Fortunately, my few run-ins with the Japanese police have been tame. I’ve been carded a couple of times while biking around central Tokyo, and once got into a spat with a cab driver late at night which the local koban cop helpfully mediated without even checking my papers. Still, reading others’ experiences makes me believe that police here, while helpful when they want to be helpful, also have an undue amount of power and very little responsibility for misusing it.
On paper, this is not how it should be. On paper, there are officials who oversee the police, both on a national level (through the National Public Safety Commission) and on a local level (through prefectural public safety commissions). They are appointed by elected officials (the prefectural governor/assembly or the Cabinet) and serve fixed terms.
Each commission is located on the premises of the prefectural police headquarters and police officers perform its clerical functions, so there is no guarantee of neutrality or confidentiality.
The prefectural government has no authority vis-a-vis the police, so there is no way for local government to investigate or punish the police without going through the commission.
The commissions are often packed with local elites who have little experience or interest in police or criminal justice matters.
This often creates a conflict of interest, because such individuals won’t want to effectively challenge the local police in many instances.
The police end up being taken more seriously and can effectively dictate policy to the commissions. This happens on a local level as well as a national level (between the NPA and NPSC).
For illustrative purposes, the NPSC currently consists of the following individuals:
Motoo Hayashi (chairman): LDP legislator and state minister in the Aso cabinet (for disaster prevention, Okinawa and Northern Territories policy, and possibly other irrelevant portfolios as well)
Nobuyuki Yoshida: Senior director of the Sankei Shimbun, responsible for its right-wing editorials
Yoshiyuki Kasai: Chairman of JR Central
Mariko Hasegawa: Professor in the School of Advanced Sciences at the Graduate University for Advanced Studies who apparently specializes in sociobiology and has a strong academic interest in the biology of sexuality
Kenjiro Tao: Chief judge of the Hiroshima High Court (an intermediate appellate court), somewhat famous for handing down the verdict against serial killer Tsutomu Miyazaki.
For folks trying to find an affordable apartment near a major Japanese city, one useful resource is the Urban Renaissance Agency (都市再生機構 toshi saisei kikou), usually called “UR” in Japanese.
UR has a vast portfolio of properties. Although the agency is associated with danchi, the intimidatingly enormous apartment complexes scattered around the suburbs of Japanese cities, they also offer upscale center-city properties, such as the high-rise apartments on the south side of Shiodome in Tokyo (within spitting distance of Shinbashi and Ginza).
There are several advantages to renting through UR. Unlike many private landlords, UR does not charge for “key money,” only imposing a (theoretically) refundable 3-month security deposit at the start of the lease. There are also no brokerage fees, and no additional fees to renew the lease upon its expiration.
Perhaps most saliently for the readers of this blog, UR also has few barriers to entry. Anyone with a certain level of income or assets can generally rent a UR apartment, and even the less financially well-off can get into UR by prepaying their lease. UR does not discriminate against foreigners, against unmarried couples, against same-sex roommates or against part-time renters, despite the fact that private landlords routinely shun all four groups for unclear reasons.
How UR came to be
UR is a government-mandated developer established in 2004, and claims to be “probably the largest landload [sic] and developer in the world.” It functions like a private company with an enormous balance sheet, but remains under the supervision of the Land, Infrastructure and Transport Ministry, like its many forebears.
The first forebear of UR was the Japan Housing Corporation (日本住宅公団), established in 1955 to build housing for workers in major cities during the post-Korean War economic boom. JHC built many of the classic danchi around Tokyo and Osaka, starting with Kanaoka (Sakai) and Inage (Chiba). In the sixties and seventies it became more deeply involved in mixed-use “new town” projects in the suburbs, incorporating apartment buildings, single-family homes and commercial properties. Another state-owned Residential Land Development Corporation (宅地開発公団) was set up in 1975 and is chiefly remembered today for its work on the Chiba New Town project (the Hokuso Line in Chiba was once called the “Corporation Line” or 公団線 since the Corporation owned everything around it).
These two entities merged into a single Housing and Urban Development Corporation (住宅・都市整備公団) in 1981, which was renamed to Urban Development Corporation (都市基盤整備公団) in 1999. During this era, the corporation shifted from crowded apartment complexes and suburbs to more spacious and comfortable projects, as the postwar urban population explosion began to slow down and wealthier consumers started to demand more than a few tatami mats surrounded by reinforced concrete.
UR’s other family line starts with the Coal Mining Area Development Corporation (産炭地域振興事業団), founded in 1962. This entity was set up to encourage business development in hard-hit coal-mining regions and to support the re-training of former coal miners. In 1972, the entity’s mandate broadened, and it became the Industrial Relocation and Coal Mining Area Development Corporation (工業再配置・産炭地域振興公団) for two short years, before the Diet settled on a less unwieldy name, Japan Regional Development Corporation (地域振興整備公団), in 1974. For the next thirty years, JRDC worked on various projects to spur industrial and economic development in the nether regions of Japan, focusing on isolated prefectures like Akita, Aomori and Miyazaki.
UR was formed when JRDC was broken up in 2004. The urban planning operations of JRDC were folded into UDC to form UR, while the industrial development operations of JRDC became part of a new (and very awkwardly-named) Organization for Small & Medium Enterprises and Regional Innovation (中小企業基盤整備機構).
The agency is now governed by a special statute which defines its purpose in one enormous run-on sentence:
…to plan the renewal of major cities and regional urban centers where foundational arrangements for effective urban activity and rich urban living have not been adequately conducted in response to changes in social and economic conditions, by conducting services related to improving the arrangement of urban districts and assisting in the provision of rental housing, through increasing urban functions and improving the residential environment in response to changes in social and economic conditions, and by conducting services related to the management of residential housing inherited from the Urban Development Corporation, to plan the sustainable preservation of rental housing which has established a desirable residential environment, thereby contributing to the sound development of cities and the greater sustainability of citizens’ lifestyles.
