JPRI Working Paper No. 88, September 2002
Ana Bortzs Law Suit and Minority Rights in Japan
by Keiko Yamanaka
On June 16, 1998, Ana Bortz, a Brazilian journalist and legal resident of Hamamatsu City, entered a jewelry store while shopping for a necklace. The proprietor, Takahisa Suzuki, approached her to ask, Where are you from? When she answered, I am from Brazil, he gestured her toward the door while pointing to a homemade poster in Japanese on the wall that read: No foreigners allowed in this store. He then took from the wall a police department sign warning of frequent robberies in jewelry stores. Thrusting it before her, he demanded that she leave.
Bortz refused, protesting that excluding foreigners from the store is a violation of their basic human rights. In response, the proprietor summoned police who rushed to the store. In the presence of two policemen, Bortz repeated her argument, demanding removal of the poster and that a letter of apology be written. The proprietor again refused, whereupon the policemen declared that this was an issue beyond their jurisdiction and promptly departed. Bortz left too, but only after announcing that she would file a suit in court. Two months later she did so. In the brief she submitted to the court, Bortz argued that Japans 1995 ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (hereafter ICERD) requires its citizens to abide by its provisions. It was on the basis of their violation of ICERD that Bortz made her case that Mr. Suzuki and his mother, co-owners of Seibido Jewelry Store, had infringed on her human rights, thus entitling her to reparation.
Fourteen months later, on October 12, 1999, a Shizuoka District Court judge astounded the nation when he ruled that the plaintiff had suffered discrimination because of her race and nationality and ordered the defendants to pay the full compensation she sought, ¥1,500,000 ($12,500). He based his ruling on the legal premises, unprecedented in Japan, that in the absence of a domestic anti-discrimination law 1) ICERDs provisions serve as the standard by which racial discrimination must be determined, and 2) ICERDs provisions provide the grounds upon which Japanese Civil Law takes effect, thus entitling the victim to compensation.
A front-page article in the November 15, 1999, New York Times reported that by taking her case to court Ana Bortz set off what may one day be looked back on as the Japanese equivalent of Rosa Parkss defiance of bus segregation in Montgomery, Alabamathe 1955 incident which is widely regarded as having sparked the American Civil Rights Movement. Foreigners in Japan routinely suffer many forms of discrimination at the hands of the Japanese bureaucracy, business establishments, and the public. As of 1999, there are some 230,000 Brazilian immigrant workers (most of them of Japanese ancestry) and their dependents in Japan because of legislation encouraging them to immigrate. They routinely encounter stereotyping as criminals in face-to-face interaction and in the media. In response, some have begun to assert their rights as long-term legal residents and dutiful taxpayers in the country where they now make their home. The Ana Bortz lawsuit is emblematic of this increasing demand by foreigners in Japan for rights equal to those of the host population. It also illustrates the deepening dilemma facing local citizens and the municipal administration of a typical Japanese industrial city where sudden and massive immigration has resulted in their community becoming unexpectedly multiethnic.
Immigration and Multiethnicity in Japan
Although Japan has an ideology of ethnic homogeneity and endured two centuries of diplomatic isolation between 1633 and 1868, it has actually never in its history been ethnically homogeneous. In the seventh and eighth centuries, Chinese and Korean immigrant artisans frequently settled in Japan and became Japanese. Under the rule of military regimes from the late twelfth to mid-nineteenth centuries, those who engaged in certain stigmatized occupations were collectively treated as a distinct untouchable, even subhuman, population, which today comprises the two to three million Burakumin in Japan. During the modern nation building of the nineteenth and twentieth centuries, territorial expansion incorporated two other ethnically distinct populations, numbering today 1.6 million Okinawans in Japans far south, and 25,000 to 300,000 Ainu in its far north. (The large variance in the number of Ainu is explained by John Lie in Multiethnic Japan, Harvard University Press, 2001, p. 94. In the early 1990s the Hokkaido Utari Association claimed about 16,000 members, while the estimated number of Ainu in the mid-1980s was 24,000. Because of the gradual reassertion of Ainu pride, more identify themselves as Ainu. Hence, Uemura Hideaki estimates that the number of people with Ainu ancestry may well exceed ten times the 24,000 figure. There are, moreover, concerted efforts to reclaim Ainu language, culture, and land.)
