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  • Asahi and Mainichi: J Supreme Court rules against Nationality Clause for employment in judiciary

    Posted by arudou debito on November 2nd, 2009

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    Hi Blog.  In probably one of the most important legal decisions all year, the Supreme Court has ruled that the “Nationality Clause” (kokuseki joukou), often cited as a reason for barring NJ from administrative (and often, even stable noncontracted) jobs in the public sector, has been scrapped.  I’m not sure if that means it’s been ruled “unconstitutional”, but the clause in the Mainichi below, (“The citizenship requirement was eliminated because the courts could be seen as denying employment based solely on the question of citizenship,” the court stated.) could reasonably be stretched in future cases to say that barring NJ from jobs (currently allowed in places such as firefighting and food preparation, and also in Tokyo Prefecture for nursing) should not be permitted.  That would be excellent news for the long-suffering NJ academics in Japan’s higher-education system of Academic Apartheid.  Let’s hope some professor has the cojones to take it to court.  (Not me:  I’m tenured already, thank goodness.)  Arudou Debito in Sapporo

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    Supreme Court scraps Japanese nationality requirement for legal training
    THE ASAHI SHIMBUN 2009/10/29, Courtesy HH

    http://www.asahi.com/english/Herald-asahi/TKY200910290213.html

    Ending what has long been labeled discriminatory, the Supreme Court has scrapped a clause requiring Japanese nationality among those seeking legal training to start careers in the judiciary.

    Non-Japanese who have passed the bar examination have, in fact, undergone legal training, but only under “exceptional” measures and if the Supreme Court deems them “adequate.”

    Foreign nationals and officials at the Japan Federation of Bar Associations have said the clause has unfairly shut the door on many non-Japanese and demanded its elimination.

    The clause stems from a Cabinet legislation bureau policy that states that Japanese nationality is a prerequisite for those applying for public service work that involves the execution of public power or has a bearing on the formulation of national intention.

    That policy was extended to legal training based on the reasoning that trainees could attend prosecutors’ questioning of suspects or closed-door counsel discussions held by courts.

    A Supreme Court official explained the court decided to “delete any mention that suggests that in principle (non-Japanese) cannot be accepted (for legal training).”

    Tokuji Izumi, a lawyer and former Supreme Court justice, said he hopes the move will increase the number of foreign lawyers practicing in Japan and “will help in protecting the rights of foreign nationals.”

    Izumi was involved in the top court’s acceptance in 1976 of Kim Kyung Duk, an ethnic Korean born in Japan, for legal training.

    Kim had put consistent pressure on the Supreme Court, and became the first non-Japanese to enter legal training in 1977. He went on to become a prominent human rights lawyer in Japan before his death in 2005.

    After lobbying by Kim and others, the Supreme Court agreed to allow “those deemed adequate to attend (legal training),” but it kept the nationality clause.

    In 1990, the top court scrapped its policy of requiring foreign applicants to pledge to abide by the law. The court also widened the scope of those eligible for legal training to include foreign nationals who do not hold permanent residence status.

    But the court still retained the nationality clause.

    According to the Supreme Court, more than 140 foreign nationals who passed the bar examination have attended legal training.

    In applying for legal training, applicants must submit copies of family registries known as koseki. Since foreign nationals do not hold koseki, the Supreme Court will request documents to prove their residency in Japan.

    Non-Japanese are also barred from being employed as prosecutors or judges, which are national civil servant jobs.

    Foreign nationals who complete legal training can enter the judiciary as lawyers, but they will have to acquire Japanese nationality before working as judges or prosecutors.

    The Japan Federation of Bar Associations has also submitted a request that district and family courts accept foreign lawyers as judicial commissioners and mediators “regardless of nationality if they are qualified.”(IHT/Asahi: October 29,2009)

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    Supreme Court eliminates Japanese citizenship requirement for articling students
    (Mainichi Japan) October 30, 2009, Courtesy JK

    http://mdn.mainichi.jp/mdnnews/news/20091030p2a00m0na012000c.html

    The Supreme Court has eliminated the Japanese citizenship requirement for student articling positions at courts of law.

    “The citizenship requirement was eliminated because the courts could be seen as denying employment based solely on the question of citizenship,” the court stated. The decision will first affect those taking up articling positions in November.

    Those who pass the bar exam can go on to become articling students, after which they take a final graduation exam and, if they pass, may become courtroom lawyers, judges and public prosecutors. Until the ruling, Japanese citizenship was a requirement to become an articling student at the court as, in order to prepare for jobs as judges or prosecutors, they studied “the exercise of government power involved in being a civil servant.”

    In 1977, the court created exceptions to the ban on foreigners holding legal positions. Foreigners may not become public prosecutors or judges, which as civil servants must hold Japanese citizenship, but may become courtroom lawyers.