How UR works
Some UR developments are essentially intended to monetize government land. The Shiodome apartment buildings, for instance, are on the site of what was Tokyo’s main rail freight terminal during the days of nationalized rail. The huge Hikarigaoka development (at the end of the Toei Oedo Line in Tokyo) was redeveloped from Grant Heights, a US military housing complex returned to Japan in the 1970s (itself built atop an Imperial Army air field).
Other developments such as Chiba New Town, the Tsukuba Science City, the Saitama New Urban Center and the Kansai Science City are built on land purchased from private owners, no differently than a private real estate developer might operate.
Besides its government equity fund of 948 billion yen, UR also issues special Urban Renaissance Bonds (都市再生債券), currently totaling about 1.8 trillion yen. But its main source of funding is the Ministry of Finance, which has pumped ten trillion yen of loans into UR through its Fiscal Investment and Loan Program. Another two trillion or so comes from debt investment by domestic banks and life insurance companies.
Aside from being a developer, UR is also a policy arm of the Japanese government, and of MLIT in particular. The government regularly passes down policy statements to UR. This February, for instance, MLIT made the following pronouncement (I’ll spare you a word-for-word translation this time because the original badly needs editing):
Looking at the state of cities in our nation amidst globalization and a developing information age, the largest cities are losing allure and international competitiveness as they stand shoulder-to-shoulder with cities overseas, while they continue to be troubled by the expectation of severe damage in crowded urban areas in the event of a disaster.
Regional urban centers are losing their urban functions as city halls and other public facilities move to suburban locations along with major commercial facilities, as city centers become vacant and as industrial production weakens in outlying regions. The state of these regional urban centers reflects not only a decline in urban functions of the cities themselves, but of their entire surrounding regions.
Cities are the source of our national dynamic. In response to major socioeconomic shifts–the information age, globalization, declining birth rates, aging, depopulation and environmental problems–it is necessary to increase the competitiveness of cities, and to increase their allure using the history and culture of each city, by constructing “compact cities,” beautiful cities where one can safely live in a relaxed environment, and by constructing a society where sustainable development is possible.
This all sounds like fluff so far, but the next few paragraphs start indicating otherwise:
Such urban development demands drawing upon and deploying capital, know-how and other civilian power in these cities to arouse new demand. However, it is difficult to plan improved development through governments and private businesses alone because (among other issues) the legal relations between these parties are complex and difficult to coordinate.
Taking this situation into account, in order to advance the development of new 21st-century urban centers, UR will take a leading role in urban development, spur private investment in cities and contribute to the revitalization of the economy…
Moreover, in the global economic downturn spurred by the subprime loan crisis, our nation’s economy is in a deeply troubled state of falling stock prices, less available capital for businesses and ongoing labor restructuring. As private businesses become less interested to invest in urban development, UR shall strengthen its efforts to spur private demand, and while supplementing private urban development, shall make efforts to plan a shift toward a more domestic demand-led economy.
This month’s American Bar Association Journal features a cover story on the Supreme Court nomination process called “No More Kabuki Confirmations,” complete with a backdrop of paper lanterns, cherry blossoms and ukiyo-e figures.
It’s a “Kabuki dance,” said Joe Biden when he was a senator on the Judiciary Committee. U.S. Supreme Court nominees give the illusion of responding to senators’ questions, but say little of importance.
… Biden’s successor, Sen. Ted Kaufman, told the National Law Journal that the process resembled the Super Bowl—with press coverage all around.
It’s “a subtle minuet,” said Sen. Arlen Specter during the hearing for Justice Samuel A. Alito Jr., “with the nominee answering as many questions as he thinks are necessary in order to be confirmed.”
For his part, Justice Felix Frankfurter, plagued during his confirmation hearing with suggestions that he was partial to communists, favored the athletic comparison. “I thought that it would just be a little room where we would sit around,” he said of the Judiciary Committee hearing. “I found that this was Madison Square Garden.”
Whether likened to theater, dance or a sporting event, the confirmation process for the Supreme Court has become a set piece of punch and counterpunch, with enough irritation left from one process to undermine the next.
A kabuki minuet in Madison Square Garden would be pretty awesome, but probably not all that similar to the Sotomayor hearings.
Note: I started drafting this post about a week ago. Many of these points have since been raised in our educated readers’ comments to Curzon’s earlier post on the Savoie case. I’m going to re-raise them anyway, since I believe the broader discussion of international divorce should continue.
My first trip to court was as a student in an undergraduate law class. I was assigned to sit in a session of the local courthouse and take notes on what happened. This was also where I saw a divorce for the first time. A middle-aged, heavyset black couple with soft Southern drawls came in. The entirety of the divorce went like this:
JUDGE: I understand you two want to get divorced. WIFE: That’s right, Your Honor. JUDGE: What is the reason for this? WIFE: He cheated on me, and lied to me. And we don’t wanna be married no more. JUDGE: Is this true, sir? HUSBAND: Yes, it is. JUDGE: Do you have any children? WIFE: No, sir. JUDGE: Property? HUSBAND: It’s taken care of. JUDGE: Fine. I declare you lawfully divorced. Take this form to the clerk. WIFE: Thank you.
I left the courthouse shortly after that, and saw them getting into the same car together to drive home. It was a surprisingly cute divorce.
Since becoming a lawyer and moving to Tokyo, I have gotten an inside seat in some much nastier divorces. Although the law firm I used to work at was primarily dealing with corporate clients, we would regularly get a personal inquiry from, say, a client’s secretary, telling us her brother’s children were stolen by his crazy Japanese wife, and we would invariably try to respond with something productive even though there was nothing particularly productive to do at that point. The problems in resolving cross-border family disputes involving Japan are legion, and have inspired a voluminous website written by an anonymous estranged gaijin dad.
