As the government moves to beef up the country’s military preparedness, once again the issue of the protection of foreigners’ rights has been raised.
In passing military contingency legislation last month, the government has sought to prepare the civilian population for and guard their rights during an attack on Japan, military or terrorist.
This issue is especially important in light of growing fears of possible strikes on Japan by terrorist networks, and the ongoing crisis over North Korea.
It’s also important to examine rights protection of Japan’s foreign population in an emergency, at a time when government-sponsored crackdowns on immigration violators and police campaigns against foreign criminals have reached hysteric levels.
However, by not seriously considering the importance of including the foreign population in the terms of the new law, Japanese officialdom has once again signaled its desire to deny equal constitutional rights protection to the growing foreign population, even at a time when they are potentially most vulnerable to discrimination.
Last month, a package of seven security-related bills, or military emergency legislation, received final approval. One of these bills, the so-called “Citizens’ Protection Law” (“Kokumin Hogo Hou”) provides measures for citizens of Japan to be prepared for and to deal with any attack on Japan by giving statutory form to their rights and duties in an emergency.
The law also stipulates the roles of the central and local governments, the Self-Defense Forces and appointed public organs in organizing and aiding citizens.
However, foreigners cannot automatically be protected by this law in a time of heightened national security, since they are not included under its terms, or those of the Constitution.
This situation has its roots as far back as the drafting of the Constitution by the Allied Occupation Force in post-war Japan.
When the Allied force presented its draft of the Constitution to the Japanese government in February 1946, it included two quite visionary provisions.
Article XIII stipulated that “All natural persons are equal before the law. No discrimination shall be authorized or tolerated in political, economic or social relations on account of race, creed, sex, social status, caste or national origin.”
The second, Article XVI, declared that “Aliens shall be entitled to the equal protection of law.”
However, both provisions were revised by the Japanese government. It removed Article XVI and phrased the subject of the Constitution as “kokumin (Japanese citizens, or those of Japanese nationality).”
As a result, though Article 14 (I) of the Constitution stipulates that “All (kokumin) are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin,” since the word “kokumin” does not include foreigners, the Constitution provides no legal basis for the protection of foreigners against discrimination.
The issue was dangerously reflected in the evolution of the new law which is also for “kokumin.”
When the first draft of the bill was presented to governors in October 2002, it included “prohibition of unfair discrimination against foreigners” as a matter of importance.
However, when the government presented the second draft a month later, the provision was gone.
Assuming the provision was originally included because there was a fear that foreigners may face discrimination in an emergency situation, its removal means there is now no automatic guard in place to prevent discrimination.
“If the prohibition provision was taken out intentionally, two reasons could be thought of; first, there were people who wanted to exclude foreigners from the subject of this law; second, people who were talking about the law couldn’t fully understand why foreigners would have to be protected,” believes Makoto Teranaka, of Amnesty International, Japan.
When asked if foreigners were to be included in the terms of the new law, the government replied “No, but foreigners will be protected.”
Though the term “kokumin” does not include foreigners, the government said, the protection of human rights stipulated in the Constitution has been interpreted to include the foreign population; this interpretation of the scope of rights protection is also applicable to the citizens protection bill.
But how these rights can be protected remains unclear.
There is currently no law on the Japanese statute books that prohibits racial discrimination indeed Japan is the only OECD country without one. The government’s habit of relying on “interpretation” is not satisfactory in cases where abuses may occur.
Moreover, even though Japan ratified the U.N. International Convention on Eliminating Racial Discrimination in 1996, it has since been reprimanded by the New-York based body for its failure to adopt “specific legislation to outlaw racial discrimination.”
And historical precedent suggests good reasons why foreigners would need to be protected in an emergency situation.
When a huge earthquake struck the Kanto region in 1923, rumors abounded of Koreans starting fires, rioting and poisoning wells.
The central government subsequently ordered local governments to “watch and control Koreans strictly.” Furthermore, Japanese vigilantes were organized in each area, which led to the torturing and lynching of thousands of Koreans.
And in 1995, when the Hanshin earthquake struck, rumors of “Chinese looting” and “Asian laborers stealing,” circulated. Foreigners also had difficulty obtaining housing after losing their homes.
On the other hand, there were some positive developments for foreigners. Volunteer groups were organized to offer foreigners medical assistance and information, and the Hyogo Prefectural Office came out and denied the rumors of foreigners looting and stealing.
The issue was raised again more recently when popular rightwing Tokyo Gov. Shintaro Ishihara warned that foreigners could be expected to riot in Tokyo in the event of a major disaster in the city.
“The Kanto earthquake is not just history,” says Teranaka.
But lawmakers dismiss the idea that discrimination and targeting of foreigners may happen again.
“We have learned from the past,” says Seiji Maehara, a member of the Lower House committee that discussed the military contingency legislation. “In making these laws, we considered that the rights of minorities in Japan would easily be threatened in a military contingency. When there was a disaster in the Kanto region back in 1923, the rights of minority people were violated. We are making these laws also to prevent this kind of thing happening again,” says Maehara.
“Foreign residents in Japan will not be treated differently from Japanese because of their race or nationality. That situation should not be worried about in Japan.”
However, recent official policies suggest otherwise.
“Considering the police and especially the Tokyo Metropolitan government’s vilification of foreigners, even in peacetime, we cannot expect them to act fairly in a military contingency as Hyogo officials did,” says Terenaka.
“Rather, they may even abuse the situation to control foreigners.”
As both the police and the government foster the image of foreigners as a threat and the media propagates this message, it may be that at a time of heightened danger to Japan, foreigners will be viewed and treated not as victims, but as terrorist suspects, with no basis, other than vague legal “interpretation” to defend rely on.