Civil and Political Rights in Japan

A Tribute to Sir Nigel Rodley

Saul J. Takahashi

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351180016
• Edition: 1
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

The human rights issues in Japan are multifaceted. Over decades, domestic and international human rights organisations have raised concerns, but government obstinacy has meant there has been little progress. Recommendations of UN human rights bodies are routinely ignored, and statements by the government in the Japanese parliament regarding these recommendations have been dismissive. At the review of Japan's implementation of the International Covenant on Civil and Political Rights in 2014, Professor Nigel Rodley, then chair of the UN Human Rights Committee, lamented the lack of true engagement by Japan and the country's unwillingness to take any action on the conclusions of UN human rights bodies. Equally worrying is the clear trend over recent years of popular publications bashing neighbouring countries and their nationals living in Japan as well as UN human rights bodies. This book explores the issues surrounding human rights in Japan, and what the future might hold for the country.

1 Hate speech and the false human rights narrative in Japan

Saul J. Takahashi

Introduction: hate speech as a new phenomenon

Starting in the early 2000s, Japan witnessed a sudden and dramatic increase in hate speech, in particular demonstrations aimed at propagating and promoting racial discrimination. Seemingly out of nowhere, right wing extremists organised numerous processions in public spaces spewing racial and violent epithets, with the clear aim of inciting racial hatred. In a society where overt expressions of discontent are generally frowned upon, many Japanese were shocked at the repeated scenes of masked groups numbering in the hundreds openly threatening violence, mainly towards resident Koreans and Chinese. A compilation of recorded scenes from these demonstrations viewed by the Committee on the Elimination of Racial Discrimination (CERD) upon review of Japan report in 2014 show marchers with megaphones in Korean neighbourhoods screaming ‘roaches go home’, ‘kill all the roaches’, and that they would ‘do a Nanjing massacre to [Koreans] again’ if they did not leave the country (Committee on the Elimination of Racial Discrimination 2014b). Anti racist organisations held counter demonstrations, with ensuing scuffles and arrests (see e.g. Network for the Elimination of Racial Discrimination in Japan (ERD-Net) 2013).

Japan is hardly a stranger to shows of force by right wing extremists: for decades, right wing organisations have roamed the streets with large black trucks and oversized speakers, blaring militaristic songs and oration with impunity. With heavies in military style uniforms and mobster style haircuts, such organisations can be threatening, which is presumably their goal: however, they generally steer clear of openly advocating violence.

The hate demonstrations of the 2000s, however, are a new breed. Unlike the organised, relatively disciplined groups of before, they stem from a scattered and disparate grass roots conservative movement in the country. Connected mainly through the internet, this movement has achieved strong momentum in recent years, and has been successful in advancing some of its views into the mainstream. The practically countless number of books and other publications bordering on hate speech towards Koreans and Chinese (though not necessarily nationals of those countries resident in Japan) accelerated efforts by the government to deny its human rights abuses during the war, and the overall rise in political power of Nippon Kaigi and other extremist organisations are evidence to this effect. There can be little doubt that this overall climate has worked towards emboldening organisations with more inclination towards ‘direct action’ to take their hateful views to the streets. Government data suggests that there have been fewer marches in recent years (Jinken Kyouiku Keihatsu Suishin Senta 2017: 33). However, it is notable that such actions were unheard of until relatively recently. Even at its current reduced level, on average at least one hate speech demonstration takes place somewhere in the country every day (Jinken Kyouiku Keihatsu Suishin Senta 2017: 33).