First, some facts
The statistics in this section all come from the Japanese government. You can see the original stats (in Japanese CSV format) here.
One important but rarely-cited fact about Japanese divorce law is that most divorces are consensual and involve little legal process at all. These so-called “kyogi rikon” have consistently accounted for 90 to 95 percent of all divorces during the postwar era.
A lot of this has to do with the ease of the consensual divorce. The two parties simply sign and seal a one-page form (here’s a sample in Japanese) and file it with city hall. It’s possible to get a consensual divorce without ever setting foot in court. But there has to be consensus on what to do with property and children. In this respect, the system makes it comparatively very easy to end a marriage so long as there are no particular disputes to resolve.
If the parties can’t agree to the terms of their divorce, they must go to family court. The first phase is “chotei rikon,” essentially a mediated divorce under the auspices of the family court system. It is supervised by a judge but the mediation is conducted by laypeople. If mediation fails, the family court judge can step in with a “shimpan rikon,” a sort of preliminary judgment, but this can be defeated by either party’s objection within two weeks, and so it does not form a statistically significant number of divorces. The last resort is a “hanketsu rikon,” which is also finalized by the family court judge, but can only be concluded upon a showing of particular legal facts such as infidelity, cruelty or unwarranted denial of sexual intercourse. The parties can reach a settlement during the final court process, in which case their agreement is called a “wakai rikon”; this system was introduced in the past decade and has become a not-uncommon way to resolve marital disputes.
It’s a common misconception that mothers always get custody after a Japanese divorce. In reality, fathers end up with custody in a significant percentage of cases. In fact, until the 60’s, they were more likely to get custody than mothers. Check out this graph.
The thing is that (as stated above) most divorces are reached by voluntary agreement of some kind. Once the case gets into family court, the more-or-less official presumption is that the mother is a more suitable custodian unless the father can prove otherwise. The pre-eminent English academic commentator on Japanese child abduction, Doshisha law professor and periodic Japan Times contributor Colin P.A. Jones (who incidentally lost his own kid in a Japanese divorce proceeding)translated the family court’s mediation manual as follows:
When a child is small, it is thought that the mother should generally be designated custodian. For a young child, the mother’s existence is irreplaceable, and in mediation, custody designations should usually proceed from this basis. [. . .]
When a father is demanding to be designated custodian, it is not uncommon for him to base his arguments on the fact that because he has to work outside the home, his own parents can look after the child. However, it can be said that it is better for the child to live with his mother than with his grandparents. Unless the conditions in which a mother lives are judged unsuitable for the child, as a general rule I cannot approve of awarding sole custody to fathers. Even if grandparents do look after the child, it is likely that matters will arise daily in which they will not pay the same level of attention as a parent.
This manual does not have the force of law; it is merely an official reference for the judges. The practical effect of it is that fathers can only win custody by an overwhelming display of evidence that the mother is unfit to be a parent.
(Aside: Our favorite Japanese prime minister, Junichiro Koizumi, kept his first two children in a consensual divorce in 1982. His wife was six months pregnant at the time the papers were finalized and gave birth after the divorce. Koizumi tried to claim this third child as well, but the matter ended up in family court mediation and Koizumi’s ex-wife retained custody. Japanese Wikipedia interestingly doesn’t even name the third child of Koizumi, apparently because he is no longer legally Koizumi’s.)
What about joint custody? There is generally no such thing as joint custody among Japanese nationals. Visitation rights (面接交渉権 mensetsu kosho ken) may be granted by the court, but are often very limited (sometimes to a few hours once per year), are very difficult to legally enforce, and one parent must still be designated as the custodian whether or not the divorce is consensual. The only way a Japanese child can be registered as being in joint custody is if the child has another citizenship and their parents’ divorce was finalized in another country which allows joint custody. (This is not a “legal” provision per se; it was allowed by a Ministry of Justice circular and could theoretically be changed overnight if the Justice Minister changed their mind about the issue.)
Even outside Japan, joint custody is a sticky subject among parents, academics and jurists. Terrie Lloyd made the following statement in his email newsletter earlier this week:
The view of most [Japanese] judges (based on interviews with judges that we have done in the past) is that kids need to be insulated from the hurt between divorcing parents by giving them just one care-giver. But this is a traditional view and has no basis in fact. Child psychologists outside Japan generally agree that kids need the love and attention of both parents, even if they are divorced. Splitting the kids from one parent naturally causes them to side with the other (Parental Alienation Syndrome: PAS), which causes them to have complexes about the missing parent later in life.
Actually, as a glance at Wikipedia would show (and as Professor Jones acknowledges in the article linked above), PAS has not nearly reached general acceptance in the psychological community or the legal community, even in the supposedly more liberal United States.
(Another aside, at the risk of pissing off all the divorced men in the room: I find the use of PAS theory in custody disputes difficult to swallow. Sure, in theory it’s better for kids to have contact with both parents and view both parents as respectable people. In practice, if the parents can’t hold their marriage together, they probably can’t refrain from filling their kids’ heads with crazy talk about each other. So how is bouncing the kids back and forth between homes, and introducing two conflicting stories between the parents in the process, less traumatic for the kids than having one consistent story?
That said, there is a risk of conflating issues here. It’s one thing to park the children in one parent’s household when there is abuse or domestic violence going on. It may also be a good idea when the two parents absolutely can’t get along and their own discord is harming their children. But there are also many cases where children have no idea what is going on between their parents–only that one parent is going away forever–and this boggles my mind. In those sorts of cases, it makes sense to allow ongoing shared custody as an option, so long as the parents can work out logistics between them and agree to keep their disputes between themselves.)
