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News photo
Chong Hyang Gyun

The key issue in the top court’s 15-justice Grand Bench deliberations was whether there are reasonable grounds under the Constitution to justify the metro government’s treatment of Chong Hyang Gyun, a 54-year-old public health nurse, regarding promotion because of her lack of Japanese nationality.
In her lawsuit, Chong, a second-generation South Korean resident born to a Korean father and Japanese mother, argued that the metro government’s stance violates the constitutional principle of equality before the law and freedom to choose one’s occupation.
The bench voted 13-2 in determining that the metro government did not violate the Constitution by rejecting her request to take the exam.
The majority of the justices said that some local government-level civil servants are entrusted with tasks that involve the exercise of public authority, and that in doing so their actions greatly affect the lives of residents.
“Based on the – principle of national sovereignty and in view of the fact that the people should in the end be responsible for how the central and local governments govern, (the Constitution) should be viewed as presuming that Japanese nationals in principle will assume local civil service positions” that require the exercise of public authority, they stated.

It is the first Supreme Court ruling on promotion discrimination based on nationality.

The decision, handed down by presiding Supreme Court Chief Justice Akira Machida, is likely to affect other local governments’ policies on the promotion of employees with foreign nationalities, who still face hurdles due to a government policy requiring Japanese citizenship for civil servants in areas of public authority.

Justice Tokuji Izumi and Justice Shigeo Takii opposed the majority decision, saying the metropolitan government’s decision was not rational.

Izumi noted that the state has not set any limits on the jobs that foreigners with special permanent resident status can hold, nor has it restricted them from becoming local-government employees.

“They have the right to choose freely their occupation under . . . the Constitution, and a rational reason is needed if their holding local public service positions is to be restricted,” he said.

Takii agreed that authorities are entitled to choose Japanese nationals only to hold certain civil service positions, but argued it was necessary to provide good reasons for those decisions.

“The Tokyo Metropolitan Government unilaterally banned foreigners from all managerial positions,” he said. “In a local government such as the Tokyo Metropolitan Government, where many people engage in a diverse range of tasks, there is no rational reason for having all managerial positions filled by Japanese nationals, regardless of the nature of the job.”

At a news conference after the ruling, Chong said “laughter came before tears” when she heard the verdict.

“The Supreme Court has no idea of what postwar democracy is,” she said. “I want to tell everyone in the world not to come to Japan. Working in Japan as a foreigner is the same as becoming a robot that pays taxes.”

Chong was hired in 1988 and became the metro government’s first foreign public health nurse after the central government abolished in 1986 a regulation qualifying only Japanese nationals as public health nurses. She was promoted to chief level in 1992.

Having fulfilled all the requirements needed to move to a higher position, including the number of years on the job, she applied to take the exam for promotion to the managerial level in March 1994.

But the metro government refused her application, saying “Japanese nationality is necessary for positions which are linked to the exercise of public power.”

In September 1994, she filed a lawsuit against her employer, seeking the right to take the management exam, as well as 2 million yen in damages.

The decision to bar her was based on a central government policy on foreigners in the civil service issued in 1953.

It says Japanese citizenship is necessary to work in a civil service position — national or local — that involves exercising public authority or “formulating of the thought of the state.”

Based on the 1953 policy, the Tokyo District Court dismissed Chong’s suit in 1996, saying the restriction was legitimate as the Constitution did not guarantee foreigners the right to be promoted to public offices where public authority is exercised.

The district court said at the same time that foreigners were barred only from posts “directly” concerned with the exercise of public authority and that the ban did not cover positions in which a person “indirectly” exercised public authority, such as in supplemental and technical jobs.

But in November 1997, the Tokyo High Court ruled in Chong’s favor, saying the move to uniformly bar her from taking the exam was unconstitutional as there were administrative posts open to foreigners depending on the job’s nature and the authority exercised.

The high court ruled that the decision to stop her from taking the test violated the constitutional principle of equality before the law and the freedom to choose one’s occupation, and ordered the metro government to pay her 400,000 yen in compensation.

Chong welcomed the high court’s decision, saying the metro government was upholding a standard based on an ambiguous position.

But her employer appealed the case, arguing the Constitution did not ensure foreigners the right to be promoted to positions of public duty, and as such, it was not a constitutional right.

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