Modern Japanese history is also replete with massive flows of international migration in both directions. Between 1885 and 1942, nearly 800,000 Japanese migrated to North and South America, Asia, the Pacific, and Russia in search of better economic opportunities. The first wave of immigrants to North America, mostly single males, toiled as underpaid laborers in plantations, fields, orchards, fisheries, and construction sites. When the 1908 Gentlemens Agreement restricted Japanese entry into the U.S., Japanese began to migrate to Brazil to work as farm hands in coffee plantations. Despite the immense difficulties of life in rural Brazil, by the 1930s Japanese immigrants had become independent farmers, first leasing, then purchasing, land in remote, undeveloped areas. By the early 1940s, 190,000 Japanese had emigrated to Brazil, increasing to 1.2 million by 1988.
In a reverse flow of migration between 1910 and 1945, successive waves of migrants arrived in Japan from its imperial colonies, mostly from Korea, which had been annexed in 1910. As colonial subjects, all Koreans were granted Japanese nationality and were therefore able to move freely from Korea to Japan in search of jobs. What began as a trickle of colonial workers grew to a large influx in the 1920s as the expanding Japanese economy demanded more inexpensive, unskilled labor. By 1925, 150,000 Korean immigrants worked in jobs shunned by Japanese in such labor intensive and dangerous industries as mining, construction, and arms manufacturing. This number had risen dramatically to 800,000 by 1937, the year Japan initiated war with China. By this time Japan had instituted a policy of assimilating Koreans completely into Japanese culture, as a result of which Koreans were forced, beginning in 1938, to follow the Japanese school curriculum and, in 1940, to adopt Japanese names. At the height of the Pacific War (1942-45), Korean men and women, as Japanese nationals, became an important source of conscripted, and later forced, labor working under extremely harsh conditions. By the end of the war in 1945, the Korean population in Japan had grown to 2 million.
Japans surrender in 1945 liberated its Korean colonial subjects, the majority of whom soon returned to their homeland. One fourth of them (600,000), however, chose to remain in Japan for political, economic, and familial reasons. The looming threat of war in the Korean Peninsula further deterred their repatriation efforts. For six years, between 1945 and 1952, the Japanese state (then under allied occupation) regarded its former Korean born nationals as foreigners, excluding them from political participation and requiring them to register as foreign residents. In 1951, Japan signed the San Francisco Peace Treaty and the country was restored to full independence and reentered the international community. In April of the following year, when the treaty took effect, the Ministry of Justice issued a communication formally depriving the 600,000 resident Koreans of their Japanese nationality. In 1950, when the Nationality Law was revised, Japan had adopted the principle of jus sanguinis (law of blood) in defining Japanese citizenship. As a result, descendants of non-Japanese nationals, including Koreans, are to this day defined by law as foreigners no matter for how long or how many generations they have lived in Japan.
In 1965, the Japan-Korean Peace Treaty imposed South Korean nationality on most ethnic Koreans in Japan, but granted them permanent resident status in the country. Both the Japanese government and leading Korean organizations regarded Koreans in Japan as foreigners or sojourners despite the fact that their lives had already taken deep root in the country. By 1990, the Korean population had increased to 700,000, constituting Japans largest foreign population. The loss of Japanese citizenship had denied Koreans most of the benefits of public services to which Japanese citizens are entitled, including national health insurance and workers pensionsthis despite their obligation to pay taxes on their earnings. This institutional discrimination was eliminated only in 1981, when Japan ratified the United Nations Convention and Protocol Relating to the Status of Refugees (hereafter the Refugee Convention), which required its signatories to grant equal treatment to foreign nationals in the areas of social services, social security, and welfare.
Because they were defined as foreigners, and despite their permanent resident status, Koreans were subject to surveillance under the Alien Registration Law which, until 1992, required finger printing as well as an alien registration card. Most private companies and public positions (such as school teachers and city and state officials) have continued to exclude Koreans on the basis of their nationality. As a result, they are mostly self-employed as small business owners and family business workers. In the mid-1980s, for example, in Kanagawa Prefecture, more than 40 percent of the Korean residents were self-employed, compared to 20 percent of Japanese residents. Today, most young Koreans have adopted the Japanese language and education, thus identifying themselves as culturally Japanese. Widespread discrimination and deep-seated prejudice also cause the majority of them to use Japanese names in order to pass in ordinary social contacts. As a result, many report experiencing serious internal conflict between their Korean ancestry and Japanese upbringing.