This brings us to the international aspect of Japanese divorce law. International divorces are common in Japan, but not exactly in the form familiar to readers of Debito.org or crnjapan.com. 7.1% of divorces in Japan in 2007 involved a non-Japanese party. The most common combinations were:
* Japanese husband, Chinese wife (1.97%)
* Japanese husband, Filipina wife (1.82%)
* Japanese husband, Korean wife (1.11%)
* Japanese wife, Korean husband (0.35%)
* Japanese husband, Thai wife (0.33%)
* Japanese wife, Chinese husband (0.22%)
* Japanese wife, American husband (0.14%)
Chinese and Korean family law bear a striking resemblance to Japanese family law. The Chinese and Korean systems emerged from the civil law tradition, and like Japan’s, revolve around the concept of a central family registration system where every citizen is tracked. So that means only 2.74% of Japanese divorces involve a country with a “truly foreign” family law apparatus, and it’s probably safe to say that of the total number of divorces in Japan, much less than one percent involve a non-Asian party. These facts are understandable given that Japanese-Asian marriages form the vast majority of international marriages in Japan.
Let’s ask the question on everyone’s mind, though:
Is the system biased against foreigners?
Yes, it is.
But to some extent, the bias is unavoidable.
Unfortunately, there are no statistics to show how foreign parents generally fare in court-administered divorces here. My conclusion, based on many stories floating around the internet and by word of mouth, is that foreign parents are highly unlikely to win custody of Japanese kids from a Japanese court, whether or not the foreign parent is male or female. And given the fact that moms are more likely than dads to keep the kids, foreign dads should not expect much if their marriage falls apart.
A lot of this boils down to cultural differences. A Japanese judge likely has no idea of how a non-Japanese family operates, and is going to have suspicion regarding what might happen in a non-Japanese household. Suspicions aside, a not-so-worldly Japanese person would probably be unpleasantly surprised by many family quirks that are taken for granted outside Japan.
The same is true for courts in other countries. Chris Savoie, for instance, attacked Noriko Savoie in Tennessee divorce court because she had their 6- and 8-year-old kids sleep with her in her bed. This practice is uncommon in the US and would probably seem strange to an American lawyer or judge, but wouldn’t raise an eyebrow in Japan, where it’s often used simply to save space.
Cultural issues aside, there are also some procedural stumbling blocks for non-Japanese in the Japanese divorce system. These are issues which warrant legal revision, both from an international human rights perspective and from a perspective of citizens’ best interests.
Problem 1: There is no contempt of court
This is really an endemic problem throughout the Japanese legal system, not just in the sphere of family court. Even if you can get a judge to order some action or inaction (like “stay away from X’s kids” or “let X see the kids on these days”), they have no way to enforce that order if the counterparty says “no.” All they can do is levy fines, but even if they do that, the counterparty can simply refuse to pay.
Then your only option is “self-enforcement” — withholding payments and finding ways to exert social pressure. Self-enforcement might work to some extent if the enforcing party is savvy about the local system, but it puts outsiders, particularly outsiders in different countries, at a great disadvantage. Courts need teeth if they are to effectively administer any sort of custody-related arrangements.
Problem 2: The arbitrariness of Japanese nationality and conflict-of-law rules
The biggest legal problem in the Savoie case is that Dr. Savoie is a Japanese citizen and apparently hasn’t taken that fact into account in his legal strategy. The following statutory passages explain what I mean:
法の適用に関する通則法
General Act Regarding the Application of Laws
(Home Country Law)
Article 38. If a party has two or more nationalities, then the home country of the party shall be the law of the country in which such party has a habitual residence if such a country exists, and should no such country exist, the law of the country having the closest relationship to that party. However, if any such nationality is the nationality of Japan, the home country law of the party shall be the law of Japan.
According to the International Wedding Association, a Japanese NPO, a citizen would have “habitual residence” by virtue of being recorded in the resident registration (juminhyo) system, unless they have actually lived overseas for five continuous years prior to the date of determination.
(Validity of Marriage)
Article 25. The validity of a marriage shall be determined by the home country law of the husband and wife if such law is the same; or if such law does not exist, by the law of the habitual residence of the husband and wife if such law is the same; or if such law does not exist, by the law of the place having the closest relationship to the husband and wife.
(Divorce)
Article 27. The provisions of Article 25 shall apply to divorces. However, if either husband or wife is a Japanese person with a habitual residence in Japan, [their] divorce shall be based on Japanese law.
So let’s run down the facts.
First, Christopher and Noriko were married in Japan.
Then Christopher became a Japanese citizen. So far, so good.
Then Christopher took his wife to the US and divorced her there. But their mutual home country law was Japanese law, so their divorce would have been invalid under Japanese law.
Having been improperly divorced for Japanese purposes, Christopher then married Amy.
Whether or not we agree with the propriety of a U.S. divorce for the Savoies, turning Chris into a bigamist is a pretty illogical outcome. I think he could get around prosecution given that he had no apparent intent to be legally married to two people at the same time.
That said, I think Christopher may intend to rescind, or deny the validity of, his own naturalization. The US Consulate says they want to help him out, which should not be the case if he really is Japanese (you can’t get consular protection in a country where you are a citizen). It’s a bizarre argument, and I believe it would fall flat on its face in court as an “abuse of rights” or something similar.
The solution to this problem, inasmuch as there is one, is to revise these conflict-of-law provisions so that Japanese citizens have the clear ability to divorce in a foreign forum under foreign law if they have some requisite connections to that forum. (Formally allowing dual citizenship, and getting rid of the odd ability to rescind one’s own citizenship following naturalization, wouldn’t hurt, either.) But both of these ideas are in conflict with another feature of the Japanese family law system.
Problem 3: The koseki is a moronic concept
If you don’t know what the “koseki” is, read this. The entire family law system in Japan is based on the premise of a giant hierarchical registry limited to citizens.
