• Indrajeet Nand and Abhiyudaya Vats

The Untouchables of Japan

A Contextual Legal Analysis of Why Human Rights Failed to End Caste Discrimination in Japan


Abstract: Caste discrimination in Japan, much like in most other Asian Countries, has been a reality of society since Medieval Times. The burakumin were historically segregated and were deemed to be untouchables. Constitutional reform in 1860s and again in 1945, influenced by Western ideals of Human Rights, promised equality and end of caste discrimination but failed to provide it. This paper aims to trace the story of burakumin vis-à-vis the developing Human Rights in Japan and aims to contextualize the failure of repeated efforts of the Japanese Government to end social discrimination. It is argued that Western Human Rights, which give a primer on Individual Rights are ‘insoluble’ with the group based social structure of Japan and therefore the legal status of burakumin does not correspond to the effective social status even with economic developments, welfare and protection laws.


Keywords: Caste discrimination in Japan, International Human Rights


INTRODUCTION:

The Constitution of Japan adopted in 1947 signified the paradigm shift of the country’s political and legal philosophy from a quasi-monarchy with a closed conservative social set up to a liberal democracy under the supervision of the United States after Japan’s occupation post World War II[i]. The new constitution included significant individual rights which were absent in the old constitution and marked a break from the pre-war “quasi-religious political devotion to the emperor” and militaristic state towards the rights of individuals. Provisions such as the current Article 13 which signified the Right of Life and Liberty of an Individual, or Article 14 which gives protection against discrimination in “political, economic or social relations on basis of race, creed, sex, social status or family origin”, are additions of Fundamental Human Rights into the Constitution of Japan which reflects this paradigm shift in both the legal and social systems. Human Rights in Japan is a reflection of Euro-American conception of Human Rights, as the Japanese Constitution was imposed by the U.S which aimed to reflect the post WWII conceptions of Human Rights present in the International Legal Community of the time. In the context of these facts, we aim to examine the evolution of the legal status of the Burakumin and the efforts by the Government to change this in recent times. Through this exercise, the essay will attempt to comment on the insolubility of ‘Western’ Human Rights in the conservative social structures of Asian countries such as Japan and India even when included within the Constitutional framework of these countries due to the social dis-acceptance of these values.


Part I –History of the Legal & Social Status of Burakumin:

Burakumin (部落民), meaning literally people of hamlet, are historically considered the descendants of the outcast’s eta or hinin who were considered impure due to the profession undertaken by them such as tanners, cemetery attenders, gypsies, etc., during the Tokugawa Period, which was marked by a rigid status system based off of the Medieval system of Japan which comprised of 5 classes (the bottom of which were the ‘outcasts’, eta and hinin) and the government regulation of the lives of the outcasts. The impurity was considered to be hereditary and therefore these groups were ostracized to the point where they were not allowed to leave the community of their birth. Because of this so called “impurity”, they were segregated to certain places where they could be regulated. These places came to be known as Buraku, or in other words, slums. The segregation was encouraged by the authorities as a means of government control and was given authority by religious sanction, essentially existing as ‘Legislated Racism’. In Japan during this period, Buddhism and Shintoism were most prevalent and had taken a very rigid structure especially in the upper sections of society, giving the caste discrimination a religious sanction. Past writings and historical records state instances of the eta temples being segregated while not being allowed to visit other religious sites. Judicial sanctions and verdicts against the outcastes further cemented their legal status. In an infamous 1859 court case a Magistrate declared that “eta are worth 1/7th of an ordinary person[ii]; while in the Clong Thongs Riot in 1843 between peasants and kawata (another outcast group) the verdict disproportionately punished the kawata, meting out harsher punishments ranging from flogging to beheading.