Hate speech in Japan is directed mainly towards Koreans in the country, predominantly those with permanent residency status. Japan forcibly annexed Korea in 1910, and, though subject to wide ranging discrimination and abuse, Koreans were automatically afforded Japanese citizenship, and with authorisation could reside in Japan. As many as two million Koreans had migrated to Japan by the end of WW2 in 1945, some of whom were forced to work in Japan’s military industry complex or as sex slaves. In 1952, immediately upon the end of American occupation, Japan unilaterally revoked the citizenship of all Koreans residing in the country, forcing them to either ‘return’ to a newly independent Korea or live in Japan as foreign nationals, with no special dispensation for their historical circumstances. Widespread international condemnation of this policy over decades finally led to the adoption of new legislation in 1991, which affords special permanent residency status to Koreans who migrated to Japan before the end of WW2 and their descendants. Though almost 700,000 Koreans obtained permanent residency pursuant to this new policy, the number has been steadily declining, largely due to the increasing number of Koreans who choose to obtain Japanese citizenship: government statistics show that, as of the end of 2017, only just under 330,000 persons held the special status (Houmushou 2018). Despite the large number of at least legally assimilated Koreans, 600,000 is the generally cited figure of Korean residents, and discrimination against Korean residents remains widespread, in particular in the area of employment.

Hate speech in Japan, therefore, is inextricably linked with the public debate surrounding Japan’s human rights violations during the War, in particular with increasing efforts on the part of the right wing (including many conservative politicians) to deny outright that violations even took place. Put simply, recognition of past injustices logically leads to the conclusion that Korean residents in Japan must be treated in accordance with their historical circumstances. Denial of those injustices, on the other hand, leads to suspicion and hostility.

The most prominent organisation propagating hate speech targeting Korean residents is the Zaitoku-kai, short for Zai-nichi tokken wo yurusanai shimin no kai, or ‘citizens who will not allow special privileges of Koreans’. Formed in 2007, the Zaitoku-kai propagates a narrative of victimhood similar to that of racist organisations in other countries: it claims that Koreans cheat the welfare system, do not pay taxes, and that crime committed by Koreans against Japanese is rampant yet goes unreported in the mainstream media (see e.g. Zaitoku-kai 2007). Naturally, none of these claims has any basis in reality, but prominent figures connected with Prime Minister Abe have made similarly outlandish assertions, in particular accusing the media of avoiding the publication of the names of criminal suspects when they are Koreans (Huffington Post 2016). After natural disasters, wild stories on social media of Koreans ransacking empty homes and committing other crimes have gone viral (Mainichi Shimbun 2014). These are reminiscent of unfounded rumours of Koreans poisoning wells that spread after the great Tokyo earthquake in 1923, and which led to mass vigilante killings of Koreans throughout the city – atrocities which, like those committed during the War, prominent right wing politicians appear to be moving towards denying as well (Yoshikawa 2017).

In addition, security related concerns regarding North Korea’s abduction of Japanese and the country’s nuclear programme has added fuel to the fire, legitimising in the eyes of many the notion that North Koreans in Japan are a fifth column in the country. Zaitoku-kai regularly targets Korean schools (which are predominantly attended by North Koreans) in the country, demonstrating in front of school gates and hurling racial insults at the students (though, as discussed later, the courts in some jurisdictions have been relatively open to restricting such activities). In March 2016, the government requested local authorities to terminate educational subsidies for Korean schools, stating openly that the measure was in response to nuclear activities by North Korea and that the loyalty of the schools to Japan was in question (Yomiuri Shimbun 2016). In February 2018, Ruriko Miura, a right wing scholar with ties to the government, made the unsubstantiated claim that there were North Korean ‘sleeper cells’ throughout the country (Sankei Shimbun 2018).

International standards and Japan’s inadequate legal framework

International human rights law is clear that states must prohibit hate speech. ICPPR Article 20(2) states that ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ ICERD Article 4 goes further, requiring in 4(2) that state parties:

declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof.

