Subcommittee on Guarantee of Fundamental Human Rights (Second Meeting)

Thursday, March 14, 2002

Meeting Agenda

Matters concerning the guarantee of fundamental human rights

After a statement was heard from Prof. ANNEN Junji concerning the above matters, questions were put to him; this was followed by discussion among the members.

Informant

Members who put questions to Prof. ANNEN

Main points of Prof. ANNEN's statement

1. Introduction

>> The contents of the Constitution of Japan are quite standard among the constitutions of developed nations. This is because constitutions cannot vary greatly, as they have a limited role: to restrict the power of the State, guarantee the freedom of the people, establish a democratic political system, and so on. The Constitution of Japan is regarded as a special case not because of its contents, but because it is the subject of a debate in which public opinion is divided in two.

2. Human rights as natural law, and the guarantee of the human rights of foreign nationals

>> With regard to guaranteeing human rights, the view based on natural law holds that human rights are conferred on every human being as a birthright. In reality, however, discriminatory treatment of slaves, women, and colonized peoples was long accepted. On the level of law, such forms of discrimination have already been removed in the years since World War II.

>> In the process, guaranteeing the human rights of foreign nationals has remained an issue in all the developed nations. In reality, it is impossible to treat noncitizens with complete equality to citizens, but that reality cannot be explained by the principle that human rights derive from natural law, and this problem is not likely to be resolved in the future.

3. The human rights of foreign nationals: Agreement and conflict between legal decisions and theory

>> In the McLean case (1978), the Supreme Court ruled that: (a) the rights set forth in the Constitution are, as a general rule, recognized also for foreign nationals residing in Japan; (b) however, foreign nationals do not have a recognized right to enter the country, nor to stay or extend their stay; (c) as a result, the rights enjoyed by foreign nationals under the Constitution are granted only within the scope of the system for the sojourn of foreign nationals. On this point, the decision coincides with scholarly theory.

>> However, to claim that constitutional rights are recognized only within the scope of law is tantamount to denying the possession of constitutional rights, and the Court's decision thus conflicts with scholarly theory. In fact, the proper interpretation is that foreign nationals, insofar as they do not have a right to enter or stay in the country, do not possess rights under the Constitution.

4. Guarantee of the human rights of foreign nationals by law

>> Foreign nationals should be understood not to possess rights under the Constitution, as we have seen, and yet it is possible to treat foreign nationals equally with Japanese citizens under law. It is a question of the propriety of legislative policies. I believe that, as far as possible, the same rights should be recognized for foreign nationals as for Japanese.

>> Nationality is itself determined according to formal conditions prescribed by law, such as family descent or birth, and therefore even the status of the "Japanese people" who enjoy constitutional rights remains vague in the Constitution. For this reason, I believe it is undesirable to have marked disparities between the status of Japanese and foreign nationals.

5. The pros and cons of a constitutional amendment to specify the status of foreign nationals

>> Some people argue that the status of foreign nationals should be determined by a constitutional amendment, but any such provision would ultimately have to remain in the abstract, and its concrete substance would most likely be decided in courts. If the status of foreign nationals were established by legislation instead, that decision would be made by the Diet. I am opposed to adopting the method of a constitutional amendment, as I believe that it is better to leave the decision to elected representatives in the Diet than to judges who have qualified for the bench by passing examinations.

Main points of questions and comments to Prof. ANNEN

HANASHI Nobuyuki (Liberal Democratic Party)

>> If one holds, as you do, that "it is permissible to treat foreign nationals as being equal under the law to Japanese nationals," what should be the criteria for deciding the types and extent of human rights to be recognized by law?

>> With regard to voting rights for foreign permanent residents, I believe that the franchise is a right that should be granted only to citizens, and that foreign permanent residents should obtain Japanese nationality before exercising voting rights. How do you view this matter?

>> In one of your books, you write that "If the blessings of peace and prosperity that have been brought by the Constitution of Japan were ever to vanish like mist, the Constitution might simply be abandoned." What do you think should be done to ensure that the Constitution of Japan is not "abandoned" by the people?


KONNO Azuma (Democratic Party of Japan and Club of Independents)

>> In the current debate on the proposed set of laws governing national security, provisions establishing penalties for civilians, similar to those in the Disaster Relief Law, are being considered. What is your view of this move? Also, in the event of an emergency in areas surrounding Japan, a flood of refugees can be expected to arrive in this country. How should this situation be dealt with?

>> How do you regard the view that, in response to ongoing internationalization, we should change our Constitution to bring its contents into line with international treaties?


OTA Akihiro (New Komeito)

>> You take the position that "the Constitution does not guarantee voting rights for foreign nationals, but we are free either to recognize or not to recognize those rights as legislative policy." Which do you think is the appropriate policy decision, to recognize or not to recognize voting rights?

>> I think that we should recognize the right of foreign permanent residents to vote in local elections. As background factors, one can point to (a) realization of a multiethnic society, (b) the importance of human rights, and (c) promotion of decentralization. What are your views in this regard?

>> There are various ways of determining nationality, including family descent and place of birth. What position do you think Japan should adopt in future on determining nationality?


TAKEYAMA Yuriko (Liberal Party)

>> Due to globalization and other factors, Japan, like other nations, can expect an increasing number of problems relating to foreign nationals, a rising rate of international marriages, and so on. Having lived in the United States, I feel that, by comparison, Japan provides only a weak guarantee of the human rights of foreign nationals. How do you think they should be guaranteed in the future?

