Monday, October 21, 2013

Joongang Daily hopes Japan will "turn more proactive in banning racial discrimination"

So two weeks ago a Japanese court ordered the anti-Korean group Zaitoku-kai ["an association of citizens who do not tolerate privileges for Korean residents in Japan"] to stop a "hate speech" campaign and awarded damages in the case. As Agence France-Presse continues,
A civil court in Kyoto also ordered the group and its activists to pay some 12 million yen ($120,000) in damages to the elementary school run by affiliates of the pro-North Korean General Association of Korean Residents in Japan.
The Joongang Daily offered its suggestion to Japan in an editorial titled "Japan must act against hate."
A Japanese local court for the first time recognized hate speech as a crime, ordering an association of ultra-nationalist civilian groups campaigning against non-Japanese residents to pay damages to a school run by pro-North Korea residents in Japan. The court said the rallies and language used by Zaitokukai and its supporters, held near the school, were illegal because they go against an international treaty that bans racial discrimination. It is the first such case in Japanese judiciary history and will likely rein in activities that menace Korean residents in Japan as people can now file suit against hate speech and activities by anti-Korean groups.

Zaitokukai has recently been more blunt and aggressive in its protests and propaganda against non-Japanese residents, thanks to a passive response by the conservative government. Japan is a member of the International Convention on the Elimination of All Forms of Racial Discrimination and yet does not punish racial discrimination. The latest court ruling was a civil case, not criminal. It remains unclear if the Japanese government and legislature could revise the law in order to create the legal grounds to punish racial discrimination. Tokyo rebuffed advice by the United Nations Committee on Economic, Social, and Cultural Rights in May to draw up an anti-discrimination law, saying it does not have any bigotry that demands a law.

The Seoul government issued a statement that it strongly wished the ruling would help stop racial discrimination and other activities against ethnic Koreans.[...]

We hope Japanese society will turn more proactive in banning racial discrimination and hate speech. The government must also act to rein in the improper activities of Zaitokukai and other similar groups. [Emphasis added.]
I'm not entirely sure why the Joongang Daily pointed out that "Japan is a member of the International Convention on the Elimination of All Forms of Racial Discrimination and yet does not punish racial discrimination," because Korea is also a member of CERD -  and  has done even less in regard to racial discrimination, particularly in regard to citing to CERD, and also lacks an anti-discrimination law.

This may be the first use of CERD in Japan to punish hate speech, but it certainly isn't the first use of CERD to punish racial discrimination. It was in fact a case in 1999 - Bortz v. Suzuki - which first cited to CERD. In the case, a Brazilian woman who was told to leave a jewelry store sued the owner and eventually won damages of 1.5 million yen ($12,500). As this translated opinion points out, Asians in Japan are more likely to "experience subtler, perhaps more deeply-rooted, forms of discrimination," while non-Asian foreigners are more likely to "experience more overt forms of discrimination" such as "ejection from a store, denial of entrance into a store, rejection on a housing application, being shooed away."
These acts clash with notions of fundamental fairness that westerners expect in society. For the westerner, the lawsuit is the preferred method of restoring persons injured by such behavior. The challenge for Bortz was where to find relevant law. The Japanese Constitution prohibits discrimination based on race, but only for its own citizens. Bortz’s lawyer had the vision to invoke the U.N. Convention to End All Forms of Racial Discrimination (CERD), which Japan signed in 1996. Judge Soh Tetsuro likewise exhibited creativity in applying international law domestically, via tort law, to fashion a modest, but unprecedented, remedy for Bortz.
While the ROK has been a party to the ICERD since 1978 (18 years longer than Japan) and has declared that the treaty "has the same authority of domestic law and does not necessitate additional legislation," no court in Korea has ever cited to CERD, even when it has been brought to its attention (such as in this case). Japan, on the other hand, has had a handful of successful suits seeking damage for racial discrimination.

In addition, while Japan never signed the optional protocol which allows individuals to bring a case against the state itself, Korea did, but - again - it had never been used until the case of a foreign English teacher who lost her job for refusing to do an HIV test for contract renewal was accepted by the CERD committee last July. Not many people in Korea would know about this, of course since no media outlet - Joongang Ilbo included - reported on the case. And again, Korea responded to this case 9 months later - 6 months after the deadline. And as was noted here, in its reply
[t]he government neither denied that foreign teachers face mandatory HIV tests nor claimed the tests were necessary for public health reasons. In fact, it said nothing about the testing of foreign teachers upon entry, and countered that Education Ministry guidelines no longer require re-testing upon renewal of annual contracts.
Which is, to put it gently, completely untrue. But yeah, get your act together, Japan!

As Agence France-Presse notes,
In handing down the ruling, presiding judge Hitoshi Hashizume said the group’s actions "constituted racial discrimination as defined by the International Convention on the Elimination of All Forms of Racial Discrimination."

"The actions are deemed intended to arouse a sense of discrimination among the public toward Korean residents in Japan," he said.

Hate speech, per se, is not illegal in Japan. The civil court’s ruling turns on the racial element of the outbursts.
In the case of the teacher who lost her job for refusing HIV testing prior to bringing the case to the CERD committee, the CERD was cited in her complaint to the National Human Rights Commission and the Korean Commercial Arbitration Board, but was ignored by both. So, there is no way to appeal directly to the CERD Committee in Japan but courts will cite to it, whereas in Korea you can appeal to the Committee (and wait a long time for a response) but courts have never cited to it.

