Nationality → Elements of citizenship → Aliens and the Constitution
Chong v Tokyo, 2005
Not allowing aliens to hold civil service posts is not unconstitutional
Plus note on ruling in Pak v Hitachi, 1974 with reference to Labor Standards Law and Civil Code
By William Wetherall
First posted 24 September 2007
Last updated 1 July 2011
Chong v Tokyo, 2005
Title
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Courts
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Status
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English reports and "ethnic Koreans"
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Chong 2006
Pak v Hitachi, 1974
Status at time of birth
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Decision particulars
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Labor Standard Law
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Civil Code
The 1974 decision in the case of Pak Chong Sok v Hitachi Industries was legendary by 1994 when Chong Hyang Gyun sued Tokyo prefecture for not allowing her to sit for a managerial post qualification exam on account of her not being Japanese. The origins and outcomes of the cases, though, were very different. I will first describe Chong v Tokyo, in which the Supreme Court ruled in 2005 that Tokyo, in drawing the line between aliens and Japanese, had not violated the Constitution. I will then more briefly review Pak v Hitachi, in which the Yokohama District Court favored Pak in an uncontested decision not based on the Constitution.
Chong v Tokyo, 1994-2005
Chong v Tokyo was heard in three courts between 1994 and 2005. Chong Hyang Gyun filed the case against Tokyo Prefecture on 16 September 1994. The Tokyo District Court ruled against her on 16 May 1996. She appealed and the Tokyo High Court ruled in her favor on 26 November 1997. Tokyo appealed, and on 26 January 2005 the full bench of the Supreme Court handed down a decision in which 13 judges agreed to overturn the high court's ruling.
The arguments of the two dissenting judges somewhat differed. In the main, both declined to agree with the majority decision but they felt the government of Tokyo had failed to give good reasons why it barred Chong from the post she sought, merely on grounds of her nationality. While in principle public authority should be in the hands of the sovereign people defined as nationals, the post she sought, though administrative, would not have required her to make decisions that could reasonably be construed as a threat to national sovereignty.
Official title
The official title of the case as heard before the district court was "Kanrishoku senkō shiken shikaku kakunin tō seikyū jiken" (管理職選考試験資格確認等請求事件) or "Case seeking confirmation of qualifications for admission to managerial post selection examination et cetera".
Three courts
What I am calling "Chong v Tokyo, 2005" refers to the plantiff and defendant of the original Tokyo District Court case and the date of the Supreme Court decision. The particulars of the three stages of litigation are as follows.
Tokyo District Court (1st instance)
Case 1994 (Gyo-U) No. 303
Decision 16 May 1996
Plaintiff Chong Hyang Gyun
Defendant Tokyo Prefecture
Ruling Dismissed Chong's claims. Plaintiff to bear litigation costs.Tokyo High Court (Second instance)
Case 1996 (Gyo-Ko) No. 62
Decision 26 November 1997
Apellant (plaintiff) Chong Hyang Gyun
Apellee (defendant) Tokyo Prefecture
Ruling Agreed with Chong that Tokyo's actions were unconstitutional. The prefecture was ordered to allow her to sit for the examination and pay her litigation costs.Supreme Court (Final instance)
Case 1997 (Gyo-Sa) No. 172
Decision 26 January 2005
Appellant in final appeal
Tokyo Prefecture (1st instance defendent)
Appellee in final appeal
Chong Hyang Gyun (1st instance plaintiff)
Ruling Agreed with Tokyo. Chong to bear her own litigation costs.
Chong's legal status
Chong's lawsuit, as filed by her attorneys, begins with this description of her legal status (Chong 2006, pages 202-203).
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The plaintiff is a second generation national of the Republic of Korea in Japan who was born in Kitakami city, Iwate prefecture in 1950, and is a Special Permanent Resident as determined by the "Special law concerning, inter alia, the exit-entry-country [immigration] control of persons who based on the Treaty of Peace with Japan separated from the nationality of Japan" (Law No. 71 of 1991). |
The statement is accurate except that Kawakami did not become a city until 1954.
It is accurately implied that Chong had been born with Japanese nationality, and had lost it on 28 April 1952, the day the terms of the San Francisco Peace Treaty came into effect. What she became when she lost Japanese nationality, and when she became a national of the Republic of Korea (ROK), is not stated, because such details are irrelevant. What specifically qualified her as a Special Permanent Resident (SPR) under the 1991 law is also not stated here, but part of the historical background to the origins of the SPR status for qualified aliens is made later.
Special Permanent Residents
The lawsuit filed by Chong's attorneys went on to make this statement about Special Permanent Residents (Chong 2006, page 206).
