Author: Trevor Ryan, University of Canberra

Last month, the Supreme Court of Japan ruled that persons without Japanese nationality (that is foreigners) have no legal claim to benefits under the Public Assistance Act. The case is an affront to the second and third generations of ethnic Chinese and Koreans in Japan who have chosen for practical and identity reasons not to renounce their nationality and naturalise as Japanese. For these and other tax-paying permanent residents, the case simply affirms the legality of a discriminatory statute.

But, while it is a ‘stunning’ decision for some, a few points about the decision should be clarified.

First, the case was limited to only one plank of Japan’s social security and welfare system — tax-funded public assistance for poverty relief (seikatsu hogo). The reasoning does not apply to other areas such as unemployment insurance, health or nursing insurance, age pension or child assistance.

Second, the decision will not necessarily impact current practice. Foreigners with permanent residence status are typically granted public assistance. Indeed, the plaintiff in this case was granted public assistance in 2011 on her second application.

Some have speculated that in light of fiscal and demographic pressures, local governments will use the case to justify denying foreign residents poverty relief. But this claim exaggerates the autonomy of local governments to deny benefits contrary to central policy. Also, it has often been local governments that have taken the lead in collaborating with non-profit organisations to meet the challenges of an increasingly diverse society and address the legacies of past discrimination. Examples include establishing language support for ‘new’ immigrants, ad hoc retirement funding for ‘old’ foreigners who have not met the qualifying period for a public retirement pension, and inclusionary approaches to local political participation.

Third, the underlying constitutional issues were well settled. The principle that the fundamental civil, political, social, and economic rights enshrined in the Japanese Constitution apply to foreigners was settled by the Supreme Court in 1978. The caveat was that some rights may by their nature only be applicable to Japanese nationals in certain contexts.

Differential treatment of nationals per se is not objectionable in light of practice elsewhere in the world: foreigners are usually (but not always) excluded from the franchise and senior government positions, for example. In fact, the 1978 judgment went further than the historical record perhaps allows. According to Dower, the compound word kokumin as the translation of ‘the people’ deliberately emphasises connection to nation — one of the few victories of Japan’s immediate post-war conservative ruling clique in their tussle with Occupation forces over the content of the new constitution. On the other hand, an inclusionary approach better comports with the universal values underpinning Japan’s ‘bill of rights’.

The Japanese Supreme Court had developed an inclusive approach in relation to the general law, for example, on negligence claims. This was also true for some welfare cases, such as foreigner entitlements to benefits for victims of atomic bombs. However, these turned out to be exceptions: in 1989, the Court found that the nationality criterion in the Disability Welfare Act did not amount to unreasonable discrimination, nor did it contravene the constitutional guarantee to a minimum standard of living. The Tokyo High Court followed this position in 1997, finding the nationality criterion in the Public Assistance Act constitutionally valid (at least in relation to ‘unlawful’ immigrants). The Fukuoka High Court had offered a more inclusive approach based on a wider historical and international law-based argument. It observed that the process surrounding ratification in 1981 of the 1951 UN Refugee Convention entailed removing nationality as a criterion under most social security and welfare legislation. The only reason the Public Assistance Act was left unamended was that a Diet committee deemed that, given the practice of providing public assistance to foreigners in need, no amendment was necessary to meet the requirements for ratification. Unfortunately, on appeal the Supreme Court rejected the notion that this could give rise to any implied rights on the part of foreign permanent residents.

Given the hierarchical, bureaucratic structure of Japan’s judicial system, one should not be surprised that the application of constitutional tests regarding fundamental rights and duties has not been particularly progressive. The more likely avenue for inclusive welfare reform is through internal and external pressure on lawmakers, although this is perhaps less promising in the current climate of rising tensions linked to territorial disputes.

So where to from here?

While still relatively small, the percentage of residents in Japan that are of foreign nationality has more than tripled over the past 30 years (from 0.68 per cent in 1982 to about 2 per cent in 2014). Given the projected decline of Japan’s population, it is likely that this percentage will increase because immigration is seen by some policymakers and politicians as one means of replacing retired workers. From a human rights perspective, and to smoothly integrate the foreign population, Japanese lawmakers should grant firm welfare entitlements to permanent residents regardless of nationality.

The case also highlights the need for Japan to depart from its relatively strong adherence to the jus sanguinis principle of nationality by blood and allow more people to possess dual nationality, especially children born in Japan to permanent resident foreign parents. Only with such moves can Japan stave off criticism that its laws and social policies remain underpinned by notions of racial purity once linked to the concept of nationality in a bygone era.

Trevor Ryan is Assistant Professor at the Faculty of Business, Government and Law, University of Canberra.