Japanese Brazilian Immigrants in Hamamatsu
In June 1990, the Japanese government implemented its Revised Immigration Law, which retained the long standing principle of limiting foreign immigrants to skilled occupations. However, in response to rising numbers of illegal workers in the late 1980s, mostly from other Asian countries, the revised law created a new category unrestricted by occupation, exclusively for foreign descendants of Japanese emigrants (Nikkeijin) up to the third generation and their dependents. As a result, an influx of Nikkeijin immigrant workers arrived, most of whom originated in Brazil (and fewer in Peru), reaching more than 200,000 in the next five years. Underlying this sudden exodus of citizens of Japanese descent from Brazil were the serious economic and political crises that plagued Brazil throughout the 1980s, and at the same time Japans unprecedented economic boom that required continuous supplies of unskilled labor.
Hamamatsu, with its population of 560,000, is one of many industrial cities that have received significant Nikkeijin immigrant populations since 1990. Together with its satellite cities, including Kosai and Iwata, it serves as headquarters for several major automobile and motorcycle companies, including Suzuki, Yamaha, and Honda, as well as thousands of small- to large-scale subcontractors who supply the parts to be assembled into vehicles by these parent companies. Contiguous and to the west of these cities lie Toyohashi, a city of 350,000 and its neighbors, Toyokawa, Toyota, and others, in the eastern part of adjacent Aichi Prefecture. They host another giant automaker, Toyota, with its thousands of subcontractors. Immigrant workers, both documented and undocumented, find this area attractive because of its chronic labor shortage among small-scale employers.
Hamamatsu is also the site of the anti-racial discrimination lawsuit brought by Ana Bortz, a Brazilian journalist and the non-Nikkeijin wife of a Nikkeijin immigrant. To study local responses to her lawsuit and the court ruling in November 1999, I conducted interviews in January and February 2000 with 18 Japanese professors, city council members, newspaper reporters, and others who were knowledgeable about foreign workers issues in the city. About a year prior to this study (September to December 1998), I lived in Hamamatsu studying social interactions between local residents and immigrants.
Until 1988, few Brazilians lived in Hamamatsu. Some 1,900 Korean permanent residents, descendants of pre-war colonial immigrants, comprised the citys largest, but largely invisible, ethnic minority. The first wave of Brazilians, 815 in number, arrived in 1989 in response to Japans booming economy. In 1990, with the implementation of the Revised Immigration Law, the Brazilian influx to the city grew suddenly to 3,500. Hundreds followed each year for the next ten years. By late 1998, 10,000 Brazilian nationals and their families had registered as alien residents, accounting for two thirds of Hamamatsus foreign population of 16,000, and comprising three percent of its total population.
From the beginning, the Brazilian immigrant population in Japan included a high proportion of females and of children under 14 years of age. In 1992, the proportions stood at 41 percent females and 8 percent children. By 1998, the proportion of females and children had increased to 55 and 14 percent, respectively. According to the Nikkeijin census of 1988 (São Paulo Jinbun Kagaku Kenkyujo, Burajiru ni okeru Nikkei Jinko Chosa Hokokusho [Investigation Report on the Japanese Population in Brazil], São Paulo, 1988, p. 104), interracial marriages between Nikkeijin and non-Nikkeijin accounted for 46 percent of all married couples in the Nikkeijin populationthat is to say, 46 percent of all Brazilian Japanese married couples in Japan include a spouse who is not of Japanese ancestry. Ana Bortz is an example. Thus the Nikkeijin population throughout Japan includes people of diverse ethnic origins, ages, generations, languages, classes, regions, and other demographic characteristics. The majority are second and third generation men and women of prime working age from southern Brazil, where Japanese Brazilians have been most concentrated. Prior to coming to Japan, more than half of them had completed their high school education or higher and were working as white collar or skilled workers.
Prior to the recent influx of Nikkeijin, the Japanese citizens of Hamamatsu rarely saw foreigners with a distinctive language, behavior, and physical appearance. By the mid-1990s, Nikkeijin had become a conspicuous presence in many everyday settings, including supermarkets, shopping malls, public transportation, public housing developments, festival and entertainment sites, public parks, and schools. The sudden increase in foreigners (gaikokujin), many with Japanese facial features but distinctly foreign dress, demeanor, and language, has spawned confusion, fear, and resentment among local citizens. The Revised Immigration Law was intended and expected to attract Nikkeijin as racially and culturally familiar substitutes for the shrinking Japanese workforce and for the alarming influx of labor migrants from such countries as Bangladesh, Pakistan, and the Philippines. These intentions and expectations proved to be ill-conceived.
