Category: Law

The crime of “blasphemy”

The Kishin Shinoyama nude-photos-in-Aoyama-Cemetery story which Curzon mentioned earlier this year has finally come to a close, with the photographer ordered to pay “¥300,000 in fines for public indecency and blasphemy.”

Wait a minute… blasphemy? How could that possibly be a crime in such a non-religious country?

Go go gadget Criminal Code!

（礼拝所不敬及び説教等妨害）
第188条　神祠、仏堂、墓所その他の礼拝所に対し、公然と不敬な行為をした者は、６月以下の懲役若しくは禁錮又は10万円以下の罰金に処する。
２　説教、礼拝又は葬式を妨害した者は、１年以下の懲役若しくは禁錮又は10万円以下の罰金に処する。

(Disrespect of Places of Worship and Disturbance of Preaching, Etc.)
Article 188. A person who has committed an open and disrespectful act toward a shrine, temple, graveyard or other place of worship shall be sentenced to imprisonment at labor or confinement for six months or less, or a fine of 100,000 yen or less.
2. A person who has disturbed preaching, worship or a funeral service shall be sentenced to imprisonment at labor or confinement for one year or less, or a fine of 100,000 yen or less.

So there you have it; messing with religion is a crime in Japan. It doesn’t seem to be prosecuted that often, though: the various crimes against religion don’t even merit a line item in the Justice Ministry’s annual prosecution statistics.

What is Japan’s National Language?

It may surprise some readers (but perhaps not others) that Japan has no official language. This may seem trivial, but remember that Japan’s constitution, the basis of its entire legal system, was largely drafted by US lawyers and then translated into Japanese (which is why the Japanese language, such as randomly granting rights to “citizens” or “anyone” without a meaningful discrepancy, is so scattershot). What, then, is the law regarding the use of Japanese, and where is Japanese language use mandated by law?

The instances are surprisingly few. Perhaps the most important is Article 74 of the Courts Law:

Article 74: In the courts, the Japanese language shall be used.

The pre-war Foreign Courts Cooperation Law also provides that any document submitted to the Japanese courts must contain a Japanese translation.

The other instances are pretty minor and frankly merely procedural:

* Japan’s Patent Law and other related intellectual property laws requires that all international patent registration documents be submitted in Japanese. These laws were primarily amended to bring Japanese domestic law into line with the international treaties on IP registration that Japan has signed.
* Under the Notary Public Law, notaries can draft proof documents — that are in Japanese.
* Foreign doctors doing clinical work in Japan must speak Japanese, or another language approved by the Ministry of Health Labour and Welfare.
* The conversion of a foreign driver license requires that it be translated into Japanese by an officially approved translation body, under Article 107-2 of the Road and Transport Law.
* Foreign company reports designated by the cabinet to contain public interest information or information for the protection of investors must be in Japanese, under Article 24 of the J-SOX Law.

In my search of the Japanese law database houko.com, those are the only significant instances where the law mentions Japanese.

Another Obama appointment, another kabuki metaphor

This time it’s Elena Kagan, this time the culprit is Colorado Law professor Paul Campos speaking on NPR, this time it’s a “ritual,” and as always we are here to call them on it.

I think that to the extent that it’s possible to eventually support this nomination, it has to be based on her answering real substantive questions in the confirmation process instead of going through this kind of kabuki ritual of dodging those kinds of questions, which is what nominees have so successfully done for the past 20 years.

This is, of course, the same metaphor that Joe Biden used in the context of the Sotomayor confirmation hearings, as blogged about on MFT before.

And so I will say it again: if you’re going to compare Washington to any sort of Japanese theater, you’re probably best off comparing it to bunraku.

France, China, Arizona and Narita all want to see your papers

There are two inspirations for this post. The first is a recent blog post by James Fallows (who is exactly the person I would have become if I became a “real” journalist) at The Atlantic: Essay Question: Is AZ More Like China — or Like France? Amid discussion of the new illegal-immigrant-weeding laws in Arizona, specifically the fact that Americans don’t generally have to carry ID around with them, one Fallows reader in France chimes in:

The French must always have their National ID card on them – for the police can demand to see it at any and all times.

Foreigners, in principle, must always have a piece of ID on them – like a passport. I never carry this with me – in 14 years of living here, I’ve never had my passport on me except when I’ve been on my way to the airport and going abroad. But I’m white and look (sometimes sound) French of Gaullish stock. The police, in the vast majority of cases, stop and demand ID papers from youngish (under 40) males of African or Arab descent, be they French nationals or no.

It is not a well-looked upon practice of the police, but the French aren’t adamant enough against it to seek its abolition. As far as I understand, such identity checks have been a long staple of police work in France going back to the Revolutionary/Napoleonic era wherein the State underwent a reinforcement of its prerogatives over the citizenry.

