Citizens and Strangers

Part 2: Keigo Komamura -- on the Recent Japanese Supreme Court Decision and Its Implications on Japan's Immigration Policy

Interviewed by: Naruhito Cho (Meridian 180)     Posted on: September 26, 2014

Keigo Komamura is currently the Vice President and Professor of Law at the Keio University in Tokyo, Japan. He has written extensively on Japanese Constitutional Law and is actively involved in public and academic discourse on constitutional reform in Japan. Since 2010, he is a Member of the Advisory Council for Constitutional Revision Research Project at the Reischauer Institute of Japanese Studies at Harvard University.

Professor Komamura, thank you for taking the time out to participate in this interview. We would like to ask you to give your analysis of the recent Japanese Supreme Court case and its potential impact on the lives of Special Permanent Residents in Japan. We would also like to solicit your opinion on how current notions of "rights" and "citizenship" in Japan may need to change if the country is to welcome more immigrants to respond to its declining population.

1. The Japanese Supreme Court ruled that “non-citizens are not subject to the protection offered by the Public Assistance Act. What was the court’s reasoning?

First of all, we need to accurately understand the scope of the court’s decision. This ruling deals with Articles 1 and 2 of the Public Assistance Act which respectively set forth that:

  • “the purpose of this Act is for the State to guarantee a minimum standard of living as well as to promote self-support for all citizens who are in living in poverty by providing the necessary public assistance according to the level of poverty, based on the principles prescribed in Article 25 of the Constitution of Japan” ; and
  • All citizens may receive public assistance under this Act in a nondiscriminatory and equal manner as long as they satisfy the requirements prescribed by this Act.”

[Following the language of the statute], the court ruled that non-citizens, including permanent residents, do not have the right to receive public assistance because the statute refers only to “citizens.”

Considering how the statute is written, non-citizens are obviously not within the scope of this Act. So in terms of statutory interpretation of the Act, the court’s decision is completely logical.

Secondly, the court’s ruling follows the official interpretation of the Public Assistance Act the Japanese government issued around the time the Act went into effect. So it is not a particularly new interpretation. In addition, non-citizens have de facto been receiving Public Assistance for a long time through administrative measures. While the court did rule that non-citizens are not subject to the assistance provided by the Act, their ruling merely states that the Act does not protect non-citizens. The court did not rule that those administrative measures to de facto provide assistance to non-citizens violate the Public Assistance Act.

[This is apparent from the] sentence prior to what you quoted: “Non-citizens may be de facto subject to public assistance through administrative measures based on notices and other orders issued by the [appropriate] administrative agency. [However,] that is the extent of their [access to] assistance. They are not subject to assistance under the Public Assistance Act, and therefore do not have the right to receive one.”

In other words, the court is suggesting (albeit indirectly) that although the law limits the recipient of Public Assistance to citizens, the government is not violating the law by de facto providing Public Assistance to non-citizens – [they deemed such practice] as a matter of political decision and not a matter of legal rights of non-citizens.

Third, I would now like to share the historical facts you need to understand this ruling accurately.

After the Japanese Constitution came into effect in 1947, the government enacted the Public Assistance Act to uphold the right to life as set forth in Article 25 -- “all people shall have the right to maintain the minimum standards of wholesome and cultured living.” As you can see, the limitation of the scope of the Public Assistance Act’s to “citizens” agrees with the language of the Constitution.*

The Public Assistance Act was enacted in May of 1950. In less than a month, on June 18, 1950, the Ministry of Health issued a “Notice on Handling Non-Citizens With Regards to the Public Assistance Act” which set forth that “applying this Act mutatis mutandis to protect, for a certain period of time, [non-citizens in general], so long as it is socially and humanely in appropriate to leave them without protection and public or private means of relief is unavailable to them, is allowed.” (A “notice” is an internal rule issued by the administrative agencies to establish a uniform interpretation of the law).

Subsequently, on May 8, 1954, the Ministry of Health issued “Notice Regarding Providing Public Assistance to Non-Citizens in Hardship” and stated that non-citizens “shall be offered assistance as deemed necessary . . . following the same standards used to determine the issuance of Public Assistance to citizens.” This notice got rid of some of the requirements set forth in the 1950 notice and thus allowed non-citizens to receive Public Assistance based on the same standards used to determine its eligibility for Japanese citizens.

