Schizophrenic Constitution leaves foreigners’ rights mired in confusion

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. Does that help?

This Delphic guidance comes from a very important 1978 Supreme Court ruling in what is known as the McLean Case. Ronald McLean came to Japan as an English teacher in 1969 but quickly got involved in the local anti-Vietnam War protest movement. When he sought to renew his visa, the Ministry of Justice refused. He challenged the denial in court, asserting that he was being punished for engaging in lawful political activity, exercising his rights to free speech, assembly and so forth.

He lost (of course), and although the case is supposedly significant because in it the nation’s highest court enunciates the general principle that foreigners enjoy some of the rights enumerated in the Constitution, it does so with a caveat: that even those rights are limited by the scope of the regime of immigration laws which allow them to enter, reside and work in Japan.

Take the case of Kathleen Morikawa, an American resident in Japan who was fined for refusing to be fingerprinted as part of the alien registration process of days gone by. When she applied for a re-entry permit for a short trip to South Korea, her application was denied and she sought recourse in the courts. In 1992 the Supreme Court declared that foreigners had no constitutional right to enter or re-enter Japan, and that the Justice Ministry’s refusal to issue a re-entry permit was an acceptable exercise of administrative discretion in light of her refusal to be fingerprinted.

“Ignore the law and pay the price” is a fair comment here, but what I find noteworthy about the Morikawa case is that it did not seem to matter that she had a Japanese spouse and Japanese children. That the Justice Ministry can punitively strip Japanese nationals of their ability to travel or even live with a family member would seem to be at least as important constitutionally as whatever rights foreigners may or may not have.

The fact that many of us may be willing to live in Japan essentially at the sufferance of the government does not mean that our Japanese spouses, children and other kin should not have their own independent constitutionally protected rights to a family life free from arbitrary bureaucratic caprice. Article 13 of the Constitution refers to a right to the “pursuit of happiness,” but meaningful court precedents tying this provision to a right to family life are thin on the ground.

Recent revelations by a former prosecutor about being taught by his superiors that “foreigners have no human rights” raise further doubts about whether Japan is really up to the legal issues implicit in globalization.

Finally, since Japanese courts often justify their decisions using references to shakai tsūnen (commonly accepted social norms), even constitutional decisions can tend to reflect a distinctly majoritarian bent. In some countries a judiciary committed to defending minorities and unpopular viewpoints combined with clearly defined constitutional protections is expected to function as a bastion of human rights. Whether this can be expected of Japanese courts is debatable.

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.

Temp staffer wins maternity leave, via union

When female nonregular workers become pregnant, employers often refuse to renew their contracts. However, a Japanese-Brazilian woman in the Tokai region stood up and joined a local labor union to protest the practice.

“Because I have been working for the factory for a long time, I thought it was unacceptable that the company would not allow my child-care leave,” [Michelle Rosa Egidio, 35] recalled.

Egidio first came to Japan at the age of 19, registering at a temporary staffing agency. But for the past 14 years, she has been “on dispatch” to a printer factory in Mie.

Under the Temporary Staffing Services Law, manufacturers are allowed to hire temporary help for up to three years. After that, companies have to directly hire the worker if they want the person to stay on.

But according to the General Workers Union Mie Prefecture, which Egidio belongs to, her staffing agency and the factory masked her dispatch as contract work, which allows her to work longer than three years without the obligation to hire her directly.

When her three-year contract expired last July, the company hired her as a contract worker. Immediately after that, however, she found she was pregnant.

The law says that child-care leave can only be granted to workers who have been employed for more than a year.

On March 22, when the union was still bargaining with the company on her behalf, she gave birth to a girl.

As a result, the company effectively admitted she had been working there for a long time and agreed to offer paid and unpaid leave until the end of June, when she would have the right to take child-care leave from July through next March 21.

In Japan, where 70 percent of regular and nonregular female workers quit their jobs when having children, it is difficult for temp workers, whose contracts are renewed on a short-term basis and can be easily replaced, to obtain maternity and child-care leave, said Shigeru Wakita, professor of labor law at Ryukoku University.