The koseki-worship in the civil law system here is responsible for a lot of the family law rules. Children legally exist as an entry in their parents’ koseki page. Parents have a koseki page by virtue of being married. When they divorce, they revert to separate koseki pages, and their children must go one way or the other. Thus, in a sense, they legally lose title to their children. And, as many of our readers undoubtedly know, foreigners do not appear on the koseki at all, except as “notes” on their spouse’s page.
Why is this entire system necessary? Familial relations are a personal matter, and are often quite abstract in nature. Is a parent less of a parent because they remarried or because they don’t have a Japanese passport?
The notion of organizing society around households is unnecessarily feudalistic for the modern age, and something more flexible would be better for citizens and non-citizens alike — particularly those for whom familial roots have historically been a source of discrimination (the burakumin, naturalized Koreans and others).
Personal footnote
I don’t have a wife or kids yet. Debito, who has written extensively about his own divorce and loss of children (a dreadfully sad story, but an excellent overview of how the system works here), chided me in a Facebook comment thread for daring to state my opinions while I lack skin in the game. Lest anyone get the wrong idea, I respect Debito, who gave me, Roy and Curzon the privilege of hearing his story in person a good year before he made it public. But where I come from, having no skin in the game is called “objectivity,” and does not by any means disqualify an opinion.
For what it’s worth, I do have some skin in the game, as I am engaged to get married early next year. While I have given up on my farcical plans to transfer my kids to an offshore investment vehicle, I am still very cognizant that the law (even as I think its mechanics should work) may bite me in the rear someday if my marriage ever breaks down.
Sadly, a lot of the discussion surrounding these issues, whether regarding particular cases or the system in general, devolves into parental narcissism, envy and finger-pointing. The whole framework of marriage, divorce and custody is ultimately not about what Mom or Dad wants: it’s about protecting children and giving them a chance to inherit the world as capable individuals. So, as I see it, we have to approach it from that perspective regardless of which side we occupy on the wedding cake.
The US and Japanese media are focusing much attention on the arrest of Christopher Savoie in Fukuoka. The English language press deems this as yet another case of a victim of Japan’s pre-modern family law. Undeniably, there is a history of Japanese mothers suddenly fleeing to Japan where they are beyond the reach of the law, resulting in more than a hundred abduction cases involving Japan and the US alone, and this needs revision. But sympathetic press articles notwithstanding, Christopher is the wrong martyr to rally behind in this fight — an objective view of the facts makes Christopher’s ex-wife Noriko the figure of sympathy in this story.
Christopher and Noriko met and married in Japan. Christopher had a PhD and was a successful entrepreneur who founded a pharmaceutical business that he took public on the Tokyo stock exchange. He is also a naturalized Japanese citizen. They were married for thirteen years and have two children, currently ages 8 and 6.
While living in Japan, the marriage was breaking down and Noriko asked Christopher for a divorce, which he refused. Instead he convinced Noriko to move with him to the US and they did so in June 2008. No sooner had they moved than Christopher took up with another woman and served Noriko with divorce papers. Noriko was dependent on her husband and had no income for herself and had just been relocated to his home town in a country that she did not know, although she may have been relieved that she was getting the divorce she wanted a year earlier and probably also happy to receive custody of the kids and a generous financial settlement and monthly support. But the arrangements required that she stay in Tennessee and not even visit Japan without court permission. Although we cannot be sure, all the facts make it likely that Christopher was motivated to relocate to his home town to get divorced in a US court.
Thus Noriko was stuck in a country where she was culturally and personally isolated, abandoned by her husband but still expected to raise kids in a new country so her husband could get visitation. So in August, Noriko absconded to Japan with the two kids. Christopher then petitioned the court and was granted custodial rights. He then went to Japan and physically snatched his kids from his wife as they walked to school by force in a car — the very definition of “abduction.” He then raced to the US Consulate in Fukuoka, where the guards refused him entry and he was arrested outside by police. He is being held by police for 10 days and has not yet been charged.
What a US-Japanese citizen hoped to gain in a US consulate is questionable. And the action was clearly pre-meditated. But much of this narrative is lost in the US media reports, which are overwhelmingly sympathetic to Christopher and speak in implied terms of a vast, cultural conspiracy in Japan to favor mothers. The Huffington Post says “Divorced fathers in Japan typically don’t get much access to their children because of widespread cultural beliefs that small children should be with their mothers,” and Forbes writes that the case “underscores long-standing disputes over Japan’s traditional favoritism toward mothers in custody battles.” That’s utter nonsense. The statistics imply that mothers win custody in Japan at approximately the same proportion as the US — and as for Japanese “culture,” fathers were more likely to receive custody until the 1960s. On the contrary, the bias towards mothers is far more ingrained in US culture — for more than a century US courts followed the Tender Years doctrine, under which mothers get prima facie rights to child custody disputes. (Although many state courts have abandoned this on the basis of the 14th amendment equal protection clause, it still exists in many US states.)
There are also lots of factual mistakes in the reporting, such as reporting by CNN that “Japanese law… recognizes Noriko Savoie as the primary custodian.” Actually, Japanese law says that two Japanese citizens are still married, as they are both Japanese nationals and bust be divorced in Japan for the divorce to be valid, in which case there is no way that Noriko is the primary custodian. And while Japan does not have joint custody of children, there are visitation rights. (It is also reported that Noriko has dual US and Japanese citizenship, although the how and why of that is unclear.)
Terrie’s Take of Japan Inc. fame was cited by Debito as being “the best, most thorough, most balanced opinion yet on the case.” (Actually, like much of what Terrie writes, it’s a sloppy newsletter with numerous factual errors.) But beyond that, the most amusing part of that article is that it states,
What is surprising is that [Christopher] chose to get his kids back in a way that exposed him to many untested theories. One of these theories has been that it is OK to abduct your kids back. Indeed the police often do turn a blind eye to home disputes and will allow “mini-abductions” to happen.