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At the end of 1992, the number of [ROK] Koreans and [legacy Chōsen affiliated] Chosenese Special Permanent Residents in Japan (Zainichi Kankoku・Chosenjin Tokubetsu Eujūsha) was 585,170, and they are people who came to reside in Japan, as a result of Japan's colonial rule toward Chōsen, and their descendants. |
The number reflects what are officially called "zairyō gaikokujin" (resident aliens), whose state affiliation under Japanese law is "Kankoku/Chōsen" --meaning either "Kankoku" referring to the Republic of Korea, or "Chōsen" referring to the territory that had been part of Japan's national territory between 1910 and 1952 and under Japan's legal control and jurisdiction between 1910 and 1945.
The brief had no reason to point out that the total number of Special Permanent Residents in 1992 was 590,193 -- indicating that about 5,000 aliens of other nationalities were registered as SPRs.
Chong and Pak
Chong Hyang Gyun and Pak Chong Sok had a lot in common in terms of their legal status at the time of their birth and subsequent changes in legal status. Their personal and family conditions, while different, also had a few things in common.
Chong, born in Japan in 1950 a year before Pak, like Pak, was born a Japanese national of "liberated" Korean (Chōsen) status and, like Pak, had lost her Japanese nationality in 1952.
Chong, like Pak, at times in her life had used a name that people around her would regard as Japanese. Some might argue that, becauses of her family background, she had more cause to identify as Japanese, but this would deprive Pak of the same right to freedom of identity -- which was not, in either of the court cases, an issue. In any event, Chong was known by her Korean name at times when she was growing up.
Also unlike Pak, who was employed under his assumed name, as someone with a family register in Japan, Chong was employed in 1988 as an alien, under her legal name as entered on a family register in the Republic of Korea. However, Tokyo had abolished the nationality requirement for the job she sought, as a public health nurse (hokenshi), only in 1986. While Tokyo's qualification rule change was not directly inspired by the decision in Pak's case, Pak's case undoubtedly contributed to the growing willingness of public and private sector employers to hire qualified aliens.
Whereas Pak's conflict with Hitachi began the moment the company learned of his true legal identity and discharged him on the grounds that he had misrepresented himself, Chong's conflict with the Tokyo government -- for whom she still works on a contract basis after retiring in 2010 at the mandatory retirement age of 60 -- began in 1993 when her request for permission to take a managerial post exam was denied because she was not Japanese.
Chong qualified as an assisting [practical] nurse in April 1970, a clinical [registered] nurse October 1986, and a public health nurse in May 1988, and Tokyo prefecture had employed her as a public health nurse in April 1988. From April 1993, having passed an exam to be a head public health nurse in November 1992, and at the time she sued the Tokyo government, she was employed as a chief nurse with a Class 4 civil service rank.
In March 1994 -- qualified by title, rank, and experience, an otherwise meeting all other stated exam qualifications -- Chong applied for permission to sit for a managerial post examination to be held in May. Her application, however, was not accepted, for the reason that she was a foreigner on accout of mer Republic of Korea nationality.
In September 1994, Chong sued the Tokyo on the grounds that its actions had violated the Constitution -- specifically Article 22 (freedom to choose occupation to the extent it does not interfere with the public welfare), Article 13 (right to pursuit of happiness to the extent that it does not interfere with the public welfare), and Article 14 (equal under the law) -- and the Labor Standards Law, in particuarly Article 3 (no discrimination in working conditions because of nationality) -- among other laws.
Tokyo did not add a specific nationality clause to its rules regarding qualifications for taking the managerial exam until 1995. This did not, in the end, prove to be an argument in Chong's favor, however, since local governments had typically understood Japan's Constitution and other laws to imply that civil service posts -- unlike private sector jobs -- were not legally available to aliens.
There had been, in fact, a considerable variety of local responses to the employment of aliens in municiple and prefectural civil service posts during the 1980s. The drawing of lines between some posts and others was essentially a prerogative of each local government. In fact, the very week in May 1996 that the Tokyo District Court ruled against Chong, in favor of the Tokyo government, Kawasaki city, in neighboring Kanagawa prefecture, abolished its nationality clause -- which boosted, not for the first time, its reputation of attempting to embrace its foreign residents into community fold.
Kawasaki
It is of some interest to note that Chong Hyanggyun, like her brother Tei Taikin (then Chung Daekyun), had lived for a while in Kawasaki, where there is a substantial Korean neighborhood (Chōsen buraku). When I first met Tei in the late 1970s, he was working part-time in the Kawasaki public library while also participating in Korean community activities in the city. He guided me around the Korean neighborhood -- or neighborhoods, as the distribution of obviously and less obviously Korean shops and homes was complex.
