Louis Carlet et al. on the misunderstood July 2014 Supreme Court Ruling denying welfare benefits to NJ: “no rights” does not mean automatic NJ denials

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Hi Blog.  Two weeks ago Debito.org wrote on the aftermath of the Supreme Court of Japan’s ruling that NJ have “no right” to social welfare (seikatsu hogo) because they are not citizens.  I have been hearing rumblings that the media have been misinterpreting this ruling due to linguistics and politics, and that an adjudged no legal right has not resulted in denials.  I submit to you the corrections from Tozen Union’s Louis Carlet, with a followup from another Debito.org Commenter that are simply too good to languish within comments.

Nevertheless, as noted in that earlier Debito.org post, the point remains that there are some very nasty and xenophobic people in Japan’s political system who are capitalizing on what people think the Supreme Court said.  Which may mean, in this increasingly ultra-rightist political climate, that the effect might ultimately be the same.  Have a read.  Dr. ARUDOU, Debito

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LOUIS CARLET:  [Japan Times’] Otake’s article is mistaken on two major points. First, the Supreme Court in no way found foreigners ineligible for welfare. Second, the ruling, far from landmark, upheld the status quo. 

The highest court overturned the High Court’s actual landmark ruling which said that foreigners have “quasi rights” to welfare. 

Up until then foreigners never had the “guaranteed right” (kenri) to welfare but they were and are eligible just like Japanese citizens. 

I think the problem is mistranslation. Kenri means a guaranteed right whereas “no right” in English suggests ineligible. 

The only difference arising from not having the kenri is that if the welfare office rejects an application from a citizen then the Japanese person can appeal the decision to the office. A foreigner with no kenri for welfare cannot appeal at the office but only in court. 

That is the ONLY difference between how foreigners and Japanese are treated by the welfare office. 

Foreigners get welfare just like Japanese do. In fact the plaintiff currently gets welfare although originally rejected.

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OsFish:  Debito, I am very glad Louis Carlet wrote to you – I had been preparing a similar message, but his is a more authoritative voice than mine. There has been some very bad press coverage in English about this ruling, coverage which is potentially damaging for foreigners. If people wrongly believe they cannot get a benefit, they will not try to claim it. Foreigners are still eligible for this benefit (known as seikatsu hogo), and have been since the 1950s, and they get it, and on the same terms as Japanese, by dint of a Ministry notice that the ruling recognised (and which is part of Japan meeting obligations under international treaties; it’s not a fragile ornament). All this is important to know as it’s no fun being destitute.

I particularly appreciate Louis’ description of the appeal situation, which confirms something which had been leaking out in between the poor reporting: the plaintiff in the original case didn’t even have her court appeal reversed. The ruling has that little impact on the day to day situation for non-citizens. (Not that the lack of right of appeal in the office directly is a good thing, but still, I hope your readers get the point.) Newspapers have contacted municipalities with large foreign populations and they have confirmed: absolutely no change in practice. My own contacts in local government have said the same thing, and were quite distressed at the misinformation going around social media in English.

I hope you will allow me a clarification that adds to Louis Carlet’s message, and to point out a related an important error made by the Japan Times commenter Charles in the calculations that you borrowed, an error that he graciously admitted in later comments when I pointed it out to him. Once this error is taken into account, and once you delve into the figures, I think it becomes clear that the target of the right-wing party’s suggested reforms is – inevitably – not westerners, but zainichi Koreans.

The clarification that needs to be repeated over and over again is that “welfare” here does not mean “welfare” in its biggest sense of all social expenditures, such as pensions, health costs, unemployment insurance and so on. It does not mean shakai hoken in any sense at all. Welfare in this limited sense is a means-tested benefit for people who have fallen through the gaps of insurance-based social protection because they cannot contribute, or are not under the umbrella of a contributor. The main recipients are long-term disabled, single mothers (abandoned by their partners) and elderly with inadequate or no pension rights. It is a completely different system to shakai hoken and operates on a different logic of desert and eligibility. Broadly speaking, the same social insurance/social assistance split operates in large parts of the industrialised world. Japan more or less imported its system from Europe.

