Our mixed-race children deserve better than this, so why bother with Japan?

by Colin P.A. Jones

When it comes to parceling out rights, Japanese law makes a very clear distinction: What you get depends upon whether you are a Japanese citizen or not. Sort of.

As discussed in a previous column, non-Japanese residents do not have the right to vote, or a constitutionally-protected entitlement to certain public benefits. We are also not eligible for some public-sector jobs. Beyond that it gets very fuzzy, but the general notions elucidated (some might prefer the term “obfuscated”) by Japan’s Supreme Court are that foreigners have no constitutional right to enter Japan — or re-enter it for that matter (even if they have jobs, property or family here) — and when it comes to freedom of speech and association, they should enjoy the same rights as Japanese people, except to the extent that they influence national policy.

Since “influencing policy” could mean just about anything (including writing articles like this), this is not a particularly useful guideline. I personally would rather know in advance when I might be in danger of crossing the line instead of after the fact (maybe at immigration), but then Japanese law often doesn’t seem to work that way. In any case, it at least seems clear that Japanese get X, while foreigners get X minus Y, with most people trying not to notice the fact that both X and Y are variables.

Much as bureaucrats and nationalists may like simple categories, however, the Japanese vs. non-Japanese distinction fails when it comes to children — specifically, children like mine who are Japanese nationals but have one parent who is not. Why? Because despite children with Japanese nationality being a part of the collective body of Japanese citizenry entitled to various rights and benefits, because of their age it is generally up to their parents to pursue these rights on their behalf.

If for whatever reason I was found to be persona non grata in Japan and denied re-entry, my family would be faced with the stark choice of moving to another country, or not seeing Daddy again for a while. So, despite being “Japanese,” my children do not apparently have a fundamental right to be raised in Japan by both parents. Or even one parent, for that matter: If (heaven forbid) my Japanese wife was to die and I could not obtain a visa through other means, I would likely again have no option but to take my children and leave the country of their birth.

There would probably be similar results if I lost my job, became unemployable, was rendered disabled or committed some minor crime (like the Peruvian man of Japanese extraction who, despite having resided in Japan for over a decade, the government has been trying to expel after he was fined for dumping an old washing machine in a vacant lot).

These are the types of unlikely doomsday scenarios we lawyers specialize in dreaming up, so I will try to frame it in more general terms: In times of trouble, because of I am not Japanese, I probably cannot expect to rely on Japan’s government or laws to help me and thus, by extension, my children.

Apocalyptic scenarios aside, the fact that I am able to live a perfectly happy life in Japan while expecting very little of its government is simply a reflection of the many other good things about the country. That said, though, when it comes to thinking about whether Japan could be better and what could be done to solve various social problems, I still find myself running into a wall.

Although I accept not being entitled to vote as perfectly fair, it is not clear to me what extent we non-Japanese residents are entitled to try to “affect policy” with the hope of making a better future for our children here in Japan. “X minus Y” is not a very useful guideline. If, as seems to be the case, there is an undefined line at which we are supposed to stop and shut up because we are not Japanese (a line which, thanks to the vagueness I have described, can be redrawn at any time), then how do the interests of our Japanese children get reflected in what does actually get decided? Is it fair that children who only have one Japanese parent are not as fully represented in whatever that process might be?

Of course, the real barrier to putting a lot of effort into trying to improve the community we are a part of may be a question that some of us may have already tired of asking ourselves, which is this: Why bother? Most half-Japanese children are blessed with more than one nationality, meaning that by birth they have a greater range of options elsewhere in the world than most “pure” Japanese children. Rather than trying to help build a better Japan only to be told it is a matter for Japanese people, some parents might reasonably decide it is more productive to devote their time to helping their children develop the non-Japanese side of their identities so as to maximize their potential abroad.

For some parents this is likely to be part of a greater calculus about the future of Japan itself, a future full of ongoing meltdown, greater taxes, a vast fiscal and demographic iceberg looming on the horizon and a bureaucracy that seems primarily interested in setting up foundations to certify lifeboat (proposed mascot name: “Raifubeau”). (The lifeboat is a metaphor, of course, though I would not be terribly surprised to learn that such a foundation actually exists.)

Some may object that I am setting up a false dichotomy by framing our child-rearing options in terms of a stark, binary choice between Japan and a foreign country. But am I? When it was amended in 1984 to render children having only a Japanese mother eligible for citizenship, the Nationality Act also came to impose exactly this choice on Japanese people who acquire dual nationality by birth or during childhood — a choice that must be made before reaching the age of 22.

