The JCLU held a seminar in Shonan, Kanagawa, on October 5 - 6, 1996. Professor Hiroshi Tanaka, also JCLU board member, gave a speech concerning human rights and Japan's policy on foreigners.
Recently, legal magazines such as Horitsu Jiho and Jurists featured the 50th anniversary of Japanese Constitution as a special issue. While they elaborate on Constitutional arguments based on various specific cases, discussions on human rights of foreigners in Japan are entirely lacking.
The ban on nationality-based discrimination was issued as early as in 194* through SCAPIN (one of the memoranda issued by the Supreme Commander for the Allied Powers to the Japanese government) No. 360. It ordered the Japanese government to abolish the practice of nationality-based discrimination in employment and other labor policies. A chronology of the government managed pension insurance for corporate employees shows that its nationality clause concerning the recipients was deleted due to SCAPIN 360. SCAPIN 360 also contributed to formulating Article 3 of the Labor Standard Law and the Employment Security Law which provide equal treatment for foreigners.
However, Article 9 of the Military Pension Law stipulates disqualification upon losing Japanese nationality. This article may contradict SCAPIN 360, which prohibits any nationality discrimination against all workers under government projects or private corporations. Why did a nationality clause remain in the Military Pension Law while it was deleted from stipulations concerning private corporations? Furthermore, nationality clause of the Military Pension Law has assimilated into all laws concerning aids for war victims, causing enormous problems to this day.
Having realized the needs to eliminate discrimination and prejudice against Koreans in Japanese society, the Occupation Forces put in Article 16 of the MacArthur draft constitution that "Aliens shall be entitled to the equal protection of law." The first revision by the Japanese board, although modified in more Japanese ways, still retained equal protection of foreign nationals: "all natural people are, irrespective of being a Japanese national or not, equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status, family origin, or nationality. " However, the draft was finalized into the present Article 14, deleting "4irrespective..." and "nationality."
Article 25 of the Constitution provides a basis for social security. In practice, "(A)ll people" in this Article appears to designate only those who hold Japanese nationality. On the other hand, the duty of the "people" to pay taxes provided in Article 30 has been applied to "residents" in Japan.
Textbooks of the Constitution say that social rights are to be guaranteed by a state of nationality. However, they do not hold the exclusion of the Child Allowance Law to Japanese children abroad unconstitutional. Consequently, "the social rights that are guaranteed by a state of nationality" is employed to exclude foreigners, and disregard Japanese who do not live in Japan.
Out of all the social security mechanisms, employees' health insurance is the only system that is applicable to foreigners both in legal provisions and in practice. However, in reality, Korean nationals face enormous difficulties when trying to find employment at companies that can afford the health insurance system. The occupation government lifted the exclusion of foreigners from pensions for employees. However, after Japan restored its sovereignty, it once again excluded foreigners from the new national pension law. The law has come to include foreigners only after Japan reluctantly participated in the Refugee Convention in 1978, when it was urged by the climate of international community. Only international pressure can mobilize Japanese legal system to improve its treatment of foreigners.
In fact, drastic changes have taken place only after Japan participated in the Refugee Convention and International Covenants of Human Rights. In order to conform with these international instruments, nationality clause was entirely lifted from laws concerning public housing and social security. Before such incentives had been introduced, no arguments came forth to rectify an irrational structure where taxes are collected from foreigners but entirely exclude them upon distribution. It was the arrival of refugees that induced drastic changes. Maybe the legislators are not motivated by legal justice but by what they think as "mercy."
The Law for Relief to Invalids and the War-Bereaved (1952) was enacted after the effectuation of the San Francisco Peace Treaty. This is the first social security law that was enacted after Japan regained sovereignty, and it has caused problems for the following decades, until today. At the time this law was effectuated, April 1, Japanese nationality was valid for nationals from former colonies. Since it was impossible to exclude them by a "nationality clause," the law deliberately stipulated a retroactive effect and employed the Census Registration Law of 1947. Appendix 2 of this relief law states that those to whom the Census Registration Law is not applicable will be suspended from the application of this law. Applicability of former colony nationals to state compensation was therefore shuttered. Shortly after, on April 28, Japanese nationality of the Koreans was made void. Thereafter, a series of postwar compensation laws were made and directed to Japanese people only. A simple nationality clause made it possible.
Regarding penal execution, the Japanese government promised in Article 11 of the San Francisco Peace Treaty to succeed the execution of sentences delivered to "Japanese" war criminals. War criminals of former colonies requested an elucidation with the Tokyo District Court, based on the Habeas Corps Law, claiming that they should be free from this provision as it concerns only the "Japanese" people. The case was brought straight to the Supreme Court, which rejected their claim by ruling that changes in nationality did not affect the penal execution by a state to which the person's nationality belonged at the time of the judgement.
Article 9 of the Military Pension Law stipulates disqualification of certain criminals and those who lost Japanese nationality. Regarding the former, the government continues to pay pension for those who were convicted as war criminals, on the basis that there is no applicable domestic law to disqualify "war criminals." However, the government did not dare to find a basis in domestic law to nullify the nationality of former Japanese. It swiftly employed international law, Article 2 of the San Francisco Peace Treaty, as a basis to deny their applicability to this domestic Military Pension Law.
The biggest issue of Japan's postwar compensation is the double standard employed for Japanese people and foreigners. It has been fifty years since the last war, and the Japanese government still pays to bereaved families of officers and soldiers. Recently the government featured an ad on a newspaper that it will make a payment of 400,000 yen in national bond to a certain category of the war-bereaved. On the contrary, the government cannot pay, for example, to former "comfort women". While making domestic payments for decades, the government insists that those payments to foreign nationals have terminated completely.
As the Law for the Medical Treatment, Etc., of Atomic Bomb Victims does not have a nationality clause, there is a united movement among Japanese and Korean people. The initial incident for this unity was a case of one Korean survivor. He was victimized in Hiroshima and returned to South Korea after the war. He travelled illegally to Japan for medical treatment and was arrested. He won on all claims at the District Court, High Court, and the Supreme Court. The Supreme Court ruled that, since there is no nationality clause in the Law for the Medical Treatment, Etc., of Atomic Bomb Victims, it should be applied to everyone in the country even if the person is an illegal traveler. The case opened ways for Korean survivors to have treatment in Japan by travelling on a tourist visa. Later, the Japanese government paid four billion yen for treatment of survivors in South Korea.
In 1995, the government implemented special condolence payment of 100,000 yen to Japanese victims who were killed by Atomic bombs or by related diseases. Equivalent measures should be considered for Korean parties to rectify unequal payment to Korean survivors.
The Administrative Appeal Law and the Administrative Procedure Law entirely lack provisions concerning immigration and naturalization. However, commentaries of the Administrative Procedure Law generally state that "people" in this law denote those who are involved in the administrative procedure and not restricted to those of Japanese nationality. Why, then, do these laws dismiss such issues as immigration of foreigners, visa extension, etc ?
Regarding naturalization, the government used to publicize every fiscal year the number of application, recognition, rejection, and pending application. Today, however, they publicize only the number of those who were recognized. Conditions required for naturalization are rather ambiguous, such as upright conduct or capability of independent living. They should be revised so that the guideline is more transparent and specific by, for example, setting the minimum range of income.
Conditions for Japanese nationality should also be revised. The Civil Code recognizes a retroactive effect by the acknowledgment of fatherhood. However, under the Nationality Law, a child with foreign nationality is no longer entitled to Japanese nationality even when a Japanese man acknowledges himself be his/her father.