I. The Hunt for Terrorists and Ethnic and Religious Profiling
In societies governed by the rule of law, what limitations should apply to police surveillance? What protections should be accorded to religious and ethnic minorities who may be subject to police profiling? Does police profiling of members of minority groups unfairly discriminate against them or violate fundamental rights such as the right to privacy or to practice religion? Questions like these are at the heart of ongoing litigation in Tokyo concerning police surveillance of Japan’s Muslim community.
In recent weeks, two separate United Nations human rights treaty bodies expressed their concern that ethnic and religious profiling by Japan’s police violate fundamental rights. In typically restrained diplomatic language, the UN Committee to Eliminate Racial Discrimination wrote that “profiling based on stereotypical assumptions that persons of a certain ‘race’, national or ethnic origin or religion are particularly likely to commit crime may lead to practices that are incompatible with the principle of non-discrimination.” The Committee urged the government of Japan to “ensure that its law enforcement officials do not rely on ethnic or ethno-religious profiling of Muslims.”1
Contrary to these recommendations, in a decision rendered in January of this year, Tokyo District Court approved police action based on Muslim profiling, on the ground that it is “necessary and inevitable” in order to protect Japan against the threat of international terrorism.2 The court made no reference at all to international human rights law embodied in treaties ratified by Japan, even though there is no doubt that such law is binding in Japan.
Police surveillance of Muslims was brought to the attention of the U.N. human rights panels by the team of Japanese attorneys who represent the plaintiffs in the Tokyo litigation.3 Their U.N. submission includes a summary statement by the attorneys, samples of police documents showing details of the surveillance campaign and the text of the Tokyo Court decision. All of these documents were either prepared originally by the attorneys’ team or translated by them from Japanese originals.4 This Asia-Pacific Journal report is based primarily on their English translation of the Tokyo court decision and other documents and references included in the UN submission.
II. The Police Surveillance Campaign Against Japan’s Muslim Community
The case began with the October 2010 leak of more than one hundred documents from the Tokyo Metropolitan Police Department that detail comprehensive and highly intrusive police surveillance of Japan’s Muslim community.5 This material provides a rare view into the inner workings of Japan’s public security police, charged with protecting the state against subversive threats.