Japan falls in between the American and French models: Japanese citizens are not required to carry ID, but foreigners in Japan have to carry a passport or alien registration card at all times, and the police have a habit of carding visible foreigners at random. Until last month, this had only happened to me a couple of times when I was bicycling around Tokyo, and one of those times I was able to shake off the cop by simply saying I was in a hurry.

Inspiration number two. Last month, six of my family members flew in from the US for the wedding. I took the train out to Narita to meet them on arrival. Their flight arrived 15 minutes ahead of schedule, so I started hustling quickly out of the station to get upstairs to the arrivals hall. A few seconds out of the station gates, a cop with his partner called out to me in English:

COP: Excuse me–(points at watch) Do you have a minute?
ME: (without stopping or slowing down) Nope, sorry. I have to meet someone upstairs.
COP: Oh, OK!

That was the end of that checkpoint, and I proudly announced my triumph on Twitter.

Fast forward a few days, and my family were headed back home, so again I went to the airport to see them off. They checked in before I arrived at the airport, so I met them in the ticketing hall at Terminal 2, and we sat down to relax for a while together before they left.

Two cops appeared from around the corner and made a beeline for the group of seven white people, saying “Excuse me? Passport check?”

My family all had their passports out already, and haven’t read Debito’s website, so they handed the passports over and the police started copying down their names and passport numbers with pencil and paper. I was about to pop, but tried to keep cool.

ME: Can I ask you guys something? There is no way to get into this airport without showing your ID to someone. Why do you have to check it again?
COP: It’s for security reasons.
ME: So you don’t trust the people checking our ID when we get off the train?
COP: Um, do you know what shokumu shitsumon (“official questioning”) is?
ME: I’ve heard of it.
COP: We just ask these questions. Your cooperation is completely voluntary.
ME: Really? You didn’t make that clear at all to my family.
COP: Errrr…. well, we don’t know how to say that in English.
ME: You work in an international airport and you can’t speak English? OK, whatever. I’m not traveling, I’m just seeing my family off.
COP: OK. Sorry to take up your time.

They didn’t check my passport, so it was a lukewarm victory. The police then hit up a couple of South Asians behind us, and disappeared around another corner without questioning anyone else. My father and sister both laughed and said “I think we were just racially profiled” — a bilingual Japanese lady they were talking to apologetically remarked “I don’t know what their problem is.”

About five minutes passed and another pair of police appeared demanding our passports. At this point I popped.

ME: You dumbf—s just asked them for their passports! Don’t you have anything better to do?!
COP: Oh. Sorry!

Strangely, there was no questioning when my wife and I came back the next day for our flight to Europe, or when we came back a few weeks later — though we passed a couple of white backpackers getting carded before going through the train station gates at the airport. I can only surmise that under Japanese law, an East Asian companion may implicitly substitute for a passport or alien registration card. That said, I would not try any similar stunt with European cops, who all seem to have submachine guns, military experience and serious attitudes, unlike their hapless Japanese counterparts.

NYT on American expats renouncing citizenship

NYT has an article noting that a sizable number of people every year give up their US citizenship for tax reasons. It seems like they are focused on Americans living in Europe, but I have met a few people in Japan who have at least considered this option. It does seem odd that the US is one of the few countries that tries to tax income earned abroad.

The Jones hitch-up post-game show: notes on getting married in Japan

I will be traveling over the next few weeks to Austria, Hungary, Italy, Greece and France on a mega-honeymoon with the newly-rechristened Mrs. Jones. Special thanks go out to Roy, the Adamus, Curzon, Younghusband, Peter and his wife, Aceface, Ben, the Gaijin Biker gang, and the many other members of our brilliant cast of characters friends who came to the wedding.

We am getting on a plane to Europe as this goes to press, and I will hopefully be back before long with some good travelogue fodder from this multi-modal, multi-destination itinerary. With that, some topical rambling on the marriage process follows: Continue reading The Jones hitch-up post-game show: notes on getting married in Japan

Naturalization in Japan: KEY FACTS

I am amazed at how the myth of Japan’s difficult naturalization process persists to be widely believed by well-educated Japanese and non-nationals alike. In a lengthy discussion of this last night, I researched some key facts on this and thought the results of my review worth sharing with MF readers.

