Marmot has a post titled “Funny, You Don’t Look Like a Mr. Fujita…” that looks at the case of Scott Fujita, a 6′5″ 250 pound white football player with a Japanese name who plays for the New Orleans Saints. He’s not ethnically Japanese, or even Asian, but was adopted by a family with a Japanese-American father born in the World War II detainment camps. He reportedly feels Japanese in his heart and is a fan of mochi ice cream and Pocky.
Reading the post and the comments reminded me of my meeting with Sailor Nathan Nakano, resident on the USS Kitty Hawk, when I visited as a guest of the Tiger Cruise in Yokosuka in 2006, seeing US military hardware and life on board an aircraft carrier, courtesy ComingAnarchy reader Eddie.
Curzon and Nakano, September 2006
I remember asking Nakano: That’s a Japanese name! What gives? And if I recall correctly, his father’s father was either Japanese or half-Japanese, making him one-fourth or one-eighth Japanese. You can read a news story that quotes Nathan here.
I wonder how many Westerners there are with Japanese names in the world? Marmot’s commenters have a few stories relaying similar stories about white kids with Japanese names due to adoption or stepfather relationships. There’s also a (sorta) opposite case, Haruki Nakamura, the current United States Chess Champion—he was born in Japan to a Japanese father and American mother, but his parents divorced, his mother remarried a Sri Lankan, and his stepfather, FIDE Master and chess author Sunil Weeramantry, taught him chess. So he’s got a Japanese name, but has only non-Japanese parents.
This has been a hot topic in American legal discourse recently thanks to the U.S. Supreme Court’s decision in Citizens United vs. Federal Election Commission, which upheld the notion that corporations have the right to free speech—in this case, the freedom to spend money to defame Hillary Clinton during the Democratic primaries, which was previously banned for corporations under election finance statutes. You can read the whole opinion here (PDF), but it is long, and filled with discussion of the historical concepts of corporations, going back to when the Constitution was written.
The idea of corporations having constitutional human rights seems alien to many American observers and probably bizarre to many Japanese people. So far, the best concise analysis of the subject I have found (in the context of the American case) is this piece by law professor Usha Rodrigues at my favorite “blawg,” The Conglomerate. She points out that even the justices of the Supreme Court did a good job of conflating various types of “corporation,” when in reality a corporation can be a home-office business, a completely non-profit organization or even a type of governmental entity. (Justice John Paul Stevens, who led the left-wing dissent, even brought Tokyo Rose into the argument.)
From this perspective, it becomes more clear that corporate status is not a very good dividing line. It captures Goldman Sachs and the big oil and pharmaceutical companies, but it also captures the Sierra Club, the NRA and all sorts of organizations that do have a valuable role in consolidating a force of popular opinion that might not otherwise be expressed.
The real problem for populists, I think, is the fact that political donations are treated as a form of speech. There’s a way to get around this: amend the Constitution. Good luck doing that without a lot of money to run a campaign.
Since this is mostly a Japan blog, I should add that Japan’s Supreme Court ruled similarly, albeit more tersely, on a similar case in 1970—the Yawata Steel case, outlined in Japanese here. This case was originally brought by a lawyer who held Yawata Steel stock and wanted to stop the company from making political donations. The court’s ruling, which is still law in Japan, was that Japanese corporations have the full array of constitutional human rights “to the extent possible given their nature” (性質上可能な限り). Some extracts from their opinion (available here in Japanese), followed by my English paraphrase:
会社は、一定の営利事業を営むことを本来の目的とするものであるから、会社の活動の重点が、定款所定の目的を遂行するうえに直接必要な行為に存することはいうまでもないところである。しかし、会社は、他面において、自然人とひとしく、国家、地方公共団体、地域社会その他（以下社会等という。）の構成単位たる社会的実在なのであるから、それとしての社会的作用を負担せざるを得ないのであつて、ある行為が一見定款所定の目的とかかわりがないものであるとしても、会社に、社会通念上、期待ないし要請されるものであるかぎり、その期待ないし要請にこたえることは、会社の当然になしうるところであるといわなければならない。
Companies are formed for the purpose of performing a particular business, but this does not mean that they can only act in direct furtherance of the purposes listed in their articles of incorporation. Companies, like individuals, are part of the state, their localities and their regional societies, and have responsibilities toward those entities. Even if a certain type of act is beyond the purposes of the company as provided in its articles of incorporation, such an act should still be allowed to the extent that it is expected and demanded of the company in the course of its social relations.
