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Tuesday, Nov. 1, 2011

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THE ZEIT GIST

Schizophrenic Constitution leaves foreigners' rights mired in confusion


Pop quiz: Who live in palatial homes in fashionable Tokyo neighborhoods but are subject to various forms of discrimination, have no family registry, can't vote and have limited constitutional rights?

Answer: the Imperial Family. For those of you who responded "expat bankers," I will grudgingly give you a pass. Both answers are correct, and for essentially the same reason at that.

Nov. 3 will be the 65th anniversary of the promulgation of Japan's Constitution. With the country increasingly looking to foreigners to fill demographic gaps left by its declining population, let us consider what non-Japanese can expect from the country's most important law.

Japan's first charter, the Meiji Constitution of 1889, vested absolute sovereignty in the Emperor. As had been the case for centuries, however, the Emperor himself lacked any true political power, leaving sovereignty to be exercised in his name by extra-constitutional power brokers. This system left the army and navy (technically the Emperor's military, rather than the nation's) free from democratic oversight. Conditions were thus rife for the armed forces to embark on disastrous policies of military adventures abroad and totalitarian oppression at home.

After Japan's defeat in 1945, the country was occupied by American military authorities who, over the space of a week in early 1946, prepared the first draft of the current Constitution. The Americans were adamant that the new charter should unequivocally state that sovereignty rested with the people, not the Emperor.

This was nothing short of revolutionary; popular sovereignty was a concept that amounted to lese majeste for many Japanese, who had been raised on prewar propaganda perpetuating the idea of Japan as a national family headed by an emperor whose lineage could be traced directly back to the founding deities. The defeated Japanese government resisted this dramatic change, but had no real bargaining power against the American conquerors. As a result, Article 1 of the Constitution clearly states that national sovereignty is vested in the people, not the Emperor (a bit ironic, then, that it was promulgated on the birthday of the Meiji Emperor, which used to be the reason for the Nov. 3 holiday until it was converted into Culture Day).

Anyways, the constitutional principle of popular sovereignty is one of the reasons why non-Japanese will probably never be able to vote in Diet elections. Not having sovereignty, they are not entitled to participate in its exercise through elected representatives in the national legislature.

There is a better argument for allowing them to vote in local elections, since Article 93 of the Constitution says that local governments must be "elected by direct popular vote within their several communities." This could be read as including long-term foreign residents among the enfranchised. In 1995, however, the Supreme Court rejected such an interpretation even in the case of Koreans born and raised in Japan. In so ruling, the court did allow for the possibility of non-Japanese voting in local elections if authorized by national legislation (so all you have to do is lobby your Diet member to . . . oh, wait).

If it is any consolation, members of the Imperial Family do not get to vote either, for essentially the same reason: lack of sovereignty. In fact, there are interesting academic debates over whether they are even eligible for other rights provided by the Constitution.

Of course, the real Pandora's box of constitutional paradoxes involves the rights of non-Japanese rather than the Emperor. The first paradox is presented by Chapter 3 of the charter, which in Japanese is titled "Rights and Duties of the Japanese People." The clear linkage of rights to citizenship is missing from the official English version; to read it properly, you need to understand that where it says "the people," the Japanese term used is kokumin, which clearly refers to Japanese nationals. In some places the term used is "person," which lacks any nuances of citizenship, but it still appears in a chapter whose title appears to limit all rights to citizens.

This subtle but important discrepancy is the result of what historian John Dower calls "language games" on the part of the Japanese government team when it rendered the Americans' English draft into Japanese. This form of passive resistance, together with another modification that the Americans inexplicably accepted (the elimination of "nationality" as a prohibited category of discrimination under the equal protection provisions of Article 14), has resulted in a Constitution that seems schizophrenic insofar as it speaks of defining equality and "fundamental human rights" as being conditioned on nationality rather than being human.

Granted, the Japanese were understandably trying to avoid being foisted with a charter that on its face might have entitled anyone just getting off a plane to demand the right to vote, but the result is a Constitution that is extremely vague as to the rights of non-Japanese, even those born and raised in the country.

So what rights do foreign residents have under the Constitution? Well, according to the Supreme Court, they are entitled to all the same rights as Japanese people, except for those which by their nature are only to be enjoyed by Japanese people. Does that help?

This Delphic guidance comes from a very important 1978 Supreme Court ruling in what is known as the McLean Case. Ronald McLean came to Japan as an English teacher in 1969 but quickly got involved in the local anti-Vietnam War protest movement. When he sought to renew his visa, the Ministry of Justice refused. He challenged the denial in court, asserting that he was being punished for engaging in lawful political activity, exercising his rights to free speech, assembly and so forth.

He lost (of course), and although the case is supposedly significant because in it the nation's highest court enunciates the general principle that foreigners enjoy some of the rights enumerated in the Constitution, it does so with a caveat: that even those rights are limited by the scope of the regime of immigration laws which allow them to enter, reside and work in Japan.

Rooted in principles of customary international law holding that countries are free to deny entry to nonnationals, this reasoning potentially renders all rights enjoyed by non-Japanese in Japan subject to legislative restraints imposed through their visa status (constitutional rights, of course, are supposed to trump legislation). Not only that, but since the immigration statute at issue in the McLean case granted broad leeway to the minister of justice in deciding whether to renew visas, whatever constitutional rights he did enjoy were limited by that administrative discretion, a discretion the court found not to have been abused.