Upon arrival, the Nikkeijin found themselves being regarded not as Japanese but as cultural strangers. They were treated as lower class migrant workers from a backward country. Japanese found the Nikkeijin to be disturbingly foreign and unwilling to conform to Japanese customs. Their complaints centered mostly on such everyday behaviors as the Nikkeijins irregular habits of garbage disposal, late night visits with friends, and noisy congregation in public placesall of which were in violation of informally established community rules. Although seemingly minor infractions, such behavior was sufficiently significant and resented by citizens so that they became the basis for negative stereotypes of the foreigners as uncivilized, undesirable, and untrustworthy residents and customers.
Underlying the suspicion and antagonism have been the contradictory ethnic and class criteria employed by Japan in seeking to attract inexpensive Brazilian labor. By law, Japanese ancestry has privileged ethnic Brazilians by offering them long-term residence visas irrespective of occupation. The majority of them, however, work in factories, comprising a reservoir of temporary manual workers. For local industries, the advantage of hiring migrant workers from the Third World rests on their vulnerability as a result of dire economic need, non-citizen status, linguistic handicaps, and unfamiliarity with local labor customs. Foreign workers provide a cheap alternative labor pool that performs essential manual jobs shunned by local Japanese. In times of recession, they are the first to be laid off, while Japanese co-workers jobs and wages remain secure. Their work requires physical strength and on-the-job experience but no complex technical or communication skills. It exposes them to danger and stress while providing no prospect of promotion and none of the fringe benefits their Japanese co-workers enjoy. Brazilian workers of Japanese ancestry are no exception to this kind of systematic discrimination.
The economic exploitation of Brazilian guest workers is most obvious and firmly established in the system by which job brokers hire them on short-term contracts and then send them to their actual workplaces in sub-contractors factories. This dispatching service saves factory owners the large expenses associated with hiring and firing, labor management, fringe benefits, social security, bonuses, etc. Hiring foreigners via brokers also helps Japanese manufacturers in their public relations. Sensitive to their product images and company reputations, manufacturers are able to avoid the social stigma of exploiting foreign workers for cheap labor; only brokers do that.
Exploitation of foreign workers also serves to exclude foreigners from the housing market. Japanese landlords customarily require one-months rent in advance, a rarely returned damage deposit, plus another non-returnable deposit called key money or thank-you money. In addition they require the signature of a guarantoreither an employer or relativewho will vouch for regular payment of the rent. Most landlords are also unwilling to lease apartments to foreigners. As a result, foreigners face serious difficulties in obtaining housing on their own. Frequently, job brokers sublet apartments or houses to their foreign employees during the period of their employment contracts. This sublease system severely restricts foreigners choice of residence and also limits their job mobility. At the same time, it constrains the immigrants private lives, particularly their childrens schooling.
Since the early 1990s, the sudden and growing influx of Brazilians into Hamamatsu has put the local administration under tremendous pressure to accommodate the diverse needs of immigrants and their children in the area of social services. In the first few years, the city welcomed Brazilian immigrants as new workers and residents by implementing various programs to assist them in adjusting culturally and socially. When, after 1992, the citys economy suffered a serious recession, its government grew increasingly anxious about the continuing flow of immigrants into the city.
A turning point was reached in 1993 when, following central government guidance, Hamamatsu City adopted a policy whereby newcomers of foreign origin were no longer entitled to membership in the National Health Plan. Instead, the city instructed foreign workers to participate in the National Social Security Plan, which combines health insurance with an expensive old age pension plan. Because most immigrants do not intend to stay in Japan more than a few years, they do not want to pay for the pension plan even though this means they will have to forego health insurance. Furthermore, employers and workers are expected to finance this National Social Security Plan jointly and equally. Since most employers of foreign workers are small-scale labor brokers, they are financially motivated to ignore such an expensive program. As a result, among foreign residents of the city (of whom Brazilians comprise the majority), the proportion of those covered by the National Health Plan has plummeted to only 13 percent.