For reasons owing mainly to his generosity rather than to any significant contribution from me, Tei listed me as the junior author of a two-part series of articles he (rather than we) wrote and published in 1979 and 1980 on foreign residents in Japan, especially Koreans, and especially Koreans in Kawasaki
鄭大均、ウェザロール・ウィリアム
外国人居住者論
朝鮮研究
上：第196号、1979年12月、ページ34-42
下：第202号、1980年8月、ページ26-32Chung Daekyun and Wetherall William
Gaikokujin kyojūsha ron
[On foreign residents (in Japan)]
Chōsen kenkyū
Part 1: No. 196, December 1979, pages 34-42
Part 2: No. 202, August 1980, pages 26-32
Sato Katsumi
Also of some interest is the fact that this journal, published by the Nihon Chōsen Kenkyūjo (Japan Chōsen Research Institute) [Japan Chōsen Research Institute], was edited by Satō Katsumi. Satō was instrumental in the support of Pak Chong Sok from the start of Pak v Hitachi in 1970, and is the first listed of the two representative editor of the book published by Pak's principal support group in 1974 shortly after Pak won the case (see below).
Satō Katsumi, born in 1929, participated in the movement, led mainly by communist Koreans in Japan, for Koreans to "return" to the Democratic People's Republic of Korea (DPRK). He himself twice accompanied groups of returnees to DRPK, in 1962 and 1964, and received awards from the DPRK Red Cross.
A dedicated member at the of the Japan Communist Party since the late 1940s, Satō participated in all manner of movements as a communist, and for the rights of Koreans in Japan, especially from the viewpoint of those who aligned themselves with DPRK, and in such regard he opposed the talks in the early 1960s that led to the normalization of relations between Japan and ROK in 1965.
In the early 1970s, while backing Pak Chong Sok, Satō became disillusioned with both DPRK and communism. He was especially unhappy with reports regarding DPRK's treatment of some of the so-called returnees, and by the attitudes of DPRK-aligned Koreans in Japan toward Pak, who at the time his case went to trial was still distancing himself from a Korean identification, which had been alien to him.
Satō began leading the Chōsen Kenkyōjo in a direction that opposed DPRK, and became the institute's head in 1983. The following year it became Gendai Koria Kenkyūjo (現代コリア研究所) or "Gendai Korea Research Institute" and the jounral was renamed Gendai Koria (現代コリア) or "Gendai Korea". The journal ceased as a paper publication in 2007, but as of this writing (February 2011) its name continues to inspire Satōs gendaikorea.com website.
By the mid 1980s, Satō had left JCP and begun supporting people with grievances against DPRK. Since the late 1990s, he has been especially active on behalf of families of people abducted by DPRK agents.
Satō also busies himself writing about the current conflicts involving DPRK, and perhaps as a gesture of hope that ROK and DPRK can overcome their differences, the splash page of his website shows updated reports on weather conditions in Seoul in the "Dai Kan Min Koku" (ROK) and Pyongyang in "Kita North Chōsen" (DPRK).
English reports and "ethnic Koreans"
Chong's case was fairly widely reported in English media in Japan, and in turn by Tokyo bureaus of overseas media and international news agencies. Most such reports are flawed by the manner in which Japanese and foreign journalists write in English about minority issues in Japan.
Journalists in Japan tend to be sympathetic with minority issues, but few are familiar with the complexities of issues involving Koreans in Japan. In the interest of brevity, writing not only for a general readership, they are apt to rely on stock phrases that over simplify past and present conditions. Writers and editors tend to take for granted the factuality of conventional wisdom, and press statements made litigants and publicists.
In addition to such general deficiencies, English reports, especially those intended for readers outside Japan, are likely to be less, or differently, nuanced than Japanese reports based on the same sources. English reports often conflate distinctions that may be made in Japanese (e.g., "Kankoku" and "Chōsen") and shift metaphors toward those that may be more familiar in English (e.g., "South Korea" rather than "the Republic of Korea" or "ROK").
English reports also commonly, even reflexively, characterize Koreans in Japan in as "ethnic Koreans". Whereas Japanese reports on legal issues regarding Koreans in Japan describe Koreans in terms of their alien nationality status, and whether an individual might be "Korean" in any "ethnic" sense is generally not an issue -- besides which, "ethnicity" is not something that can be attributed to individuals on account of their nationality.
Much of the English language reporting on Chong's case turns "Koreans in Japan" into "ethnic Koreans" -- an expression that began to increase in usage from the 1980s. However, "ethnic" in English reports is almost always an embellishment that has no foundation in comparable Japanese reports.
