, have codified laws to outlaw racial discrimination and/or hate speech, which shows how exceptionally irresponsible the Japanese courts are allowing themselves and the government to be.

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So will the Japanese Government ultimately take the step of passing some laws, and limit its own precious discretionary power?

Not likely, and not just because there's nothing to punish them if they don't.

Here's proof. From the abovementioned Japanese government reply to UN criticism (CERD A/56/18 (2001) in Oct 2001--I made sure the reporters at today's press conferences got all these text excerpts and more in Japanese.)

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5. (1) ... as it is obvious from the provision "by all appropriate means" in Article 2 (1), legislative measures are required by circumstances and are requested to be taken when the States Parties consider legislation appropriate. We do not recognize that the present situation of Japan is one in which discriminative acts cannot be effectively restrained by the existing legal system and in which explicit racial discriminative acts, which cannot be restrained by measures other than legislation, are conducted. Therefore, penalization of these acts is not considered necessary. <http://www.debito.org/japanvsun.html#UNmarch2000>
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Remember that this was written in 2001, long after the Otaru Onsens Case had become a national issue. Ostrich, meet sand.

The Japanese Govt also said in its first report to the CERD (1999) that if there is a problem, take it to court:

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4. ...Furthermore, in cases where the rights of the people are infringed, the Court can offer them redress. (Article 32 of the Constitution provides that "no person shall be denied the right of access to the courts.") (<http://www.debito.org/japanvsun.html#1999>)
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Which is what we did. Now the courts rule that the CERD is non-binding, and those with grievances will have to endure a lengthy legal process (we were, don't forget, turned away from Yunohana a full five years ago this Sunday), taking each discriminator to court. But never the government, mind, which has both obligation and jurisdiction over these places?

On a final note, the Japanese Government, which signed the CERD in 1995, has since argued to the CERD Committee (much to the UN's consternation--see above websites for full text) that the CERD covers nobody in Japan anyway. All of Japan's minorities (Burakumin, Ainu, and Okinawans are of the Japanese race, and so don't need CERD coverage (2001, Item 2). But foreigners (1999, item 2), you see, don't get coverage either, because they don't have the same rights as citizens.

So Japan, as a monocultural, monoethnic society (bullspit, but the Japan Census refuses to survey by ethnicity, again to the UN's ire), has no racial minorities which qualify. (So what are Japan's international kids and I then? Chopped liver?)

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That's it, then. I've already announced to the press that I will appeal this to the Supreme Court.

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A FINAL WORD: PROGNOSIS

According to my lawyers, Supreme Court Appeals are not something one testifies at. The Court (which gets about 10,000 cases a year but only accepts about 300) will tell us within around seven months if they will not hear the case. The longer the wait, the greater the chance of acceptance. Then they just contact you to say they will hand their decision down at this time and place, so be there. Very summary.

But this case is not small potatoes. Today's decision was attended by a multitude of supporters and all Japan's media (save the Weeklies and Nihon Keizai Shinbun). It was prominently featured on all local TV tonight (I watched for a change), and will no doubt be in tomorrow's morning papers, regional and national. Hokkaido Shinbun even printed a large article yesterday, prompting the public for this event. BBC is calling tonight and tomorrow morning for phone interviews, and we'll see how far the media footprint extends. My book on this case, JAPANESE ONLY (Akashi Shoten, 2004), goes on sale next month, October, In English this time (see summary and preliminary reviews at <http://www.debito.org/japaneseonly.html>). The level of recent questions from the media indicates that reporters are reading the Japanese version.

It's a long shot, but the revelations created by this case may raise enough eyebrows to affect Koizumi's lobbying for Japan's Security Council seat. One can hope.

Thanks for reading. And for your support. Bests, Arudou Debito in Sapporo
debito@debito.org
http://www.debito.org
September 16, 2004.
ENDS