Childrens education is another critical aspect of the immigrants life. In 1996, 372 of the 1,134 Brazilian children under 14 years of age in the city were enrolled in its public primary and junior high schools. The sudden and rapid increase in Portuguese-speaking pupils left Japanese teachers and the citys Board of Education ill-prepared and caused great difficulty in meeting their educational needs. In response, the city administration and its affiliated organizations hired bilingual Brazilians and Japanese as advisers, coordinators, and teachers to assist Brazilian children studying in Japanese classrooms. Despite such efforts, the task of meeting the educational needs of immigrant children remains overwhelming.
In the national education system of Brazil, instruction in Japanese is virtually unobtainable for Japanese Brazilians. In Japan, schooling in Portuguese is difficult to find. In the absence of Brazilian governmental assistance, immigrant Brazilian families and communities commonly resort to home schooling or correspondence courses. Occasionally, they establish small-scale Brazilian schools. However, these efforts neither meet the educational needs of immigrant children, nor do they provide the quality of education required by the Brazilian government. As a result, most Japanese Brazilian children are linguistically and culturally unprepared to benefit from Japanese schooling. Moreover, as non-citizens, they are not required to attend schools. Therefore, many Brazilian children remain unschooled in either language, or soon drop out. Many teenagers instead work in factories to make money. Others kill time roaming the streets in groups, which gives local citizens the impression that Brazilian teenagers are truants and delinquents.
The sorts of official discrimination described above have reinforced the cold reception the immigrants receive from Hamamatsu citizens. Prejudice and discrimination are common in stores and restaurants that serve immigrant customers. Having experienced difficulty in communicating with foreign customers, some merchants become reluctant even to serve them. Foreigners often bring with them unfamiliar customs and behavior such as removing merchandise from its packaging and eating food before paying, or congregating, loitering, and speaking loudly in stores and restaurants. These violations of Japanese customs aggravate the merchants negative perceptions of foreigners. Such cultural conflicts have rapidly led to rumors and widespread suspicion among Hamamatsu merchants that foreign customers are troublemakers, even criminals. A November 13, 1991, New York Times article included a report by Brazilians that when they entered a department store in Hamamatsu a loudspeaker warning was broadcast that a group of foreigners had arrived and clerks should be on their guard.
The Japanese mass media have paid a great deal of attention to police reports of increasing violence and crimes committed by foreigners at both national and local levels. In Hamamatsu, according to the annual reports by Police Headquarters, in 1994, 88 foreigners were apprehended as suspects in 120 criminal cases. In the following year, the figure rose to 94 foreigners apprehended in 505 cases. Most of these cases were for minor offenses such as petty theft or shoplifting. Some sources believe that Japanese police reports on the crime rate among foreign workers are inflated because of bias against them and serious flaws in data collection methods. For example, the reported crimes included those which could only be committed by foreigners, such as visa-overstays and illegal employment, which in any case are victimless crimes. In Hamamatsu, such crimes accounted for 44 percent of all crimes in 1994. These contribute to the reported increase in crime rates by foreigners and, as a result, to the growing image of them as dangerous criminals who threaten the safety of Japanese citizens.
In 1996, as crimes by foreigners were again reported to have increased, Hamamatsu Police began reporting the nationalities of criminals. According to 1996 records, 90 foreign criminals were responsible for 281 cases. Twenty-four of the perpetrators were Brazilians (27 percent), 10 Filipinos (11 percent), 5 Chinese (6 percent), 5 Vietnamese (6 percent), and 46 undesignated nationalities (50 percent). The relatively high proportion of Brazilians reported in the crime rate must be understood in the context of the fact that they accounted for 60 percent of the citys foreign population at that time.
The Ana Bortz Case
The attempt by the Suzukis to expel Ana Bortz from their store is hardly surprising in view of this rampant public and official criminalization of foreigners, particularly Brazilians, supported by the manner in which police collect and report criminal statistics. The contentions of plaintiff and defendant in the lawsuit that followed centered on contrasting views of the rights of customers and storeowners. This was encapsulated in the headline of an article that appeared on December 4, 1998, in the local section of the Asahi Shimbun: Racial Discrimination or Freedom of Business? The sub-headlines announced the positions of plaintiff (Bortz) as It Violates Public Order, and for the defendants (the Suzukis) as It Is Socially Permitted.
