“Welfare ruling stuns foreigners.” That was the headline to The Japan Times On Sunday’s July 20 lead story about the Supreme Court’s ruling a couple of days earlier that non-Japanese residents do not have a right to access the nation’s welfare system.

I’m a foreigner, but the only thing that surprised me was the headline. To be honest, I don’t know how anyone who has been paying attention could have expected the court to rule any other way.

Let’s look at some history. Less than two centuries ago there was no need to distinguish between Japanese and foreigners because, for all intents and purposes, the latter did not exist. The most famous exception to this was the Dutch enclave at Dejima, the tiny man-made island in Nagasaki whose principal design feature was its isolation from Japanese society. By contrast, medieval England had already developed legal distinctions between subjects of the king, denizens (foreigners who had a right of residence but could not own land), aliens, Jews and so forth.

It was only after the West forced Japan out of its isolation in the latter half of the 19th century that its leaders had to think about what sort of rules should apply to the Westerners who were now entitled to traipse freely about their land. They had to address this matter urgently, too, since Westerners initially refused to submit to Japanese laws, courts or punishments, all of which they regarded as barbaric. Focusing first on developing “civilized” (i.e., European-modeled) laws and institutions, the government of Meiji Japan did not get around to passing a Nationality Act until 1899.

Indeed, there is some question as to whether the Meiji government was actually cognizant of a distinction between nationality and the household or family registry system. The forerunner of the current family register system was enacted in 1872 and effectively treated everyone already in Japan before the foreigners came as Japanese, including the descendants of Koreans brought over by Toyotomi Hideyoshi in the 16th century.

However, it was in the context of this administrative apparatus that Japanese officialdom had to first start thinking about how things worked for foreigners, since newly arrived Westerners immediately set about trying to marry local women. In 1873, a rule was enacted that Japanese women who married foreign men would lose their Japanese “status” (this was referred to as bungen rather than the current term, kokuseki, which means “nationality”), unless their husbands were adopted as sons of her family. Identical rules applied to Japanese men marrying foreign women. The effect of such marriages could be significant given the unequal treaties then in effect that accorded Western nationals immunity from Japanese law.

Thus, from its very inception, modern Japan has had laws that draw a very basic distinction between Japanese and non-Japanese. Even after opening up and becoming a colonial power these distinctions remained, with special rules limiting the freedom of Chinese residents (who were the largest non-Japanese population in the country until the annexation of Korea), and legal distinctions imposed upon Japan’s colonial subjects from Korea and Taiwan, again through the family register system.

It was not until 1918 that Japan got around to passing rules governing the entry of foreigners into the country. In doing so, Japan was following a global trend toward exclusionism, with nations rejecting any notion that foreigners should be free to enter any nations other than their own. Starting in the 1920s, Japan began restricting entry by Chinese workers, then Korean subjects seeking economic opportunities in the Japanese home islands. As the nation became more militaristic and slid into war, controls over foreigners became a natural part of the national security apparatus.

After Japan’s defeat, American-led reforms made the country more democratic but did little to alter the distinctions between Japanese and foreigner that remain deeply rooted in Japanese law. These included the family registry system (in which only Japanese nationals are registered), Article 2 of the Civil Code (which clearly anticipates the possibility of foreigners being treated differently) and numerous provisions of the current Constitution. Indeed, one of the important nuances missing from the English version of the Constitution is that wherever it refers to “the people,” the Japanese version reads “the Japanese people.” This limitation renders many of the provisions of the charter slightly oxymoronic, referring as they do to the fundamental human rights of the Japanese people.

Whether non-Japanese human beings get any such rights under the Constitution — including the “right to maintain the minimum standards of wholesome and cultured living” under Article 25 (the constitutional basis for the welfare system) — has been the subject of some debate, as well as constitutional litigation. The short answer is “yes but no”: “Yes” as in “Non-Japanese are generally entitled to the same constitutional protections as Japanese people in principle,” but “No” as in “I cannot think of a single instance where a non-Japanese person has been granted relief by the Supreme Court in a specific case, even though the court may have recited the general principle before finding it doesn’t apply in this case.”

(I refer to this decisional dichotomy as “kittens-are-cute jurisprudence” since it involves making a broad statement of principle that most people find agreeable (“Generally speaking, kittens are cute”) while denying relief in the case at bar (“But, unfortunately, this particular kitten is not”)).