“Since more than half of female workers are nonregular workers, it is necessary to create an environment where they can (work and) bring up children to tackle the falling birthrate,” said Wakita, chairman of the national forum for winning rights for nonregular workers.

18 tax offices in 4 central Japan prefectures kept files on foreigners

Eighteen tax offices in four central Japan prefectures kept files on foreign residents, including their nationalities and alien registration numbers, the Mainichi learned on June 24.

The Nagoya Regional Taxation Bureau says the 18 tax offices in Aichi, Shizuoka, Gifu and Mie prefectures compiled the files to avoid duplicate income tax return applications and to determine the identity of each foreign taxpayer. Foreign taxpayers, however, are not required to mention their nationalities and alien registration numbers in their income tax returns.

The Japanese law on the protection of personal information held by administrative agencies only approves the holding of data necessary to conduct official business, and experts say the tax offices’ actions may constitute a violation of that law.

According to the taxation bureau, the tax offices started compiling files on foreign taxpayers in electronic format in fiscal 2001, listing 10 items for each individual including name, date of birth, place of residence, tax manager (taxpayer’s proxy), and reference number, along with a space for notes.

Informed sources say there are many foreign workers at automobile factories and other plants in the region. The tax offices kept files on foreigners of Japanese ancestry and Westerners, but did not do so on Chinese and others with names in Chinese kanji characters.

The tax offices prepared the data based on information gleaned from income tax returns, and logged alien registration numbers only when foreign taxpayers used alien registration cards to identify themselves.

The files were sent to the internal affairs and communications minister under the law, and account ledgers mentioning things like the purpose of collecting the information can be seen via the Internet.

Each of the tax offices are thought to have kept such files on more than 1,000 foreign taxpayers, but the number of those identified by nationality or alien registration number is not known.

“The tax offices kept files as a matter of convenience, probably because the names of foreigners are confusing. The files were not meant for tax probes,” a Nagoya Regional Taxation Bureau representative said, adding that the files were destroyed at the end of March this year due to a switch to a nationwide tax data monitoring system.

Meanwhile, a National Tax Agency official told the Mainichi, “Other tax offices are not keeping such files. The agency has never issued such an order.”

The Internal Affairs and Communications Ministry’s personal information protection office says it is up to each administrative entity concerned to determine if such individual information is necessary or not.

Kicking up a stink over ink in Kobe

You might want to avoid Suma Beach this summer if you are inked or have even a temporary sticker tattoo. The powers that be in Kobe City are considering ways to ban the display of tattoos on the beach.

It’s not easy to have a tattoo in Japan, and things have been getting even more complicated in recent years. Dress codes prohibiting employees from having exposed tattoos at companies are common. The Softbank Hawks have informed Venezuelan first baseman Alex Cabrera that he will have to cover the tattoos on his forearms this season. Inked Japanese celebrities such as Namie Amuro appear on television with their tattoos blurred out.

Saunas, gyms and other places where customers disrobe used to look the other way when tattoos were obviously not gang-related, but a hardline stance toward ink of any kind is now common.

Whether accurate or not, says Jake Adelstein, author of “Tokyo Vice” and a former crime reporter for the Yomiuri Shimbun, it is the link with the yakuza that is behind the infamous “bathhouse ban” on tattoos — a regulation that over the years has left many an inked foreign tourist or resident angry and unwashed after being turned away from an onsen (hot spring) like a common criminal.

“Police pressure and the yakuza image are bad in Japan. There are also public safety concerns. Since so many yakuza have hepatitis C from drug use or contaminated needles used for their tattoos, they risk spreading infection to the other customers,” explains Adelstein. “The other reason is obvious. Yakuza are often violent, ill-tempered individuals and no one wants to hang around them. Tattoos equal yakuza in the Japanese mind. And the hepatitis C concerns apply to nonyakuza as well.”

Tattooing was banned in the Meiji Era by officials who feared being viewed as uncivilized by Westerners, who were arriving with the end of the closed country policy. But it was impossible to stamp out the practice completely and it continued underground.