* 15,440 people applied for naturalization in 2008, according to the MOJ. Of these, 13,218 people were naturalized, but that figure is deceivingly low as the application process takes 6-12 months (or longer), and some approvals will show up next year. Only 269 were rejected, which means that the rejection rate was less than 2%. The overall approval rate for first-time applicants for the past decade has been 99%.
* For the past decade, about 60% of applicants were Korean (including North and South Korea, and the generic “Chosen” applied to many Koreans born in Japan) and about 30% were Chinese (including Taiwan and Hong Kong).
* The basic requirement is five years of continuous legal residency in Japan, but this can be shortened to one year if the applicant has been married to a Japanese citizen for three years or more. Read the law in Japanese here.
* Otherwise, the requirements for naturalization are relatively straightforward, and I think most MF readers could naturalize easily. You must: be a competent adult; read kanji to a third-grade level; be an upstanding citizen with no criminal record; have sufficient income or assets to support your family; be prepared to give up other citizenship; and have never been involved in advocating or perpetrating the violent overthrow of the government or constitution.
* Unofficially, the primary cause of a rejection is a “criminal record” — not crimes bad enough for deportation, but crimes such as multiple speeding tickets. Nothing in the law prevents a failed applicant from immediately reapplying.
* The application is done at the local houmukyoku Legal Affairs Bureau. The cost of the application is free. Gyouseishoshi and shihoushoshi professional legal advisors can also handle the paperwork and application, for fees generally ranging from 200,000-400,000 yen.
* A key procedural step to naturalization is assembling the birth certificates and marriage certificates of the applicant and the applicants parents so that the applicant can create a koseki family registry.
* A family registry has two addresses, the ordinary residential address and the “honseki” which people generally keep as their family home, but which can be transferred freely. If a naturalized person changes their honseki to a new municipality, they get a new, clean koseki that only states present, not prior, facts, so the evidence of naturalization disappears from their koseki. (So do other key facts, which is a way that some people hide marriage annulment and divorce history.) This is only surface concealment — the original honseki is held by the municipality as a separate record, by law, for 80 years.
* There are a few examples of Europeans naturalizing as Japanese nationals during the Meiji Era and beyond, when some Europeans kept their names unchanged, in roman letters. After World War II and until 1985, applicants were required by ministry procedures to adopt a Japanese name. This was dropped as an explicit requirement that year, but remained as an inexplicit requirement through the 1990s. Presently, the only requirement is that a person write their name in kanji, hiragana or katakana, with no encouragement to otherwise adopt a “Japanese” name.
* It is rumored that one reason this requirement was dropped was because of the naturalizatio of Masayoshi Son, the president of Softbank born in Japan to Korean parents, and one of Japan’s richest people. When he applied for naturalization, the authorities said that he had to take a Japanese name or prove that Son (or 孫) was a Japanese name. As he was advised by lawyers with more than half a brain cell, his wife petitioned the family court to take his family name, this was accepted by the court, and he had the necessary proof. The flummoxed bureaucrats thus took the view that this now unwritten requirement was outdated and dropped it.

Thoughts on legal translation

A thread popped up on the Honyaku mailing list today regarding the use of “will” and “shall” in legal documents. I took the rare (for me) step of responding. Since we have many translators in the audience, I’m cross-posting my response here, with a few edits to consolidate another comment in the same thread.

Law is a conservative field, and legal drafting is generally adverse to change, despite whatever trends may be popping up among certain forward-thinking lawyers. “Shall” is still the most common way to set up an obligation in a contract, and is probably the least controversial way to translate a phrase like ～しなければならない or ～するものとする when used for that purpose. There is nothing wrong with using “will” or “must” for this purpose, but it is not really the standard usage.

On which is “better”: It really depends on the subject matter and specific usage in question. I mostly work with institutional financial transactions, where the contracts are all drafted by a handful of large law firms from Word templates, look more or less the same, and they generally use “shall” to set up obligatory commitments. In this context, it would almost be stupid not to say “shall” since that is what everybody expects to see. A consumer contract, on the other hand, might need different language, since a reasonable non-professional may not understand the meaning of “shall” in a particular context.

However, I would never use “shall” for more than one purpose in one contract — that seems to be asking for trouble.

That said, please use consistently different translations for different terms in the original document. For instance, I usually translate ～しなければならない as “must” and ～するものとする as “shall,” regardless of the apparent intent behind the terms.

I say this because there can be hair-splitting in the interpretation of a contract based on inconsistent usage of words like “will” and “shall.” For instance, if the contract usually uses “shall” to create obligations, but inconsistently uses “shall” elsewhere to state a condition or a representation of fact, that inconsistent usage may be relevant in arguing about the contract later. The party reading the translation may want to note that inconsistency or dispute it with their counterparties, but they cannot tell that there is an inconsistency unless that inconsistency is reflected in the translation with similarly inconsistent language.

The same applies to tense. Past tense, present tense and future tense may add nuances to the contract that lawyers will argue about later. If a sentence otherwise sounds like an obligation but is stated in the past or present tense, it may be interpreted as a representation or warranty, which makes a huge difference. (An obligation binds the parties to do something, whereas a representation/warranty is a statement of fact which the parties rely on — the other parties can claim damages from whoever “said” the statement if the statement is incorrect.)