Plaintiff Bortz held that it was her basic human right to enter the store freely to shop regardless of her nationality. In her view, the proprietors actions not only violated her rights but also insulted her as an individual. She pointed out that the International Convention on Eliminating All Forms of Racial Discrimination (ICERD), ratified by Japan in 1995, requires its signatory governments to legislate laws prohibiting racial discrimination. The Japanese government has yet to enact such a law. ICERDs Article 2(d) prohibits racial discrimination against individuals, groups, or institutions. Article 6 guarantees victims of discrimination the right to seek reparation for damages.
In the absence of an anti-discrimination law in the country, Bortz argued, the ICERD takes effect as domestic law. It therefore prohibits Japanese citizens from engaging in such discriminatory acts. Her demands as plaintiff included: 1) that ICERD Article 2 (d) be applied directly to her case to determine as illegal the defendants acts against her; and 2) that her suffering as a result of the illegal activities be compensated under ICERD Article 6, and also under Japanese Civil Law Articles 90, 709 and 719, which, without reference to specific violations, rule on maintenance of public order and compensation for damages incurred.
The Suzukis, as defendants, countered that increasing crimes by foreigners justified their attempted expulsion of Bortz on the basis of her nationality, especially in view of the fact that the store carries expensive jewelry. Citing the Japanese Constitutions Article 22, which guarantees freedom of choice of occupation, the defendants argued that 1) freedom of occupation includes autonomy of a business owner as long as his act does not interfere with public order; 2) the autonomy of business guarantees the storeowner the right to select his customers in order to protect his business; and 3) therefore, expelling a foreigner from the store at a time when crimes by foreigners were increasing did not constitute interference with the public order.
In the defendants view, foreigners are unpredictable in behavior and known to be prone to criminal acts, thus leaving storeowners vulnerable to their criminal acts. In the official reply to the plaintiffs argument, the defendants attorney, Shigeharu Suzuki (no relation), wrote about cultural and behavioral differences between Japanese and foreigners:
It may happen that the storeowner excludes foreigners from his clientele. Even if this happens, it may not constitute an act of discrimination which interferes with the public order. This is because, generally speaking, foreigners are different from Japanese in life styles, behavioral patterns, customs, habits, ways of thinking, and mental and emotional activities. Especially due to linguistic barriers, it is difficult for foreigners to communicate with the Japanese. Therefore, it is often difficult for the two parties to establish trust between themselves.
The view of the defendants received little support from Judge Tetsuro Soh of Shizuoka District Court (Hamamatsu Branch) when, on October 12, 2001, he delivered his ruling. While disagreeing with Bortz on the direct applicability of ICERD to the case, he adopted the view, unprecedented in Japan, that ICERD provisions provide standards by which the court can determine discriminatory acts and assure the victim reparation for his/her suffering. Based on its Article 2 (d), the judge also ruled that discrimination is prohibited at the individual level, and that expelling a customer from the store on the basis of nationality constituted an act of racial discrimination which in itself interfered with the public order. In conclusion, the Judge ordered the defendant to pay 1,500,000 yen ($12,500) to the plaintiff as compensation for her suffering under the ICERD Article and Japanese Civil Law provisions cited by the plaintiff.
The defendants did not appeal to a higher court, thus accepting the District Courts ruling and ending the lawsuit. Consequently, Ana Bortzs anti-racial discrimination case constitutes a landmark victory, unique in Japans judicial history, for a victim of discrimination by another individual on the basis of nationality or race. Prior to this case, Japanese courts had ruled only on cases of governmental discrimination against groups or categories of people on the basis of sex, race, nationality, religion, etc. It also established a precedent in that the courts decision defining acts of racial discrimination and their consequences was based on Japans having ratified an international treaty, the ICERD.
Responses to the Court Ruling
On the evening of the day the court ruling was announced, local and national media focused great attention on the unprecedented ruling. The victory for Ana Bortz drew headlines in national newspapers, TV networks and magazines, while local media covered the case extensively for several days after the ruling. Included were interviews with local citizens from many walks of life, ranging from legal scholars and city officials to ordinary citizens and Brazilian immigrants. Many expressed surprise at, and approval of, Bortzs victory. Some were excited and encouraged by the strong human rights stance of the court and the prospects for improvement in race relations between citizens and foreigners in the city.