In any case, the court has generally been lethargic when it comes to keeping the other branches of government in check, even when it comes to the rights of Japanese citizens. It was thus inconceivable (to me at least) that the court would ever do something so radical — not to mention fiscally significant — as to declare that foreign residents have a right to welfare in Japan. This does not mean local governments cannot continue to voluntarily recognize in non-Japanese taxpayers the privilege of accessing their welfare programs, but converting that into a defined, actionable, assertable right is another matter entirely!

This newspaper’s well-intentioned July 27 editorial declaring that the social safety net should be for all taxpayers is perfectly understandable — particularly given that the petitioner was an elderly Chinese who was born and spent her whole life here. Unfortunately, it is a mistake to equate feeding the maw of whatever tax-fueled Leviathan nation state you happen to live in with being entitled to anything from it in return. This is particularly true in Japan, where by law it is generally more important that one of your parents be Japanese than where you were born, raised or paid taxes. After all, being a dutiful taxpayer alone won’t get your visa renewed or keep you from getting kicked out of the country; why should it get you a welfare payment either?

Thus, if you live here on a foreign passport, you might want to snuggle up in a comfy chair and read through the Immigration Control and Refugee Recognition Act, since for most purposes, that is your constitution. Having its roots in an Occupation-era decree modeled after U.S. immigration laws then in effect (missing some important features, as will be discussed later), the ICRRA did not become a “law” until 1982, when it was amended in connection with Japan’s accession to the U.N. Convention Relating to the Status of Refugees. I say it is your constitution because in 1978, the Supreme Court acknowledged that most constitutional protections did extend to foreigners, but only within the framework of the immigration laws and regulations, including the broad administrative discretion granted by these to Ministry of Justice officials.

So, you can pay your taxes, participate in that anti-nuclear demonstration and maybe even have a run-in or two with the cops, but at the end of the day your ability to live in Japan may ultimately be at the discretion of a bureaucrat’s view of some of the very subjective standards set forth in the immigration laws and regulations, such as whether you have been “good” or “engaged in the activities related to your residence status.” In my experience bureaucrats are generally nice, and most of the time it is probably more work for them to kick you out than to let you stay, particularly if you have a Japanese spouse and/or children. But it is probably safer to assume that you do not have any right to be in Japan; that being the case, assumptions about rights to welfare or just about anything else would seem equally suspect.

It is worth bearing in mind that Japan’s Korean population was divested of its Japanese nationality by nothing more than a Ministry of Justice interpretation of the 1952 peace treaty — an interpretation that paid little heed to what effect that would have on the people effectively rendered stateless as a result. That was a different era, of course, but if push comes to shove in any dispute with the government, it is probably safe to expect that you will lose, and nothing in the Constitution will likely affect that outcome.

This should be obvious to anyone familiar with Japan’s system of immigration detention and deportation, which exists in an parallel dimension where due-process requirements and the constitutional protections against arrest, detention and punishment do not apply, because the deprivations of freedom and deportations are not punitive and the administrative process by which cases are resolved are not “trials.”

An Occupation-era ordinance that would have established a system of oversight through separate quasi-judicial commissions was never put into force, leaving the whole process comfortably within the control of the Ministry of Justice. In any case, by the logic of the Supreme Court decision mentioned above, those who are not in the country in accordance with the ICRRA may not be entitled to constitutional protections anyway.

So again, nothing about the Supreme Court’s decision surprised me. In fact, I found it depressing for a different reason. According to the lower court, the 82-year-old Chinese plaintiff was not penniless; she was married and had money in the bank and income-producing property. Unfortunately, her husband also had dementia, for which he was hospitalized. His younger brother moved into the house and was physically abusive and seized control of the bank books and hanko seals.

Driven from her home, she lacked the resources to do things such as have herself declared her husband’s legal guardian, which would have required her to pay someone to evaluate his mental state. Applying for welfare may have been the only way for her to protect her inalienable rights to marital property and spousal support payments.

Yet where were the police and other tax-funded institutions that should have been there to help regardless of her nationality, simply because she was being subject to violence and the wrongful deprivation of her property rights? If anything, the case points to a much broader failure of the social safety net — one that potentially affects everybody.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. Law of the Land usually appears in print on the second Thursday Community Page of the month. Just Be Cause will appear next week. Your comments and ideas: community@japantimes.co.jp

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