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    「司法修習生は日本国籍必要」条項を削除 最高裁
    2009年10月29日8時1分 朝日新聞
    http://www.asahi.com/national/update/1029/TKY200910280425.html

    最高裁は11月から修習を始める司法修習生の選考要項から日本国籍を必要とする「国籍条項」を削除した。最高裁は外国籍の司法試験合格者には30年以上、特例の形で修習を認めてきたが、在日外国人や日本弁護士連合会などが「差別だ」として条項自体の削除を求めていた。

    司法試験の受験資格には以前から国籍条項はない。だが合格者が実務を学ぶ司法修習では、検察庁で容疑者の取り調べをしたり、裁判所で非公開の合議に立ち会ったりする機会がある。そのため、最高裁は「公権力の行使や国家意思の形成に携わる公務員には日本国籍が必要」との内閣法制局の見解を準用。外国籍の合格者には日本国籍取得を修習生として採用する際の条件としてきた。

    しかし、76年、司法試験に合格した在日韓国人の金敬得(キム・キョンドク)さん(故人)が韓国籍のままでの採用を希望。全国的に支援が広がり、最高裁は77年に国籍条項は残したまま「相当と認めるものに限り、採用する」との方針を示し、金さんの採用を決めた。

    90年には、外国籍の希望者に提出を義務づけていた法律順守の誓約書の廃止を決めた。さらに、永住権がない人に対しても修習を認めるなど特例扱いでこの問題に対応してきたが、一方で、国籍条項はそのまま記載していた。

    最高裁によると、これまで140人以上の外国籍の合格者が司法修習を受けたという。国家公務員である検察官と裁判官には任用されないため、外国籍の修習生は日本国籍を取得したうえで任官するか、弁護士になっている。

    司法修習生の選考を申し込む際は戸籍抄本などが必要。外国籍の場合は戸籍がないため、最高裁は、日本に定住していることを示す資料などの提出は引き続き求めるという。要項から条項を削除した理由について最高裁は「原則として採用しないと読めるような記載は削除した」と説明している。(三橋麻子、中井大助)

    最高裁事務総局の任用課長として、金さんの採用問題に取り組んだ元最高裁判事の泉徳治弁護士の話 自由に職業を選択し、自己実現をはかることは基本的人権の中核をなす。実質的には外国籍の人も司法修習生に採用していたとはいえ、国籍条項は外国籍の人からすれば、差別感を感じることもあっただろう。外国籍の弁護士が増えることは、外国人の権利の救済が進むことにもつながると思う。

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    司法修習生:採用選考要項から国籍条項を削除 最高裁
    毎日新聞 2009年10月29日
    http://mainichi.jp/select/jiken/news/20091030k0000m040086000c.html
    最高裁は、司法修習生の採用選考要項から「日本国籍が必要」との国籍条項を削除した。適用は、11月に司法修習を始める人たちから。外国籍の司法試験合格者は77年以降、特例として司法修習を認められているが、国籍条項は残ったままで、日本弁護士連合会などから削除を求める声が上がっていた。

    司法試験合格者は、司法修習を終え卒業試験に合格して初めて、裁判官、検事、弁護士になれる。修習中には裁判官や検察官の実務を学ぶため、「公権力の行使などに携わる公務員は日本国籍が必要」として、司法修習生の採用選考を受けるには日本国籍の取得が必須とされていた。

    しかし、在日韓国人の故金敬得(キム・キョンドク)さん(後に弁護士)が、「外国人に門戸を開かないのは不当だ」と韓国籍のまま採用を希望したことを受け、最高裁は77年に国籍条項を残しながらも「相当と認めた者」について採用を認める例外規定を設けた。【銭場裕司】

    10 Responses to “Asahi and Mainichi: J Supreme Court rules against Nationality Clause for employment in judiciary”

    1. HO Says:

      The scope of the Supreme Court’s policy change is very much limited.

      Anyone who passed the bar exam must go though a state sponsored 2 year program called “shihou shushu sei” (judicial trainee) before being a lawyer. What the Supreme Court abolished was the eligibility rule for the program that a trainee must be a Japanese citizen. As the news report, the nationality clause was abolished in practice in 1977. They formally changed the rule this year. The change is limited to judicial trainees.

      A lawyer who is not a Japanese citizen is not eligible for a judge or a public prosecutor. This rule is not going to change anytime soon.

    2. Frodis Says:

      Although I am not someone who sees a plot to foil foreigners at every turn, I wonder if this ruling is going to make much of a practical difference. Except in certain cases — passing the bar for example — most applicants for positions will never know why they are not being interviewed/hired. Even passing the bar does not necessarily mean one may find gainful employment.