The day following the court ruling, one local newspaper, the Chunichi Shimbun, carried interviews that revealed the profound dilemmas the Bortz victory brought to the local community. Under the headline, When Will Misunderstanding and Prejudice Be Solved? the article reported contrasting responses from merchants and housewives, on the one hand, and Brazilian workers and their families, on the other. Unconvinced by the defeat of their fellow merchant in the lawsuit, three storeowners interviewed did not hide their confusion and disagreement, expressing sympathy for the defendants who, in their opinions, did the right thing in order to protect their store from the foreigner, a potential criminal. Two housewives spoke of their fear that the ruling would encourage criminal behavior among foreigners. By contrast, five Brazilian interviewees discussed the pervasive racism they experienced in their daily lives, together with institutional discrimination. All of the Brazilians interviewed hoped that the Bortz victory would lead Japanese citizens to become more tolerant of cultural differences and aware of the human rights of foreigners.
For Bortz, her victory in court was not an end in itself, but a precedent by which unchecked discrimination against foreigners in Japan could be eliminated. In a press conference following the court ruling, she proposed that the Hamamatsu City Council enact a city ordinance officially prohibiting racial discrimination. Bortz stressed that in the absence of a national anti-racial discrimination law, such an ordinance was essential in a city with such a high concentration of foreigners. The law, she argued, must define racial discrimination as a punishable criminal offense. Citing instances of widespread discrimination in Japan, including against women, ethnic minorities, foreigners, homosexuals, and other social groups, Bortz emphasized the serious lack of awareness of human rights issues among Japanese citizens. At a September 12, 2001, seminar held at the University of California, Berkeley, Bortz said:
My aim in the lawsuit was to promote discussion of racial discrimination in Japanese society, a subject heretofore regarded as taboo. Japan has the second largest economy in the world and seeks a chair in the United Nations Security Council, but most of its people are unable to recognize discrimination. The government has little interest in anti-discrimination legislation. Does this mean that Japan tolerates discrimination? . . . Although a law alone cannot change people, it can provide a reference point by which they can evaluate their attitudes and behavior.
Hamamatsu Mayor Yasuyuki Kitawaki expressed little interest in Bortzs proposal for an anti-discrimination ordinance. Instead, he stressed the importance of communication between Japanese and foreigners. On October 4 and 8, 1999, the mayor met with a select group of foreign residents and he discussed his view on the anti-racial discrimination ordinance:
I do not intend to legislate such an ordinance, but I do agree that racial discrimination should not be tolerated. I will make every effort to eliminate it short of legal enforcement. As for causes of racial discrimination, I think that Japanese people may not be used to interacting with foreigners because they have long lived in an island country. Therefore, I believe that, if the Japanese come to know well about foreign residents in Hamamatsu, their ideas and their activities, this will eventually lead to better understanding of them among Japanese.
Three months later, in January, 2000, I interviewed Hamamatsu citizens knowledgeable about foreign worker issues, in order to assess the long-term impact of the court ruling on their understanding of rights of foreigners. A majority of my informants, like the mayor, discussed communication as the best way to end discrimination. They frequently suggested that to achieve this goal the citys cultural exchange organizations, merchants associations and grassroots groups should make more efforts to provide a variety of cultural events, ethnic festivals and language classes through which Japanese and foreigners could meet and communicate naturally with one another. In their views, strained relationships between Japanese and Brazilians could be normalized only if both parties were to try hard to understand cultural differences and to establish common rules for dealing with them. In contrast, they said, the use of law to enforce racial harmony would result in the mere appearance of harmony, and would therefore be counterproductive.
A test of this cultural solution arose soon thereafter in an interview with a merchant active in the Hamamatsu Storeowners League. Asked about the impact of the Ana Bortz victory on storeowners attitudes toward foreign customers, he immediately remarked upon the personality of one of the defendants, Takahisa Suzuki. According to him, Suzuki had experienced trouble with his customers even before the Bortz case took place. He suggested that the Bortz case was a result of Suzukis problematic personality and behavior. To the best of his knowledge, he said, most storeowners had been well aware of the immorality of discrimination and tried to avoid overt discrimination in their relations with foreign customers. It was his observation, therefore, that the court ruling on racial discrimination had had very little impact on himself and his fellow merchants, although it did signal a warning to them by drawing a clear line between legal and illegal acts in dealing with foreign customers. Asked about his own policy on foreigners, the merchant responded with the following revealing statement:
Crimes by foreigners are real and pose a threat to us in our businesses. It is my responsibility as a business owner to prevent crime damage before it occurs. In the past I have said to my employees in the morning meeting that they must be careful if a group of foreigners gather around the cash register asking for change. I referred to physical characteristics of dangerous foreigners, such as their height or hair color, as reported in newspaper articles about crimes. This is not racial discrimination but a method to prevent crime in advance.