Kidnapping as an untested theories? Yes, the cops and courts do try to keep out of family disputes whenever possible — but what Christopher did was kidnapping pure and simple, and even his lawyer has basically already admitted that he was wrong to use force. We can’t guess how this is going to be sorted out, but my guess is that Noriko is about to get some justice in court, and Christopher’s nutty stunts will prejudice him in getting visitation rights. That’s a good thing — and you can think that and still want Japan to modernize its family law to meet international standards.
Here at MFT we take great interest in passports, visas and travel restrictions–in part because we love traveling, and in part because we are constantly dealing with nationality-related issues. All five of our contributors (including the dear and basically-departed Saru) are US citizens. Four of us live in Japan and a couple of us have seriously contemplated taking Japanese citizenship. Curzon is a dual citizen of the UK and I am a dual citizen of Ireland. While Roy is only a US citizen (as far as any of us can tell), he has a strong academic interest in citizenship law.
I was recently taking a look at the Henley survey, which ranks countries by the freedom of movement afforded their passport holders. The full list is here, and the rankings surprised me enough that I decided to poke through the web to find out how travel restrictions differ for American, Japanese, British and Irish citizens.
It turns out that Ireland has the second-best passport in the world, tied with Finland and Portugal, and second only to Denmark’s. Irish citizens can enter 156 countries without an advance visa.
The US is tied for #3 in the global ranking, alongside Belgium, Germany and Sweden. US citizens can enter 155 countries without an advance visa.
Japan is tied for #4 in the global ranking, alongside Canada, Italy, Luxembourg, the Netherlands and Spain. Japanese citizens can enter 154 countries without an advance visa.
The UK is at #6, tied with France, and UK citizens can access 152 countries. But British passport holders have to be careful about the type of passport they hold: it is possible to get a British passport without being a British citizen (most often by being a former subject of a defunct British possession such as Ireland or Hong Kong), and the travel restrictions on such passports are tighter. For instance, a British non-citizen passport can’t be used for a visa waiver to enter the United States–but on the flip side, a British passport held by a Hong Kong subject can be used to enter China without a visa.
The differences in visa waiver coverage are interesting, if seemingly arbitrary at times. In the chart below, an “O” means no visa is required or that a visa can be purchased on arrival, while an “X” means that a visa must be acquired in advance.
USA GBR IRL JPN
AMERICAS:
Belize O O O X
Bolivia X O O O
Brazil X O O X
Paraguay X O O O
Suriname X X X O
AFRICA:
Rwanda O O X X
ASIA:
China (PRC) X X X O
Iran X O O O
Mongolia O X X X
Vietnam X X X O
Like many Westminster-style political systems, Japan employs a system where the Cabinet has the power to dissolve the lower house of the legislature prior to the expiration of said house’s full term. Once the House is dissolved, an election is held, new legislators take office and another four-year term begins.
This has become the standard process for holding lower house elections under the postwar Constitution. Only one election has ever been held following the natural expiration of the House’s four-year term of office (the 1976 election). In twenty-one other instances so far, the Cabinet has kept its nose to the air, waiting for opportune times to torpedo the legislative branch and hopefully have themselves re-elected.
In 2005, Jun’ichiro Koizumi dissolved the House after it voted down his postal privatization plan, and his LDP surged through the ensuing election to win a commanding majority for the next four years. This past July, Taro Aso dissolved the House a month before its four-year term was due to expire, only to watch the LDP fall and Yukio Hatoyama take over the prime minister’s office.
Dissolution is thus at the heart of the greatest shifts in Japanese politics. That said, most dissolutions have been highly sketchy from a legal perspective, thanks to some inadequate drafting in the constitution. There are two big questions which the Constitution and jurisprudence have never quite resolved…
Question 1: Who can dissolve the House?
The Constitution only says this:
第七条 天皇は、内閣の助言と承認により、国民のために、左の国事に関する行為を行ふ。・・・
三 衆議院を解散すること。
Article 7. The Emperor, with the advice and approval of the Cabinet, shall perform the following acts in matters of state on behalf of the people: …
3. Dissolution of the House of Representatives.
So it’s technically the Emperor’s job, not the Cabinet’s. However, three academic theories (never actually enshrined in black-letter law) have led to general acceptance that dissolution is a Cabinet decision:
# The Article 7 Theory (7条説): Enumerated Imperial acts of state in the Constitution are assumed to actually be acts of the Cabinet, on the basis that the Emperor must have the Cabinet’s advice and approval before acting.
# The Systemic Theory (制度説): Instead of looking to the text of the Constitution, this theory looks to the international standard for the Westminster parliamentary system, which assumes that the cabinet has the ability to dissolve the parliament.
# The Administrative Theory (行政説) or Article 65 Theory (65条説): Article 65 of the Constitution gives the cabinet general authority over public administration, which is generally defined to mean all legal authority other than legislation and jurisprudence. Dissolution of the House is neither legislation nor jurisprudence, so it must be administrative in nature and therefore under Cabinet control.
Question 2: When can the Cabinet and Emperor dissolve the House?
This one is trickier. Again, we start with the text of the Constitution:
第六十九条 内閣は、衆議院で不信任の決議案を可決し、又は信任の決議案を否決したときは、十日以内に衆議院が解散されない限り、総辞職をしなければならない。
Article 69. If the House of Representatives passes a non-confidence resolution, or rejects a confidence resolution, the Cabinet shall resign en masse, unless the House of Representatives is dissolved within ten days.
Note that it doesn’t say the House can be dissolved in any other instance. Nor does it say that there is no other instance when the House can be dissolved. It just says that the House can be dissolved if it holds a no-confidence vote.
