Japan's Constitution won't protect revolting foreigners.

[Jacque67 7,328]

As a foreigner in Japan, you get used to hearing about all the things you arent supposed to do: drop someones business cards in the soup, stick your chopsticks upright in the rice, use the black stripy envelope for wedding money, write snarky newspaper columns the list gets pretty long.

Like everyone else, I generally try to keep my end up, though I nonetheless do occasionally find myself tramping around the tatami room in my outdoor shoes looking for whatever it is I have remembered I need immediately after tying up my laces.

One thing I am pretty consistent about not doing, however, is participating in political demonstrations. I have several reasons. First, I am lazy. Second, I am in Kyoto, whereas most of the interesting demonstrations seem to involve going to Okinawa or Tokyo (see previous sentence). Third, I am often not comfortable that I have adequate familiarity with all facets of the issue to take a side by demonstrating. Fourth and most importantly there is that 1978 Supreme Court case.

I am talking about the famous precedent set by the McLean case. I have written about this before, but given the recent widely publicized demonstrations at the Diet against the new security legislation, I thought it might be worth bringing up again.

www.thejapannews.net/index.php/sid/237532723

Edited October 15, 2015 by Jacque67

[TENBILLIONDOLLARS 216]

Thank you for making this morning's commute more educational than usual. Good post!

[Lemonslice 4,996]

Oh, Kyoto. I'm so jealous. Will PM you.

[Jacque67 7,328]

Ronald McLean was an American who came to Japan in 1969 on a one-year visa to teach English. He became involved in the Japanese anti-Vietnam War movement and participated in a number of demonstrations at the U.S. Embassy and elsewhere. When he applied to renew his visa, it was rejected because of his political activities.

He challenged this disposition on a number of grounds, including that it constituted punishment for the exercise of the rights of free speech and assembly (supposedly) guaranteed by the Japanese Constitution. The Japanese-language version of the Constitution ties constitutional protections to nationality by referring to the rights of the Japanese people (kokumin). Thus, whether a foreigner like McLean enjoyed the same protections was uncharted territory (to a degree; related issues had come up in prior cases involving Japans Korean population).

Almost a decade after he first set foot in Japan, the Supreme Court issued its characteristically abstruse ruling on the subject. I wont go into the details, but the most commonly cited extract from the judgment goes as follows (the English version comes from the translation provided on the Supreme Courts English website):

The guarantee of fundamental rights included in the Constitution extends also to foreign nationals staying in Japan except for those rights, which by their nature, are understood to address Japanese nationals only. This applies to political activities, except for those activities which are considered to be inappropriate by taking into account the status of the person as a foreign national, such as activities which have influence on the political decision-making and its implementation in Japan.

[TENBILLIONDOLLARS 216]

Sounds fair to me. As sympathetic I am to migrants here illegally, I don't think they should have a role in influencing policy once here.

[Jacque67 7,328]

Sounds fair to me. As sympathetic I am to migrants here illegally, I don't think they should have a role in influencing policy once here.

The case in Japan is about discrimination against LEGAL migrants and residents.

[TENBILLIONDOLLARS 216]

The case in Japan is about discrimination against LEGAL migrants and residents.

Yes. That's ok too. If you can't vote, you shouldn't be in a position to influence.

In America, we probably shouldn't let LPRs donate to campaigns.

[Jacque67 7,328]

Helpful, right? I think it could be paraphrased as follows: Foreign nationals enjoy constitutional protections except when they dont, and can participate in political activities unless those activities might have an actual impact on policy.

This is an archetypal example of what I have come to refer to as the courts kittens-are-cute jurisprudence. This involves issuing a broad statement most people would find unobjectionable in the abstract (i.e., Kittens are cute or Foreigners generally enjoy the same constitutional protections as Japanese people), while reaching a substantively different conclusion in the case at issue (i.e., but this particular kitten/foreigner is an exception).

Anyways, McLean lost. He lost because of a less frequently cited part of the opinion stating that foreigners in Japan only enjoy constitutional protections within the framework of the immigration laws and regulations that allow them to enter and stay in Japan, as well as the broad discretion that those laws and regulations grant the minister of justice in accepting or denying visa applications.

