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Badly needed reforms for the Japanese legal system

Written by Maciamo on 19 June 2004

A backward legal system

Japan's foremost claim to backwardness must come from its legal (and political) system. Due to cultural differences or not, Japanese laws often make the headlines for their lack of humanism and poor protection of fundamental human rights.

The US has put Japan on a watch list over human trafficking, ranking it at the same level as countries like India, Laos or Zimbabwe.

Laws regarding sexual harassment or women's right to continue working after marriage are all fairly new in Japan. But there is much more that remains to be done.

Marriage

Regarding marriage especially, Japan has a few issues to address. At present, divorced couples cannot legally share the custody of their children. Only one parent is allowed to keep (all) the children, and it is in 90% of the cases the mother. As a result, kidnapping from the other parent are not infrequent, and rarely taken care of by the police, as they see it as private disputes.

Worse is that in case of international marriages, Japan is one of the few developed countries that has refused to sign the 1980 Hague Convention on the Civil Aspects of International Child Abduction promising to return abducted children to the rightful custody of an overseas parent. So if a Western man married to a Japanese woman (or vice versa) has his child(ren) suddenly taken to Japan by his (ex-)spouse, there is no legal way for him to recover them. Even if he had received the custody after a divorce in his country, it will not apply in Japan, while it would in most other (developed) countries. (see => Foreign parents usually lose their children to Japanese ex-spouse)

Still regarding marriage, Japanese almost never make pre-nuptial agreements to settle possible issues such as money or the charge of the children in case of divorce, eventhough Japan's divorce rate is as high as countries like Germany. This however is due to the culture rather than the law itself (see The meaning of marriage in Japan and in the West).

In case of divorce, women cannot remarry before 6 months, while men can remarry the same day. The explanation is that women could be pregnant without knowing it. That would have made sense 60 years ago, but people can now easily do a DNA test, and anyhow, the chances for a divorced woman to be pregnant of her ex-husband are very low, and that won't change much to remain single or remarry.

Adoption and surrogate mothers

One more concern is that Japanerse lawmakers and judges do not want to recognize the genetic parents of children born from a surrogate mother (=> see article). Their pretext is that it could destabilize the traditional family unit. But how ? Is it better to have a child that is genetically ours, but not legally ours ? Adoption could be an easy solution elsewhere, but Japanese are generally reluctant to adopt for some reason. The few adoptions happening in Japan are inside the same family (eg. one's nephew or niece, if their parents die).

Government's responsibility

In the West, governments have the role and duty to educate people and keep society safe and liveable. Japan has a rather biased approach of the matter.

First of all, we could point the finger at corrupt politicians who, as all Japanese will tell you, care only about power and money and have no ideals or desire to work for the people.

Racism & immigration

In these circumstances, it is no wonder that racism and discrimination are not only legal, but almost encouraged by the authorities. Tokyo's governor, Shintaro Ishihara, who has been re-elected for a second term, it openly racist, criticising foreigners for Japan's woes and rise in crime (which really lacks of discernment. (check => Crimes committed by foreigners in Japan), and want them out of Japan. Then, there are no laws condemning signs such as "foreigners and dogs not allowed", and even the police post signs like "beware of foreigners" in public places. But that is only natural as we are in Japan ! The government is unscrupulous and even lacks a conscience as to why this is not acceptable.

Japan's attitude toward foreigners is also reflected in its immigration policy. Japan welcomes less political refugees than almost any Western country (=> see Japan is not an asylum country) and rarely grants citizenship, even to second or third generation Koreans or Chinese born and raised in Japan. Some people will claim that Japan is not traditionally an immigration country, like the USA or Australia. But that misses completely the point, as European countries do not have a history of accepting lots of immigrants either.

Most immigrants in Europe came from ex-colonies inn the 1950's, 60's and 70's, and both Korea, China, as well as several South-East Asian countries are ex-Japanese colonies as well. Germany, which is almost as racially homogenous as Japan, and which had almost no colonies (anyway taken over by Britain and France in 1918), is the country which accepts the most (non-European) immigrants and refugees in Europe. Even better, it now grants German citizenship to anybody born there. However, Japan denies Japanese nationality even to children of Japanese born outside Japan or foreigners born in Japan. Until recently, only children born from a Japanese father could claim Japanese nationality. This law has been changed due to foreign pressures though.

The police

The Japanese police has legally the right to arrest someone just on the grounds of suspicion of crime, without evidence, and keep them in the police station for up to 20 days. The arrested does not have the right to contact anybody, not even a lawyer, their embassy, their family or their employer. Consequently, people mistakenly arrested (and there has been lots of cases) may have to endure interrogation and bad treatments for 3 weeks, lose their job as they don't show up without excuse during that period, and eventually have their life ruined, just because of the police's error or abuse.

Conservatism, prostitution & pornography

Some people will say that Japan is just conservative, and shouldn't be blamed for that. I believe that Japan is conservative for what it wants (i.e. immigration, marriage, etc.). When it comes to pornography and prostitution, Japan is far from being conservative. Prostitution has "officially" been prohibited due to Western criticism, but authorities turn a blind eye on it, as the numerous "soaplands" or "massage parlours" witness.

Pornography is not only legal, it is barely regulated. Any of Japan's ubiquitous convenience store has a dozens of porn magazines, and even other magazines and newspapers usually have pornography in it (otherwise it wouldn't sell). There is no separation between pornographic material and children's comics. In video shops, Walt Disney movies are side-by-side with erotic videos (although the more hard-core, maso-sadistic bondage and simulated pedophilia are in a separate section).

Some will claim that cultural sensitivities are different, and nudity does not offend Japanese people. There is some truth in in it, but that remains unbelievable for many Westerners.

Protectionism

Japan has been protectionist for times immemorial. During the Edo Era, the country was almost completely closed to foreign (= Western) powers. In recent times, Japan still keep high tariffs on imported products, and until the turn of the millennium, foreign companies (except some US corporations) could not legally establish themselves in Japan, so as not to compete with Japanese firms.

But Japan didn't see any problem in opening car factories in Europe, North America or south-East Asia. Nowadays, it is still difficult for foreign companies to enter the Japanese market. The only way is to be associated, merge or take over a Japanese company. A few cases have occurred so far, like Renault's take over of Nissan, or Vodafone's acquisition of J-phone.

However, the change of law only aimed at bringing foreign capital to Japan in order to fight the economic crisis. When all goes well, Japan closes itself while selling its products abroad. Unbeatable tactics, but how long should other countries tolerate such inequalities ?

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