Interviews with selected Hamamatsu citizens largely confirmed this merchants view that the court ruling had little impact on attitudes toward foreigners. Many informants told me that by January, 1999, the publics excitement about the court ruling had dissipated, arousing very little public discussion or private conversation on the topic. They also pointed to the facts that, following the court decision, signs reading, No Foreigners Allowed, disappeared from the citys stores and bars, and in December 1999 the lawyers association held a public forum to emphasize the importance of human rights for foreigners. Nonetheless, the media attention and intellectuals debates led to little, if any, increase in public discourse concerning the causes of racial discrimination and the meaning of human rights for all, including foreigners.
According to my informants, most people had never been engaged, or even interested, in the lawsuit from its beginning to the end. Publicity about the court ruling therefore made them aware for the first time of racial discrimination and its social repercussion. The same informants, however, emphasized recent improvements in social services for foreign residents, including health, housing and childrens schooling. Informants stressed that such visible progress had been a result of incremental progress through years of disputes and challenges by dedicated advocates, Japanese as well as non-Japanese.
Among the frequently cited examples of such improvements were the following:
In December 1999, the Hamamatsu City Council unanimously adopted a statement of opinion, demanding that the national government review the public health insurance system for foreign residents. This was prompted by Council members realization that the low rate of public health insurance among the citys foreign residents could not improve without a policy change at the national level.
Equal treatment of foreigners in the area of public housing, as well as social services, social security, and welfare, was guaranteed by Japans 1981 ratification of the Refugee Convention, but practices in public housing vary widely depending upon local administrations. In 1992, the Ministry of Construction issued a notification, reminding all municipal administrations that permanent residents and registered aliens were to be admitted to public housing under conditions equal to those for Japanese. As a result, the number of foreigners living in public housing increased throughout Japan, including Hamamatsu.
In February 1999, Hamamatsu citizens witnessed the inauguration of a Brazilian school, Colégio Pythágoras, organized in accordance with the Brazilian national educational system, with instruction in Portuguese. This was a major achievement as the Brazilian principal and his colleagues had met strong opposition from Japanese neighbors in each of five locations originally proposed for the school. Despite its rocky beginnings and an enrollment of only seventy pupils in the first year, the inauguration of the school was celebrated by the media as well as by my informants as a major step toward increasing educational opportunities for the citys Brazilian children.
At the end of the 1990s, nearly ten years after the Japanese Brazilian influx, a majority of the Japanese Brazilians in Hamamatsu still express their intention to return to Brazil. Realistically, however, it is clear that as they prolong their stay in Japan the possibility that they or their children will return to Brazil diminishes. The expansion of Brazilian business, cultural, and social activities is a significant indicator of a growing interest among Brazilian immigrants in long-term settlement. By 1998, with a total population of more than 10,000 Brazilians, Hamamatsu also saw the rapid growth of small Brazilian businesses attending to the diverse interests and needs of the immigrants and their families. In addition, increasing contradictions between the citys public policy and the needs of immigrant communities has already spawned lively civil activism among a small but committed number of Japanese volunteers. Similarly, small numbers of Brazilian women, as well as men, are cooperating with Japanese and other nationals to promote their rights.
Hamamatsu has become somewhat multiethnic. This is not to deny that many more battles lie ahead if Japan is to become genuinely tolerant of other races and cultures. Other discrimination suits (previously reported by JPRI) have been brought by foreign teachers who are often dismissed from their jobs without cause and are seldom offered job security. Thus, the successful lawsuit brought by Ana Bortz is by no means the end of the story.
KEIKO YAMANAKA is a lecturer in the Department of Ethnic Studies and the Institute for the Study of Social Change at the University of California, Berkeley. She is the author of numerous research reports on Brazilians of Japanese ancestry who have returned to work in Japan. A longer version of this paper will appear in Mirjana Morokvasic Muller, Ulmut Erel, and Kyoko Shinozaki, eds., Gender and Migration: Crossing Borders and Shifting Boundaries, Vol. 1, International Womens University Series (Opladen, Germany: Verlag Leske & Budrich, 2002).