>> In future, with trends such as admitting more foreign workers, Japan too can expect an increase in heterogeneous social strata, that is, social strata of different ethnicity, religion, and so on. I believe that we need to provide education for increased awareness, with a basis in self-respect among the Japanese, in order to facilitate the acceptance of these strata. What are your views in this regard?


HARUNA Naoaki (Japanese Communist Party)

>> It seems that the accepted scholarly theory does not recognize the right of foreign nationals to enter or stay in Japan, but it is also argued that, from the viewpoint of expanding the guarantee of their human rights, we should guarantee the freedom of foreign nationals to reenter the country. What are your views on this?

>> On the question of voting rights for foreign permanent residents, you take the view that we should primarily consider encouraging them to seek naturalization. However, is not such a view inappropriate in view of the special historical situation of foreign permanent residents of Korean and other Asian ancestries, in particular, who were forced to settle in this country as a result of Japanese colonial rule?

>> In social security legislation, the "nationality clause" restricting eligibility for benefits to Japanese nationals has been abolished in the National Pension Law, for example, but it is still to be found in laws related to veterans' welfare benefits, such as the Public Officials Pension Law. Should not this clause be abolished?


KANEKO Tetsuo (Social Democratic Party)

>> You hold that "The human rights of foreign nationals are not guaranteed under the Constitution; their rights and freedoms are only recognized at the discretion of the Minister of Justice within the scope of the system for the sojourn of foreign nationals." But since the McLean decision, has the Minister of Justice exercised his or her discretion in the direction of expanding the guarantee of human rights of foreign nationals?

>> I believe that in Japan we have an inadequate concept of broadly accepting and coexisting with non-Japanese. Would you agree with this?

>> The government's response in regard to accepting refugees seems inadequate in terms of guaranteeing the human rights of foreign nationals. What do you think should be done to improve the system of accepting refugees?


NAGASE Jinen (Liberal Democratic Party)

>> Would it be unconstitutional to revise the Immigration Control and Refugee Recognition Law to make it possible for dangerous persons such as terrorists to be expelled from the country? Also, on what basis do you foresee opposition to such a revision?

>> Would you not agree that the Constitution's rigid statements of Western-style rights and duties are not suited to Japanese society's conception of order and the importance it places on social harmony, e.g., showing consideration and compassion for others and building good human relations?


OIDE Akira (Democratic Party of Japan and Club of Independents)

>> Japan prohibits dual citizenship, but there are many people who want to acquire it, such as those in international marriages and those who are active overseas. Is not the right to acquire dual citizenship included among human rights?

>> Is it acceptable to provide education based on foreign traditions and culture for foreign nationals in Japan?

>> I would like to hear your views on the right of reentry for foreign nationals, and their right to hold posts in the public service (the right to become government employees)?


KONDO Motohiko (Liberal Democratic Party)

>> In the process by which the Constitution of Japan was enacted, the GHQ draft contained a provision stating that foreign nationals have the right to receive equal protection under the law. Why was this deleted during deliberations by the House of Representatives?

>> You have said that the right of foreign nationals to hold posts in the public service could be recognized by law, but should not the national interest and the interests of local governments also be taken into consideration?

>> I believe that we have reached the limits of our ability under the existing Constitution to respond to a modern society that continues to change dramatically, as can be seen in the incidents of "aggression without armed force" such as abductions and the appearance of spy vessels, and that to continue to respond by legislation would amount to revising the Constitution by interpretation. I would like to hear your views in this regard.

Main points of comments made by members of the Subcommittee (in order of presentation)

KONNO Azuma (Democratic Party of Japan and Club of Independents)

>> Prof. Annen stated that the rights of foreign nationals are not guaranteed by the Constitution but should be provided for by law. But that would mean that human rights can be protected solely by laws, regardless of the Constitution, making for a complicated relationship between the two. We should keep the debate closer to the ideals of the Constitution.


HARUNA Naoaki (Japanese Communist Party)

>> In thinking about the human rights of foreign nationals, we must correct the government's exclusionist stance, as seen in the issue of residents of Korean ancestry, which is a situation peculiar to Japan. Also, in the international community at large there is an ongoing trend toward treating both foreign nationals and one's own nationals equally, as seen in the International Covenants on Human Rights and related agreements. I intend to work toward the goals of voting rights in local elections for foreign nationals and eliminating the nationality clause from laws of all kinds.


KANEKO Tetsuo (Social Democratic Party)

>> With regard to the human rights of foreign nationals, the State has neglected the expansion of human rights, in spite of its great importance as a political problem. Japan faces the particular issue of residents of Korean and other Asian ancestries, and it is also important that the education system and other institutions respect the ethnic identity of these residents. Also, the inadequacy of postwar reparations should be regarded as a question of the human rights of foreign nationals.


OIDE Akira (Democratic Party of Japan and Club of Independents)

>> In Japan, there are various institutional barriers for those who do not have Japanese nationality. In this connection, Ireland is a country that has long recognized dual citizenship, and today it is prospering as former emigrants and their descendants return home, increasing manpower. In view of such examples, among other reasons, I believe Japan should also recognize dual citizenship.