Asahi shinbun
Asahi shinbun carried a general report on the Thursday, 16 May 1996 decision of the Tokyo District Court against Chong on the first page of its morning edition the following day, and longer detailed report on the national "sanmen kiji" page in the back (Friday, 17 May 1996, pages 1, 39). The headline included the phrase "zainichi nisei" meaning "second generation zainichi" (在日二世), which is short hand, in this case, for "second generation Korean in Japan" as a legal status.
The front page Asahi report lead with the statement "Nihon kokuseki ga nai koto o riyō ni" (日本国籍がないことを理由に) -- meaning "for reason of not having Japan nationality" -- and went on to refer to the plaintiff as being a "zainichi Kankokujin nisei" (在日韓国人二世) -- meaning "second generation ROK Korean in Japan".
The "second generation" (nisei) is not a legal status, and "in Japan" (zainichi) is not a legal term, but together they bracket "Kankokujin" -- which refers only to a person who has ROK nationality, regardless of where they are, or the circumstances of their birth or residence. Bracketing "Kankokujin" (or, really, any alien) in "zainichi . . . nisei" is merely to qualify the alien as being "in Japan" as a matter of residence status, and as having been born and raised in Japan to an alien resident. Formally, "zainichi gaikokujin" or "aliens in Japan" are called "zairyū gaikokujin" or "alien residents".
The first page reports only bare facts of the case and the decision, leaving the details to next to last page of the edition. The more detailed report referred to Chong herself only as a "zainichi Kankokujin" (在日韓国人) meaning "ROK Korean in Japan". However, it more generally to Koreans in Japan as "zainichi Kankoku・Chōsenjin" (在日韓国・朝鮮人), meaning "ROK Koreans and Chosenese in Japan".
In newspaper parlance, these are references to "Koreans in Japan" as "aliens" (外国人 gaikokujin) in the strictly legal sense of not possessing the nationality (国籍 kokuseki) of Japan. The first refers only to aliens in Japan who are affiliated with the Republic of Korea (ROK). The second includes both aliens who are affiliated with ROK and those who are affiliated with the defunct entity of Chōsen, refering to the former Japanese territory that Korea had become when annexed in 1910, which -- though "liberated" from Japan in 1945 -- was not formally separated from Japan's national territory until 1952. The "Kankoku" and "Chōsen" statuses are conflated in alien registration and most other statistics concerning aliens, hence the "Kankoku・Chōsenjin" terminology.
Asahi Evening News
The headline of a shorter, simpler English version of the story in the newspaper group's Asahi Evening News, written by Akiko Shiozaki, an AEN reporter, read "Tokyo court rejects ethnic Korean's promotion bid" (Friday, 17 May 1996, page 4). The sub-head elaborates -- "The judge says non-Japanese civil servants are not guaranteed the right to assume posts that involve public power." And the lead graph compounds the "ethnic Korean" and "non-Japanese" mismatch like this (underscorning mine).
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The Tokyo District Court on Thursday rejected a demand from an ethnic South Korean who is Tokyo's first non-Japanese public health, to take the government's promotion examination, ruling that non-Japanese are not guaranteed the right to gain positions of public power. |
The dissonance in usage is that the case involves nationality, not ethnicity. The "ethnic Korean" in the headline should have been simply "Korean" -- and the "ethnic South Korean" in the lead should have been just "South Korean" if not more formally "national of the Republic of Korea".
The use of "ethnic" in English reflects an intent to "racialize" those who are qualified by the word "ethnic" -- by regarding them as members of a "race" in the broader "ethnonational" sense of the word as a translation of "minzoku" in Japanese. The word "minzoku" refers to an "ethnic nation" conceived as a population that shares a language, and/or certain customs, if not also a sense of common ancestry. It is not, however, a characteristic of civic nationality, which is based only on objective legal status.
When reporting on issues involving nationality, descriptive labels like "Nihonjin" (Japanese) and "gaikokujin" (alien) refer only to nationality, not race or ethnicity. This is not say that writers, and readers, do not imagine these to be "racial" or "ethnic" labels -- but merely that the statuses of "Japanese" and "alien" are civil statuses, not racial or ethnic descriptions.
If a person is Korean, as opposed to being Japanese, they are Korean because of their nationality, not because of their putative race or ethnicity, which are private matters. Because the laws that affect the status and treatment of aliens in Japan have nothing to do with race or ethnicity, court rulings also describe aliens only in terms of their nationality.
Yet there is a strong tendency in English writing to reflect the fashions of multiculturalism, which encourages the viewing of "people" as members of a "community" or "culture" or "heritage" or "ethnic group" -- all code words for "race" in the sense of "minzoku" or "ethnic nation".
