Think you’ve got rights as a foreigner in Japan? Well, it’s complicated

If you imagine paying taxes in Japan entitles you to welfare, you may want to take a seat


“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

  • ARUDOU Debito

    Excellent, excellent article. Well worth bumping my column to next week :)

    • Jamie Bakeridge

      To be fair Debito, most articles are worth bumping your column to “next week”…

  • Ron NJ

    I had hoped that you were going to explain the issue with the constitution in more detail – the fact that now that the Supreme Court has again clarified that kokumin means ‘Japanese citizen’, that so many rights believed to be universal (equality, freedom from sexual/racial/religious discrimination, etc) are clearly only held by Japanese citizens, and that any non-citizen’s ability to enjoy those rights (or not) is down to of the whims of whatever entity is wielding power over you at any given moment in time. Then there’s the other issue – with the overuse of the word ‘kokumin’, how many of the individual sections of the constitution are reasonably even applicable to non-citizens from a legal standpoint rather than case-by-case/bureaucratic whims/”well the Supreme Court kiiiinda said it’s applicable to non-citizens but who knows in reality?” basis? Articles 16, 17, and 18, for example, use the wording “何人も” when referring to “all people”, so the choice to only confer basic rights upon Japanese citizens is very obviously deliberate – it shouldn’t be too hard if someone (not it!) were to just go through the constitution and pick out a list of articles that are applicable. I’ll point out right off the bat that articles 11-14 (the sections on basic rights) don’t apply to non-citizens.

    At any rate, though you didn’t really go down that road as much as I had expected, like so many of your other articles, it was a well-written and insightful read, so it’s hard to complain. Looking forward to the next one!

    • zer0_0zor0

      I think it has something to do with the legal difference between entitlements (rights) and benefits (discretionary) provided by the government.

      If I’m not mistaken, the term used in Japanese legal parlance to describe a benefit as opposed to an entitlement is “反射的利益”, and is derived from the German legal system.

  • Sasori

    Who wants to wait around for Abe to knoodle around this subject?

  • Jamie Bakeridge

    Good article. I get the impression you know more about this subject but have felt the need to simplify it for your audience. Don’t. There are a plethora of over simplistic articles in the JT – hearing a clear academic view on an issue of importance to the foreign community would be great. Also, drop the folksy style – have a read of the Economist – copy that style. You are in danger of becoming a serious contributor with your well researched articles. This will help you to stand out from other contributors and particularly journalists at the JT who can focus on fueling the interminable English language teaching in Japan monosyllabic “debate”.

  • 2eRep

    Japan does not need a leech class of useless foreigners, whether they be chinese,african or mexican. Let them practice diversity in their own countries.

    • ChuckRamone

      This applies to all foreigners, not just the three groups you listed.

  • Tim Johnston

    Foreigners definitely don’t have equal rights. Just look at all the children abducted to Japan. The Japanese government and it’s mediation courts are an utter joke. The Foreigners will continue to be brushed aside. Many pay into the pension system or have it automatically deducted form their monthly checks. Do you think you will really see that money someday??

    It’s 2014 but in Japan it’s still as if nothing has ever changed, except for technology and the puppet politicians who promise, smile and give you a deep bow and say empty promises.
    Believe in yourself and pray someday japan will join the Global Arena.

    Tim Johnston Japan

    • Really? So even after all this time of paying taxes and to the welfare systerm, wen you finally retire you won’t be recieving anything as a foriegner with a Japanese citizenship?

      • tommy92

        Foreigners living in Japan as permanent residents get a pension if they paid into the system for a minimum of 25 years (same for Japanese citizens).

        He is suggesting the rules will be changed someday to cancel this ability for foreigners.

  • sighclops

    Hang on… my crazy ex-fiance forced me into the National Pension Plan, and I have since learnt that once you’re in – there’s no getting out of it. I am therefore required to pay ¥15,000 a month towards this against my will!

    Does this mean I am not entitled to welfare if I choose to stay in Japan? What am I paying for then?!

    • tommy92

      Pension and welfare are different things.

  • Kael’thas

    I don’t see the problem with the country’s welfare restricted to Japanese citizens only. Why would a country’s welfare be enjoyed by non-citizens? In Japan, citizenship is limited to those of Japanese descent, or those who successfully went through the complicated process of naturalization (including taking on a Japanese name), so citizenship would then equal to being Japanese. In any Western countries, will you find welfare being available to non-citizens?

    • Greg Tong

      Yes welfare payments are available to landed immigrants in Canada who are non-citizens.
      If you pay taxes, you should be entitled to some government benefits especially if you grew up and have paid taxes in the country for most of your adult life.

    • tommy92

      Agree. I don’t really see the need for foreigners to have equal access to all social programs in any country.

      Get citizenship if you plan to stay in the country (any country) for the rest of your life, then you will have full access to all programs. Citizenship in Japan requires 5 years residency (comparable to many other countries) and a good command of the language (a reasonable requirement).

      In the case of Japan, foreigners still have access to unemployment insurance, health care and other services provided by the state.

  • Max Hodges

    >You’ve reached your story limit as a non-registered user.
    Thank god.