Under Article 4(3), state parties must also ‘prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law’. The treaty body charged with monitoring ICERD, the Committee on the Elimination of Racial Discrimination (CERD), has published several general comments on this Article and the nature of state obligations under it. In the most recent one, in 2013, CERD ‘[recalled] the mandatory nature’ of Article 4, noting that it was recognised as ‘central to the struggle against racial discrimination’ during adoption of the Convention (Committee on the Elimination of Racial Discrimination 2013: 4). Nevertheless, Japan lodged a reservation to Articles 4(2) and 4(3) upon ratification of ICERD, stating it would ‘[fulfill] the obligations under those provisions to the extent that fulfillment of the obligations is compatible with the guarantee of the rights to freedom of assembly, association and expression and other rights under the Constitution of Japan’.

Relevant in this regard is the lack in Japan of comprehensive anti discrimination legislation. Both CERD and the Human Rights Committee, which monitors application of the ICCPR, have been consistent in calling on state parties to adopt comprehensive legislation prohibiting all forms of racial and other discrimination. Despite being state party to both of the above conventions, Japan shows no sign of doing so – a stance subject to persistent criticism at successive reviews by these and other human rights treaty bodies (see e.g. Committee on the Elimination of Racial Discrimination 2014a: 2–3; Human Rights Committee 2014: 3–4).

The government’s argument has long been that there is no need for such laws, since the Constitution guarantees equality before the law. However, though the relevant Article in the Constitution, Article 14, states ‘All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin,’ the Japanese text says ‘Subete kokumin ha’, more properly translated as ‘nationals’ or ‘citizens’. In other words, the Article applies only to Japanese citizens, not foreign nationals – a deficiency conveniently glossed over by the government (see e.g. Government of Japan 2012: 4). Japan became state party to ICERD in 1995, 30 years after adoption of the convention by the UN General Assembly. Yasuko Moro’oka notes that this long time span is in sharp contrast to most other human rights conventions, which Japan ratified much quicker after adoption, and argues that this is indicative of the government’s passive attitude towards the eradication of racial discrimination. She also points out that, contrary to the other conventions, where significant legislative changes were made upon ratification, no new legal provisions were prepared upon ratification of CERD (Moro’oka 2013: 71–73). As mentioned earlier, far from legislating proactively, Japan lodged a reservation to Article 4. On the occasion of the first review of Japan’s implementation of the Convention, CERD already:

[expressed] concern that [the] interpretation [in Japan’s reservation] is in conflict with the State party’s obligations … article 4 is of mandatory nature … and the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the rights to freedom of opinion and expression.

(Committee on the Elimination of Racial Discrimination 2001: 3)

The McLean case of 1978 is often cited as the leading precedent regarding the rights of foreign nationals in Japan. Ronald McLean, an American national teaching in the country, had been refused an extension of his visa because of his participation in an anti Vietnam war demonstration. The Supreme Court found in favour of McLean, stating that constitutional rights that are not explicitly or, by their substance, implicitly limited to Japanese nationals can also be exercised by foreign nationals in the country (Saiko Saiban-sho 1978). Nevertheless, as pointed out by Moro’oka, the court also stated that the rights of foreign nationals are guaranteed ‘only within the framework of immigration controls’, restricting this seemingly liberal view (Moro’oka 2013: 196). The courts have subsequently found no issue with the fingerprinting of foreign nationals (Saiko Saiban-sho 1995), the exclusion of Korean permanent residents from managerial positions in the civil service (Saiko Saiban-sho 2005), and other openly discriminatory practices. Hebon Shin argues forcefully that the McLean precedent has for all practical terms been superseded by Japan’s 1979 ratification of ICCPR (Shin 2013: 58–60). However, the Japanese judiciary has yet to subscribe to this view, and is in general reticent of arguments based on international standards.

