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  • Japan Times: Colin Jones on schizophrenic J constitution regarding civil and human rights of NJ residents

    Posted by arudou debito on November 9th, 2011

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    Hi Blog. The Japan Times Community Page does it again! Legal scholar Colin P. A. Jones on the loopholes and contradictions within the Japanese postwar Constitution, how they came about, and what they mean in practice in terms of NJ (and Japanese) civil and human rights. This is one of the most enlightening pieces I’ve read all year, connecting a lot of dots and answering questions I’ve had building up for years. What are you waiting for? Read it! Several times. Until it sinks in. Arudou Debito

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    The Japan Tuesday, Nov. 1, 2011
    THE ZEIT GIST
    Schizophrenic Constitution leaves foreigners’ rights mired in confusion
    By COLIN P. A. JONES
    http://www.japantimes.co.jp/text/fl20111101a1.html

    … 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…

    Of course, the real Pandora’s box of constitutional paradoxes involves the rights of non-Japanese [...]. 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?…

    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.

    Full article at http://www.japantimes.co.jp/text/fl20111101a1.html
    ENDS

    14 Responses to “Japan Times: Colin Jones on schizophrenic J constitution regarding civil and human rights of NJ residents”

    1. Loverilakkuma Says:

      I didn’t know him very much until I saw his interview on YouTube today. Seems like he’s into the study of National Constitution from Japanese perspectives, which is quite fascinating. I know it is wishful thinking for us to have such a top-notch, hard core legal scholar like Sanford Levinson or Geoffrey Stone right here for the critique of Japan’s legal system. But, Jones’ article gave me a sigh of relief. It’s a blast! The title has a nice ring to it. I hope he would publish his book project in the future.

    2. Anonymous Says:

      It’s simple :) you foreign animal disposable slaves get the responsibilities (like paying citizen tax) but not the equal rights.

      Taxation without representation and taxation without equal rights. Understand? Legally if you say yes you agree to “stand under.”

    3. jim Says:

      yes it was a very good article and much overdue. he really hit the hammer on the head.

    4. Jim Di Griz Says:

      Has this discrepancy in human rights been brought to the UN?

    5. Marco Says:

      I Read that article a few days ago and for me as hobby-linguist and intercultural trainer the part on the language games is really interesting. Using the term “kokumin” in the original Japanese constitution and translating it to “the people” is a sly move. But then again, did the occupying allied forces not check for discrepancies in the Japanese and English version?

      For anyone interested in comparing both versions (the Japanese and the English one) of the excerpt mentioned in the article here you go >> http://okage.de/jpconst

    6. beneaththewheelc Says:

      I’m also studying occupation-era laws, and while I haven’t studied the constitution just yet, I think a point to focus on should be the quote “Americans inexplicably accepted”.

      I believe the Americans in the occupation were smart, and I doubt they let anything slip by them. If this is how it turned out, then for whatever reason, the Americans agreed with it and it was part of their agenda as an occupying force.

      Why? I have no idea. However, it’s slightly related to my research, and if I find a clear answer, I’ll be sure to share it.

      If Mr Jones comes around these parts, I’d love to hear his thoughts.

    7. Jim Di Griz Says:

      @beneaththewheelc (not sure why you have added the ‘c’ to that)

      I am not Mr. Jones, but I think that there are two possible explanations.
      The first is that (unlike in postwar Germany), there were too few fluent speakers of Japanese amongst the occupying forces to run the country effectively, so many government workers and politicians were allowed to return to their war-time posts. It is possible that SCAP was not aware of the linguistic games being played.
      The second is that in the same way that the Emperor was ‘let off the hook’ for war-crimes accountability, due to his perceived value in ensuring a sense of continuity of national identity (bear in mind that the Russians were partitioning Germany at this time), it is also possible that SCAP was aware of the nationalistic inferences in the Japanese version of the constitution, but chose to over look it. After all, in 1945 what American, Brit, or Aussie would consider emigrating to the fire-bombed home of a brutal former enemy? Perhaps SCAP never considered that 60 years later many foreigners would choose to try and make Japan their home.

    8. if doubts still remain « the enigma of arrival Says:

      [...] As usual, it might be interesting to follow the discussion on Arudou Debito’s blog. [...]

    9. Chris Says:

      I completely agree with the equal responsibilities rather than equal rights. Many of us have to pay into the shakai hoken (even if our companies don`t cover our transport) as well as resident taxes – an absurd system. Meanwhile we have to get re-entry permits from immigration, and be re-fingerprinted on returning to Japan.

    10. Andrew in Saitama Says:

      Standard practice for any contract in Japan. “If a discrepancy arises between the Japanese and English version, the Japanese version shall be deemed offical”

      I’m not expecting any official legal statements on Article 14 – the GOJ has been spending decades trying to work out what Aricle 9 means!!

    11. beneaththewheel Says:

      Jim, I had cleaned for cookies and made a typo as I retyped my name. Or perhaps I was coming here under a secret identity. Also, apologies for the late response, I forget to check back.

      Anyways, I like both of your points. The first one requires more research on the type of people America brought over, and how much they collaborated with Japanese English speakers. I mean, I highly doubt all Japanese translators would collectively lie to America, or that they would trust the bureaucratic Japanese translators (if they existed) at face value. The point leads to an interesting road of research.

      The second point I like even more, as it reminds of reasons I read why some Zainichi didn’t take Japanese citizenship when it was offered to them after the war: why would anyone want to take citizenship of a battered and beaten country? That Japan would have extreme economic growth was something that no one could have imagined.

