On the Road to Apartheid? Japan and the Steve McGowan Case

On January 30th, the Osaka District Court turned down a racial discrimination suit filed by Steve McGowan, a 41 year old African-American designer and Kyoto resident, against Narita Takashi, an Osaka Prefecture store owner. The suit charged that, on September 4th 2004, Narita denied McGowan and a black South African friend entry into his eyeglass shop because of their skin color. The plaintiff demanded 1.5 million yen compensation for the store owner's discriminatory remarks.

Narita readily admitted to the court that he did not like black people and that he had told McGowan and his friend to go away. But Judge Saga Yoshifumiruled against McGowan, saying (1) that because McGowan's Japanese language ability was questionable, his testimony was untrustworthy; and (2) because McGowan's wife, in a separate meeting with Narita afterwards, had used the word gaikokujin (foreigner) instead of kokujin (black person), there was no evidence that Narita had discriminated against McGowan because he was "kokujin', as opposed to "gaikokujin'. In other words, because McGowan's wife was not extremely careful about which Japanese word she used in conversation with Narita, the judge found reason to rule against McGowan.

But as the lead lawyer of the plaintiff, noted human rights' attorney Niwa Masao and Japan-based human rights activists quickly pointed out, the judge avoided the central question in the case: Why was McGowan denied entry into the shop in the first place? Furthermore, Narita testified to the fact that an elderly woman in the neighborhood had called him before he saw McGowan and his friend. The unidentified woman warned Narita that two "strange' people with a "weird' atmosphere about them were standing in front of his shop. Narita thanked the woman and then proceeded to go outside and confront McGowan and his friend. Yet, nowhere in the verdict is there an attempt to define what, exactly, the woman meant, let alone an effort by the court to determine whether or not the owner was legally justified in interpreting that behavior as a personal threat.

In a news conference immediately following the ruling, a visibly shocked McGowan warned that a dangerous precedent was being set.

"Today I felt as if I was not in Japan, but in the Alabama of the 1950s. I've been made to feel less than human, like an animal," said McGowan, choking back tears. "This case was not just about me. With this ruling, the judge has given store owners the right to discriminate based on color."

As Sapporo-based activist Arudou Debito, who followed the case closely, and members of McGowan's legal team noted, the fundamental danger of the ruling is that it sets a dangerous precedent that could lead to a form of commercial apartheid by Japanese storeowners against foreign customers. No need to be so blatant as to post a"No Dogs or Foreigners Sign'. If a non-Japanese person brings a racial discrimination suit against a Japanese store owner, then, it doesn't matter if the foreigner was actually denied entrance or kicked out. It would be sufficient to determine whether or not the foreigner understood Japanese well enough to make such a determination, and was careful about using the right vocabulary ("gaikokujin' instead of "kokujin') when confronting a store owner who denies entrance. Thus, the activists worry, any business owner who for whatever reasons doesn't want foreigners in their store can now use the McGowan decision to justify barring entrance by hiding behind the excuse that "I was misunderstood because the foreigner in question doesn't understand Japanese.'

"If you follow the logic of the McGowan case ruling, then about the only way a foreigner in Japan who is denied entrance to, or kicked out of, a Japanese store can successfully sue on the grounds of racial discrimination is to not only be native-speaker level fluent in Japanese with knowledge of the law, but also carry around a tape recorder at all times and surreptitiously record all conversations with store owners in the hope that the tape will be admitted into the court as evidence,' Arudou said. (1)

An international image of Japan practicing a form of apartheid against foreigner residents or visitors is about the last thing those pushing for the country to become a permanent member of the United Nations Security Council need right now. Last July, Doudou Diene, the Special Rapporteur of the UN's Human Rights Commission visited Japan for nine days. At the end of the trip, he told journalists at the Foreign Correspondents Club in Tokyo that discrimination in Japan was "deep and profound', that there was no strong political or bureaucratic will to address such discrimination, and that the Japanese public was strongly xenophobic. Japan's Foreign Ministry simply countered by insisting that racial discrimination was not as bad as was 10 or 20 years ago. (2)

Nor is the court's decision on McGowan likely to be welcomed by the more thoughtful corporate titans, whose companies employ large numbers of foreign workers in Japan, or by the more enlightened politicians and bureaucrats in local municipalities, including Osaka, who are aggressively pushing to attract international conferences and tourists to their region. Osaka in particular has long boasted that, historically, it has been more open towards foreigners, especially those from Korea and China, than Tokyo, and more tolerant of cultural differences. Unlike Tokyo, where "No Foreigners' signs on apartments can be seen, such overt discrimination in Osaka is rarely seen or heard. But it is also true that Osaka has far fewer non-Asian foreigners than Tokyo, and even fewer Africans or African-Americans. Official efforts to welcome foreigners are almost exclusively focused on tourists from South Korea and China, so it will be interesting to see how officialdom reacts if, and when, an Asian resident foreigner files a similar claim. Will the court once again ignore the fact that entrance was denied and simply focus on whether or not one party or the other used the word asiajin (person from Asia), sankokujin,(third-country person, an old word, now considered discriminatory, used to describe people from China and the Korean peninsula) or simply gaikokujin?

As of this writing, it remains uncertain whether or not McGowan will appeal, although many on his legal team are urging him to do so. Whatever happens, though, the case clearly demonstrates the need for what Diene, Arudou, and Japanese human rights' lawyers have long called for: national legislation that outlaws racial discrimination.

Efforts are being made by some Japanese lawyers, including Niwa, as well as human rights groups, to get such legislation passed. But as Diene's remarks about a lack of political will and an ingrained xenophobia suggest, the prospects for such legislation anytime soon are bleak. Over the past year or so, there has been much official hand-wringing in the media over how to address the twin problems of declining birthrate and aging society. But there has been a noticeable avoidance of discussion about foreign immigrants and how they might fit into Japan's future. If nothing else, the McGowan case shows that Japan's justice system remains as reluctant to address the roles, and legal rights, of non-Japanese in Japan as the media, the politicians, and the public at large.

Notes

(1) Author's conversation with McGowan defense attorneys and Arudou Debito, January 30th, 2005.

(2) "UN Independent Investigator Raps Japan for Discrimination,' by Steve Herman, 11 July 2005, VOA.com.

Eric Johnston is Deputy Editor of The Japan Times Osaka bureau, and an 18 year resident of the Kansai region. He covered the McGowan verdict. He can be reached at japantimes-osa@sannet.ne.jp