This became an issue of intense debate in the early postwar years. In October of 1948, Shigeru Yoshida’s newly-formed second cabinet attempted to execute the first dissolution of the House under the new Constitution, without first receiving a resolution of no confidence. The opposition, led by Tetsu Katayama, cried foul and declared that Article 69 should be the limit of the Cabinet’s power to dissolve the House. Allied GHQ, which still had military control of Japan at the time and which had written the new Constitution, sided with Katayama and the “69ers.”¹ It was a ripe situation for a constitutional law stand-off until Katayama’s side passed a resolution of no confidence, which allowed the dissolution and election to go forward. This became known as the nare-ai kaisan (馴れ合い解散) or “collusive dissolution.” Yoshida’s side won the ensuing election, and he held on to his seat for a few more years after that.
Then came the nuki-uchi kaisan (抜き打ち解散) or “surprise dissolution” of August 1952. The Occupation was over, Yoshida was still in charge of the government, and he was facing mounting challenges from Ichiro Hatoyama.² Yoshida decided to pull the trigger on a new election early, and had the Emperor issue a dissolution order “under Article 7.” The election went forward, and Yoshida’s faction won a sufficient number of seats to secure Yoshida another two years in office.
A few Diet members who lost their seats decided to challenge the validity of the election. The Supreme Court doesn’t hear “political questions,” though; it only hears actual disputes over physical or proprietary damages. So the Diet members structured their lawsuit as a suit against the government for lost pay, and cited the unconstitutional election as the illegal act which caused their financial injury. Unfortunately for anyone who wanted a clear view on the question, the lawsuit failed: the Supreme Court, in the rambling fashion typical of Japanese judges, held that dissolution of the Diet was ultimately a political question beyond the scope of judicial review.
Thus the question was settled without being settled. Today, nobody knows whether it’s really legal for the Cabinet to dissolve the Diet out of the blue. All we know is that nobody will stop them if they do so. Since 1952, the Emperor has continued to issue most dissolution orders under his Article 7 power, and the members of the Diet have faithfully followed every order.
* * *
¹ I find GHQ’s position very interesting. Being Americans, they may have envisioned Diet elections working much like Congressional elections in the US, where the executive is stuck with their legislature until the next fixed election cycle.
² At the time, he had just returned to the Diet after a five-year purge from politics by skittish Allied officials who thought he was an Imperial war machine collaborator. He was Yoshida’s main rival within the ruling Liberal Party (forerunner of the LDP) throughout the early fifties. It may have had something to do with the fact that Yoshida was Catholic and Hatoyama was Baptist. Either way, the rivalry ended up running in the family: Hatoyama’s grandson Yukio Hatoyama recently defeated Yoshida’s grandson Taro Aso to become Prime Minister.
Everyone knows that Japan’s lower house of parliament is up for re-election on Sunday, August 30.
But what you may not have heard is that some Supreme Court justices are also up for a “people’s review” (国民審査) at the same time.
Thanks to a banner on the sidebar of Yahoo Japan’s politics site, I now know how this works:
On paper, Supreme Court justices are “appointed by the emperor” based on the cabinet’s nomination and thus the Chief Justice serves as a minister of the emperor on the same level as the prime minister. However, the Japanese emperor has no real power, so in fact this means the justices are appointed by cabinet decision.
As a means of providing a democratic check over the judicial process, each justice is subject under the constitution to a people’s review at the general election immediately following their appointment, and then again every decade thereafter. In the upcoming election nine of the fifteen justices are up for review, including Chief Justice Hironobu Takesaki who was appointed by the Aso cabinet in November 2008.
At the polls, voters will be presented with a ballot listing the name of each justice with a box next to each name. The voter must place an X in the box to affirmatively vote to dismiss each judge. Blank votes are counted as votes in favor.
As far as I can tell, this system is all but window-dressing. So far, no judge has ever been dismissed in this manner, and among current justices who have undergone review, the justice with the highest ratio of votes against him is Yuki Furuta at 8.2%.
This appears to be the only way for the electorate (or their representatives) to dismiss Supreme Court justices, though there is The other ways that justices can be dismissed are the age requirement (they must retire by their 70th birthday) and a law that judges can be tried for dereliction of duties or other misconduct in the Court of Impeachment, consisting of 14 lower and upper house MPs (no Supreme Court justice has ever been impeached).
The Supreme Court‘s English-language page has a very brief mention of this system toward the bottom:
The appointment of Justices of the Supreme Court is reviewed by the people at the first general election of members of the House of Representatives following their appointment. The review continues to be held every ten years at general elections.
A Justice will be dismissed if the majority of the voters favors his/her dismissal. So far, however, no Justice has ever been dismissed by the review.
Justices of the Supreme Court must retire at the age of 70.
I am currently reading Discrimination and Power (差別と権力), Akira Uozumi’s fascinating biography of Hiromu Nonaka, a former LDP heavyweight and cabinet minister known as a member of the burakumin, a minority outcast group who have suffered discrimination due to their historical role in feudal Japan as leather tanners and undertakers, vocations considered unclean. MFT readers will remember him as the man a New York Times article characterized as Japan’s version of Obama, as he too was a minority politician who rose to become a powerful politician.
I will post more on the book later, but for now I just want to share the following episode:
Just four months after Nonaka’s first successful bid* for the Diet’s lower house in 1983, the Kyoto Prefectural Police arrested the head of his koenkai (support association, kind of like a political action committee) for violating election laws. But Nonaka and associates were mostly able to beat the charges. Here is why:
You see, when Nonaka was first elected to the lower house he was already 57, a very late start for an LDP politician. But before that he had already made a very large name for himself in Kyoto prefectural politics as an anti-Communist conservative at a time when Kyoto had a Communist governor for more than two decades.
Part of the secret of Nonaka’s success was a questionable election tactic – when election season came around, construction executives friendly with Nonaka would mobilize housewives associations and other support groups to visit houses and run “get out the vote” campaigns in Nonaka’s home district of Sonobe and surrounding areas of Kyoto. Under Japanese election laws it was (and remains) illegal for politicians or their staff to visit people’s homes to ask for support, as it’s (correctly) assumed bribes will be forthcoming during such visits. However, Nonaka was able to get away with this for years as the construction executives ostensibly acted independently.