      My hypothesis goes a little further and thinks that a monocultural Japan would be easier for America to deal with. It wasn’t engrained in the Japanese because they had about 50 years of a multi-racial empire beforehand. Obviously that’s a big statement, and I haven’t collected the sources to fully back it up yet. There’s a book I want to read, but my Japanese isn’t good enough yet that’s called 日本人の境界 which looks very interesting on the subject. One page takes me about 10 minutes. :(

    12. John (Yokohama) Says:

      On a somewhat related note:

      “Court rules noncitizens are eligible for welfare”

      http://www.yomiuri.co.jp/dy/national/T111116006297.htm

      “According to a lawyer for the plaintiff, it is the nation’s first court ruling to present a legal basis for foreign permanent residents in Japan to receive public welfare benefits.”

      ==============================

      Court rules noncitizens are eligible for welfare
      The Yomiuri Shimbun (Nov. 17, 2011)

      FUKUOKA–The Fukuoka High Court ruled Tuesday that permanent residents in in Japan with foreign nationalities are eligible to receive public welfare assistance, overturning a lower court ruling.

      The high court accepted an appeal by a 79-year-old woman who is a permanent resident in Japan with Chinese nationality. She filed the lawsuit, claiming that the Oita city government illegally rejected her request for public welfare assistance.

      Presiding Judge Hiroshi Koga said in the ruling, “Foreign citizens with permanent residency [in Japan] are legally guaranteed the same status as Japanese citizens who receive the same treatment.”

      The high court overturned the Oita District Court’s ruling and nullified the Oita city government’s decision not to grant the woman public welfare benefits.

      According to a lawyer for the plaintiff, it is the nation’s first court ruling to present a legal basis for foreign permanent residents in Japan to receive public welfare benefits.

      According to the ruling, the woman applied for the public welfare at the Oita city government in December 2008, but the city government rejected her request.

      The point at issue in the lawsuit was whether the Daily Life Protection Law can be applied to noncitizens.

      Article 1 of the law limits recipients to Japanese citizens. As for non-Japanese residents, each local government has made respective judgments based on a 1954 notice issued by the then Health and Welfare Ministry, which said the law would be applied with some modification.

      Though there are many foreign permanent residents in Japan who receive public welfare benefits, their eligibility has not been legally guaranteed.

      The high court ruling noted Diet deliberations in 1981 on ratifying the U.N. Convention Relating to the Status of Refugees, which stipulates that countries “shall accord to refugees within their territories treatment at least as favorable as that accorded to their nationals.”

      At the time, the Diet presented a view that Japan would not need to revise the Daily Life Protection Law to eliminate nationality clauses in it because the government has already been applying the law with necessary modifications.

      The high court judged that the Japanese government had at that moment become obliged under international law to provide public welfare assistance to foreign residents in the country.

      The high court also pointed out that the central government in 1990 limited the range of noncitizen recipients to those with permanent resident status in terms of management of the public welfare system.

      ENDS

    13. Jim Di Griz Says:

      @benaeththewheel,
      Always nice to talk to you.
      The period in question is not really my forte, but as far as I have read, I would go with the idea that there was an accute lack of translators with experience out side of the classroom by the end of the war. Donald Keene used to decode for the USN in the war, so he would be a good person to ask. Anyway, I would go for a combination of a lack of skilled personnel, a lack of deep interest in future implications, and concerns over social stability combined in the face of a perceived imminent Soviet threat, leading to a poorly done rush job on the constitution, that allowed the war-time nationalist buerocrats to get away with quite a lot.

      As far as ‘they had about 50 years of a multi-racial empire beforehand’ goes, that is a pretty big statement. I would urge you to reconsider the sense in which you understand the term ‘multi-racial Empire’. The Japanese Empire was modeled on the British Empire, and neither were paragons of mutual respect and understanding. Yes, there were many racial groups in the Japanese Empire, and they all knew where they stood- at the bottom. Search for photos of the Ainu at Japan’s first Tokyo Grand Exhibition. They are like animals in a cage. I would urge you to read Max Hastings ‘Nemesis’ in order to find out how well the Japanese treated subject nations.

    14. John (Yokohama) Says:

      And the rights of a party member may get rolled back:

      http://www.japantimes.co.jp/text/nn20111120a6.html

      “DPJ may exclude foreign members from voting for party chief”

      DPJ may exclude foreign members from voting for party chief

      Kyodo
      The ruling Democratic Party of Japan is considering excluding foreigners who are party members or supporters from voting in its presidential elections, DPJ sources said Saturday.

      As the vote to select a party leader is effectively an election to choose the prime minister whenever the DPJ is in power, critics have argued that allowing members and supporters who lack Japanese citizenship to vote may be unconstitutional, the sources said.

      But if the DPJ decides to revise its party bylaws at its convention in January, the move also will likely be slammed as the party has supported the participation of foreign residents in politics.

      Foreign nationals residing in Japan are eligible to join the DPJ as members or supporters, and can vote in the party’s presidential elections.

      In September last year, foreign residents voted in a DPJ leadership race for the first time since the party seized power in 2009. Naoto Kan was elected president and, as the DPJ was in power, became prime minister, sparking criticism that Article 15 of the Constitution had been violated.

      Article 15 says, “The people have the inalienable right to choose their public officials and to dismiss them.”

      The Japan Times: Sunday, Nov. 20, 2011

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