Go figure. Just a few weeks after I wrote about how Japanese courts try to avoid doing anything dramatic, on June 4 the Supreme Court ruled that a section of the Nationality Law was unconstitutional. Such rulings being so rare, I steeled myself for a big helping of highfalutin’ Japanese legalese and read the opinion (which is available on the Supreme Court Web site).
At issue in the case was the provision of Japan’s Nationality Law that created a seemingly bizarre distinction between children of unmarried Japanese fathers and non-Japanese mothers. Children whose paternity was recognized by their Japanese father in utero were able to receive Japanese citizenship automatically, while those who were recognized after birth were not, unless the parents subsequently married. The plaintiffs in the case were a group of Filipino women, including one who, as a result of this distinction, had one child who was Japanese and one who was not. The plaintiff group claimed that this discriminatory treatment violated the constitutional guarantee of equal treatment under the law.
A majority of the court’s 15 justices agreed with her. The Justice Ministry is now working on amendments to the Nationality Law in accordance with the decision. This is all well and good, of course, but I was shocked by a concept that was quite clearly stated by the court in its opinion in a number of places: in the majority opinion, in the concurring opinions, and in the dissenting opinions. There were, in fact, a lot of different judicial views on the subject overall, but one of the things that all of the justices seemed to agree on was this: Japanese citizenship has great significance from the standpoint of receiving protection of fundamental human rights in Japan.
You read that correctly. It is a rough paraphrasing of one variation of an assertion that appears several times in the opinion. For those who thought that the sole criterion for enjoying basic human rights was, well, being human, Japan’s Supreme Court apparently has a different view.
Both because this type of phrase is repeated several times and because the opinion cites several human rights conventions (including the U.N. Convention on the Rights of the Child) in arriving at its conclusion, it is hard to believe that it is just a judicial “oops.” Do human rights mean something different in Japan? Are they not rights not only that governments are supposed to protect, but also that are actually supposed to protect human beings from government?
If you spend any time working in a Japanese language environment, you will probably hear phrases like “jinken shingai” (infringement of human rights) bandied about. Moreover, you will likely hear this in the context of some low-level interpersonal or employment-related dispute. Indeed, in the context of the never-ending quest to eliminate bullying from Japanese schools, the term “human rights violation” is used to describe what primary and secondary school students do to each other. While bullying is of course a serious problem, the fact that human rights violations are spoken of as something that can be committed by children who are too young to be held responsible for crimes suggests that human rights are a concept that has been sadly cheapened in Japan.
My own view is that this is, ironically, the result of bureaucratic policies focused on protecting human rights. After all, like law itself, human rights are something you assert against other people. Or, to put it another way, a government agency that adopts a policy of protecting human rights is unlikely to include itself as a potential violator against whom such protection is needed. Thus, the Japanese bureaucracy taking the lead in asserting them seems to result in the subtle conversion of human rights from something that people assert against the government, to rights that the government bestows on people to assert against each other.
For example, habeas corpus — the right of a detained person to demand that the reasons for detention be explained in open court — is one of Anglo-American law’s most ancient legal protections against arbitrary arrest and imprisonment. Its status as a fundamental protection was recently affirmed by the U.S. Supreme Court, which recognized that even terrorist suspects held at the naval facility in Guantanamo Bay had the right to seek habeas corpus review in federal courts. In Japan, where the police can hold you in an actual prison and question you for 23 days without charging you with a crime, habeas corpus has been converted into a procedure used by parents against each other in child custody disputes.
The Human Rights Bureau of the Ministry of Justice is a fascinating study in this dynamic. On its home page, the Bureau has announced its “areas of special focus” for the 59th annual Human Rights Week (held in December) to commemorate the 1948 Universal Declaration of Human Rights. In addition to “developing a human rights consciousness in each citizen” (note that the underlying assumption is, of course, that human rights violations are a problem caused by citizens with an inadequate understanding of the subject), this year’s areas of special focus include: protecting women’s rights in the workplace and at home; protecting children from their teachers, abusive parents and child pornographers; being nice to old people; protecting the rights of foreigners; making it easier for the handicapped to participate in society; enhancing understanding of the Ainu; eliminating discrimination against “burakumin” (descendants of a feudal outcast class), people with HIV/AIDS, former felons, on the grounds of sexual orientation, and against transsexuals.
There is nothing wrong with this expansive list — discrimination is bad and should be eliminated. Yet these areas of focus almost all relate to forms of private discrimination. A great deal of the International Declaration of Human Rights (not to mention other human rights instruments) is focused on things like the right not to be arbitrarily arrested and detained, the right to a fair, public trial based on the presumption of innocence, the right not to be subject to torture or inhuman punishments, as well as other human rights when it is the Justice Ministry (and its subsidiary agency, the Public Prosecutors Office) or the police that are most likely to be ground zero for violations. Whether such violations are actually taking place (and I am not saying they are) is a different matter, of course, but the ministry may have an interest in not encouraging in citizens a view of human rights that would lead to more claims that they are.
Which brings us back to the Supreme Court case. Although it dealt with the Nationality Law, it was more fundamentally about Japan’s family registration system. This system, which was started in the 19th century to enhance community surveillance by the police, remains in place today and effectively functions as a national licensing scheme for families. As with other Japanese licensing schemes, participation is optional, but those who don’t participate are subject to severe restrictions on what they can and can’t do, and the benefits they can receive from government. To join this system involves contorting the way you and your family live into the restrictions it imposes, and reporting to the government about the significant events in the lives of you and your family (I say “you,” though of course only Japanese citizens have family registries. Perhaps that is why the court repeatedly links Japanese nationality to human rights?). Thus, the only reason why legitimacy is even an issue in the Nationality Law would seem to be because — whether a person is born out of wedlock, has a non-Japanese parent or has other “unorthodox” features in his or her background that result in discriminatory treatment under the law — such facts, far from being nobody else’s business, are readily ascertainable from a system of records that is administered by the Justice Ministry. Thus, it is the government itself that is responsible for an entire system that both enables and institutionalizes forms of lifetime discrimination based on a person’s status at birth.
It is unlikely that the Supreme Court will go so far as to question the constitutionality (or purpose) of the family registration system or other forms of discrimination based on birth (it has in the past upheld provisions of the Civil Code giving children born out of wedlock a smaller share of inheritance), but if fundamental human rights in Japan are not something you get just for being born as a human being, but are instead something bestowed by the Japanese government, then it would be unsurprising if such rights were granted preferentially to Japanese voters and citizen taxpayers. From that standpoint, the Supreme Court’s linking of human rights to citizenship may make sense. While foreign residents may find this disturbing, if human rights in Japan have become nothing more than a government benefice that people assert against each other, perhaps the non-Japanese community is not missing out on so much.
Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments on this issue and story ideas to: firstname.lastname@example.org