Although, the Meiji Government’s Emancipation Edict (解放令 – kaihorei) in 1871 which abolished the identification of Eta, specifically addressed the legal status of the Eta, the abolishment of the identification of outcasts was not really rooted in any Human Rights theory or was not encouraged by ideals of equality. As stated by Frank Upham, “legal emancipation meant little”, comparing the status of burakumin to the abolishment of slavery in the USA. The 1871 Edict merely abolished the legal status and sanctions against eta/hinin, it did not outlaw or proscribe discrimination per se, implying that the government took a passive approach to legal emancipation. Due to the context of Westernization during the Meiji Reforms, it is disputed that the Government at the point considered the emancipation order as an imposition from the western countries. This meant that the change in the legal status of the eta was not followed up by any support by the government which led to riots and lynching against the former eta known as anti-kaihorei riots. Instances of 4 former eta being killed, and 25 homes being burned for trying to buy alcohol in Okayama and the deprivation of exclusive rights over professions traditionally carried out by eta and hinin meant that they were unprotected both economically and socially. This was further fueled by the legal requirement of former eta to be registered as “new citizens” or shinshimin, which allowed state records to distinguish the eta ancestry, perpetuating a social discrimination which continued to the modern era. The combination of legal emancipation without protection against discrimination and the passive policies of the government regarding social discrimination meant all traditional religious rights which the eta had with respect to their professions and social status were dissolved, forming what historian Kiyoshi Inoue stated as the “holy trinity of buraku discrimination”. There was no possible legal recourse against discrimination either in traditional law or in the modern ones, which explains the lack of cases in Japanese Courts in the Meiji Era, marking the shift towards an ‘Unlegislated Racism’. As a result, the eta were essentially ostracized to the sites of former eta villages which became the Buraku settlements.

Although emancipated during the Meiji Era in 1871 and ethnically, linguistically and racially indistinct from other Japanese, the Burakumin were still discriminated against mainly due to their status during the Tokugawa Period. The anti-burakumin sentiment today exists on a dual plane of both ignorance and denial, with most people either considering it not a part of their problems or stating that they have never come into contact with them, and therefore to leave it alone so its existence may disappear with time. Anti-buraku graffiti such as “Burakumin maggots…kill eta filth…are still the reality in many of Japan’s 21st century modern cities such as Osaka and Kyoto.

Part II –Analysis of Government Policy and Legal Reforms on Burakumin Discrimination:

The new post war government in 1945 brought new constitutional reforms and more rapid industrialization supported by the Meiji era reforms. Due to rapid urbanization, the former Buraku settlements became slums and ghetto with poor living standards and reflected illiteracy and low economic status within the metropolitan cities. Even in modern Japan, the constitutional protections and values of Article 13 and 14 could not prevent socio-economic marginalization of the burakumin. To combat this in 1969 the 61st Diet passed the Special Measures Act for dowa (同和) or assimilation projects which focused on improving the “living environment, housing and public facilities and other services relating to human rights” of the dowa and provide benefits. The enactment came as a result of Japan becoming a signatory to the International Convention on Elimination of All Forms of Racial Discrimination (ICERD).Article 1 of this act clarified that the purpose of the act was to “contribute to cultivation of economic power…and improvement of welfare” of the dowa residents based on the principles of basic human rights within the Constitution of Japan while Article 3 placed a national responsibility on all citizens for the culmination of the project. As the name suggests, the principal objective of the act was to assimilate the social standards of the burakumin with that of the general Japanese populace. Signifying that the Government now took a seemingly ‘active’ stance against discrimination unlike the Meiji Government. The government ended this program in 2002 with a net spending of 15 trillion Yen, with social costs relating to corruption putting it even higher. Although the program did create better housing, it did not affect the discrimination against burakumin as the large revenue stake in the program attracted the attention of powerful burakumin leaders and the ‘Yakuza’, the organized crime syndicate of Japan. A study by Ramseyer & Ramusen claims the involvement of Yakuza led to further discrimination and had the effect of pushing young burakumin out of the educated sphere into the illegal and criminal sphere where there was newfound money. Even with active legal and policy initiatives by the government, it is still clear that socially the burakumin are not considered equal. The infamous “Sayama Incident” in 1963 has been claimed to be an example of discrimination against burakumin by the judicial system wherein a burakumin was found guilty of kidnapping, rape and murder of a 16-year-old girl in Saitama by the Tokyo High Court on the basis of a forced confession and circumstantial evidence. The problem of Companies using ‘Family Registries’ and public records (koseki records) to ascertain who belonged to burakumin ancestry was addressed in 1970s by the Ministry of Justice, but this led to Companies keeping private records of burakumin and therefore denying employment opportunities to this group. A survey by the Tokyo Metropolitan Government in 2014 reported that 26% parents would oppose marriage with burakumin of their children.