Chong 2006
Chong Hyan Gyun, with the help of her representatives and supporters, edited the following book concerning her case, published about a year after the Supreme Court ruled against her.
鄭 香 均 (チョン ヒャン ギュン) (編集者)
正義なき国、「当然の法理」を問いつづけて
[都庁国籍任務差別裁判の記録)
東京：明石書店
2006年2月25日 初版第1刷発行
307ページChon Hyan Gyun [Chong Hyang Gyun] (editor)
Seigi naki kuni, "Tōzen no hōri" o toitsudzukete
(Tochō kokuseki nin'yō sabetsu saiban no kiroku)
[Country without justice: Continuing to question [its] "natural legal principle"
(A chronicle of the Tokyo Metropolitan Government
nationality appointment discrimination trial)]
Tokyo: Akashi Shoten
25 February 2006, 1st printing ot 1st edition published
307 pages, hardcover
The book is a collection of articles by six authors, including two university professors and two attorneys -- including the late Kim Kyung Duk [Kim Kyŏngduk] (1949-2005) -- who were involved in or otherwise supported Chong's law suit against the Tokyo Metropolitan Government for limiting managerial posts to Japanese. The last one-third of the book consists of selected district court, high court, and supreme court documents and decisions.
"national origin"
Chong might have won her case had she taken a different approach, and not played what I will here call -- possibly for the first time in print -- the "victimhood fiddle". She might have been more successful had she argued her case on grounds of irrational discrimination -- rather than contend that she had equal rights under the Japan's Constitution. And she certainly, in my humble opinion, made a fatal mistake by racializing her case as a Korean "national origin" issue, as opposed to arguing simply that Tokyo's nationality line was not justified by the nature of the position -- she being fully qualified as a matter of training, experience, and competency for the position, which in any event would have posed no threat to the sovereignty of Japanese domiciled in Tokyo prefecture.
In the preface, Chong and one of the contributors cite the English phrase "National Origin" by way of introducing Chapter 5, where it serves as the centerpiece of Kondō Atsushi's argument that Metropolitan Tokyo's nationality restriction violates articles in United Nations conventions ratified by Japan, which disallow discrimination based on "national origin" (pages 130-151).
This is perhaps the most serious flaw in Chong's defense, since "national origin" -- which has been racialized in the United States, and is racialized in UN conventions -- has no standing in Japan's raceless laws, which view nationality as a purely civil attribute of state affiliation. Significantly, the Japanese government -- which was not a litigant in Chong's law suit -- has for many years been formally opposed to the use of "national origin" in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) -- because the term would racialize "nation" and "national" in ways that conflict with the raceless quality of "nationality" in both international law and in Japanese domestic law.
Though Chong was courageous to take her case to court, she did not adequately arm herself with facts about Koreans in Japan, or even about her own family for that matter. Consequently, media accounts of her case compounded errors in her own statements at press conferences. One of the worst reports in English was written by David McNeill after interviewing her. McNeill, who wears hats as both a scholar and correspondent, was rightfully sympathetic with her cause, but he was not prepared to accurately describe her personal history, partly because Chong's account of her own family history was faulty, and partly because he writes in a manner that over simplies the political, legal, and social history of Koreans in Japan.
While I agree that nationality should not have been a qualification for the managerial position Chong sought, I also agree with her brother, Tei Taikin, who feels that aliens in Japan, no matter how they came to be in Japan, should become Japanese if they want to fully participate in national affairs.
I sent Tei a copy of McNeill's article. He had already written critically about his sister's case, and of course he was aware of the statements she had made at televised press conferences, and of things she was reported to have said in Japanese-language interviews. But McNeill's report especially motivated him to attempt to correct some of the more serious misstatements and misunderstandings, and otherwise set the public record straight about their family, in magazine articles. He also devoted a chapter of his family biography to his sister's case.
For descriptions of Tei books, including his family biography, see Tei Taikin on nationalism and Koreans in Japan.
Chong Hyang Gyun
The editor, Chong Hyang Gyun, was the original plaintiff in the case described in this book. I am romanizing her name this way as it best reflects the phonetics of the phonemic transliteration (Chon Hwan Gyun) of the kana pronunciation (チョン ヒャン ギュン) given in parentheses after her kanji name (鄭 香 均). Note that both the kanji name and the kana rendering are spaced in three parts.
Most English language reports on her case have spelled her name "Chong Hyang Gyun" -- e.g., The Japan Times (27 January 2005). Some, however, have written her name Chung Hyang Gyun -- e.g., The New York Times (2 April 2005). A few writers have gone out of their way to "Koreanize" her name according to one or another style sheet dictating how "Korean" names ought to be written in English -- e.g., "Cŏng Hyang-gyun" (Wender 2005, page 191).
