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Japan’s Constitution won’t protect revolting foreigners

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As a foreigner in Japan, you get used to hearing about all the things you aren’t supposed to do: drop someone’s business cards in the soup, stick your chopsticks upright in the rice, use the black stripy envelope for wedding money, write snarky newspaper columns — the list gets pretty long.

Like everyone else, I generally try to keep my end up, though I nonetheless do occasionally find myself tramping around the tatami room in my outdoor shoes looking for whatever it is I have remembered I need immediately after tying up my laces.

One thing I am pretty consistent about not doing, however, is participating in political demonstrations. I have several reasons. First, I am lazy. Second, I am in Kyoto, whereas most of the interesting demonstrations seem to involve going to Okinawa or Tokyo (see previous sentence). Third, I am often not comfortable that I have adequate familiarity with all facets of the issue to take a side by demonstrating. Fourth — and most importantly — there is that 1978 Supreme Court case.

I am talking about the famous precedent set by the McLean case. I have written about this before, but given the recent widely publicized demonstrations at the Diet against the new security legislation, I thought it might be worth bringing up again.

Ronald McLean was an American who came to Japan in 1969 on a one-year visa to teach English. He became involved in the Japanese anti-Vietnam War movement and participated in a number of demonstrations at the U.S. Embassy and elsewhere. When he applied to renew his visa, it was rejected because of his political activities.

He challenged this disposition on a number of grounds, including that it constituted punishment for the exercise of the rights of free speech and assembly (supposedly) guaranteed by the Japanese Constitution. The Japanese-language version of the Constitution ties constitutional protections to nationality by referring to the “rights of the Japanese people” (kokumin). Thus, whether a foreigner like McLean enjoyed the same protections was uncharted territory (to a degree; related issues had come up in prior cases involving Japan’s Korean population).

Almost a decade after he first set foot in Japan, the Supreme Court issued its characteristically abstruse ruling on the subject. I won’t go into the details, but the most commonly cited extract from the judgment goes as follows (the English version comes from the translation provided on the Supreme Court’s English website):

The guarantee of fundamental rights included in … the Constitution extends also to foreign nationals staying in Japan except for those rights, which by their nature, are understood to address Japanese nationals only. This applies to political activities, except for those activities which are considered to be inappropriate by taking into account the status of the person as a foreign national, such as activities which have influence on the political decision-making and its implementation in Japan.”

Helpful, right? I think it could be paraphrased as follows: “Foreign nationals enjoy constitutional protections except when they don’t, and can participate in political activities unless those activities might have an actual impact on policy.”

This is an archetypal example of what I have come to refer to as the court’s “kittens-are-cute jurisprudence.” This involves issuing a broad statement most people would find unobjectionable in the abstract (i.e., “Kittens are cute” or “Foreigners generally enjoy the same constitutional protections as Japanese people”), while reaching a substantively different conclusion in the case at issue (i.e., “but this particular kitten/foreigner is an exception”).

Anyways, McLean lost. He lost because of a less frequently cited part of the opinion stating that foreigners in Japan only enjoy constitutional protections within the framework of the immigration laws and regulations that allow them to enter and stay in Japan, as well as the broad discretion that those laws and regulations grant the minister of justice in accepting or denying visa applications.

In other words, for foreigners the usual constitutional hierarchy of “constitution > statute > regulation > administrative disposition” is essentially reversed. How anyone can consider this “constitutional” protection is beyond me, but perhaps not very many Japanese jurists think in these terms. To a Japanese person who will probably never have to think about what the McLean case means to them personally, the language is probably comforting in its abstract positiveness.

You see, in an odd way the Constitution may have much more concrete significance to foreign residents than it does to Japanese people, because the latter can live here unconditionally. They thus never have to contemplate the possibility of having to leave a home, family, business, investments — life — in Japan due to a nonrenewal or cancellation of residence status. These are precisely the circumstances where most people would expect the Constitution to mean something, but the McLean case seems to say it doesn’t. Granted, he got/had to stay in Japan for a number of years while his appeal was pending (if he had left, he probably wouldn’t have been allowed back in), but he still had to leave in the end, and having taken a Japanese wife and developed a deep interest in Japanese culture in the interim didn’t seem to make any difference.

Moreover, I have had the opportunity to speak to two different people who knew Ron McLean quite well at the time of his travails. Both shared the view that his visa renewal was rejected not because of participation in political demonstrations per se, but because a picture of him at an antiwar protest holding a toy rifle with a baby doll impaled on its bayonet appeared in a magazine in the United States, which apparently annoyed someone. (According to one of my interlocutors, it may have been someone at the U.S. Embassy whom McLean reportedly saw point at him.)

