The following is a rough translation of the text of Supreme Court’s July 18 ruling that found permanent residents ineligible for welfare payments.
[FACTS DETERMINED BY THE FUKUOKA HIGH COURT]
The old Public Assistance Law (abolished in 1950) stated, in Article 1:
“This law is aimed at protecting the lives of people in need equally, without discrimination or preferential treatment, thereby enhancing social welfare.”
Article 1 of the current (1950) Public Assistance Law states:
“The purpose of this Act is for the State to guarantee a minimum standard of living as well as to promote self-support for all citizens who are living in poverty by providing necessary public assistance according to the level of poverty, based on the principles prescribed in Article 25 of the Constitution of Japan.”
Article 2 of the law states:
“All citizens (kokumin) may receive public assistance under this Act (hereinafter referred to as “public assistance”) in a nondiscriminatory and equal manner as long as they satisfy the requirements prescribed by this Act.”
A 1954 welfare ministry notice to prefectural governments stipulates that, for the time being, foreigners in poverty should be given the same level of assistance as Japanese citizens. The notice further says public assistance applications from foreigners should be processed in the same ways as those from Japanese are, except that when foreigners are given assistance, the (municipal) agencies in charge must report the cases to their prefectural governor and confirm through the governor that the individuals in question are not already eligible to receive such assistance from agencies in the foreigners’ places of origin.
In 1990, the welfare ministry released new guidelines, limiting eligibility for foreigners based on its 1954 notice to those with permanent residential status.
In 1981, when the Cabinet decided that Japan would join the Convention Relating to the Status of Refugees as well as the Protocol Relating to the Status of Refugees (hereinafter referred to as “Refugee Convention”), the issue of whether to revise the nationality clause (limiting legal protection to Japanese nationals) in domestic laws such as the Public Assistance Law, National Pension Law and the Child Rearing Allowance Law, arose, as Article 23 of the convention stipulated that: “The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.”
With the 1981 enactment of legislation mandating revisions (in Japan, to accommodate the convention’s requirements), various laws, such as the National Pension Law and the Child Rearing Allowance Law, were revised to abolish the nationality clause, but no such revisions were made to the Public Assistance Law.
In a joint screening committee set up by the legal affairs, foreign affairs and social and labor committees of the Lower House, a government representative in May 1981 said Japan would not be barred from joining the Refugee Convention for not abolishing the nationality clause in the Public Assistance Law, because ever since the public assistance system was created, foreigners had been treated in the same way as nationals.
JUDGEMENT OF THE FUKUOKA HIGH COURT]
By joining the Refugee Convention, and from related Diet deliberations, the legislative and administrative arms of the government can be construed as having approved that the nation shoulders a degree of legal responsibility to provide public assistance and therefore accord to a certain group of foreigners the same level of public assistance as is accorded to their nationals. Therefore the status of a certain group of foreigners to receive the aforementioned treatment has been legally established.
[JUDGMENT OF THE SUPREME COURT]
The old Public Assistance Law did not distinguish, in its application, between “nationals” and others, whereas the current law, in articles 1 and 2, stipulates that it is “citizens” who are eligible. The “citizens” referred to by the law can be interpreted to mean Japanese nationals and exclude foreigners.
Since the current law’s enactment, no legal revision has been made to expand eligible persons to include a certain group of foreigners, and no other legal legislation exists to enable the application of the provisions for assistance accorded under the law to a certain group of foreigners. Therefore, there is no ground for the Public Assistance Law to be applied to foreigners.
The (1954 welfare ministry) notice is one issued by an administrative body. Even if public assistance has been in reality accorded to a certain group of foreigners as an administrative measure, this cannot be interpreted as meaning that the Public Assistance Law now applies to foreigners in the absence of legislative measures, such as revisions to its articles 1 and 2.
It is also clear from the wording of the notice that it is premised on the understanding that the Public Assistance Law does not apply to foreigners, and hence foreigners who are living in poverty should be given necessary protection as an administrative measure for the time being.
Therefore, it is through an administrative measure (rather than a legislative measure) that foreigners have, to date, effectively been made eligible for public assistance. Neither the Public Assistance Law as it currently stands nor any other law can be construed as conferring on foreigners eligibility for assistance.