As you can see, since around the time the Act came into effect, administrative agencies have been implementing this strange [roundabout] arrangement of applying the law mutatis mutandis to de facto protect [the welfare] of non-citizens who were not included in the scope of this Act.

My fourth point though, is that this does not indicate that the Japanese government has generally been open to [the needs of] non-citizens. After all, the Act does not mention non-citizens to begin with. There was also the following sequence of events.

On May 2, 1947, three years before the abovementioned notice, the Japanese government issued it’s last executive order concerning its post-war procedures. This notice stated that Taiwanese and Koreans “will be deemed as non-citizens for the time being.” The Taiwanese and Koreans mentioned in this notice refers to those [living in Japan who are originally from] the former colonies of Imperial Japan. When Japan lost the war and lost control over its colonies, the citizenship status of those “Japanese Nationals” who lived in Japan became an issue. This notice, therefore, reflects the Imperial Government’s decision to treat them as non-citizens. And when Japan signed the San Francisco Peace Treaty in 1951, those [who migrated to Japan] from the former colonial territories had their Japanese citizenship taken away. The 1954 notice mentioned above was issued in relation to these sequences of events. Although the Public Assistance Act, enacted under such context, limited its beneficiaries to Japanese citizens, [the government] probably was not able to simply ignore the many Koreans in Japan solely on the basis of the fact that they were suddenly no longer “citizens.” I think it is in this historical context that the practice of de facto providing Public Assistance to “non-citizens” through administrative measures emerged. There were some subsequent series of events, and now the receipt of Public Assistance is limited to permanent residents.

So what is the problem?

I think the problem is the difference in how the Supreme Court and the Fukuoka High Court approached this issue. The practice of providing Public Assistance to non-citizens has continued for 60 years. During this time, Japan signed various human rights treaties, including those concerning the status of refugees. The Fukuoka High Court emphasized the accumulation of these [historical] practices and determined that there was some sort of “right” attached to the Act. The Supreme Court’s reasoning, on the other hand, was something like this; “the law was never amended after all, so we cannot say that non-citizens have the legal right to receive Public Assistance. However, we cannot ignore the long-standing practice, so we will allow administrative agencies to [continue] providing Public Assistance to non-citizens.”

This detached ruling by the Supreme Court does not provide any suggestions for future legal reforms. We can only hope that a [social] movement to expand Public Assistance to non-citizens (permanent residents) will eventually convince the legislature to change the law.

2. How will this decision affect administrative practices and law suits by permanent residents concerning their eligibility for Public Assistance?

As I mentioned earlier, permanent residents will continue to receive Public Assistance. Administrative practices will not change. However, because the Supreme Court ruled that the receipt of Public Assistance is not a legal right but a de facto interest, permanent residents will not be able to file a complaint if they are denied access or they are not satisfied with the amount of assistance provided.

It is possible that non-citizens, permanent residents or otherwise, will use Article 25 of the Constitution to claim that the current Public Assistance Act is unconstitutional. However, I don’t think Article 25 is going to help their case.

3. What is the recent trend in legal framework and/or statutory interpretation approach used to understand “citizens” and “rights” as prescribed by the Japanese Constitution and statutes derived from it?

This is a difficult question and not an easy one to provide a short answer. Perhaps we can discuss this issue some other time. However, one thing I can say is that the Supreme Court recently has been more willing to find [laws and/or government action to be] unconstitutional. They also seem to be leaning towards making some tough demands to the legislature as well. So on this point, and on this point alone, we can say that a new way of thinking is undoubtedly beginning to emerge in the Supreme Court.

4. Will this decision affect other “rights” of “citizens” (such as the right to vote in local elections)?

This ruling deals only with the interpretation of the Public Assistance Act. I do not think this ruling will affect other issues.

5. As you mentioned, many permanent residents have been receiving Public Assistance although they are not “citizens.” This is due to humanitarian reasons or to the historical contexts you discussed earlier. The plaintiff (the appellee) is an elderly woman born and raised in Japan who has never set foot on China where her citizenship rests, and cannot speak Chinese. Although not a “citizen,” she has fulfilled her obligations as a member of the Japanese society such as paying taxes. How should we think about the “social rights” and “the right to live” of permanent residents like the plaintiff, especially in light of the spirit of the Constitution?