I haven’t been able to find such a picture in leading magazines from the time (if anyone does, please contact me!) and this is speculation based on hearsay, so readers should discount as they see fit. However, if true, it would mean McLean lost his ability to stay in Japan through the exercise of arbitrary power by anonymous bureaucrats — precisely the sort of thing you expect constitutions and supreme courts to protect against. But again, the McLean case seems to suggest we should keep our expectations low. And if you look at other Supreme Court cases involving the rights of non-Japanese residents — whether it be the right to re-enter Japan, seek governmental jobs or entitlement to welfare benefits — foreigners always lose.

So, as someone who has spent rather a while studying Japanese law, my own conclusion is that as a foreign resident, I should expect no meaningful protections from the Constitution or the Supreme Court in any situation where it is me against the state. (That said, I am not sure if Japanese people can expect a great deal more.) Fortunately, a certain amount of kindness on the part of well-intentioned Japanese people and a bureaucratic desire to avoid confrontation make it unlikely that I will ever find myself in such a situation. Nonetheless, I still bear in mind the possibility that I might have some bad luck, annoy the wrong person and end up having to leave for whatever reason makes sense to the authorities at the time. Personally, I think the safest course is to simply regard the immigration laws as the true constitution as far as foreigners are concerned. That actually seems to be a reasonable interpretation of the McLean case.

Granted, the Immigration Act is no longer the Occupation-era decree that it was in McLean’s time, and the blatant prohibitions on political activities that I remember from my early student-visa days appear to have been excised. Nonetheless, for the most part, “our constitution” — the immigration laws and regulations — remain an incomprehensible mishmash of categories, arbitrary distinctions and vague determinations left up to the discretion of anonymous bureaucrats. For example, among the conditions for getting permanent residence status are requirements that the applicant “be of good conduct” and “observe Japanese law and not invite any social criticism,” and it being “in the best interests of Japan” for the application to be granted. Or if you are on a spousal visa like me, I could lose my status if I have “failed to continue to engage in the activity as a spouse for six months or more.” I am not sure what that means, so perhaps I should keep some video evidence (of me taking properly sorted garbage to the designated place on the right day of the week), just in case.

All this said, there are plenty of good things about living and working in Japan that have nothing to do with the Constitution. I still live here despite my limited expectations of the nation’s charter. My own decision to refrain from participating in demonstrations (so far) is a reflection of my own belief system surrounding the Japanese Constitution — one which not everyone needs to share or accept.

So, I am not trying to make any foreign resident worry about participating in demonstrations or discourage anyone from doing so. But at the very least, you should know that the leading case on the subject of the constitutional rights of foreigners involved an American who got kicked out of the country for participating in antiwar protests. It may have been a rare anomaly; after all, foreigners seem to appear in all sorts of demonstrations with no negative consequences.

So perhaps Ron McLean was just unlucky. And perhaps occasionally bad things do happen if you stand your chopsticks up in your rice bowl.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Your comments: community@japantimes.co.jp

  • Ronald W. Nixon

    Japan shouldn’t have to allow troublemakers to stay in their country. We have the same problem in the US, but Obama wants the illegals to stay and take American jobs and shove Islam down our throats. But God made our rights for Americans, because we are His chosen people. Japan should not follow down that dark path. Rights in Japan are for Japanese people. If you don’t like it, you should leave.

    • Firas Kraïem

      It’s good to see that Japan doesn’t have a monopoly on bigoted net-uyoku, eh.

    • jimbo jones

      brilliant satire! spot on. colbert lives on

    • Paul Johnny Lynn

      “Liking” your own posts is so primary school.

  • skillet

    Interesting article. I always assumed while living overseas, I had to be on my best behavior. But I do sympathize with the anti-war stance.

  • Mikey

    I love how vague it is! I remember applying for a 3 year working visa when coming off a working-holiday, in the box that said “reason for staying” I simply wrote the kanji for family… I didnt indicate if I was trying to keep away from my family or even if I had a family, but none the less boom 3 years granted ha ha

  • gregg

    Like the author, I, too, don’t make a habit of protesting, and for similar reasons.

    Given the apparent “capriciousness” of important decisions, I have long been concerned (rightly, wrongly? I don’t know) about pension transferability. As time has passed, there is a larger number of foreign nationals who will finish 25 years of work in Japan than in the 1990s (some of us remember what happened back then). A fair number are from tax treaty countries.

    Question: Does the author know of people who have retired, returned to their birth country and have had all of their pension contributions transferred as if they had been paying into the plan in their birth country?

  • gregg

    Like the author, I, too, don’t make a habit of protesting, and for similar reasons.