To repeat: welfare here does not mean shakai hoken. Please rest easy, and do NOT consider opting out based on this ruling; it’s got nothing legally or logically to do with shakai hoken. And in any case, welfare is not being taken away. People in dire straits need to know that.

To the calculations: The specific error Charles made (and acknowledged) was to take the budget for all social expenditures – including social insurance expenditures such as pensions – and compare that to expenditure on foreign recipients of one specific benefit – seikatsu hogo.

If I may run the actual calculations for you, we’ll get a clearer picture, and I think we’ll possibly see more clearly the motivations for a far right Japanese nationalist party in acting on this:

The seikatsu hogo budget for the whole of Japan was 3.8 trillion yen in 2014, according to an NHK report this year (the page has expired, unfortunately). If we assume that the 122 billion figure in the Japan Times article is correct, then we have “foreign” recipients taking up 3.2% of all seikatsu hogo expenditures. With a “foreign” population of just under 2%, that does actually mean that “foreigners” are taking more than their share of seikatsu hogo.

However, we can delve further into the figures to find out who these “foreigners” are. If you look at the excel file at no. 15 in this list, you can see the breakdown (the data are a few years old, but they’re almost certainly representative of the situation now): http://www.e-stat.go.jp/SG1/estat/GL08020103.do?_toGL08020103_&listID=000001107137

What should jump out at you is that 66% of all recipients are Koreans – almost all probably zainichi SPRs: a group that really stretches the concept of “foreign”, I’m sure you’ll agree. Of those Koreans, and quite disproportionately compared to other groups, around half of the recipients are old people. I would hazard a guess that this is a strong reflection of the economic disenfranchisement of the first post-war generation of zainichi. These are people who were disproportionately not properly or poorly integrated into the economy and welfare system. (For what it’s worth, incomer “foreigners” claim less than their “share”, but this shouldn’t be too surprising or interpreted as anything meaningful, as residence status is attached to visa status, is attached to good evidence of financial stability. Of course there are going to be fewer incomer recipients.)

Let’s combine this fact that Koreans make up the bulk of recipients with the far-right party’s suggestion that “foreign” recipients should naturalise or leave. For a westerner claiming social assistance, it would be very hard indeed to naturalise if you could not demonstrate financial stability. It’s pretty much out of the question. However, for zainichi Koreans, that financial stability condition doesn’t apply. The rules for SPR naturalisation are not strict.

So it looks to me like an attempt to coerce elderly impoverished zainichi Koreans into giving up their nationality and identity. That’s why this relatively small amount of budget money matters to these thoroughly unpleasant people.

ENDS

4 comments on “Louis Carlet et al. on the misunderstood July 2014 Supreme Court Ruling denying welfare benefits to NJ: “no rights” does not mean automatic NJ denials

  • “Seikatsu Hogo has not been taken away from Foreigners…”

    That statement does NOT include the negative new reality. Let’s give full disclosure:

    “Seikatsu Hogo has not been taken away from Foreigners… what HAS been taken away is foreigners’ right to appeal illegal refusals.”

    From now on: whenever a bureaucrat illegally refuses to grant Seikatsu Hogo to a proven-poor applicant, the victim NO LONGER has the right to appeal to higher authorities to fix that illegality when the victim LACKS Japanese citizenship.

    Before 2014 ruling:
    * ALL proven-poor-applicants must be granted Seikatsu Hogo.
    * ALL applicants can appeal to higher authorities when illegally refused.

    After 2014 ruling:
    * ALL proven-poor-applicants must be granted Seikatsu Hogo.
    * ONLY JAPANESE applicants can appeal to higher authorities when illegally refused.

    The 2014 ruling took the 1950-legislated right-to-appeal away from foreign applicants.

    So far, the attempts at putting a Positive Spin to this 2014 Supreme Court Nationality-Based-Discrimination ruling is as follows:

    “THEORETICALLY proven-poor-foreigner-applicants still have the right to receive it…”

    “MOST bureaucrats are still granting it to MOST proven-poor-foreigner-applicants…”

    “ONE well-publicized foreign-applicant whose appeal was initially refused-due-to-nationality was eventually granted it…”

    I know some of these positive-spin folks are simply trying to balance out what they see as negative-spin.