      The law may no longer bar foreigners from certain positions but that doesn’t mean that employers are likely to suddenly open the doors to actually employing any. If there is no mandate to have previously exclusive positions opened up (affirmative action?) then I see little impetus to employ foreigners or little recourse for people who feel blocked from employment in these sectors.

    3. Jerry Says:

      Frodis, I think there is a misunderstanding about the difference between the BAR exam in Japan and in the USA. In Japan passing the BAR is the first step to becoming a lawyer, after passing the BAR you go to 2 years of legal training. In the US you pass the BAR after your legal training. In Japan the BAR exam would probably be more analogous with the LSAT.

    4. Frodis Says:

      Jerry,

      Thanks for clarifying. I used that as an example only to illustrate that removing barriers for foreigners even to be able to sit the bar exam doesn’t guarantee that they are going to be able to progress any further whether it be for further legal training or to practice law. Whether or not passing the bar makes one qualified to practice or not wasn’t really the point I was trying to make. I suppose I could have used writing a civil service exam as another example. I really just wanted to highlight that being given permission to jump through the hoops wasn’t necessarily going to lead to be invited to join the dog & pony show.

      – It’s still a step in the right direction, and better than it not happening at all. One has to acknowledge these improvements whenever they happen or else this science gets too dismal.

    5. Netko Says:

      Not exactly on the topic, but allow me to comment…
      … perhaps my comment is just very naive, but I so much wish they also finally removed the “nationality clause” for returnee students (kikokusei/kikokushijo) for high school admission.
      There are many kids nowadays who are born/adpoted/raised in Japan and/or are permament residents of Japan, but have no citizenship (adopted children do not get it automatically, it appears), but in education system in Japan “foreigners” are considered to be children with non-Japanese citizenship and whose “native tongue is_not Japanese,” while for the “returnee” category (kikokusei/kikokushijo), a child is required to have Japanese nationality.

      However, there’s no legal definition or requirement whatsoever (– nobody was able to tell me and that includes local high schools in Tokyo that accept “kikokusei/kikokushijo,” Monbusho, and the Education Board’s “Soudan Center for foreign residents’ education” in Tokyo), for a returnee child (kikokushijo) to have Japanese nationality, yet any school we have contacted re entrance exam application for a permanent resident child returning_to_Japan after several years abroad tells us we don’t qualify solely for the reason of non-Japanese citizenship.
      That is required even in cases where schools don’t even mention anything about nationality in their application documents! They say that only after you contact them…

      It looks like when Japanese children spend some time abroad they are rewarded for the experience (special adjusted entrance exams & classes are in place for them), but when a permanent resident child leaves Japan and gets the same international experience abroad, that kid ends up punished because there are simply no schools that think of them as ‘returnees’ (kikokushijo) and after a couple of years abroad in a foreign school children simply can’t compete in ‘ippan’ category entrance exams.
      Here, I am talking about kids who move abroad temporarily, with their parent(s) and due to their parent’s job transfer.
      For us this is a tragedy because one of us has Japanese nationality and Japan had sent us abroad for an official duty for several years, but the (adpoted) child who was educated and grew up in Japan isn’t considered a returnee, despite being a permanent resident and not having any other country to live in.

      It is shocking to us to see that there is no law that would require anything re the citizenship, nevertheless schools are able to discriminate so easily and there is nothing a parent could do.

      Ironically, schools that pride themselves with being “kokusaiteki,” that devote themselves to “crosscultural understanding” and have established special adjusted exams and classes for returnee children and the only reason such kids were able to become ‘valuable returnees’ with foreign language skills and “internationalized” is because other_countries didn’t stop them from freely enrolling in their schools despite them being foreigners (as Japanese nationals, all of these kids with only Japanese passports are obviously foreigners in Europe, the U.S. etc.).

      Has anyone had any experience with this kind of issues in Japanese education?
      Any advice?
      Does anyone know if there is any way to fight back the “nationality clause” in case of high school education for “kikokushijo” because there actually is no law that supports it?

    6. Jerry Says:

      Netko, are you talking about public or private schools? If it is public schools I would consider contacting an attorney and having them talk with the schools in question about the entrance exam (and whether your child should be included in the returnee category). Most likely that is all that would be required (that the school realizes that they are facing a potential lawsuit and bad publicity).

    7. Maya Says:

      This is long overdue and perhaps does not really count as a policy change since the citizenship clause for legal training has been a token clause for some time. But still, I agree that it’s a step in the right direction!

      Actually, there is an ever-growing demand for multilingual lawyers in Japan that has been poorly met. Fluency/literacy in Chinese, for example, will be a pretty big advantage in the legal business, since there are precious few multilingual Japanese lawyers. I think that’s part of the reason the bar association has been pushing for accepting non-Japanese in Japanese legal system. (Although, not being a Japanese national does not necessarily mean the person is multilingual, especially under the current Japanese educational system that effectively suppresses multilingualism.)