Here is what I think.

The Public Assistance Act itself excludes foreigners. However, that does not mean that Japanese citizens are actually entitled to satisfactory assistance. Although technically a “right,” the right to life as set forth in Article 25 is not considered to be so legally binding. The Supreme Court in the past has always held that the “right to life” is more of a policy rather than a specific right. To be precise, the Court has held that “[Article 25] merely declares that the government has the responsibility to operate its national policies so that all citizens can maintain the minimum standards of wholesome and cultured living. It does not directly provide specific rights to individual citizens” (the 1957 Asahi Case). In short, receiving public assistance is not exactly a “right” for Japanese citizens either.

That said, although there are no actual differences in the standards used or the amount of the assistance provided between citizens and non-citizens, the law implies an attempt to distinguish the two. I think this is insulting to the dignity of non-citizens living in Japan. However, the Supreme Court, throughout its history, has always taken the approach of “prioritizing our own citizens” and “placing responsibility on the state where the [individual’s] citizenship rests.” Their reasoning is that it is common sense for states to prioritize their own citizens when providing welfare services. Non-citizens can request their home country for assistance.

I do not think this logic is something that we can deny outright. I don’t necessarily think of this as the product of a wealthy nation’s ego either. For example, suppose there is a despotic state where wealth is monopolized by the ruling minority and the government neglects to consider [the welfare] of their citizens. To maintain their current regime, that state can send their poor away to wealthier nations as illegal immigrants, and make them take care of their poor. In other words, I think that the basic principle of democratization is appropriately taking care of its own citizens’ [welfare].

However, when I think about Japan from this premise, I think permanent residents, especially the Special Permanent Residents (those who immigrated to Japan during the colonial days), should have the same standards of rights as Japanese citizens. I wrote about this in another article, but I’ll mention it briefly here too. The Special Permanent Residents became Imperial Citizens during the colonial period only to have their citizenship unilaterally revoked after the war. When the government revoked their citizenship in 1952, the Japanese Constitution had already been in effect. And Article 10 of the Constitution sets forth that “the conditions necessary for being a Japanese national shall be determined by law.” However, when Japan revoked their citizenship, all they did was issue a notice from the Department of Justice. The revocation was not due to an enactment of a law. I think this act by the government was grossly unconstitutional. [As a result,] although the Special Permanent Residents have been receiving public assistance, they do not have the right to vote, and, for a long time, they did not have the right to receive national pension (and many elderly Special Permanent Residents still do not receive national pension).

6. One of the debates in Japan right now revolves around accepting foreign workers as a solution to the declining birth rate. If Japan is to move forward with this immigration policy, we may need to rethink how we approach the “rights” and “social welfare” of those who are not Japanese “citizens.” How should we reconcile the current Public Assistance Act and the Constitution with the major changes Japan will most likely face in the future?

If we are to accept a large number of foreign workers into Japan, we need also to accept their families. When that happens, we will need to provide various health and educational services necessary for their children and spouses to live in Japan. Workers are human beings too, so we cannot conveniently ignore the “non-worker” aspect of their lives and ask them to just contribute to the Japanese economy. If we need foreign workers to support the economy, we need to accept their family life. Otherwise, they may be forced to do whatever it takes to protect themselves and their families’ well being. This may lead to social instability.

Therefore, we will need to treat them not simply as “workers” but as “citizens” in hopes that they will establish their lives in Japan, and eventually become a “Japanese national.” I think that is the healthy course of action.

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*In this interview [and in the official translation of the Japanese Constitution and the Public Assistance Act referenced here], the English words "people" and "citizens" are used interchangeably to mean Kokumin (nationals).

[Translations of] Japanese laws [and statutes] often do not distinguish between "people" and "citizens." Both terms are used as translation for the word Kokumin.

Although the English translations of the statute use the two words interchangeably, please kindly note that the original text of the Constitution and the Public Assistance Act both use the same term Kokumin -- Japanese national.