    But look at the issue in a neutral way: the legislation says ALL applicants have the right to appeal, the 2014 ruling says foreign applicants do not.

    And by the way, I take offense to the false-implication that foreigners living in Japan (who are justifiably angry about the supreme court having stripped them of their lawfully-mandated right-to-appeal-illegal-refusals) “shouldn’t start to consider opting out of shakai hoken.”

    Shakai hoken is NOT something foreigners choose to “opt out” of, it is something we want to be in, we need to be in, we are legally required to be in, just like every resident of Japan.

    It is Japanese employers who illegally continue to refuse to enroll foreigners into shakai hoken, and it is the Japanese bureaucrats who continue to refuse to apply the law to penalize those illegal actions committed by those Japanese company presidents.

    Almost all Japanese Employees working over 30 hours a week receive the legally-required-benefit of their employer paying half of the shakai hoken payments.

    Almost all Foreign Employees working over 30 hours a week DON’T receive the legally-required-benefit of their employer paying half of the shakai hoken payments.

    Thus foreigners in Japan are literally FORCED by Japanese people to pay DOUBLE what their Japanese co-workers do: by having to join the “NON-shakai-hoken kokumin-kenko-hoken PLUS the NON-shakai-hoken nenkin-system” which costs more.

    Who is forcing foreigners to pay more? The Japanese company owners who refuse to obey the shakai hoken laws, and the Japanese bureaucrats who refuse to enforce the shakai hoken laws when the victims are foreign.

    Japanese bureaucrats make sure JAPANESE-employees-working-over-30-hours-a-week receive the shakai-hoken-50%-paid-by-company legally-mandated-benefit.

    While concurrently, Japanese bureaucrats do NOT help FOREIGN-employees-working-over-30-hours-a-week receive the shakai-hoken-50%-paid-by-company legally-mandated-benefit.

    Add to that the fact that Japanese citizens do NOT have to prove they have paid their income tax and their city tax, while foreign residents DO have to prove they paid their income tax and their city tax or face immediate deportation, due to the fact that proof of payment (kazei-shomei-sho and nozei-shomei-sho) are required for all visa/status renewals.

    Which brings us back to the original point of this thread.

    When you add up these nationality-based discriminatory practices:

    * ALL proven-poor JAPANESE-applicants receive seikatsu hogo, because the bureaucrats know that illegal refusals CAN be appealed by JAPANESE victims.

    * SOME proven-poor FOREIGN-applicants are refused seikatsu hogo, because the bureaucrats know that illegal refusals CANNOT be appealed by FOREIGN victims.

    * ALL full-time JAPANESE-employees pay HALF the health-insurance-and-pension price, because illegal company refusal-to-enroll actions ARE fixed by the Labor Office when the victim is JAPANESE.

    * ALMOST ALL full-time FOREIGN-employees pay DOUBLE the health-insurance-and-pension price, because illegal company refusal-to-enroll actions AREN’T fixed by the Labor Office when the victim is FOREIGN.

    * SOME JAPANESE citizens have decades of unpaid income and city taxes, because there is NO semi-annual proof-of-payment-requirement with-a-deportation-penalty for JAPANESE citizens.

    * ALMOST ZERO FOREIGN citizens have decades of unpaid income and city taxes, because there IS a semi-annual proof-of-payment-requirement with a deportation penalty for FOREIGN citizens.

    The result is just as was proven in the United Kingdom http://www.bbc.com/news/uk-24813467

    If we are going to compare which group is making a greater net contribution, and which group is being relatively more parasitical, the surprising fact about citizens vs foreigners is:

    Foreign residents are relatively more financially profitable for the state.

    This is because, per capita, foreigners contribute relatively more than they receive, while Japanese citizens receive relatively more than they contribute.

    So, since foreigners are supporting the survival of Japan, even relatively MORE than Japanese citizens are, shouldn’t foreigners receive and retain the same rights?

    We foreigners demand the right to shakai-hoken AND the vital right to APPEAL illegal shakai-hoken-refusal, just like Japanese citizens do.

