Colin Jones on NJ rights after the Supreme Court welfare verdict of July 2014: None but what MOJ bureaucrats grant you
Posted by Dr. ARUDOU, Debito on August 6th, 2014
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Hello Blog. In what is for me the best JT article of the year (and well worth bumping my JBC column to next week), Colin Jones lifts the lid off Japanese constitutional and legal history and shows definitively the evolution of rights for non-citizens (or lack thereof). Occasioned by the recent Japan Supreme Court verdict which states that NJ are not guaranteed social welfare, the article’s upshot is this:
Think you’ve got rights as a foreigner in Japan? Well, it’s complicated
The Japan Times, August 6, 2014, BY COLIN P.A. JONES
Excerpt: This newspaper’s well-intentioned July 27 editorial declaring that the social safety net should be for all taxpayers is perfectly understandable — particularly given that the petitioner was an elderly Chinese who was born and spent her whole life here. Unfortunately, it is a mistake to equate feeding the maw of whatever tax-fueled Leviathan nation state you happen to live in with being entitled to anything from it in return. This is particularly true in Japan, where by law it is generally more important that one of your parents be Japanese than where you were born, raised or paid taxes. After all, being a dutiful taxpayer alone won’t get your visa renewed or keep you from getting kicked out of the country; why should it get you a welfare payment either?
Thus, if you live here on a foreign passport, you might want to snuggle up in a comfy chair and read through the Immigration Control and Refugee Recognition Act, since for most purposes, that is your constitution. Having its roots in an Occupation-era decree modeled after U.S. immigration laws then in effect (missing some important features, as will be discussed later), the ICRRA did not become a “law” until 1982, when it was amended in connection with Japan’s accession to the U.N. Convention Relating to the Status of Refugees. I say it is your constitution because in 1978, the Supreme Court acknowledged that most constitutional protections did extend to foreigners, but only within the framework of the immigration laws and regulations, including the broad administrative discretion granted by these to Ministry of Justice officials.
So, you can pay your taxes, participate in that anti-nuclear demonstration and maybe even have a run-in or two with the cops, but at the end of the day your ability to live in Japan may ultimately be at the discretion of a bureaucrat’s view of some of the very subjective standards set forth in the immigration laws and regulations, such as whether you have been “good” or “engaged in the activities related to your residence status.” In my experience bureaucrats are generally nice, and most of the time it is probably more work for them to kick you out than to let you stay, particularly if you have a Japanese spouse and/or children. But it is probably safer to assume that you do not have any right to be in Japan; that being the case, assumptions about rights to welfare or just about anything else would seem equally suspect.
It is worth bearing in mind that Japan’s Korean population was divested of its Japanese nationality by nothing more than a Ministry of Justice interpretation of the 1952 peace treaty — an interpretation that paid little heed to what effect that would have on the people effectively rendered stateless as a result. That was a different era, of course, but if push comes to shove in any dispute with the government, it is probably safe to expect that you will lose, and nothing in the Constitution will likely affect that outcome.
This should be obvious to anyone familiar with Japan’s system of immigration detention and deportation, which exists in an parallel dimension where due-process requirements and the constitutional protections against arrest, detention and punishment do not apply, because the deprivations of freedom and deportations are not punitive and the administrative process by which cases are resolved are not “trials.”
An Occupation-era ordinance that would have established a system of oversight through separate quasi-judicial commissions was never put into force, leaving the whole process comfortably within the control of the Ministry of Justice. In any case, by the logic of the Supreme Court decision mentioned above, those who are not in the country in accordance with the ICRRA may not be entitled to constitutional protections anyway.
Full article at http://www.japantimes.co.jp/community/2014/08/06/issues/think-youve-got-rights-foreigner-japan-well-complicated/
COMMENT: Well, this has been but one event in the death of the NJ communities by a thousand cuts (and the source of a number of smug comments by some saying “See, NJ really don’t belong in Japan, and if they want to, they should naturalize.” As if it’s their fault for not doing so. And as I’ve said before, that is no panacea; if you are a Visible Minority, you still will not receive equal treatment in Japanese society.)
But what I’d like to have clarified is Colin’s point about whether or not people (particularly non-citizen permanent residents) who pay taxes really have no rights to expect the benefits from The State. Although Colin’s approach is strictly legalist (naturally), I would conjecture that they do (I have seen first-hand how foreigners are allowed to have much greater senses of entitlement here, for example, in the United States) or at least should. But the relativists (who insist that Japan is no outlier in this regard; they so want to be right in their own minds that they will even support unequal treatment that affects them adversely) will not take Debito.org seriously even if I start citing laws from overseas.
So let me ask Debito.org Readers to assist me in doing a little research. Let’s find some law journals and other academic research written by specialists that give comparative rights for non-citizen residents in an international light. Here are two research questions, with research boundaries incorporated:
- Are non-citizen residents (particularly permanent residents, as taxpayers) entitled to the same social welfare benefits (e.g., unemployment, child support, and other safety-net measures designed to rescue citizens from destitution) in other developed countries? (Let’s say the G8, or widen it out to the OECD if necessary.)
- Do guarantees of civil and human rights guaranteed in the national constitutions of developed countries also apply to “all people/residents”, including non-citizens, or are they strictly reserved for citizens, as they apparently are in Japan?
Note that we are not looking for absolute equality (that’s impossible, otherwise there would be no benefit to citizenship). But simply put: Do foreign residents receive the same guarantee against various social adversities elsewhere as a legally-enshrined human right, or not?
Please send us some links to some articles in the comments section, with pertinent excerpts/abstracts included. Let’s spend some time researching this. I’ll let this blog entry be the anchor site until next week, when my column comes out on how racial discrimination makes whole societies go crazy. Dr. ARUDOU, Debito