そしてまた、会社にとつても、一般に、かかる社会的作用に属する活動をすることは、無益無用のことではなく、企業体としての円滑な発展を図るうえに相当の価値と効果を認めることもできるのであるから、その意味において、これらの行為もまた、間接ではあつても、目的遂行のうえに必要なものであるとするを妨げない。災害救援資金の寄附、地域社会への財産上の奉仕、各種福祉事業への資金面での協力などはまさにその適例であろう。会社が、その社会的役割を果たすために相当を程度のかかる出捐をすることは、社会通念上、会社としてむしろ当然のことに属するわけであるから、毫も、株主その他の会社の構成員の予測に反するものではなく、したがつて、これらの行為が会社の権利能力の範囲内にあると解しても、なんら株主等の利益を害するおそれはないのである。
Such acts are not necessarily limited to not-for-profit acts. A company may also (directly or indirectly) find value toward its own development as an enterprise through disaster relief, services to society, funding social welfare projects and other peripheral acts. Appropriate expenses by a company toward these social duties are naturally to be allowed and do not violate shareholder rights or harm shareholder profit.
以上の理は、会社が政党に政治資金を寄附する場合においても同様である。憲法は政党について規定するところがなく、これに特別の地位を与えてはいないのであるが、憲法の定める議会制民主主義は政党を無視しては到底その円滑な運用を期待することはできないのであるから、憲法は、政党の存在を当然に予定しているものというべきであり、政党は議会制民主主義を支える不可欠の要素なのである。そして同時に、政党は国民の政治意思を形成する最も有力な媒体であるから、政党のあり方いかんは、国民としての重大な関心事でなければならない。したがつて、その健全な発展に協力することは、会社に対しても、社会的実在としての当然の行為として期待されるところであり、協力の一態様として政治資金の寄附についても例外ではないのである。
The above reasoning also applies to corporate gifts to political parties. The constitution does not expressly mention political parties nor grant them any special status, but implicitly assumes their necessary existence through its general structuring of the representative democracy system. Political parties are the most powerful constituent body of the people’s government, and to participate in their development is naturally to be expected as a social act even by a company. Political donations are a normal component of the cooperation between citizens and their government.
Police plan to send papers to prosecutors shortly on photographer Kishin Shinoyama on suspicion of public indecency for shooting photos of nude models in public spaces for a book, sources said Saturday.
The police are consulting with the Tokyo District Public Prosecutor’s Office on sending papers on the 69-year-old photographer and two female models, the sources said.
“Send papers to prosecutors” is a crude (but accurate) English translation of 書類送検 or shorui souken, a word frequently seen in Japanese news stories with no statutory basis or definition. What does it mean, and at what stage is Shinoyama in the criminal prosecution procedure?
“Sending papers” describes a situation where police officers have not arrested someone, or initially arrested them and released them, and then send the relevent evidence that identifies the suspect with the criminal offense. The word “sending papers” is not actually used by the police or prosecutors and does not appear in any criminal procedure legislation, but is a correct explanation of what happens—Article 246 of the Criminal Procedure Law obliges the police to promptly send all papers and evidence regarding the suspect and the incident (and information regarding confessions). Prosecutors can, and do, designate that some minor crimes be up to the discretion of the police to process independently or to decide at their discretion whether or not to send papers.
The background to Shinoyama’s case is that the photographer shot nude photographs of his two adult models in Tokyo in twelve public places, including a church and the Aoyama Graveyard, between August 16th and October 15th, 2008. The police received several complaints during this time and investigated one incident on September 7th, but Shinoyama responded by submitting a document to the police stating that his models were wearing swimming suits. When the photographs were published in his latest collection “NO NUDE” in September 2009, police felt compelled to proceed with a formal investigation.