    Given the apparent “capriciousness” of important decisions, I have long been concerned (rightly, wrongly? I don’t know) about pension transferability. As time has passed, there is a larger number of foreign nationals who will finish 25 years of work in Japan than in the 1990s (some of us remember what happened back then). A fair number are from tax treaty countries.

    Question: Does the author know of people who have retired, returned to their birth country and have had all of their pension contributions transferred as if they had been paying into the plan in their birth country?

  • J.P. Bunny

    A very informative read. No hysterics, just informative and enjoyable to read.

  • Tim Johnston

    Be a good boy and don’t speak out of turn. Believe what you are told and follow the sheep.

  • http://www.an-chan.net/ Antoine B.

    Very interesting article! I never heard that case before.
    McLean probably added together a few issues: protesting an american war in Japan, near the American embassy, on a short term visa… definitely a risky activity.

    Following some of the comments, there is one slight bias in the article, as the case is about an anti-war militant, which is a rather sympathy-calling theme (for me too) and the final decision is certainly extreme compared to the initial action.
    Hopefully that case will stay a rare one, or we are many people in trouble :-)
    And surely, when living abroad, you always have that kind of risk, in a form or another. Citizenship is the only real protection.

  • zer0_0zor0

    During the nearly two decades I’ve been here, there haven’t been many issues worthy of protesting, until the recent incarnation of he Abe regime, that is, starting with the Special Secrets Act (or whatever it’s called), and then extending to the recent “reinterpretation” pertaining to “collective defense”, which brought about the largest protests in Japan that I recall, and possible since the 1960s.

  • zer0_0zor0

    During the nearly two decades I’ve been here, there haven’t been many issues worthy of protesting, until the recent incarnation of he Abe regime, that is, starting with the Special Secrets Act (or whatever it’s called), and then extending to the recent “reinterpretation” pertaining to “collective defense”, which brought about the largest protests in Japan that I recall, and possible since the 1960s.

  • zer0_0zor0

    During the nearly two decades I’ve been here, there haven’t been many issues worthy of protesting, until the recent incarnation of he Abe regime, that is, starting with the Special Secrets Act (or whatever it’s called), and then extending to the recent “reinterpretation” pertaining to “collective defense”, which brought about the largest protests in Japan that I recall, and possible since the 1960s.

  • zer0_0zor0

    During the nearly two decades I’ve been here, there haven’t been many issues worthy of protesting, until the recent incarnation of he Abe regime, that is, starting with the Special Secrets Act (or whatever it’s called), and then extending to the recent “reinterpretation” pertaining to “collective defense”, which brought about the largest protests in Japan that I recall, and possible since the 1960s.

  • zer0_0zor0

    During the nearly two decades I’ve been here, there haven’t been many issues worthy of protesting, until the recent incarnation of he Abe regime, that is, starting with the Special Secrets Act (or whatever it’s called), and then extending to the recent “reinterpretation” pertaining to “collective defense”, which brought about the largest protests in Japan that I recall, and possible since the 1960s.

  • GIJ

    “Japan’s Constitution won’t protect revolting foreigners”

    Uh, revolting could be defined two different ways here. I think the title is in need of some rewording unless Jones has some issues with English teachers, Nigerians working in Roppongi, and university students from China…

    • R0ninX3ph

      It’s called clever wording/creating clickbait. I am pretty sure the author was well aware of the dual meaning of the phrase “revolting foreigners” when discussing the issue of rights in the Constitution.

      I personally thought it was an amusing choice of words.

  • Ken Yasumoto-Nicolson

    Interesting article, but I can think of one issue that contradicts the above: why are the Taiji protesters not turned back at the border, but instead come back year after year?

    I suppose the cynic would say that they serve the purpose of hardening Japanese attitudes towards dolphin hunting, but it would be interesting to hear Mr Jones’ view on this.

  • Paul Martin

    Foreigners should complain to the foreign press in their own countries more !
    Then the media will start investigating and criticizing Japan’t attitudes to gaijin,etc
    It is ONLY then that the government will take notice otherwise nothing will ever change !

    • Tim Johnston

      Nothing will change!
      Japan violates parents rights to see their children after divorces.
      1000s of U.S. Kids have been abducted to Japan , yet the U.S. Does nothing.

    • Alfie Goodrich

      Many of the best corespondents here are foreigners and the foreign press has a long history of reporting Japanese stories. And the Japanese press that wanted to print a story counter to the official, state-sanctioned line, use the ‘as written in the Los Angeles Times’ to get the news into the domestic press but with the byline as the get-out clause: the inference being ‘ah, well, the LA Times WOULD say that……what do these foreigners know?’