Chong's brother Tei Taikin used to call himself "Chung Daekyun". Many writers also Koreanize Tei's name even when he clearly states it to be "Tei Taikin" if not also "Chung Daekyun". Of interest here is that Erin Aeran Chung, who has also written her name 鄭愛蘭 (thus sharing the graph of her family name with Tei) calls Tei both "Chŏng Dae-kyun" and "Chong Dae-kyun" -- although the book she refers to is clearly stated as having been written by "鄭大均 (てい たいきん Chung Daekyun)" and copyrighted by "Tei Taikin" (Chung 2010, pages 116 and 187).
"landmark case"
In her book Immigration and Citizenship in Japan (New York: Cambridge University Press, 2010), though mainly about the rights of "Korean residents" in Japan, Erin Chung says nothing about Chong Hyang Gyun's case.
Melissa L. Wender, in Lamentation as History (Stanford: Stanford University Press, 2005), which examines literary and other "Narratives by Koreans in Japan, 1965-2000" according to its subtitle, describes Chong's "landmark case" like this (page 191, and note 4, page 229, underscoring mine).
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In a landmark case in 1997, Japan's Supreme Court, although it upheld the above conditions [restricting the employment of aliens by municipal governments to positions that did not include managerial responsibilities involving "'exercising the authority of the nation' or 'participating in decision-making for the state'"], decided that certain managerial positions in municipalities did not bear any direct relation to state power. The city of Tokyo had denied Chŏng Hyang-gyun, a nurse who made home visits, the right to take the exam to enter a management-lovel position. When her case made it to the Supreme Court, it ruled that this action was unconstitutional because it denied the guarantee of legal equality under the law and of the freedom of occupational choice. It demanded that the city pay damages and permit her to take the exam. [Note 4] Although in one sense this was a victory, the decision upheld the limit on the sort of employment available to permanent resident aliens.
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Kondo Atsushi
Kondō Atsushi, a professor of constitutional law at Meijo University (名城大学), has authored or edited the following books related to the status of aliens in Japan.
近藤敦
「外国人」の参政権
(デニズンシップの比較研究)
東京：明石書店、1996年
Kondō Atsushi
"Gaikokujin" no sanseiken: Denizunshippu no hikaku kenkyō [Right of political participation of "Aliens": Comparative research on denizenship]
Tokyo: Akashi Shoten, 1996近藤敦
外国人の人権と市民権
東京：明石書店、2001年
Kondō Atsushi
Gaikokujin no jinken to shiminken
[Human rights and citizenship of aliens]
Tokyo: Akashi Shoten, 2001Atsushi Kondo (editor)
Comparing Citizenship Rights for Aliens
(Migration, Minorities and Citizenship)
New York: Palgrave Macmillan, 2001
Includes Atsushi Kondo
Citizenship Rights for Aliens in JapanAtsushi Kondo and Charles Westin (editors)
New Concepts of Citizenship
(Residential/Regional Citizenship and Dual Nationality/Identity)
Stockholm: CEIFO, Stockholm University, 2003
[Centre for Research in International Migration and Ethnic Relations]
[CEIFO Press research reports Nr. 93]
Kondo has written a number of related papers. At the CJR Conference on Japanese and Canadian Research into Immigration and Foreign Workers, sponsored by the Centre for Japanese Research at the University of British Columbia, and held at UBC during 18-20 November 2008, he presented a paper called "Immigration Policy and Foreigners' Rights in Japan".
Pak v Hitachi, 1970-1974
In 1970, Hitachi hired a youth who, when applying to take the company's employment exam shortly after graduating from high school, had given his same as Arai Shōji (新井正二) and a family register address in Japan. Arai passed the exam and was provisionally hired, but was then released during the probationary period when Hitachi discovered his family register was affiliated with the Republic of Korea and his legal name was Pak Chong Sok (朴鐘碩 Pak Chong Sŏ).
Hitachi told Arai/Pak it had nullified its employment contract because he had misrepresented himself on the application form. In a law suit filed with the Yokohama District Court, Arai/Pak sued Hitachi, alleging its dismissal was discriminatory. Pak argued that he was born and raised in Japan, had lived only as Arai, had given his legal address as a resident alien -- and questioned whether Hitachi would have hired him had he applied as Pak with a family register in the Republic of Korea (ROK).
In 1974, the Yokohama District Court ruled in Pak's favor, on grounds that Hitachi had violated certain articles of the Labor Standards Law and Civil Code, and Hitachi did not appeal. In the meantime, backed by a support group formed by Japanese who encouraged him to openly identify himself as a Korean, Arai decided to live as Pak.