In an ironic twist, it was Western people who brought tattooing out of the back alleys in Japan. The U.S. Occupation forces legalized tattoo parlors in 1948, presumably due to demand for ink from soldiers and sailors.

While private businesses — such as restaurants requiring a coat and tie — sometimes dictate the appearance of customers, and it is harder to hit the gym or onsen when inked, restricting tattoos on a public beach would be unprecedented.

Old prejudices die hard, however. The Kobe Municipal Government is currently discussing prohibiting tattoos at Suma Beach. Regulating concerts, dancing, alcohol and tobacco are among other measures also on the table. A vote is scheduled for March 22.

Colin Jones, a professor at Doshisha University Law School, said it was “interesting that the thing driving it (the ban) is subjective fear of people with tattoos.

“If that is a reason for legislation, I guess you could ban foreigners or black people from going to the beach too, if enough people felt fearful because of it,” he added.

It is unclear how prohibiting the open display of tattoos at Suma Beach would be enforced, and unknown whether it would be effective in restoring order and calming fears. Covering tattoos would work for some when they weren’t swimming but those with ink on their faces, fingers or feet would be out of luck.

No penalties are planned for those violating the proposed regulations on tattoos at Suma Beach. Kanagawa Prefecture banned smoking on beaches last year, also without any punishment for violators. Smoking areas were prepared but people could still be seen lighting up on the sand.

[The editor of Tattoo Tribal magazine Shinji] Watanabe says many people in the tattoo community are taking a wait-and-see attitude toward the proposed legislation, but he is concerned that the ordinance could set back efforts toward the acceptance of tattoos in Japanese society.

“There are people who do not have tattoos that do bad things and it’s sad that people blame bad behavior on tattoos. Tattoos have an outlaw history in Japan but that image is archaic. I am worried that if Kobe City puts signs on the beach banning tattoos, the image of tattoos in Japan will worsen even further.”

Activist fighting for LGBT rights

Toshima Ward candidate aims to pass partnership ordinance

[Taiga] Ishikawa, a 36-year-old writer and activist with inside experience in politics [and an openly gay candidate running for the Toshima Ward Assembly in Tokyo], said he is not trying to become Japan’s Harvey Milk. But what he is aiming for as a politician is to make his neighborhood more friendly to lesbian, gay, bisexual and transgender (LGBT) people and foreigners.

“I know it’s a big plan, but if elected, I hope I can enact a partnership ordinance” that would allow unmarried couples regardless of gender to have equal rights as married couples, he said.

Ishikawa is a former secretary to Social Democratic Party leader Mizuho Fukushima and plans to run as an SDP candidate in the election, which is scheduled for April.

Under the Toshima partnership ordinance he envisions, the ward would issue a certificate to two adults who register as “partners,” giving them the right to apply for ward-managed housing and hospital visitation rights.

He added that he supports local-level suffrage for foreign residents of Japan.

International marriages sometimes require an official certificate to prove the Japanese applicant is unmarried, and the government used to refuse to issue such certificates to Japanese homosexuals attempting to marry in countries that permit same-sex marriages.

But after Ishikawa, his support group and SDP chief Fukushima kept lobbying for change, the government in 2009 effectively allowed Japanese to marry foreigners of the same sex by issuing a new certificate that does not include a sex designation entry to fill in.

“I have realized that if politics change, society will change,” Ishikawa said.

“By embracing diversity, I believe Toshima will be a great place to live,” he said.

Japan Keeps a High Wall for Foreign Labor

Maria Fransiska, a young, hard-working nurse from Indonesia, is just the kind of worker Japan would seem to need to replenish its aging work force.

But Ms. Fransiska, 26, is having to fight to stay. To extend her three-year stint at a hospital outside Tokyo, she must pass a standardized nursing exam administered in Japanese, a test so difficult that only 3 of the 600 nurses brought here from Indonesia and the Philippines since 2007 have passed.