In summary, therefore, the McLean case says that non-Japanese have constitutional rights that may be subject to both statutory limitations and administrative discretion. Or as some might be inclined to put it, they have constitutional rights that are not actually constitutional.

Foreigners are not helped by the mishmash of other rules and rulings on the subject of their constitutional privileges. Here's another pop quiz: Which of the following vocations are open to non-Japanese? 1) National university professor; 2) family court mediator; 3) nonmanagerial local government bureaucrat; 4) managerial local government bureaucrat; 5) member of a national government panel advising on national policy; 6) trainee at the Supreme Court's legal research and training institute; 7) Diet member's secretary. Though the official line is that only Japanese nationals may participate in the exercise of state power, it is hard to find any real logic in the answers (below).

Another result of the uncertainty over the rights of foreigners is that they are apparently less free to leave the country than Japanese people. When I made a similar statement in a past article, a reader expressed his disappointment that The Japan Times was allowing me to perpetuate misinformation, since it is well established in treatises that foreigners in Japan are free to leave. This is true, of course, if you don't care about coming back. But that is like talking about the right to eat and drink as though it has nothing to do with the right to use the toilet. For non-Japanese who have businesses, homes and families in this country, however, just the right to leave does not count for much if it only means a one-way trip.

Take the case of Kathleen Morikawa, an American resident in Japan who was fined for refusing to be fingerprinted as part of the alien registration process of days gone by. When she applied for a re-entry permit for a short trip to South Korea, her application was denied and she sought recourse in the courts. In 1992 the Supreme Court declared that foreigners had no constitutional right to enter or re-enter Japan, and that the Justice Ministry's refusal to issue a re-entry permit was an acceptable exercise of administrative discretion in light of her refusal to be fingerprinted.

"Ignore the law and pay the price" is a fair comment here, but what I find noteworthy about the Morikawa case is that it did not seem to matter that she had a Japanese spouse and Japanese children. That the Justice Ministry can punitively strip Japanese nationals of their ability to travel or even live with a family member would seem to be at least as important constitutionally as whatever rights foreigners may or may not have.

The fact that many of us may be willing to live in Japan essentially at the sufferance of the government does not mean that our Japanese spouses, children and other kin should not have their own independent constitutionally protected rights to a family life free from arbitrary bureaucratic caprice. Article 13 of the Constitution refers to a right to the "pursuit of happiness," but meaningful court precedents tying this provision to a right to family life are thin on the ground.

Other than being able to vote and seek public employment, it is not clear that the Japanese fare much better in terms of clearly defined constitutional rights. "I know my rights" is a stock phrase in American dramas, but something you never hear in Japanese. While government agencies devote great energy to encouraging the Japanese people to respect human rights, it is fascinating to observe how rarely their campaigns go into details as to what those rights are.

To be fair, at least some of the rights articulated in the Constitution are so vague that they are probably not amenable to direct judicial enforcement. For example, Article 13 says "all of the (Japanese) people shall be respected as individuals" and Article 25 guarantees "minimum standards of wholesome and cultured living," but how do you turn such well-intentioned words into the basis for a specific lawsuit? For this reason, some constitutional rights are often characterized as "program provisions," which rather than conferring specific rights on citizens are policy mandates directed at the Japanese government for realization through social welfare programs and other legislative initiatives.

This means that Japanese people too are often left to rely on legislation for their constitutional rights to mean anything. Furthermore, since the Constitution also states that the rights it enumerates are limited by the public welfare, legislation may often be about constraining rights rather than fleshing them out. As a result, much of what the Constitution supposedly protects seems to end up at the mercy of legislative or even administrative action. This being the case even for Japanese people, foreigners may not have much to complain about.

A recent exception may have been a 2008 Supreme Court case declaring unconstitutional those parts of the Nationality Act that discriminated between children born out of wedlock to foreign mothers depending upon whether their Japanese fathers acknowledged paternity in vitro or not. Even though this result was a victory for the children eligible for citizenship as a result, the judgment refers to the importance of nationality for the enjoyment of fundamental human rights in Japan. So it may not be such a great step forward in terms of defining constitutional rights as opposed to who gets to be Japanese.

Recent revelations by a former prosecutor about being taught by his superiors that "foreigners have no human rights" raise further doubts about whether Japan is really up to the legal issues implicit in globalization.

Finally, since Japanese courts often justify their decisions using references to shakai tsūnen (commonly accepted social norms), even constitutional decisions can tend to reflect a distinctly majoritarian bent. In some countries a judiciary committed to defending minorities and unpopular viewpoints combined with clearly defined constitutional protections is expected to function as a bastion of human rights. Whether this can be expected of Japanese courts is debatable.

The fact that many of us expats are still here nonetheless may thus be because of the inherent kindness of the Japanese people rather than any high expectations of their government. At the end of the day, perhaps that is what popular sovereignty is all about.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and story ideas to community@japantimes.co.jp. Pop quiz answers: 1) yes; 2) no; 3) yes; 4) no; 5) yes; 6) until 2009, officially no, but actually maybe; since 2009, yes; 7) yes


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