Aliens and the Constitution
By William Wetherall

The incongruence of "kokumin" and "nanbito"

The 1947 Constitution differentiates between "kokumin" () meaning "state / nation / country affiliates" [nationals] ("the people") and "nanbito" (l) meaning "whatever person, whoever" [everyone, no one] ("all people, any person, no person"). In principle, the former refers to Japanese (people who possess the nationality of Japan), and aliens (non-Japanese).

Here you will find articles which explore how and why the constitution came to make this distinction. You will also find reviews of a few court cases that examined the intent and implication of these distinctions with regard to the rights and duties of aliens affiliated with Japan.

Chapter III of the constitution is titled "Kokumin no kenri oyobi gimu" (Rights and duties of the people). The first of its thirty-one articles defines what is meant by "Nihon kokumin" (Japanese national), but only eight of the other thirty articles have "kokumin" (the people, nationals) as their topical subject. The topical subject of thirteen others is "nanbito" (persons), while the other eight have thematic topical subjects like "gakumon no jiyū" (academic freedom).

All courts have held that Chapter III guarantees basic human rights for aliens as much as for Japanese, though not necessarily to the same degree. Here I have gathered and commented on some Supreme Court responses to claims by aliens of the right to engage in political activities and the right to vote and run for office in national and local elections.

Rights of sojourn and political activities

In 1978, the Grand Bench of the Supreme Court, in its ruling in McLean v Minister of Justice, put limits on the extent to which aliens are free engage in political activities in Japan without jeopardizing their legal status.

National and local suffrage

The 1993, a petit bench of the Supreme Court, ruling in the first Higgs v. State case, held that the constitution gave the right to vote in national elections only to nationals of Japan.

In 1995 a petit bench of the Supreme Court ruled, in Kim et al v Osaka, that while the constitution did not allow aliens to vote in national elections, it did not prohibit the state from allowing local autonomous bodies, like prefectures and municipalities, to extend local suffrage to their alien residents.

Later in 1995, the same petit bench of the Supreme Court ruled, in a second Higgs v. State case, that Higgs did not have the right to vote in local elections either. The decision did not refer to the earlier Kim et al v Osaka ruling.

The meaning of "suffrage"

In 1997, the Osaka District Court rejected a claim by a group of Koreans that they had the constitutional right to both vote and run for office in local elections. In rejecting their claim, the court held that "suffrage" would include both rights.