    We foreigners demand the right to seikatsu-hogo AND the vital right to APPEAL illegal seikatsu-hogo-refusal, just like Japanese citizens do.

    If we don’t take a stand now, the next step is “Foreigners living in Japan no longer have the right to appeal ANY illegal action taken against them.”

    This 2014 “foreigners have no right to appeal” ruling by the supreme court violates the legislation and the constitution.

    We humans living in Japan demand equal rights, including the right to appeal, just like Japanese citizens do, of course.

    Once again, Japan, if you do not guarantee equal rights for all residents, you will soon feel the wrath of a large powerful 7-billion-strong justice-enforcing group known as humanity.

  • All the talk in the world about laws and rules means nothing in Japan – what is required are actual tried and tested results. It has been shown time and time again that bureaucratic whims trump everything here, and there’s no reason for this to be any different.

  • Louis Carlet is playing a shady hand.

    “The only difference arising from not having the kenri is that if the welfare office rejects an application from a citizen then the Japanese person can appeal the decision to the office. A foreigner with no kenri for welfare cannot appeal at the office but only in court. That is the ONLY difference between how foreigners and Japanese are treated by the welfare office.”

    The system is supposed to be that you apply, the office accepts or rejects you, and if you don’t like the decision you appeal to the office. Carlet says hey, the court ruling here is that foreigners can’t appeal to the office, sure, but they can still appeal in court. To what end? Won’t future judges cite this exact case and say, “Foreigners don’t have the right to welfare, so go home.”? It seems like they will. Is there any evidence or history to the contrary?

    Foreign residents in Japan who pay taxes ought to know what kinds of benefits to expect down the line. The ruling in this case opened up a giant question mark. Now you don’t know. Will you get welfare? Maybe, maybe not, but if you need it and don’t get it, you’d be totally screwed (otherwise you wouldn’t be applying for welfare in the first place). That’s no good. The courts decided to throw their hands up and say, “Maybe?”. Saying that “most welfare offices most of the time” will do the right thing is better than nothing but worse than a lot.

  • Most folks who defend this 2014 foreigner-loss-of-appeal-rights falsely claim “Seikatsu Hogo Money is a present, voluntarily bestowed by generous bureaucrats to SOME of the proven-poor-applicants, the receipt of which is not a RIGHT, right?”

    Wrong, the 1950-enacted law says the bureaucrats MUST give Seikatsu Hogo Money to ALL proven-poor-applicants. Thus ALL proven-poor-applicants have the right to receive Seikatsu Hogo Money.

    Yet these defenders of injustice still insist, “But look here, the law says ‘When a proven-poor-applicant submits an application, Bureaucrats MAY grant the Welfare Benefits.’ The bureaucrat isn’t legally REQUIRED to do anything, it’s up to the bureaucrat to choose WHICH proven-poor-applicants to grant Seikatsu Hogo Money to, and which proven-poor-applicants to NOT give Seikatsu Hogo Money to, right?”

    Again, wrong. That false assumption has come up before, when those same defenders of injustice tried fooling people into believing that “Permanent Residency is a present, which bureaucrats MAY grant if they feel like it to ‘applicants-who-are-proven-married-to-Japanese-citizens-for-over-3-years-in-Japan’, PR is not a right, right?”

    About the legal requirements of bureaucrat actions, the answer is surprisingly on the side of the people, thanks to the laws written by legislators elected by the people.

    These laws REQUIRE the bureaucrats to grant Seikatsu Hogo Money to ALL proven-poor-applicants, and REQUIRE the bureaucrats to grant Permanent Residency to ALL applicants-who-are-proven-married-to-Japanese-citizens-for-over-3-years-in-Japan.

    When referring to the duties of administrators in relation to the benefit of applicants: according to legislation legalese, the word “may” surprisingly means “must”.

    If the word “may” were to mean “it’s up to the bureaucrat”, then that would mean bureaucrats could legally choose to refuse EVERY applicant if they felt like it, regardless of the fact that the applicants met the legislated requirements perfectly.

    This obvious danger of giving absolute power to administrators to over-ride the law-conferred-benefits to applicants is why in the legal world: when referring to the duties of administrators in relation to the benefit of applicants “may” means “must”.