    8. Netko Says:

      Jerry, thanks for reading my post!

      It’s both private and public school(s).

      There’s, for example, Kanto Kokusai High that requires a returnee child to have Japanese citizenship (disclosed on their website, under “application requirements”), while they also set up a “foreigner category,” which requires a foreign child to “be a non-native speaker of Japanese/to have the need to be placed in special Nihongo classes that provide some extra teaching for such students…” They also require such foreign children to be “newcomers in Japan” so obviously a Nihongo-fluent permanent resident who had finished el. school in Japan would not be eligible.

      There’s also Tokyo Gakugei High (“fuzoku” of the same name university) that now allows only transfers (not 1st year admission anymore, it appears) and that’s a public/national school — they explicitely state that one must have Japanese nationality to apply as a returnee.

      The list goes on, I mean, schools don’t imagine that a returnee could be a permanent resident of Japan whose native tongue is Japanese. Nor do they imagine that there could be Japanese nationals who married NJs with kids from previous marriages or have adopted “foreign” kids who are culturally ‘Japanese,’ (born), raised, and educated in Japan, going abroad b/c their parents were “sent” there. Kids have no choice, but schools don’t care. Sadly, they don’t think that this sort of diversity would enrich them either.

      Then there’s this school that we want to apply, a public high in Tokyo that is famous for having “internationalized atmosphere” and that says it teaches “cross-cultural understanding,” however, although on their website they do_not mention the nationality of returnee students, they do so in emails to us! They have explicitely told us on 2-3 occassions that the only way for a child to apply as a returnee is (among other requirements – living more than 1.5 yrs abroad, with_a parent(s)) to be a Japanese national.

      This school requests that we apply as a foreigner, but these requirements don’t match our situation at all (e.g. we can’t prove that we are in Tokyo at the moment b/c we are abroad for work, “sent” as a family by a J Gov’t agency! How ironic.)

      Interestingly, Monbusho does not know, does not have the definition of the term “returnee student” (kikokushijo) and so does not the “Soudan Center” in Tokyo — I have emails from them and they can’t point at any law or legal document that would support the nationality clause in case of returning children/students. They say it’s up to each “todoufuken” and each high school to decide re this.

      Both tell me to have my kid apply as a foreigner and both recommend one single school in Tokyo! It looks that there’s only one public high school that accepts foreign children and the admission ratio is 1 in 4!

      Nevertheless, the advice that I got from Monbusho a couple of weeks ago tries to make me feel assured that there_is one_place my child can apply! (With 1 in 4 ratio, what am I to do…)

      On the other hand, I realize that there also is no law that would require schools not_to discriminate against NJs — am I wrong? I wish I were!

      Thank you for the advice… since we are currently outside of Japan I think it would be nearly impossible to find an attorney to represent us. We were actually hoping that Monbusho would be the most helpful, but their reply was just a joke — in their response they didn’t relly address my question about nationality clause, but they switched to the “foreigner category” admissions…
      I will try to see if I can find someone online. Thanks much.

      – This is an excellent post, too good to be in the comments section. Thanks for it. Please consider resubmission as a complete essay (we basically need an introductory paragraph and a conclusion) and I’ll put it up as a separate post on Debito.org?

    9. Jerry Says:

      Netko, how you proceed depends on how much of a stink you want to raise. There are a couple of options available to you. Since you are currently on an assignment for the Japanese government you could always try to get the organization your husband works for to contact the schools and explain the situation to them, chances are they will make an exception to their policies to fit your situation. Next down the ladder would be to contact the school district and set up a meeting to again explain the situation and then try to get them to act as your advocate in helping resolve the situation. Biggest stink would be the lawyer.

      Since my kids are still in elementary school I don’t know much about the entrance requirements for the different levels of schooling but I think you should be able to get an exception made if you can find the right person (of course that can be a nightmare too).

    10. CJ Says:

      As some of the other posters have noted, this has nothing to do with NJ getting employment as judges, prosecutors or any other type of law-related public employment. It is about having to be a public-servant trainee after you pass the bar exam, a requirement which technically bars NJ passers. However, this part of the qualification process is becoming increasingly shortened, and it is probably not a coincidence that this change is coming at the same time that the government is going to stop paying trainees and start charging them tuition instead. If nothing, the change illustrates how much arbitrary power the Supreme Court actually exercises, even in the face of its own rules. It has simply decided to do away with a rule it has been ignoring for decades. Since NJ bar passers have been “allowed” to qualify for many years now, this change probably has more to do with the rule making the supreme court look bad than anything to do with NJ. The real question is, “why didn’t they just change the rule the first time an NJ passed the bar?” The answer is probably along the lines of “but what if an ‘undesirable’ foreigner passed the bar exam after they did that?”

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