      If the govt does not take notice of 100,000 people outside their door, mainly locals, then why would they give a sh*t about anything the foreign press writes?

    • Toolonggone

      I think the alternative left for those being disenfranchised will be a non-confrontational form of civil disobedience(i.e., opt-out in a silent protest) at home and pressure on abroad, simultaneously. In order to mobilize such a movement, foreigners(including naturalized citizens) got to be on the same page.

      • Paul Martin

        The government tends to ignore protests and demonstrations by citizens so it certainly will not respond positively to foreigners disdains !

  • Gary Raynor

    Ken Yasumoto-Nicolson
    Interesting article, but I can think of one issue that contradicts the above: why are the Taiji protesters not turned back at the border, but instead come back year after year?

    Duhhhhh!!!!!

    Because none of them are in Japan on a work/study visa, permanent residence or spouse visa. They enter Japan on a tourist visa.

    Ken Yasumoto-Nicolson
    I suppose the cynic would say that they serve the purpose of hardening Japanese attitudes towards dolphin hunting, but it would be interesting to hear Mr Jones’ view on this.
    The cynic might well ask what is the purpose of your post, since Jones’ article is about the apples (foreign residents’ rights in regard to the Japanese constitution) and your comment is about oranges (foreign visitors protesting against an aspect of Japanese behavior)?

  • Shady Shita

    Love this article , also I want to ask does online activism count ? I hope it doesn’t, in my country they monitor social media :/ , that would be horrible …

  • Alex Bowman

    Ive never joined a protest but of alot of the ones ive seen people get to shooting real guns eventually and that in japan just pissed off the whole legislative(the diet)with shinzo abe while there all looking left but om im thinking to african or south american and as im to be having a campaign for world president comming up that i deliberetely keep bringing up how rallys are with me like in the millions maybe in washington d.c. or there a pack of wolves to try and damage my my political career atleast to being shot down like some of the stuff o seen in other countries cause of post communist states but i hope thats not me and in one of my 8 world president books of the book titled(reign our world king and his whore)i specifically talk about it again where in paris france wich will be where the world capital is of a actual real world government ive been working on for years that of my act as world president where paris france is the great hyper of where feuders go from worldwide to be dushes on my back but ill have world military support as usual that i am the world nation commander in chief,but yeah these constitutions are so flipped its like one day on the they dont stop trying to work from there constitution every move they make and then the next day there all individually running contrast then that that there has to be some long twist of what they could say and as of the mclean case to be paid i suppose to only run by again we can all laugh as long as we can hide the older cases any material and yep will get the obvious trial of maybe better terms maybe but constitutions are fun that ive studied about 20 nations constitutions even of the u.s.a.s which is the worst one to stand to or even have a push on your rights unless you have a good lawyer then i would be confronting the supreme courts in washington d.c. and walking away very rich but not yet and now in my world government even one of the outstanding marks im gaining is being a judge while im passing world laws as world president and in the battle fields with my world military as world nation commander in chief ill also be a judge to knock out terrorist(other criminals)plus of my 4 world armed forces im set to be of all cordinates of the first world military outerspace fleet(but im a firm believer in government),the world government i have thats of the head title as called global community and its constitution will and come to being pretty lenthy as to what i told the chinese government officials but im to be talking to the japanese government officials in a couple of weeks and maybe there my first people to let the (pre government world sovereign nation borrowment occur)-that om going to borrow one billion u.s.d. from japans approval as a government and of all the information i gave then approves the legit world state im world representative to but the pay back is very solid pnce the conditions on earth are o seeing my world government working all nations with it so statistically the success is a normal go(win)that to be playing with trillion dollar world eqausions more then just the dig of world economics but a own world economics board to understand what ill be doing as world president,anyways nation to other nations stayed in debt with each for many years and alot of nations never can pay back anything even alot of them end up not having to pay it back but this one billion u.s.d. supports my campaign management right exact to the extent of being (IT TRUE)in the worlds public face as a god and they all follow and listen that i speak for all peoples worldwide and thats not only nations but of the distinctions of tribal very deeply of every land or to say nation that the one billion u.s.d. just invest money from the world people and all nations leaders anf government support that i can build my world government with ease of the billions back ill get from a outstanding perspective world view,alex bowman of the multilateral new world order ten states axis entente deliberacy vangard front workers party.

  • Enkidu

    Thank you for this informative comment.

  • Toolonggone

    The national constitution has a long history of disenfranchising particular segment of people based on race, culture, nationality, and gender.

  • Doubting Thomas

    Foreigners already can’t vote or make political contributions, so I don’t see how you could possibly justify limiting our ability to peacefully protest if you’re going to base the argument on “effecting policy.”