if doubts still remain
. . . about how Japanese society is founded on dangerously schizoid ways of reasoning which actively encourage xenophobia, discrimination and the exclusion of foreigners from essential aspects of civil life, then just have a close look at its Fundamental Law — and at this perceptive reading by legal scholar Colin P. A. Jones.
I feel less certain, however, about the irony of the final Rousseauian note of optimism:
The fact that many of us expats are still here nonetheless may thus be because of the inherent kindness of the Japanese people rather than any high expectations of their government. At the end of the day, perhaps that is what popular sovereignty is all about.
As usual, it might be interesting to follow the discussion on Arudou Debito’s blog.
Schizophrenic Constitution leaves foreigners’ rights mired in confusion
By COLIN P. A. JONES
The Japan Times, 1 Nov. 2011Pop quiz: Who live in palatial homes in fashionable Tokyo neighborhoods but are subject to various forms of discrimination, have no family registry, can’t vote and have limited constitutional rights?
Answer: the Imperial Family. For those of you who responded “expat bankers,” I will grudgingly give you a pass. Both answers are correct, and for essentially the same reason at that.
[. . .]
The constitutional principle of popular sovereignty is one of the reasons why non-Japanese will probably never be able to vote in Diet elections. Not having sovereignty, they are not entitled to participate in its exercise through elected representatives in the national legislature.
There is a better argument for allowing them to vote in local elections, since Article 93 of the Constitution says that local governments must be “elected by direct popular vote within their several communities.” This could be read as including long-term foreign residents among the enfranchised. In 1995, however, the Supreme Court rejected such an interpretation even in the case of Koreans born and raised in Japan. In so ruling, the court did allow for the possibility of non-Japanese voting in local elections if authorized by national legislation (so all you have to do is lobby your Diet member to . . . oh, wait).
If it is any consolation, members of the Imperial Family do not get to vote either, for essentially the same reason: lack of sovereignty. In fact, there are interesting academic debates over whether they are even eligible for other rights provided by the Constitution.
Of course, the real Pandora’s box of constitutional paradoxes involves the rights of non-Japanese rather than the Emperor. The first paradox is presented by Chapter 3 of the charter, which in Japanese is titled “Rights and Duties of the Japanese People.” The clear linkage of rights to citizenship is missing from the official English version; to read it properly, you need to understand that where it says “the people,” the Japanese term used is kokumin, which clearly refers to Japanese nationals. In some places the term used is “person,” which lacks any nuances of citizenship, but it still appears in a chapter whose title appears to limit all rights to citizens.
This subtle but important discrepancy is the result of what historian John Dower calls “language games” on the part of the Japanese government team when it rendered the Americans’ English draft into Japanese. This form of passive resistance, together with another modification that the Americans inexplicably accepted (the elimination of “nationality” as a prohibited category of discrimination under the equal protection provisions of Article 14), has resulted in a Constitution that seems schizophrenic insofar as it speaks of defining equality and “fundamental human rights” as being conditioned on nationality rather than being human. [my emphasis]
Granted, the Japanese were understandably trying to avoid being foisted with a charter that on its face might have entitled anyone just getting off a plane to demand the right to vote, but the result is a Constitution that is extremely vague as to the rights of non-Japanese, even those born and raised in the country.
So what rights do foreign residents have under the Constitution? Well, according to the Supreme Court, they are entitled to all the same rights as Japanese people, except for those which by their nature are only to be enjoyed by Japanese people. [my emphasis] Does that help?
[Read full article here.]
