Anti-hate speech law in Japan/일본 혐오 표현 금지 법안

“Koreans, get out of Japan!” 

Not too long ago, this sign hung inside a bathroom in a Fukuoka mall. Not so subtle. But not out of the ordinary, either. Such expressions, and worse, are part of a simmering anti-Korean sentiment in Japan that has surged in recent years, especially as the political relationship between Korea and Japan has deteriorated in the past three years. “Zaitokukai” is one group that acts on this sentiment very seriously and persistently; it hosts anti-Korean rallies in Korean-predominant neighborhoods in Japan.

In an unprecedented move toward protecting the rights of minorities such as the Korean Chinese, Japan passed its first anti-hate speech law this May. The purpose of the law was relatively simple — enacting a legal mechanism to address the issue of hate speech in Japan. It explicitly stated that this law would apply to all Korean Japanese (재일동포).

While the law was unprecedented, it was not received as particularly groundbreaking or significant. The general consensus on the law has been that it is too abstract, and that it does not provide robust legal consequences for groups like Zaitokukai. While the law does make certain recommendations, such as the need for local governments to increase education and awareness of hate speech, the problem is just that — they are recommendations, not binding legal penalties or punishments.

Yasuko Morooka, who spoke with about ten Korean professors, students, and lawyers (including APIL’s 이명광 변호사 and 진유선 인턴) interested in this issue this Wednesday in Insadong, says she cannot disagree with this skeptical appraisal of this law. And she even worked on it. She’s a human rights lawyer at the Osaka University of Economics and Law, and advocates for the rights of foreigners, such as Korean Japanese, in her country. She helped work on the law with other lawyers and citizen activists until it passed on May 24th.

In our conversation, she explained the limitations of the law, why it may have such a narrow jurisdiction and capacity, and the consequences on those left out from its protection.

So — why is the law so limited?

First, governmental opposition.

Morooka pointed out that the Liberal Democratic Party of Japan, the current ruling party, has been and probably will stubbornly resist any future legislation addressing institutionalized discrimination, and that the party had fought against even this piece of anti-hate speech legislation.

There’s historical context for why the party acts in this way, she said. The Japanese government has, since the conclusion of World War II, refused to recognize that discrimination exists, she explained, so it was always difficult to enact any sort of anti-discrimination legislation. She said that the hate speech issue only became an issue when anti-Korean rallies snowballed and started gaining not only domestic but international media attention, and Japanese officials hastily wanted to conjure up a solution in light of the approaching 2020 Tokyo Olympics to avoid international embarrassment.

Second, the opposition of ‘free speech’ supporters.

Morooka recounted how constitutional law in Japan emphasizes the same principles so valued in American constitutional law — the almost absolute protection of freedom of speech. However, she pointed out how she and other students never learned, at least in school, how hateful speech and discrimination violates the rights and dignity of humans.

Third, the exclusion of other migrants from this legislation.

While the legislation explicitly protects Korean-Chinese, it does not extend that same protection to other migrants, especially vulnerable ones such as foreign laborers, asylum seekers, or undocumented individuals. Morooka pointed out that this law could actually indirectly aggravate their status, since some could manipulate the intent of the law and argue that any speech is fair game to those migrants who are not Korean Chinese.

Despite its many flaws, Morooka said that the law has, at the very least, provided some kind of guiding framework for government officials to use when they handle such cases of hate speech in the future.

To make that process easier, she and others have proposed a resolution (부대결의) to supplement the law. This resolution doesn’t have any legal power by itself, she explained, but legislators can interpret the law according to its recommendations. Morooka also made a Q & A manual about the law so that government officials can refer to it when working with anti-discrimination groups, who often try to use public buildings and parks for their rallies.

Morooka ended the conversation on a hopeful note. While the enactment of the law, ironically, triggered a series of more aggressive expressions of hate speech, especially online, it does allow the victims to request some kind of remedy from the human rights protection department inside the Ministry of Justice. And it provided such a remedy. The team ordered 22 out of 30 online sites to take down expressions of hateful speech, and was somewhat effective, although it did take them three weeks to get this done.