The government initially attempted to shirk off the rising tide of domestic and international criticism of its inaction on hate speech. In Japan’s state report to CERD in 2013, the government argued that it ‘[did] not believe that, in present-day Japan, racist thoughts are disseminated and racial discrimination is incited’ to the extent that new legislation was necessary (Government of Japan 2013: 15). Nevertheless, the government was finally forced to take action, and in May 2016, parliament adopted legislation against hate speech (titled ‘Act on the Promotion of Efforts to Eliminate Unfair Discriminatory Speech and Behavior against Persons Originating from Outside Japan’ – see Government of Japan 2017: 11). This law aims at eradicating ‘unfair discriminatory speech and behaviour to incite the exclusion of persons originating exclusively from a country or region other than Japan or their descendants and who are lawfully residing in Japan from the local community’ (Article 2).

This law has received criticism for being inadequate in several areas (see e.g. Nihon Bengoshi Rengo-kai 2016). The definition of prohibited speech contained in Article 2 of the law is restricted only to speech directed at lawful residents of the country, thereby excluding persons in Japan without legal status. In addition, the law only attempts to address discrimination based on nationality, and not any of the other prohibited grounds enumerated in CERD, i.e. ‘race, colour, descent, or national or ethnic origin’ (Article 1). However, perhaps the most glaring flaw with the law is that there are no penalties – as noted by Koji Higashikawa, it is mainly a ‘general statement’ (Higashikawa 2018: 4) against hate speech, encouraging the government and local authorities to take what the law states to be ‘appropriate’ measures. The government is open about this in its 2017 report to CERD, citing the preamble of the law in stating that the purpose of the law is to ‘spread awareness among the general public and to promote their understanding and cooperation through further human rights education and awareness-raising activities’ (Government of Japan 2017: 26). The August 2018 CERD session is noteworthy in that it will be the first treaty body review of Japan since the hate speech law came into force.

Even with hate speech itself not prohibited, the authorities can restrict hate demonstrations on other grounds, though they have generally been reticent to do so. In one particularly egregious case in 2009, four Zaitoku-kai members (including the head of the organisation) burst into a Korean school in Kyoto, causing damage to the premises. These four were prosecuted on charges related to forcibly obstructing business and exhibiting threatening behaviour, and received sentences ranging from one to two years – though the sentences were suspended (see Kyoto Chiho Saiban-sho 2013: 13). The court also ordered the Zaitoku-kai to refrain from demonstrating within 200 metres of the school. The government mentions this case in its report to CERD, presenting it as ‘one example of a successfully prosecuted case’ (Government of Japan 2017: 32). As further evidence of progress, the government then lists two other court judgments on hate speech cases: one in Osaka in 2014, and another in Takamatsu in 2016, noting that specific references were made in both of these court judgments to the provisions of ICERD (Government of Japan 2017: 33, 34). This is arguably misleading: the other cases are civil suits, where the victims brought cases demanding damages (in fact the Osaka judgment is simply a civil suit brought forward by the victims of the Kyoto school attack: see Osaka Koutou Saiban-sho 2014). It is obviously positive that those cases have resulted in favourable outcomes for the plaintiffs, and that, in a departure from prevailing practice, the judiciary has started to be proactive in citing standards of international human rights law. Nevertheless, the fact remains that, in the absence of any criminal legislation prohibiting hate...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of contributors
• Introduction
• Introductory remarks
• 1. Hate speech and the false human rights narrative in Japan
• 2. Media in Japan: the muzzled watchdog
• 3. Criminal Justice reform of 2016: a solution to the infamous problems in Japanese criminal procedure?
• 4. An examination of the force used by Kidoutai (riot police) and Japan Coast Guard
• 5. Women’s empowerment and gender equality in Japan
• 6. Discrimination against women in the sphere of marriage and family life
• 7. Dōwa Policy Projects as unfinished human rights business – from Dōtaishin to Ikengushin
• 8. Blanket police surveillance of Muslims: a chilling precedent 1
• 9. The Fukushima diaspora: assessing the state-based non-judicial remedies
• 10. Stratification of rights and entitlements among refugees and other displaced persons in Japan
• 11. Japan’s military sexual slavery: seeking reparations as on-going human rights violations
• 12. Japan and the international human rights procedures: the ‘han-nichi’ narrative
• Index