(Can only paste article in small pieces)

Edited October 15, 2015 by Jacque67

[Jacque67 7,328]

In other words, for foreigners the usual constitutional hierarchy of constitution > statute > regulation > administrative disposition is essentially reversed. How anyone can consider this constitutional protection is beyond me, but perhaps not very many Japanese jurists think in these terms. To a Japanese person who will probably never have to think about what the McLean case means to them personally, the language is probably comforting in its abstract positiveness.

You see, in an odd way the Constitution may have much more concrete significance to foreign residents than it does to Japanese people, because the latter can live here unconditionally. They thus never have to contemplate the possibility of having to leave a home, family, business, investments life in Japan due to a nonrenewal or cancellation of residence status. These are precisely the circumstances where most people would expect the Constitution to mean something, but the McLean case seems to say it doesnt. Granted, he got/had to stay in Japan for a number of years while his appeal was pending (if he had left, he probably wouldnt have been allowed back in), but he still had to leave in the end, and having taken a Japanese wife and developed a deep interest in Japanese culture in the interim didnt seem to make any difference.

[Sousuke 1,214]

Ronald McLean was an American who came to Japan in 1969 on a one-year visa to teach English. He became involved in the Japanese anti-Vietnam War movement and participated in a number of demonstrations at the U.S. Embassy and elsewhere. When he applied to renew his visa, it was rejected because of his political activities.

He challenged this disposition on a number of grounds, including that it constituted punishment for the exercise of the rights of free speech and assembly (supposedly) guaranteed by the Japanese Constitution. The Japanese-language version of the Constitution ties constitutional protections to nationality by referring to the rights of the Japanese people (kokumin). Thus, whether a foreigner like McLean enjoyed the same protections was uncharted territory (to a degree; related issues had come up in prior cases involving Japans Korean population).

Almost a decade after he first set foot in Japan, the Supreme Court issued its characteristically abstruse ruling on the subject. I wont go into the details, but the most commonly cited extract from the judgment goes as follows (the English version comes from the translation provided on the Supreme Courts English website):

The guarantee of fundamental rights included in the Constitution extends also to foreign nationals staying in Japan except for those rights, which by their nature, are understood to address Japanese nationals only. This applies to political activities, except for those activities which are considered to be inappropriate by taking into account the status of the person as a foreign national, such as activities which have influence on the political decision-making and its implementation in Japan.

Doesn't this have far reaching implications?

For instance, lets assume the Amanda Knox situation happened in Japan. Couldn't they just throw her in jail without trial? Or perhaps the more accurate response would be automatic deportation for any reason.

Edited October 15, 2015 by Sousuke

[Jacque67 7,328]

Doesn't this have far reaching implications?

For instance, lets assume the Amanda Knox situation happened in Japan. Couldn't they just throw her in jail without trial? Or perhaps the more accurate response would be automatic deportation for any reason.

Precisely. That is why I posted this.

Do you know that in the case of "in camera " conversations, the meeting isn't videotaped, a court stenographer isn't present, AND there is no such thing as discovery here!!!!

I talked about discovery with a patent lawyer, and he just thought it was a waste of paperwork and time. The legal system here is very underdeveloped, but there is little dialogue about it, as peeps are too busy working...

[elmcitymaven 9,712]

Precisely. That is why I posted this.

Do you know that in the case of "in camera " conversations, the meeting isn't videotaped, a court stenographer isn't present, AND there is no such thing as discovery here!!!!

I talked about discovery with a patent lawyer, and he just thought it was a waste of paperwork and time. The legal system here is very underdeveloped, but there is little dialogue about it, as peeps are too busy working...

In my old job back in Britain, I used to have to engage with Japanese companies our investment fund had sunk money into. I had the unenviable task of trying to talk to Japanese company directors about why improving their internal governance models and taking a more holistic view towards risk management along Anglo-American lines could help the bottom line. It wasn't just that I was communicating in English that made these discussions so difficult. I probably learned more about how Japanese companies operate than they ever learned from other UK/US investors, since their attitude towards our suggestions was invariably, "wut."

Edited October 16, 2015 by Killary

[TBoneTX 46,354]

"wut."

English-only outside the regional forums! Reported!!!

[Rob L 3,811]

Yes. That's ok too. If you can't vote, you shouldn't be in a position to influence.

In America, we probably shouldn't let LPRs donate to campaigns.

so should we fix this situation and allow corporations and pacs to vote?

[Expat1 971]

English-only outside the regional forums! Reported!!!

"wut" is a word in several states, including Texas, Tx