Sadly, there are many contract drafters (both lawyers and non-lawyers, both Japanese and non-Japanese) who fill their contracts with incomplete, inconsistent or illogical terms. As the translator, you should not cover these up — you have to read these documents word-for-word and directly translate any incompleteness, inconsistency or illogicality in the original. Otherwise you are likely hurting your client by concealing the bad drafting of the underlying document.

Deloitte Touche Tohmatsu has a good online glossary of Japanese contract terminology if you want to learn more about the nuances of different terms. Unfortunately, I haven’t come across any similarly straightforward English-language resources. One good “dead tree” book on English contract terminology is “Drafting and Analyzing Contracts” by Scott Burnham (ISBN 0820557889), but it is aimed more at lawyers and law students who want to write contracts, not so much at translators and analysts.

Question: Do you think it would be a good idea to suggest that clients include a definition in English translations of contracts to make it clear that “shall” means “has a duty to” and consistently use “shall” only in that sense?

This is not legal advice for any particular situation, but only a general observation: I see efforts like this in professionally-drafted contracts from time to time, most often when written by lawyers from the Commonwealth countries. To use a tired metaphor, it is a double-edged sword. If you explicitly define “shall” to mean something in particular, it’s much harder to argue that “shall” means anything else, so you have to be especially careful to avoid any other usage of “shall.” If you don’t define “shall,” then you can use the context of the word to argue your way out of any inconsistent usage, by claiming that it was never explicitly limited to any particular meaning.

Perhaps this discussion illustrates the value of getting a lawyer involved in drafting! But in any event, I hope it illustrates the value of keeping original terminology distinctions intact as much as possible.

Race: to be ignored or over-emphasized?

Exhibit 1. Michelle Malkin’s blog (hat tip to Adamu):

Fully one-quarter of the space on this year’s [U.S. Census] form is taken up with questions of race and ethnicity, which are clearly illegitimate and none of the government’s business (despite the New York Times’ assurances to the contrary on today’s editorial page). So until we succeed in building the needed wall of separation between race and state, I have a proposal.

Question 9 on the census form asks “What is Person 1’s race?” (and so on, for other members of the household). My initial impulse was simply to misidentify my race so as to throw a monkey wrench into the statistics; I had fun doing this on the personal-information form my college required every semester, where I was a Puerto Rican Muslim one semester, and a Samoan Buddhist the next. But lying in this constitutionally mandated process is wrong. Really — don’t do it.

Instead, we should answer Question 9 by checking the last option — “Some other race” — and writing in “American.” It’s a truthful answer but at the same time is a way for ordinary citizens to express their rejection of unconstitutional racial classification schemes. In fact, “American” was the plurality ancestry selection for respondents to the 2000 census in four states and several hundred counties.

Exhibit 2. The Rapporteur of the United Nations Committee on the Elimination of Racial Discrimination, to the Japanese government (thanks to Debito for putting the transcript online):

The report and [the government’s] responses contain many statistics including figures disaggregated by citizenship, nationality, but paragraph 4 of the report says that ethnic breakdown for Japan is not readily available, Japan does not conduct population surveys from an ethnic viewpoint.

I must say this has caused the rapporteur some heartache in the sense of trying to get a grip on relevant figures. For example, in relation to Koreans, you say that 600,000 approximately, that’s just round up those numbers, foreigners who are Koreans; 400,000 of which are special permanent residents, but there is also a figure of some 320,000 naturalizations that I have come across, and in recent years up to 2008, so we are actually talking about a million, something roughly around a million Koreans and Korean descent.

The committee often asks for statistics; we understand the difficulties that states may have for various reasons including reasons to do with privacy and anonymity and so on, not wanting to pigeonhole people in certain ethnic categories, but it can be tremendously helpful I think and also in many cases necessary to get a grasp of the situation by understanding its dimensions and if an ethnic question can’t be asked in a direct way in a census, we often encourage states to find creative ways around this, including things like use of languages we recommended to other states from time to time; social surveys, etc., and a number of other methods that are…this is essentially designed not simply to help the committee – that’s not the point – but to help the state, I think to understand the dimensions of a particular question, and enable them to focus their policy more appropriately.

“Race” in terms of black and white is a pretty silly idea, but there is something to be said about monitoring statistics on ethnic origin, as opposed to the Japanese government approach of looking at registered nationality alone (that is, when they choose to count foreign nationals at all). Of course, when the world is full of hot-heads on both sides of the political fence, it’s hard to reach a compromise that anyone will like.

Japanese Names, White Faces

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.