Shinoyama’s public statements on this began with a defiant tone (“In my fifty years as a photographer…!”), but he has since taken a much more concilatory tone (“I’m sorry. I meant to consider my surroundings, but I was not careful enough”). That’s because in Japan’s apology-based criminal justice system, he still has time to avoid prosecution. Once the prosecutors receive the papers, they make the decision of whether or not to prosecute the case, under Article 247 of the same law, and have the option of deciding to not prosecute, under Article 248. At this point, the police are still “consulting” with prosecutors as to how and what to send them so as to be in compliance with their legal obligation. And the biggest issue with Shinoyama is a combination of the fact that he took public pictures of the nudes, that numerous people called 110 to complain, and Shinoyama’s denial of this fact at the time. If he apologizes enough, this appropriatly aged photographer could still avoid the most serious sanctions—or as one article in the Mainichi concludes, “it appears the goal of sending papers here is to put the brakes on similar acts.”
The DPJ has agreed to submit a bill that would grant foreign permanent residents of Japan (let’s call them PRs) the right to vote and run in local elections. Getting voting rights without having to give up Korean citizenship has long been a goal of zainichi Korean activist groups. But this proposal would apply both to “special” permanent residents that include the population of “zainichi” Koreans and Chinese from Taiwan who remained in the country after WW2, and to any foreigner granted permanent residency.
The bill has stirred up a firestorm of criticism, most loudly from the right wing. However, in support of the bill are some powerful forces, first and foremost DPJ Secretary General Ichiro Ozawa, whose job it is to ensure a lasting majority for his party. According to at least one critic, the decision to offer suffrage to all PRs may be an attempt to secure a more permanent voting base because the zainichi population has been falling precipitously as the original group dies off and their decendants naturalize.
Personally, although I could potentially benefit from this bill if I one day am granted permanent residency, I don’t think it’s a good idea. Except for unique circumstances, only the citizens of a country should be allowed to vote.
Right-wing anger
The right wing and their allies in the opposition LDP have mobilized against this bill. Right-leaning Sankei Shimbun has run features pointing out the “big problems” with the bill. Financial services minister and conservative People’s New Party President Shizuka Kamei is against the proposal, noting he would refuse to sign a cabinet decision on the matter. In a statement, he worried that some areas with large foreign populations would see an upheaval of political power. He also suggested the compromise measure of loosening the requirements to naturalize, without being specific.
Protests have been common, and generally have taken a highly xenophobic tone. The crux of the argument is that there is no good reason to give PRs the vote and that almost no nations unilaterally grant foreign citizens the right to vote (some EU countries allow it for other EU citizens, along with some other exceptions made for special groups (PDF)). Some of the criticism veers into the paranoid, however. In addition to the long, long list of furious red herring arguments documented by Debito, here is a video of one activist calmly explaining that this is an attempt by China to take over Japan by populating the country with foreign voters.
Almost non-existent support
It’s obvious enough that these protesters are making ridiculous arguments and have cranked the outrage way out of proportion. But what is the case for giving PRs the vote?
In addition to expected support from zainichi Korean groups, we have some uncharacteristically half-baked support from Debito, the well-known human rights agitator: “Debito.org is in support, given how difficult it can be to get PR in Japan, not to mention how arbitrary the naturalization procedures are.” But just because it’s tough to get the status, that doesn’t mean one should get the right to vote and be elected. I am not accusing foreigners in Japan of being spies or degenerates, but a basic tenet of a country and the Japanese constitution is that it is to be governed by its citizens. That requirement helps assure those who will be involved in politics are committed citizens of the country. Permanent residents are already protected under the law and do not need to renew their visa to stay in the country. I think if they want more than that they should be ready to give up their original passport and become citizens.
In an article in Japan Focus, professor Chris Burgess praises the zainichi suffrage movement as “multiculturalism in practice” but makes no mention of the expanded proposal.
I can understand giving the special permanent residents the vote because they are for all practical purposes citizens of the country. The current DPJ proposal would essentially exclude those who did not explicitly take South Korean citizenship (朝鮮籍維持者), if I understand correctly. But I would not even have a problem with these people getting the vote as it was an tragedy of history that put them in the country in the first place. If Japan would permit dual citizenship that would be one thing, but absent that letting them vote one way to let them participate in society.
