Issues | LAW OF THE LAND

Japan’s Constitution won’t protect revolting foreigners

by Colin P.A. Jones

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

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