Status at time of birth
Pak was born on 24 November 1951 in Aichi prefecture to parents who were at the time of his birth had three statuses -- (1) as Koreans (Chosenese) on account of their membership in family registers affiliated with Korea (Chōsen), (2) as Japanese on account of their possession of Japanese nationality in the eyes of the Supreme Commander for the Allied Powers (SCAP) and under Japanese law, and (3) as aliens for the purposes of applying Japan's 1947 Alien Registration Order, which had been inspired by SCAP.
On 8 September 1951 (9 September Japan time), ten weeks before Pak was born, Japan and the Allied Powers had signed a Peace Treaty in San Francisco, but the treaty would not come into effect until 28 April the following year. In the meantime, Japan was still an occupied country, and its sovereignty remained in SCAP's hands.
On 20 October 1951, a month before Pak's birth, Japan and Korea, chaperoned by William Sebald, the chief of SCAP's Diplomatic Section (DS), which faciliated Japan's foreign affairs, began negotiating a normalization treaty and status agreement, with the hopes of being able to establish diplomatic relations when the Peace Treaty came into effect. ROK and Japan, on the assumption that Koreans in Japan would lose their Japanese nationality and become aliens when the Peace Treaty came into effect, began to disuss their post-effectuation status in Japan as aliens. Alva Carpenter, the chief of SCAP's Legal Section (LS), thought that Koreans in Japan should be given an option to remain Japanese nationals, citing the case of the Sebald had held that SCAP would not interfere in whatever ROK and Japan agreed to, SCAP would not interfere.
Though Japan and the Republic of China (ROC) were ready to sign a peace treaty on the day the San Francisco Peace Treaty came into effect, Japan and ROK -- unable to close come to terms over territorial and property issues -- agreed only to postpone their talks until after the Peace Treaty came into effect. On 28 April 1951, Koreans (Chosenese) and Formosans (Taiwanese) in Japan lost their Japanese status, but if they met continuous residence conditions tied to Japan's surrender on 2 September 1945, they acquired a special status as aliens.
Pak, born during the final months of the Occupation of Japan, acquired the same dual status of his parents -- namely, as Japanese nationals under Japan's domestic laws, but as aliens for the purpose of for purposes of applying the 1947 Alien Registration Order. Pak was barely five months old on 28 April 1952, when the San Francisco Peace Treaty came into effect, and the Pak/Kim/Arai family, as members of a Chōsen household register, ceased to be regarded as Japanese nationals and became categorical aliens.
Decision particulars
The following particulars about Pak's parents and his birth, and the changes in their nationality status concomitant with the effectuation of the San Francisco Peace Treaty, are summarized in the Yokohama District Court's ruling are cited from the following book, edited by Pak's primary support group and published shortly after the ruling.
朴君を囲む会 編者
(佐藤勝巳、和田純 編者代表)
民族差別：日立就職差別糾弾
東京：亜紀書房
1974年11月25日 第1版第1刷発行
vi、282ページPak-kun o kakomu kai, hensha
(Satō Katsumi and Wada Jun, daihyō hensha)
[Society surrounding (Group supporting) Mr. Pak, editor
(Satō Katsumi and Wada Jun, representative editors)]
Minzoku sabetsu: Hitachi shūshoku sabetsu kyōdan
[Racioethnic discrimination: Hitachi employment discrimination denunciation]
Tokyo: Aki Shobō
25 November 1974, 1st edition, 1st printing published
vi, 282 pages, softcover, vinyl cover
Pak was legally a Korean because his principle domicile address or "honsekichi" -- as opposed to his legal residence (domicile as an alien in Japan) was in a province in the Republic of Korea (ROK). When born in Japan in 1951, he was legally a Japanese national of Chōsen registry and did not lose his Japanese nationality until 1952.
Moreover, Pak was entirely raised in Japan, had attended Japanese schools, and had always lived as Arai Shōji (新井正二) -- because his father and mother, respectively Pak (朴) and Kim (金) on their family regsiters, had been using the family name Arai (新井) socially. There are many reasons why not a few Koreans and other categorial aliens in Japan, but also some Japanese, adopt an name other than their legal name for use in social intercourse.
Hitachi, after employing Pak in 1970 on the basis of his application, which showed a Japanese-style name and address in Japan, then nullified his employment during the trial period after discovering that he had not applied under his legal name and legal family register address. Pak filed a suit against Hitachi, and activists came to the support of his case. Pak's principal support group alleged, in the title of a book they published a few months after the case was resolved in 1974, that Hitachi's actions constituted "racioethnic discrimination" (民族差別 minzoku sabetsu).