There’s also hope for similarly minded legislation in the future, Morooka said. Next year, she and others hope to create a legislation addressing racism, although its legal application may also be narrow. She also hopes to have big online companies cooperate with the government to erase online expressions of hate speech quickly, ideally, as fast as within 24 hours.

Throughout our conversation, we couldn’t help but to compare Japan’s situation with the anti-hate speech and discriminatory laws with other countries, such as, of course, America and Korea.

America has a long, contentious history with hate speech as well — history that has, unfortunately, been revived and amplified with Trump’s election in November. That month, hundreds of racial harassment incidents broke out explosively, and nationally. In one instance, a group of high school students, carrying Trump signs, chanted “White Power” throughout the halls of their school in York, Pennsylvania, according to a Boston Globe article.

Korea, which currently has no laws on hate speech or discrimination, presents equally if not more harrowingly unfortunate incidents of such behavior, in which groups similar to Zaitokukai are permitted to stage antagonistic protests and rallies against others, especially socially vulnerable populations.

In 2014, when the national grief from Sewol-ho’s sinking was still fresh, one such “protest” took place — young male members of controversial online community “Ilbe” held a “food binge strike”, in which they devoured chicken and pizzas right in front of the bereaved families who were protesting.

This incident may not have been ethnically or racially charged as those in Japan and America, but the underlying theme is re-invoked here as well: how forms of antagonistic expression and hate speech are permitted under current laws in all three countries.

In Korea and Japan, there have historically been few to no laws that explicitly address these incidents — rather, they have passively permitted them. In America, however, the First Amendment constitutionally protects the right to such speech.

Thus, in many developed countries, laws concerning speech and expression currently protects everyone’s right to speech — even those who use it to express hate against minorities.

This may seem counterintuitive. Morally infuriating, even, if one is a minority.

However, advocates of constitutional law argue that it would undermine the legitimacy of freedom of speech to protect some groups’ right to speech, yet undercut others’ same rights. Essentially, as long as their expressions do not express explicit threats of violence, at least in the US, people such as those students in York, Pennsylvania are legally permitted to continue chanting “white power” in their halls, and “Ilbe” protesters are permitted to binge on burgers in front of families who have fasted for days in protest of the government’s response to their children’s death.

The ethical questions surrounding freedom of speech, and how extensively it should be protected, are clear. 

But my question to Lawyer Morooka was then this — if this new law isn’t thoroughly comprehensive, are there any other legally protective mechanisms for those minorities who, understandably, feel threatened by these expressions? What can ethnic Koreans and other migrants when they do hear ‘hate demo’ protesters chant against their existence in their very own neighborhoods, and feel very threatened by them? Basically, how can the government protect them?

Lawyer Morooka said unfortunately, there isn’t much legal protection for such minorities, especially because there is no domestic human rights institution, akin to the National Human Rights Commission in Korea, in Japan. She said that the Abe administration is very reluctant to create one; apparently, the administration even argues that such an institution will allow anti-discrimination groups to run amok. The unfortunate consequence, she said, is that minorities such as the Korean Chinese and foreign laborers will continue to have their rights threatened and violated.

Japan and Korea have been ethnically homogenous for most of its history. In both countries, there has been no legal precedent or imperative to address ethnic, racial and religious diversity, and perhaps understandably so, for their relative homogeneity did not necessitate such laws.

However, the global migration of both willing and forced migrants is now happening at unprecedentedly explosive rates, affecting historically homogenous countries such as Japan and Korea. Migration, historically and socioculturally, tends to incite a backlash from the citizens of the recipient country in some implicit or explicit form of racism and discrimination. If not addressed, both racism and discrimination are urgent, dangerous and in many cases, potentially life-threatening. Ideally, they must be addressed through robust legal mechanisms.

Realistically, however, it is questionable whether either Japan or Korea will prioritize such laws that protect immigrants, considering how laws toward foreigners have historically been politicized and manipulated to convenience those in power. Much of the prerogative is on human rights lawyers such as Morooka, and other citizen activists, to attempt to disentangle politics from the original intent of the law — to protect vulnerable minorities such as Korean Chinese, and relatively more vulnerable individuals, such as forced migrants, foreign laborers, and undocumented people.

(12기 진유선 인턴 작성)