The reason for the sustained discrimination as pointed out by Ian Neary is the fact that the Japanese Government refused to make discrimination illegal, essentially making the dowa act more about development and living standards than about discrimination and social status. A landmark Act viz. Act on Promotion of the Elimination of Buraku Discrimination enacted to combat this in 2016 has been dubbed toothless as it fails to define the scope or nature of discrimination or unequivocally criminalize discrimination in the act. The basic principle of the Act embodied in Article 2 concerns itself with eliminating discrimination but in Articles 3-6 places responsibility on the State and local governments to devise laws without any sanctions or directions. Therefore, actions in contravention to the statute lack penalties, reflecting the mentality that this problem is one of shame in society and should not be addressed substantially.



Part III – The Social Context of International Human Rights in Japan and Why it Failed to Prevent Discrimination


“Outside the circle of post-Enlightenment European culture…most people are simply unable to understand why membership in a biological species is supposed to suffice for membership in a moral community…It is because…they live in a world in which it would be just too risky…to let one’s sense of moral community stretch beyond one’s family clan, or tribe”[iii]


The notions of duty and group identity is particularly strong in Japanese society even after the post-war changes to the laws and constitution which reframed the erstwhile feudal social hierarchy to the point where the “building block of society …is a group of people…bound together by feelings of quasi-familial loyalty and obligations to each other…” signifying the assertion of human rights in Japan through groups rather than individuals. This is to an extent where Japan has been dubbed as a ‘Feudal Democracy’. The sense of ‘duty consciousness’ is very strong in the social groups in Japan existing as a “reciprocal duty consciousness” entailing the membership of such social groups as exclusive with both vertical and horizontal hierarchies towards seniorities and any deviation from its position is not taken lightly. This contextualizes the social response to the adoption of western human rights and laws since the Meiji era, and puts forth the idea that legal and constitutional changes to the social organization from group centric to individual focus did not have the same effect as it did in Western countries, especially relating to Human Rights of social groups. Although many scholars have drawn parallels between the Indian caste system and the one prevalent in Japan, it must be noted that the caste system in India is one which is highly diverse and fluid unlike the homogeneity in the Japanese society. Why International Human Rights failed to address this is understood through the absence of the specific term, “caste-based discrimination” in the ICERD 1965, which was only rectified in 1996 by reading caste within the term “Descent” within Article 1§1 of ICERD in the India’s State Report. Crucially as noted by Keane, apart from ICERD, there are no international treaties or UN Conventions which lists “Descent” as a prohibited ground for discriminatory treatment. Furthermore, due to the homogeneity in Japan, the Burakumin discrimination is hard to group within an established ground under International Conventions, as they usually don’t qualify as religious or racial minority. The India’ State Report 1996 analyzed Article 17 of the Indian Constitution and the need for supplementary legislation to aide proscribing discrimination. The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act) 1989 enacted in India, the protection laws which the 2016 Japanese Act should have done. But as noted by the Human Rights Watch as far back as 1999, neither has it been appropriately enforced, nor its spirit completely accepted. Infact certain states such as Maharashtra have attempted to repeal the act.

One is compelled to question in light of these facts, why did International Human Rights fail to prevent discrimination in Japan, India and other Asian countries? Flowers believes it to be due to the failure of adoption of International Human Rights Norms, caused due to their conflict with domestic norms[iv]. The report of the UN Special Rapporteur, a.k.a, the Diene Report on Discrimination in Japan stated the presence of a “deep discrimination” caused by the society being closed and “‘intellectually centered” is leading to Human Rights Laws being substantially ineffective.[v]. This intellectually centered disposition is also evident in the judicial method of enquiry with relation to constitutional challenged to human rights violations. As Beatty, through Kakunaga v/s Sekiguchi[vi] notes that the Supreme Court of Japan has “tended towards the European method of Constitutional review [relating to human rights] relying on general principles of proportionality and balance…[therefore] have basic tests on reasonableness regarding constitutionality of laws with relation to Article 12 (Public welfare), Article 13 and Article 14 of the Constitution of Japan.Ergo, the Supreme Court has primarily perceived its role to be an interpretative one, applying basic tests of reasonableness which most statutes pass even while failing to deliver substantially on their principal objective. Although the courts have recently expanded the legitimacy and use of International Human Rights Conventions, this has not translated into meaningful legislation or enactments to comply with International obligations, which is the pivotal factor as Japan is a Civil Law country. Timothy Webster explained in Bortz v/s Suzuki[vii] and Arudou v/s Earth Cure[viii], both cases on discrimination against foreign nationals, that the District Court used Article 6 of CERD to award “effective remedy” to the plaintiff, fashioning a tort remedy out of international law, holding that CERD should be used as an “interpretative standard” in private discrimination. But this tortious interpretation of CERD does not lend itself to burakumin discrimination as discussed above, as CERD does not apply perspicuously to caste discrimination, which in turn explains the lack of litigation on this judicial argumentation on burakumin rights in both domestic and international legal spheres. Therefore, most welfare laws and protection laws passed in both India and Japan meet the yardstick set in the UDHR, CERD and Constitutional Judgments and provide protection against Formal Discrimination, but not Substantive, Systemic and Deep Discrimination.