So Ms. Fransiska spends eight hours in Japanese language drills, on top of her day job at the hospital. Her dictionary is dog-eared from countless queries, but she is determined: her starting salary of $2,400 a month was 10 times what she could earn back home. If she fails, she will never be allowed to return to Japan on the same program again.

“I think I have something to contribute here,” Ms. Fransiska said during a recent visit, spooning mouthfuls of rice and vegetables into the mouth of Heiichi Matsumaru, an 80-year-old patient recovering from a stroke. “If I could, I would stay here long-term, but it is not so easy.”

Despite facing an imminent labor shortage as its population ages, Japan has done little to open itself up to immigration. In fact, as Ms. Fransiska and many others have discovered, the government is doing the opposite, actively encouraging both foreign workers and foreign graduates of its universities and professional schools to return home while protecting tiny interest groups — in the case of Ms. Fransiska, a local nursing association afraid that an influx of foreign nurses would lower industry salaries.

In 2009, the number of registered foreigners here fell for the first time since the government started to track annual records almost a half-century ago, shrinking 1.4 percent from a year earlier to 2.19 million people — or just 1.71 percent of Japan’s overall population of 127.5 million.

Experts say increased immigration provides one obvious remedy to Japan’s two decades of lethargic economic growth. But instead of accepting young workers, however — and along with them, fresh ideas — Tokyo seems to have resigned itself to a demographic crisis that threatens to stunt the country’s economic growth, hamper efforts to deal with its chronic budget deficits and bankrupt its social security system.

“If you’re in the medical field, it’s obvious that Japan needs workers from overseas to survive. But there’s still resistance,” said Yukiyoshi Shintani, chairman of the Aoikai Group, the medical services company that is sponsoring Ms. Fransiska and three other nurses to work at a hospital outside Tokyo. “The exam,” he said, “is to make sure the foreigners will fail.”

Tan Soon Keong, a student, speaks five languages — English, Japanese, Mandarin, Cantonese and Hokkien — has an engineering degree, and three years of work experience in his native Malaysia, a track record that would seem to be invaluable to Japanese companies seeking to globalize their businesses.

Still, he says he is not confident about landing a job in Japan when he completes his two-year technical program at a college in Tokyo’s suburbs next spring. For one thing, many companies here set an upper age limit for fresh graduate hires; at 26, many consider him too old to apply. Others have told him they are not hiring foreigners this year.

Mr. Tan is not alone. In 2008, only 11,000 of the 130,000 foreign students at Japan’s universities and technical colleges found jobs here, according to the recruitment firm Mainichi Communications. While some Japanese companies have publicly said they will hire more foreigners in a bid to globalize their work forces, they remain a minority.

“I’m preparing for the possibility that I may have to return to Malaysia,” Mr. Tan said at a recent job fair for foreign students in Tokyo. “I’d ideally work at a company like Toyota,” he said. “But that’s looking very difficult.”

Japan is losing skilled talent across industries, experts say. Investment banks, for example, are moving more staff members to hubs like Hong Kong and Singapore, which have more foreigner-friendly immigration and taxation regimes, lower costs of living and local populations that speak better English.

Foreigners who submitted new applications for residential status — an important indicator of highly skilled labor because the status requires a specialized profession — slumped 49 percent in 2009 from a year earlier to just 8,905 people.

The barriers to immigration to Japan are many. Restrictive immigration laws bar the country’s struggling farms or workshops from access to foreign labor, driving some to abuse trainee programs for workers from developing countries, or hire illegal immigrants. Stringent qualification requirements shut out skilled foreign professionals, while a web of complex rules and procedures discourages entrepreneurs from setting up in Japan.

Given the dim job prospects, universities here have been less than successful at raising foreign student enrollment numbers. And in the current harsh economic climate, as local incomes fall and new college graduates struggle to land jobs, there has been scant political will to broach what has been a delicate topic.

But Japan’s demographic time clock is ticking: its population will fall by almost a third to 90 million within 50 years, according to government forecasts. By 2055, more than one in three Japanese will be over 65, as the working-age population falls by over a third to 52 million.