But really, what constituency of non-zainichi PRs is actually asking for the right to vote? The only one who really stands to gain is the DPJ itself which would earn itself an expanded and loyal voter base. That’s an irresponsible way to decide election policy in this country, and as much as it pains me to side with rabid right-wingers who may wish me ill will, they are right on this issue. There are more important issues in my opinion (allowing dual citizenship, establishing an immigration policy) that should be given more priority.
Tokyo Vice: An American Reporter on the Police Beat in Japan came out this past Fall. A tale of sex, scandal, and gangsters, it was written by Jake Adelstein, a former vice reporter for the Yomiuri and the only American to have been admitted into the Tokyo Metropolitan Police Department press club. If you’re interested in hearing more about the seedy side of Tokyo, I recommend picking up a copy. It’s a great read, at least as interesting as Robert Whiting’s Tokyo Underworld.
Some of you may have heard of Adelstein when his name popped up a year or so ago as the author of a Washington Post article about the yakuza (Japanese mafia). He is an interesting fellow; besides his unique former press credentials he also was instrumental in the 2006 TIP report that embarrassed Japan into adopting stricter anti-trafficking measures. Additionally, he runs the “Japan Subculture Research Center,” a blog devoted to the Japanese underground. He is currently running around the world promoting his new book. This isn’t just to generate sales. The publicity he generates keeps him alive.
In December 2005, a “fat fingered” Mizuho Securities trader (unnamed, and now presumably unemployed) sold 610,000 shares at 1 yen instead of selling 1 share at 610,000 yen. The error resulted in Mizuho losing 27 billion yen (about US$225 million at the time), perhaps the most expensive single trading error in history.
Mizuho decided to sue the Tokyo Stock Exchange for not having a safety system in place to prevent these types of errors, and almost four years later, the court has ruled that the TSE is liable to the tune of 10.7 billion yen, or about 40% of the original damages. The presiding judge called the lack of safety measures “absurd” and that the exchange failed to exercise the suitably duty of care. In addition to a lack of failsafes preventing such a trade, the TSE’s computer system was unable to process the cancellation order after Mizuho tried to withdraw the trade.
On the one hand, I am frustrated by the ruling because of the vague formula used to calculate the award, which I think is just an arbitrary number that the judge felt was right, rather than a careful calculation. Mizuho was deemed to be partially at fault, and the judge came to the conclusion (perhaps using some type of metric that the TSE bore 70 percent of the blame. The damages to Mizuho are pretty easy to calculate: 27 billion yen—plus three years of interest! How 70% responsibility for the loss results in an award of 40% of the amount of damages makes no sense to me. Such is the problem with judges in Japan, or as some Japanese critics would call it, 裁判できない裁判官—judges who cannot judge.
I see the ruling as a victory for accountability, which is sorely lacking in Japan. The very word means responsibility what happens, yet in Japan it is regularly translated as 説明責任, or the mere “responsibility to explain.” That has often been the approach to accountability in Japan—as long as someone can explain what happened, there is no blameworthiness or real liability. Hopefully we’ll look back at the TSE “Fat Finger” ruling as the first major move by courts to introduce a Western modern style of accountability.
In October, I wrote about the attempted abduction/rescue of the Savoie children by Chris Savoie from his wife, and explained my sympathy for Noriko, the Japanese wife who had absconded with the children from Tennessee, USA to Japan. While acknowledging and criticizing the Japanese child custody regime, I was appalled by Chris’ conduct and said very clearly that “Christopher is the wrong martyr to rally behind in this fight.” Mulboyne disagreed (right after saying that the post was too long at 200 or so comments—it currently stands at 434), and had this to say:
One of Curzon’s original points was that Savoie is “the wrong martyr for the cause”. It’s beginning to look like he might be the right one… for better or worse, his case has received significant coverage in the US and coverage in the Japanese media is now building up momentum… Even following an announcement in May 2008 by the Ministry of Justice that Japan was beginning to look at the possibility of becoming a signatory to Hague, there was no mention of any specific instance. The same when Canada, Britain, France and the US made a joint diplomatic representation on the issue in May of this year.
Christopher Savoie’s actions in Japan have been reckless and stupid but, whereas most cases have no narrative development, this one has a good deal and promises more. Even coverage of a left behind parent tails off in the US in the absence of any concrete development. Most parents are just sitting and waiting or else tied up in legal proceedings in Japan which generally go slowly and, usually, nowehere. With Savoie, we have a man in jail and something has to happen to him. He might be charged, he might be released, he might be deported. Whichever course of action the authorities take, there will be repercussions and more coverage.