The choice, of course, is for our children, not us. Just make sure your kids have their mail forwarded to you if they go on a backpacking trip around the world. This is because the law says that if the government discovers a Japanese person has dual nationality, it can send them a notice demanding that they make a choice. If the recipient does not choose within one month, they lose their Japanese nationality.

If the government does not have an address to send the demand to, they can post it in the kanpō, the government gazette. So, if at the start of their exciting life as an adult your child happens to be more interested in dating or travel than reading the official gazette, they can again lose their nationality, this time by mere publication.

The law is even nastier to children born abroad to a Japanese parent. The Nationality Act and Family Registry Act together render such children ineligible for Japanese nationality if their parents do not file a notice reserving their citizenship within 90 days of birth. Interestingly, this requirement goes back to the prewar period (when the notice period was only 14 days) and was actually intended to help Japanese immigrants to North and South America, where anti-Asian immigration sentiments were high, by making it clear to other nations that, absent a clear choice by their parents, immigrant children would not be subject to conflicting loyalties.

Controversy and claims of government hypocrisy surround the apparent continuing dual nationality of that other Peruvian, ex-president and alleged human death squad mastermind Alberto Fujimori, but his Japanese parents are said to have promptly registered his birth with the Japanese authorities and, having acquired both his Japanese and Peruvian nationalities by birth before the 1984 amendments to the Nationality Act, they apparently do not apply in his case.

Nonetheless, it remains a mystery how a nationality law like this can survive under a Constitution that defines divestiture of citizenship as a right to be exercised by citizens rather than a sanction to be imposed by the government. Yet, the Tokyo District Court recently announced that it saw no constitutional problems with the loss of nationality for failure by parents to register a birth abroad. (Hey, how else are babies ever going to learn not to have parents who don’t know the law?)

Again: Why bother? How much effort should we put into raising our children to be citizens of a country that would deny or strip them of this citizenship so perfunctorily?

Note also that the Japanese law implicitly assumes that other countries will be kinder to dual nationals. After all, if the rest of the world had the same laws and procedures as Japan, bicultural young adults could come back from a postuniversity trip around the world to find themselves stateless (“Oh, sorry, didn’t you get the notice?”).

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Now some of you may be thinking, “Yes, but as long as you and your kids keep your mouths shut, they can keep their dual nationality and nobody official will know or care.”

This is probably true, and many Japanese people even seem to even get away with naturalizing in a foreign country without losing their Japanese passport. For example, according to the U.S. Department of Homeland Security, 1,622 people born in Japan were naturalized in the United States alone in 2011, while for the same year Japanese statistics show less than 800 people abandoning or losing their Japanese citizenship worldwide (one also hears similar whisperings about some non-Japanese not renouncing their foreign citizenship despite naturalizing in Japan).

As I pointed out in a past column, the fact that bureaucrats are often mellow about, well, enforcing the law, is one of the things that can be nice about Japan — so long as the benefits to you outweigh the leverage this situation can give bureaucrats or politicians if they decide they don’t like you, you lawbreaker!

Speaking for myself, one of my (for Japan, potentially radical) goals is to raise children who don’t feel naturally beholden to anonymous officialdom, so I am not sure that I would find myself recommending the “quiet dual nationality” approach to them. That aside, surely something as basic as citizenship should be protected by more than just bureaucratic inclination.

So again, why bother? Even if it goes unenforced, the way the Nationality Act is supposed to work reflects an underlying preference for exclusion. After all, the default rule is that young nationals who do not actively choose Japanese nationality should be quickly excluded from the body politic, and that babies born in a country where they might be tainted by foreign sovereignty should not have Japanese nationality in the first place if their parents do not regard being Japanese as a top priority during their first three months of life. My children are precious to me, so why should I devote energy to raising them to be a part of a country whose government’s first instinct is to reject them?

By all accounts Japan needs more children. Not only that, it needs more children who will stay in Japan after reaching adulthood. With international marriages being the only part of the Japanese baby-making apparatus that seems to be in growth mode, and with abundant opportunities beckoning young people to other parts of the world, perhaps it is time the country moved away from the simplistic “us vs. them” nationalistic dichotomy that seems to be of benefit to no one.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and story ideas to community@japantimes.co.jp