Eventually, police found evidence that during Nonaka’s first bid for the Diet, the voter mobilization efforts were in fact illegally run directly by the campaign. That’s when they moved to raid Nonaka’s offices, arrest the head of the koenkai, and question two leaders of the koenkai‘s youth bureau.
However, the charges never stuck due to a lack of evidence or confessions (subordinates were prosecuted for minor offenses but the investigation never spread) thanks to a flurry of expert moves by Nonaka’s people to undermine the investigation before, during, and after the fact. They included:
Keep the top guy out of the loop. The ostensible head of the koenkai was in fact a figurehead who was never fully informed of the details.
When all else fails, act like you’re too sick/crazy to answer questions. The two leaders of the koenkai‘s youth section (青年部) questioned on suspicion of deep involvement proved uncooperative in answering police questions. They would refuse to attend interrogation sessions by claiming to have diarrhea. If they did attend a session and the cops started to get the upper hand, they would go wild and start banging their heads against the wall to disrupt the proceedings.
Destroy evidence. Koenkai membership lists and other relevant documents somehow got destroyed.
Stay informed. Nonaka used his contacts inside the police force to get daily updates on the status of the investigation. A closely allied prefectural assemblyman actually stationed himself inside the office of the Kyoto police force’s second in command to hear reports from detectives. Uozumi’s source described the process as “just as if [the police] were teaching [Nonaka] how to respond as they investigated.”
Keep them on their toes. At one point, Nonaka himself showed up at the Sonobe precinct and shouted at the lead investigator to release his koenkai youth section chief if he was not yet formally charged.
Don’t forget to use some carrots along with your sticks. By keeping careful records of police administrators’ promotion status, Nonaka was able to bribe police bigwigs with cushy post-retirement positions at railroad companies and elsewhere (early in his career Nonaka worked for the national railway in Osaka). According to Uozumi, far from weakening Nonaka, the investigation ended up actually strengthening Nonaka’s political ties to the police.
From the beginning, the top brass in the police were hesitant to rock the boat since the politicians have a hand in deciding the police force’s budget. I can’t help but think they were a little prescient.
*from Kyoto’s 2nd district; he ran with (or more appropriately, against) Sadakazu Tanigaki and they each won a seat in the two-member district.
Most of our readers are aware that, when written horizontally, Japanese is generally read left to right. When written vertically, as was the traditional method, paragraphs start on the right and each line is read down the page in order from right to left. Traditionally, though, Japanese and Chinese were both read right to left at all times, even when written horizontally.
* Traditionally, Japanese was written vertically, and lines were read from right to left. Horizontal writing only appeared on signs, and in those cases it was also read from right to left.
* Horizontal writing first appeared in print in the late 1700s as Dutch books were reprinted. (Dutch traders in Nagasaki were the only Europeans allowed in Japan at that time.) In 1806, a Japanese book was published in Japanese hiragana characters skewed to look like Latin characters and printed from left to right.
* In the first foreign language dictionaries printed in Japan, foreign words were written horizontally from left to right, while the Japanese words were written vertically from top to bottom. The first dictionary to have both foreign and Japanese words written horizontally came out in 1885, and both were written left to right.
* Japan’s first printed newspapers and advertisements had headlines and call-outs written horizontally from right to left.
* In July 1942, at the height of World War II, the Education Ministry proposed that horizontal writing be from left to right rather than from right to left. Although the left-to-right standard was showing up in some publications at the time, switching over entirely was a controversial idea which didn’t make it past Cabinet approval.
* The military also tried adopting left-to-right as an official standard during the war, but many people viewed this as too Anglo-American and refused to switch.
* Because of the patriotic zeal surrounding text direction during the war, there were cases of stores being pressed to switch text direction on their signage, and cases of newspapers refusing to print advertising with left-to-right text.
* After the war, Douglas MacArthur’s occupation team pushed for left-to-right text as an education modernization reform measure, along with the abolition of Chinese characters and other more extreme ideas.
* Yomiuri Shimbun was the first newspaper to switch text direction in its headlines, making the changeover on January 1, 1946. The Nikkei switched over by 1948.
* Japanese currency was first printed with left-to-right text in March 1948; before that, it had been printed right-to-left.
* Asahi Shimbun conducted some internal design experiments around 1950 to switch its front page to an all-horizontal, left-to-right format, but this never made it past the drawing board.
* In April 1952, the Chief Cabinet Secretary adopted a guideline that all ministry documents be written from left to right using horizontal text. Despite this, the courts kept vertical writing until January 1, 2001–the bar exam was also written vertically until that time–and the Diet itself continues to use vertical writing when publishing draft bills.
Right-to-left writing is still found in certain contexts. Sometimes it is used simply to appear more “traditional”: Wikipedia cites soba shops as a common culprit in this category. Another common context is vehicles such as trucks and ships; there, Japanese is often written from front to back, so on the right side of the vehicle it is written from right to left. Here’s an example which I spotted on a right-wing sound truck outside Odakyu in Shinjuku during my first trip to Tokyo, way back in 2000. Note that the text 愛国党, or “Patriot Party,” is written right-to-left on the side of the truck, but left-to-right on the back.
(Thanks to our commenter Peter for suggesting this topic.)
It’s a “Kabuki dance,” said Joe Biden when he was a senator on the Judiciary Committee. U.S. Supreme Court nominees give the illusion of responding to senators’ questions, but say little of importance.
Like many Westminster-style political systems, Japan employs a system where the Cabinet has the power to dissolve the lower house of the legislature prior to the expiration of said house’s full term. Once the House is dissolved, an election is held, new legislators take office and another four-year term begins.