The decision by the Yokohama District Court reflects the way in which courts in Japan generally view nationality in historical perspective -- as strictly civil, not racioethnic or ethnonational, status. It also reflects the capacity -- more likely of lower than higher courts -- to issue rulings favorable to plantiffs in discrimination cases.
Hitachi argued that it had nullified its employment of Pak on the grounds he had misrepresented both his legal name and the address of his family register in a province in South Korea. The court, in its ruling against Hitachi, held that Pak was not unjustified in using his Japanese-style name and Japanese address, considering that they were the only name and address he had used in his everyday life. The court also took into consideration the history of the discriminatory circumstances Pak had faced when seeking employment.
The court elaborated on the reasons for its ruling in several parts of the judgment. Part 3 concerned reasons it had nullified the Hitachi's dismissal of Pak. Section 4 of Part 3 describes in considerable detail four general conditions in the background of Pak's life that most many Koreans in Japan shared as historical and social experiences (my digests, paraphrasing, and at times partial translations of four points from 271-274).
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Hitachi alleged that it had nullified its employment of Pak because had not been truthful when writing his "name" and "principle register [affiliation]" on the application form. He had written his social moniker (passing name) and legal residential address or domicile (where he was registered as an alien), rather than his legal name and legal honseki address (meaning his ROK register address as recorded in his municipal alien register). "Honseki" on application forms in Japan generally means "honsekichi" (本籍地) or "place of principle register", not residential address, hence country of nationality or "kokuseki" (国籍) for aliens.
The Yokohama District Court ruled against Hitachi, holding that Pak's "social lie" as it were (my characterization of what he did) was justified by the discriminatory circumstances Koreans faced in gaining employment. Hitachi, biting the bullet, declined to appeal and reinstated Pak.
There is no way to know whether, had Hitachi appealed the district court's decision to the Yokohama High Court, and had the case gone as far as the Supreme Court, what the final decision might have been. Hitachi undoubtedly weighed the costs of fighting the decision in terms of the negative publicity it might generate, in view of the sympathy the court had shown Pak's white lie.
Labor Standard Law
Japan's Labor Standard Law (労働基準法 Rōdō kijun h&3333;), as promulgated on 5 April 1947 and enforced from 1 September 1947 (Law No. 49), made the following provisions in Article 3.
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第三条 (均等待遇) Structural translationArticle 3 (Equal treatment) Japan Year Book translation (1946-1948, published 1949)Article 3 (Equal treatment) No person shall discriminate against or for any worker by reason of nationality, creed or social status in wages, working hours and other working conditions.
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The main clause of Article 14 of the 1947 Constitution, which came into effect on 3 May 1947 a month after this law was promulgated, states that "All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.
Article 3 of thus covers two of the categorical pretexts for discrimination listed in the Constitution -- "creed" and "social status" -- while beginning with "nationality" instead of "race". Both "race" and "national origin" were in the original draft of the Constitution. The term "nationality origin" along with "alien" were replaced by "nationality", but "nationality" was then deleted, as no state in principle guarantees equality of its own nationality with other nationalities.
Article 3 does not include "sex" because rules regarding working hours and other working conditions were somewhat different for men and women. Article 4 of the Labor Standard Law, however, concerning equal wages for men and women (男女同一賃金の原則), states that an employer is not to discriminately treat a woman different from a man regarding wages on account of her being a woman. And Article 5 concern the prohibition of forced labor (強制労働の禁止) against a worker's will by means of "violence, intimidation, imprisonment, or any other unfair restraint on the mental or physical freedom" of a worker.
These three articles survive today as originally promulgated during the Occupation of Japan by the Imperial Diet, still operating under the Meiji Constitution after it had promulgated the new constitution but before the constitution had come into effect.
Civil Code
Section 1 (General Provisions) of Chapter IV (Juristic Acts) of Japan's Civil Code (民法 Minpō) begins with two article concerning "Public policy and good morals" (EHS translation). Article 90, the first of these, stipulates that an act committed in the name of the law by anyone, will not be acceptable if for purposes not in the interest of public order and good morals.
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第九十条 Structural translationArticle 90 A juristic act which makes its purpose [the object of which is] a matter contrary to public order or good manners [practices, customs, morals] shall be regarded as having no effect [invalid, null and void].EHS Law Bulletin Series translation (1975, No. 2100, FA 16)Article 90 A juristic act which has for its object such matters as are contrary to public policy or good morals is null and void. |
In legal parlance, a "juristic act" is any indication of an intention -- in the course of exercising a legal power, on the part of an individual, whether a ruler, civil servant, manager, or any person in general -- that would engender a legal effect.