Part IV - Conclusion

As pointed out by Mutua, the “apoliticization of the human rights movement obscured the…cultural identity of the norm that it seeks to universalize.”[ix] The imposition of Western Human Rights in the context of Japanese history is evident, but the modern legal treatment of burakumin in Japan and the Scheduled Caste in India demonstrates that the effect of the fundamental flaw of universalization of the principles of human rights, which leads to the markers or yardstick by which socio-economic rights are measured to also be incomplete portrayals of the real status of that particular social group. The Dowa Assimilation Housing Project and Prevention of Atrocities Act are clear examples of this. Conflating caste discrimination to development demonstrates this gap in International Human Rights. It is our contention that such universalized approach on enforcement of Human Rights will render itself ineffective due to it transgressing domestic social and legal norms. The status of outcastes or lower castes in Asian Countries such as Japan or India runs deeper than socio-economic problems as it actually reflects the cultural setup of these nations which has been recently recognized by the Ministry of Justice of Japan, 75 years after the Japanese Constitution prohibited caste discrimination. Particularly, in the case of Japan (and to some extent India), the presupposed sacrosanctity of individual rights has been in continuous conflict with its group based socio-cultural setup, hence, negating the efficacy and potency of the same Human Rights principles which enjoyed so much success in much of late 20th century Europe. Which is one of the reasons why this success wasn’t replicated in Japan and India, even when backed by constitutional promises. Therefore, first and foremost, in our opinion, it is imperative to recognize, outline and describe caste discrimination in International Treaties and Conventions and to provide it adequate legal protection as the current regime is not percipient enough to particularly deal with this issue. This has to be subsequently followed by integrating alternative legal interpretations of Human Rights, group based in the case of Japan to these Conventions to give them a chance to effectively function. Any clinical work on caste and human rights in Japan cannot be based off of European – Individualistic perceptions of the issues, but rather the yardstick or measure of any substantial development in the status of burakumin in Japan has to be social & cultural rather than economical in nature due to the very nature of caste itself.


REFERENCES: [i] Shigenori Matsui, The Constitution of Japan: A Contextual Analysis 30-31 (Hart Publishing 2011) [ii]Shimazaki Toson, The Broken Commandment or Hakai(University of Tokyo Press 1974) [iii] H. Steiner, Conflict in Culture, Tradition and Practices: Challenges to Universalism in International Human Rights in Context 519 (OUP, 2008) [iv] Petrice R. Flowers, International Human Rights Norms in Japan, 38 HUM. Rts. Q. 85 (2016). [v] report of the special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, doudou diène, on his mission to japan (3-11 July 2005) [vi] Kakunaga v/s Sekiguchi, 31 Minshu 533 (Supreme Court, 13 July 1977) [vii] Bortz v. Suzuki, 1045 HANREI TAIMUZU 216, 217 (Shizuoka D. Ct. Hamamatsu Branch, Oct. 12, 1999) [viii] Arudou v. Earth Cure, 1150 HANREI TAIMUZU 185 (Sapporo D. Ct., Nov. 11, 2002) [ix]Mutua Makau, The Complexity of Universalism in Human Rights, Human Rights With Modesty: The Problem Of Universalism (Springer 2004)


This piece has been co-authored by Indrajeet Nand and Abhiyudaya Vats.


Indrajeet Nand is a 4th-year law student at Jindal Global Law School in the BALLB (Hons) course. He is interested in Comparative Law, Comparative Constitutional Law, Human Rights in Asia, and Japanese Law.


Abhiyudaya Vats is a 4th-year law student at Jindal Global Law School in the BALLB (Hons) course. He is interested in Constitutional Law and Public Policy on Caste Discrimination. Has worked on a project on Dalit Revolution in India.

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