    The Social Benefit bureaucrats are legally REQUIRED to determine one thing, “Is this applicant proven-poor?” and if the answer is YES then Seikatsu Hogo money MUST be given. The only time the bureaucrat can legally refuse to give Seikatsu Hogo money is when the applicant is NOT proven-poor.

    And here the defenders of law-breaking Seikatsu-Hogo-refusal still reply, “But, but, you’re saying the law states EVERY proven-poor foreigner living in Japan has a RIGHT to receive Seikatsu Hogo money? I don’t like that, that’s too lenient!”

    To which the answer is, “Too bad, if you don’t like the 1950-enacted law, then you must first vote in some new legislators who will then vote in a new law. Meanwhile, the bureaucrats have to obey the 1950 Seikatsu-Hogo-law.”

    The Ministry-of-Justice bureaucrats are legally REQUIRED to determine one thing, “Is this applicant proven-married-to-Japanese-citizens-for-over-3-years-in-Japan?” and if the answer is YES then Permanent Residency MUST be given. The only time the bureaucrat can legally refuse to give Permanent Residency is when the applicant is NOT proven-married-to-a-Japanese-citizen-for-over-3-years-in-Japan.

    And here the defenders of law-breaking PR-refusal still reply, “But, but, you’re saying the law states EVERY proven-married-to-a-Japanese-citizen-for-over-3-years-in-Japan foreigner living in Japan has a RIGHT to receive Permanent Residency? Even those who have no means of supporting their family? Even those who have criminal convictions? I don’t like that, that’s too lenient!”

    Again the answer is, “Too bad, if you don’t like the 1951-enacted law [Article 22.2 – which specifically states that poorness and convictions are NOT legal reasons to refuse Permanent Residency] then you must first vote in some new legislators who will then vote in a new stricter PR-law. Meanwhile, the bureaucrats have to obey the 1951 PR-law.”

    Thank goodness the legislators decided that bureaucrats are NOT legally allowed to pick and choose which times they want to obey the legislation and which times they want to disobey the legislation.

    For those who want to read in greater detail about the rulings of judges who have upheld the surprising “may means must, when the word may describes the action of government officials”, here are some of the rulings. Notice they are old, just like the 1950 Seikatsu Hogo law, but they are still unchanged:

    “The term ‘may’ means ‘MUST’ or ‘SHALL.’” Am Jur. Section 72.

    “The word ‘may’ or the like as used in statutes relating to the duty of public officers is construed as MANDATORY, and not merely permissive.” Anno: L.R.A. 162; 12 L.R.A. (NS) 340.

    “‘May’ is to be construed as ‘SHALL’ to effect manifest legislative intent.” The Supreme Court of Washington, Dillon v. Whatcom County, 12 Wash. 391, 402, 41 Pac. 174 (1895); Stern v. Spokane, 60 Wash. 325, 328, 111 Pac. 231 (1910).

    So, to conclude my over-lengthy rebuttal to the defenders of the injustice of bureaucrats illegally-refusing proven-valid-applications:

    #1. You claimed bureaucrats DON’T have to obey the 1950 law of all proven-poor-foreigners having the RIGHT to receive Seikatsu Hogo money.

    #2. You claimed bureaucrats DON’T have to obey the 1951 law of all foreigners-proven-married-to-a-Japanese-citizen-for-over-3-years-in-Japan having the RIGHT to receive Permanent Residency.

    #3. You claimed when bureaucrats DON’T obey those laws, foreign victims should NOT have the right-to-appeal, regardless of legislation.

    #4. You claimed police officers can legally initiate shokumu-shitsumon WITHOUT probable-cause-of-a-crime when the victim appears foreign.

    #5. You even claimed police officers filmed clearly breaking the shokumu-shitsumon laws of Japan should NOT be prosecuted when the victim is foreign.

    These five totally illogical arguments, against the legislated rights of humans in Japan, shows a nationalistic racist stance which now advocates law-breaking.

    Japan will see what will happen next: the international forces of justice and democracy are MUCH stronger than the defenses of Japan’s illegally-acting government-officials.

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