Still, when a heavyweight of the defeated Liberal Democratic Party unveiled a plan in 2008 calling for Japan to accept at least 10 million immigrants, opinion polls showed that a majority of Japanese were opposed. A survey of roughly 2,400 voters earlier this year by the daily Asahi Shimbun showed that 65 percent of respondents opposed a more open immigration policy.

“The shrinking population is the biggest problem. The country is fighting for its survival,” said Hidenori Sakanaka, director of the Japan Immigration Policy Institute, an independent research organization. “Despite everything, America manages to stay vibrant because it attracts people from all over the world,” he said. “On the other hand, Japan is content to all but shut out people from overseas.”

Now, in a vicious cycle, Japan’s economic woes, coupled with a lack of progress in immigration policy and lack of support for immigrants, are setting off an exodus of the precious few immigrants who have settled here.

Akira Saito, 37, a Brazilian of Japanese descent who traveled to Toyota City 20 years ago from São Paolo, is one foreign worker ready to leave. The small auto maintenance outfit that Mr. Saito opened after a string of factory jobs is struggling, and the clothing store that employs his Brazilian wife, Tiemi, will soon close. Their three young children are among the local Brazilian school’s few remaining pupils.

For many of Mr. Saito’s compatriots who lost their jobs in the fallout from the global economic crisis, there has been scant government support. Some in the community have taken money from a controversial government-sponsored program intended to encourage jobless migrant workers to go home.

“I came to Japan for the opportunities,” Mr. Saito said. “Lately, I feel there will be more opportunity back home.”

Though Japan had experienced a significant amount of migration in the decades after World War II, it was not until the dawn of Japan’s “bubble economy” of the 1980s that real pressure built on the government to relax immigration restrictions as a way to supply workers to industries like manufacturing and construction.

What ensued was a revision of the immigration laws in a way that policy makers believed would keep the country’s ethnic homogeneity intact. In 1990, Japan started to issue visas to foreign citizens exclusively of Japanese descent, like the descendants of Japanese who emigrated to Brazil in search of opportunities in the last century. In the 1990s, the number of Japanese Brazilians who came to Japan in search of work, like Mr. Saito, surged.

But the government did little to integrate its migrant populations. Children of foreigners are exempt from compulsory education, for example, while local schools that accept non-Japanese-speaking children receive almost no help in caring for their needs. Many immigrant children drop out, supporters say, and many foreign workers in Toyota City say they want to return to Brazil.

“Japan does not build strong links between immigrants and the local community,” said Hiroyuki Nomoto, who runs a school for immigrant children in Toyota City.

The country is losing its allure even for wide-eyed fans of its cutting-edge technology, its pop culture and the seemingly endless business opportunities its developed consumer society appears to offer.

“Visitors come to Tokyo and see such a high-tech, colorful city. They get this gleam in their eye, they say they want to move here,” said Takara Swoopes Bullock, an American entrepreneur who has lived in Japan since 2005. “But setting up shop here is a completely different thing. Often, it just doesn’t make sense, so people move on.”

Will there ever be a rainbow Japan?

Government statistics suggest multiculturalism is on the rise, but social organizations for mixed-race Japanese say ‘hafus’ still face challenges

Japan, which closed its borders from 1639 to 1854 and later colonized its neighbors, has an uneasy history with foreigners, national identity, and multiculturalism.

Yet government statistics and grassroots organizations say multiculturalism in the famously insular country is now on the rise.

Japan: The new melting pot?

Japan’s national government recently announced it is turning to travelers in a foreigner-friendly mission to boost diversity — at least in tourist spots — by paying them to provide feedback on how to increase accessibility for non-Japanese speakers.

David Askew, associate professor of law at Kyoto’s Ritsumeikan University, identifies more profound changes.

In 1965, a mere 1 in 250 of all marriages in Japan were international, he notes. By 2004, the number had climbed to 1 in 15 across the nation and 1 in 10 in Tokyo.

