Ms. Chong Hyang Gyun, a second-generation South Korean resident who is a public-health nurse for the Tokyo Metropolitan Government, has been fighting a legal battle the past decade to take up a managerial post. The 54-year-old civil servant has argued that the metro government’s rejection of her request to take a screening test that could qualify her for promotion — on the grounds that she does not have Japanese nationality — violated the constitutional principle of equality. In a final ruling Wednesday, the Supreme Court supported the government’s action, saying it is “based on rational grounds.”
This is the first time that the Supreme Court has made a decision on the right of foreign residents to assume public positions in Japan. The 15-justice Grand Bench voted 13-2 against the health worker. Ms. Chong filed the suit in 1994 after the metropolitan government turned down her request to take an exam for a managerial post.
The ruling has tremendous significance. Since day-to-day services provided by local governments directly affect the lives of local residents, many Japanese naturally would have misgivings about foreigners assuming responsible positions in local administrations. But what about foreign residents who, like Ms. Chong, enjoy the special legal status of permanent residency in Japan?
Ms. Chong, who was born to a Korean father and Japanese mother, has lived here long enough to speak Japanese fluently and understand Japanese culture well. She also has experience and expertise as a public-health nurse. Promoting such talented long-term foreign employees should serve the public interest. Applying the “nationality ban” across the board, without regard to job specifications, is not realistic.
The Supreme Court ruling has two salient features. First, it gives special consideration to a group of managerial local-government civil servants who “perform acts involving the exercise of public authority, such as directly forming residents’ rights and obligations and defining the scope thereof, or make decisions concerning major local-government measures, or participate in such decisions.”
The ruling states that, in principle, these local-government employees are assumed to be Japanese nationals since Japan’s sovereign power rests with the Japanese people. It defends Tokyo’s screening system — which excludes foreign nationals — as a rational one that assumes that those selected for promotion will sooner or later take positions involving the exercise of public authority or the performance of other important public duties and responsibilities.
The statement could be taken to mean that foreign residents wishing to hold important civil-service jobs in Japan must first get Japanese nationality. The Supreme Court would have done a better job if it had addressed problems involved in the Tokyo system, per se, instead of defending it as a matter of course.
The ruling, however, does not shut the door shut to all foreign appointments. It skirts the “legally valid” view of the Cabinet Legislative Bureau, announced in 1953, that civil servants who exercise public authority or participate in the making of public decisions must be Japanese nationals. This is the second feature of the ruling.
That view is no longer valid. Today, especially in communities where many foreigners live, public policy needs to be administered in ways that also reflect their wishes or activities. In fact, city halls in places such as Kobe and Kawasaki have hired increasing numbers of foreign residents in recent years.
The Supreme Court decision, it should be noted, does not rule out foreign employment in the civil service. It supports Tokyo’s position only insofar as barring foreign nationals from managerial appointments. In other words, it leaves the door open for employment in nonmanagerial positions.
With Japanese society aging rapidly, demand for administrative services in areas such as health care, nursing and welfare is bound to increase. Given labor shortages in these areas, treatment for South Korean residents and other permanent foreign residents should be considered more positively.
Since the Health, Labor and Welfare Ministry is moving toward expanding employment of foreign technicians and specialists, such as Philippine nurses, one wonders whether such foreigners will be willing to work in a country where appointments or promotions to managerial positions are effectively closed.
It is time for Japan to adopt a unified employment policy for foreigners. The nation’s challenge is to make better use of talented people, Japanese or non-Japanese. It will be unfortunate if the Supreme Court ruling ends up discouraging prospective long-term foreign residents.
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