“We the kokumin”: the Constitution, International Law and the Rights of Foreigners in Japan

Abstract

The Public Assistance Act 1950 empowers and requires Japanese local authorities to distribute public assistance payments to “kokumin” (citizens) in financial need. A 1954 Notice from the Japanese Ministry of Health instructs local authorities to provide de facto public assistance payments to foreigners on an equal footing as Japanese citizens. In a recent decision, the Supreme Court of Japan overturned an appellate ruling by the Fukuoka High Court which had concluded that the 1954 Notice, combined with Japan’s ratification of the Convention relating to the Status of Refugees, had given foreign nationals a litigable legal entitlement to public assistance payments equal to that of a Japanese national. In denying this, the Supreme Court insisted on adherence to the textual language of the Act itself and regarded the 1954 Notice as a mere administrative practice statement, incapable of true legal reform. In holding that the word “kokumin” necessarily excludes foreign residents of Japan, the Supreme Court has obliquely shown that another crucial Japanese legal document that bestows rights on the “kokumin” – namely the Constitution of Japan – likewise strictly excludes foreign nationals. Although the Supreme Court decision will probably have only limited effects on the foreigner population in terms of social welfare provision, the notion that the text of the Constitution makes no provision for the human rights of foreign nationals in Japan, such as rights against discrimination, is a major cause for concern.

       An examination of the immediate legal history of both the Public Assistance Act 1950 and the Constitution of Japan itself (particularly the process of constitutional drafting in the immediate wake of the Second World War) shows the exclusion of foreigners from both documents to have been a conscious eviction of non-Japanese nationals from the State’s protection. The Supreme Court decision shows that even now some Japanese legal texts are haunted by old, nationalistic sentiments that have never been properly exorcised. The Constitution’s exclusion of foreign nationals is particularly worrying in light of Japan’s continued lack of comprehensive anti-discrimination legislation. The fact that the Public Assistance Act discriminates against foreign nationals and Japan’s lack of adequate protection against discrimination on the grounds of race or nationality place Japan in probable breach of several international legal obligations, such as those under the 1969 International Convention on the Elimination of All Forms of Racial Discrimination. It appears unlikely that the Japanese courts will innovate to the level required to patch the gaps left by the lack of constitutional or statutory anti-discrimination protection, meaning that both the expansion of legal entitlement to public assistance payments and legally enforceable equality rights can only be provided by legislative reform. This would require enormous political will and is an unlikely prospect in the immediate future. Japan will therefore probably continue to receive criticism from international bodies and human rights commentators.