According to Tokyo’s Metropolitan Government, by 2005, foreign residents in the city numbered 248,363, up from 159,073 in 1990.

According to Askew, the upswing in diverse residents and mixed marriages has led to another phenomenon: between 1987 and 2004, more than 500,000 children were born in Japan with at least one foreign parent.

Celebrating diversity

A handful of new organizations are tied, at least in part, to the increase in multicultural marriages.

Groups such as Mixed Roots Japan and Hapa Japan, founded by children of mixed-Japanese couples, aim to celebrate the broadening scope of Japanese identity, both nationally and globally.

“There is a real need now to recognize that Japan is getting more multiracial,” says Mixed Roots founder Edward Sumoto, a self-described “hafu” of Japanese/Venezuelan ethnicity. “The Japanese citizen is not simply a traditional Japanese person with Japanese nationality anymore.”

The issue of the identity of hafu is also being explored in a new film titled “Hafu,” currently under production by the Hafu Project.

In support of multiracial families, Mixed Roots holds Halloween and Christmas parties, picnics and beach days.

The organization also sponsors a monthly radio show on station FMYY, and “Shakeforward” concerts in Tokyo and Kansai, accompanied by youth workshops and symposia.

“These events feature mixed-roots artists who promote social dialogue with their songs,” says Sumoto.

The next “Shakeforward” concert will be held on November 27 in Kobe.

One of Sumoto’s primary goals is to “enable mixed-race kids to meet and talk, so they know there are other people like them.”

Despite the statistics, achieving widespread recognition for Japanese diversity has been a struggle for Sumoto and other grassroots organizers.

“Mentally, do the Japanese think the country is becoming more multicultural?” asks Sumoto. “Possibly more than 20 years ago, because you see more foreigners, but people are still not sure what to do with it.”

Multiculturalism on the margins

Like Sumoto, Erin Aeran Chung, assistant professor of East Asian politics at Johns Hopkins University in Maryland, sees the issue of Japanese multiculturalism as multifaceted.

Chung has written extensively on Japan, ethnicity and citizenship, especially as relates to Zainichi Koreans, descendents of pre-war immigrants, many of whom were brought to Japan as slave labor.

Zainichi literally means “staying in Japan temporarily.”

“The concepts of ‘multicultural coexistence’ (tabunka kyōsei) and ‘living in harmony with foreigners’ (gaikokujin to no kyōsei)” — catchwords for multiculturalism used by local government officials and NGOs — “are based on the idea that Japanese nationals, assumed to be culturally homogenous, can live together peacefully with foreign nationals, assumed to be culturally different from the Japanese,” Chung said in a series of interviews.

“Rather than expand the definition of Japanese national identity to include those who are not Japanese by blood or nationality,” Chung argues, “the concept of kyōsei suggests that Japanese nationals must rise to the challenge of living with diversity,” instead of as part of a group of diverse citizens belonging to a truly multicultural nation.

A recent move by the Japan Sumo Association (JSA) suggests not even citizenship guarantees acceptance as “truly” Japanese.

At a meeting last February, the JSA administrative board mandated limiting foreign-born wrestlers to one per stable. The upshot: even if a competitor born abroad becomes a Japanese citizen, he’s still considered the stable’s token foreigner.

The myth of mono-ethnicity

Underneath the debate over Japan’s willingness to embrace multiculturalism lies the question of how mono-ethnic the nation ever really was.

According to Ritsumeikan’s David Askew, “The idea of Japan as mono-ethnic is actually a postwar belief.”

The Ainu and Ryukyuan ethnic groups, engulfed by Japan during its prewar colonial movement, are examples.

As for Taiwan and Korea, they “were part of Japan until 1945, so you could hardly talk about a homogeneous population before then.”

“The conversation about multiculturalism today is one that focuses on accepting ‘foreign’ cultures, ignoring the broad range of cultural practices within Japan itself,” says Askew.

“Unless the Okinawas and Osakas of Japan are accepted as different cultures, the discourse will continue to promote the idea of a homogeneous Japan,” says Askew.