Such was my disgust with Savoie that I did not want to agree with that analysis. Mulboyne later repeated this comment in more detail over beers a few weeks later (we’re a social bunch, us MF and CA bloggers).
The Foreign Ministry has set up a new division to handle international child custody issues in response to overseas criticism that Japan allows Japanese mothers to take their children away from their divorced partners.
The division, officially launched Tuesday, will study the issue, including whether to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction, whose aim is to secure the prompt return of children wrongfully removed to or retained in any signatory countries, Foreign Minister Katsuya Okada said.
Of course, such criticism has been ongoing for years and has been well documented and criticized, yet only now, after the awful CNN press coverage of the Savoie fiasco is the Japanese government taking notice. My conclusion? I can’t bear to acknowledge it twice, so just read the post title again.
It’s been six months since the official kickoff of Japan’s lay judge system (roughly equivalent to a US jury), and about 4 months since the first trial began. Already, 84 people have helped adjudicate 14 criminal trials.
So far there have been hundreds of thousands more – 290,000 to be precise – who have received notices telling them they may have to serve (presumably this includes both people who were excused and those still in the selection process). Asahi Shimbun has a feature article (in the Nov 17 print edition) on the ups and downs of the selection process. According to a provided flowchart, the process typically goes something like this:
People are randomly selected from the roster of eligible voters and must fill out a questionnaire about their eligibility, which they can then deliver in person or mail in. Many can get out of showing up for an interview at court for a variety of reasons – those 70 or older, those who have not completed middle school, people with “critical matters” to attend to, and those who have been sentenced to imprisonment are among those who do not have to serve.
Of the 40 or so who are asked to come to the courthouse, about five stragglers will fail to appear and face a fine.
Then it’s interview time. The head judge, the prosecutor, and the defense will hold a speak privately with each candidate. The judge will excuse around three people for the above legally permitted reasons mandated by law. The prosecutors and defense can then excuse up to seven people each without giving any reason. The judge can also suggest to either side that they let someone go. The article quotes a defense attorney explaining that he tends to excuse old people and women because they tend to throw the book at violent offenders. Another defender tries to pick mothers with children the same age as the defendant. A prosecutor let a woman go for keeping quiet and looking at the floor all the time. One judge asked a defender to let a woman go who looked too weak to fully participate (the defender agreed).
After the initial selection process, the remaining candidates are decided by lottery. Six people are selected as lay judges, with two others chosen as backups. Those who are not chosen do not know whether they lose the lottery or if the lawyers in the case wanted them out.
Basically, it sounds like otherwise eligible people can get out of lay judge duty by acting unenthusiastic or fatigued because the lawyers want people who will be engaged and interested.
One complaint voiced a man who was excused: if you show up at the courthouse and are chosen as a lay judge, you’re immediately sequestered for about four days. That forces everyone to plan on being away for a few days even though most will be able to go home. The man suggested scheduling the trial a week after the interview day so the lay judges can make arrangements for an extended time away from home. That’s basically how it works in the US, if I recall correctly.
A woman who cares for her ailing mother full time wrote in her questionnaire that she would like to be excused, but the court called and told her she should come anyway. She had to pay for a home helper out of pocket to show up at court. She ended up not being selected, but since there was no way to plan she ended up having to pay for an extra day of care that she didn’t use.
Sadly this story was relegated to the back pages of the Asahi. This scheduling issue is a careless oversight that threatens to undermine the already shaky public support for this new system. Once chosen, almost everyone seems to feel the process was worth it, according to a survey. The next step is lessening the hassle for those who don’t get chosen.
Marmot has a post titled “Funny, You Don’t Look Like a Mr. Fujita…” that looks at the case of Scott Fujita, a 6′5″ 250 pound white football player with a Japanese name who plays for the New Orleans Saints. He’s not ethnically Japanese, or even Asian, but was adopted by a family with a Japanese-American father born in the World War II detainment camps. He reportedly feels Japanese in his heart and is a fan of mochi ice cream and Pocky.