All of which makes the Joongang Daily urging "Japanese society [to] turn more proactive in banning racial discrimination and hate speech" rather hypocritical, to say the least, especially it makes very clear just whose 'human rights' it's concerned with:
It is the first such case in Japanese judiciary history and will likely rein in activities that menace Korean residents in Japan as people can now file suit against hate speech and activities by anti-Korean groups.
It might be more honest to say the paper - in very correct ethno-nationalist manner - is trying to promote 'Korean rights.'

Now, on the one hand, it could be argued that carrying out protests near a school where participants rant about wanting to kill all Koreans is more serious than passing discriminatory laws requiring drug and HIV testing, and it's certainly more threatening. The thing is, though, if xenophobes and racists get invited to contribute to immigration policy - as they have in Korea - why would they ever need to hold a vocal protest?

Back in early 2011, Anti-English Spectrum - which I will make clear no longer exists after its leader Lee Eun-ung left the website - posted a new introductory message at the top of their (or 'his,' really) site:
These are the goals of the Citizens for Upright English Education:

To realize English education completely taught by Korean English teachers.
The best method is to keep our children away from overheated private English education and throw out unfit native speaking instructors.

To realize a public education system in which the English teachers are all Korean, we must make an effort to compile a budget for Korean English teachers from the more than 300 trillion won of the English education budget wasted on keeping native speaking assistant teachers.

The way public education is now with native speaking instructors simply using their native tongue must disappear.

Also, to provide safe English education for our children, continual monitoring of unfit native speaking instructors should be implemented.

We will inform citizens of misunderstandings caused by native speaking instructors who create distortions, and will also inform about the existence of honest, hard working native speaking instructors.
Moving from depicting foreign teachers as AIDS-infected, drug-addicted, morally unfit child molesters in order to justify demands for ever-stricter health and criminal record checks (which were ultimately granted), by early 2011 they wanted "only domestic English teachers" in public schools, to "keep our children away" from foreign instructors in English hagwons ("overheated private English education"), and to "throw out unfit native speaking instructors" (ie. all of them), thereby ethnically cleansing the sphere of English education in Korea. You can't say they were being unclear about what they wanted, or that they were unambitious.

And if it seemed like they were thinking big, well, why not? They had already accomplished all of their other goals, like continued (and ever stricter) drug and AIDS tests for foreign teachers, demonization of foreign teachers by the media and politicians, and their influence of public opinion in regard to foreign teachers. They complained about 'drinking parties' at GEPIK orientations, got New Daily to report on it, and GEPIK changed its policy. By the end of 2011, the budget issue had already gained traction with enough provincial or city council politicians for GEPIK to dramatically slash its native speaking teacher budget and for Seoul to plan to do the same. So when Lee Eun-ung left the group in 2011, he could do so rest assured that the had accomplished most of his goals, and that to that point attempts to undo them had failed.

I have to wonder how many similar groups in Japan would be able to say that.

[Hat tip to Benjamin Wagner.]

[On a similar topic, Michael Hurt reminded me of this on Facebook last week.]


Ben said...

"All of which makes the Joongang Daily urging 'Japanese society [to] turn more proactive in banning racial discrimination and hate speech' rather hypocritical..."

Speaking of hypocrisy, the JoongAng Daily counts as one of many S. Korean newspapers that decided not report on Korea's first ever lawsuit at the CERD. And that even after being given a professionally prepared press release in Korean (courtesy of Insight Comm.).

How did the CERD suddenly become newsworthy?

Anonymous said...

It all makes perfect sense to Korean apologists...

Japanese court rules anti-Korean hate speech illegal
Mind you, I dislike “hate speech” legislation (which neither Japan nor Korea have), and I’d be extremely wary of a court citing the International Convention on the Elimination of All Forms of Racial Discrimination rather than domestic law, which is what the court did in this case.

Japonymous said...

What makes this oh so much more ironic, is that the school in question can not even exist under South Korean law, as it is connected to the North Korean regime. All things considered, the fact that Japan allows for the existence of these schools, and the fact that the entire nation of Japan is not constantly protesting said existance, says something about the level of tolerance in Japanese society? Could you imagine how your average American would react if an entire school system, pre-K to University, sprang up in a NY suburb, pledging its allegiance to Al Qaeda, and the Bin Laden family? North Korea is constantly threatening Japan and is thus considered a dangerous parish state by most Japanese nationals (if not most human beings, period).

Ben said...


I agree with the comment by Mr. Marmot except he forgets that in Korea's case the CERD is domestic law. It's an important yet oft forgotten point.

"Too many people assume, generally without having given any serious thought to its character or its history, that international law is and always has been a sham.

Others seem to think that it is a force with inherent strength of its own, and that if only we had the sense to set the lawyers to work to draft a comprehensive code for the nations, we might live together in peace and all would be well with the world.

Whether the cynic or sciolist is the less helpful is hard to say, but both of them make the same mistake. They both assume that international law is a subject on which anyone can form his opinions intuitively without taking the trouble, as one has to do with other subjects, to inquire into the relevant facts."

J.L. Brierly, The Outlook for International Law (1944)

K said...

'Korean rights.' Hilarious.

SuperGirlClare said...

Actually I'm pretty sure the Joongang is in violation of the National Security Law by coming to the defence of a school that espouses North Korean ideology. Just for a gag, could someone alert the authorities just to see what they say? Unless there is an exception when Japan-bashing requires supporting North Korea...