If Ito can be American,
why can't Pak be Japanese?
By William Wetherall
A version of this article appeared in
The Japan Times, 3 July 1983, page 10
Freedom of choice
In March this year it was reported that the parents of a 12-year-old boy received permission from the Kobe Family Court to change their son's name because it was the same as that of Tanaka Kakuei, the former prime minister who has fallen from grace in the eyes of more than one young namesake. While the court gave no reasons, attorneys speculated that a new given name was permitted because the former name had invited so much teasing at school that the boy had sometimes refused to go.
Paragraph 1 of Article 107 of the Family Register Law provides that names may be changed for "compelling reasons" (yamuoenai jiyu). Reasons cited in legal literature include the inconvenience caused when someone else in the neighborhood has the same name, or when a name is comical or bizarre, difficult to read, sexually ambiguous, or causes one to be taken for a foreigner.
A number of Yamato surnames, especially those written with only one kanji, can also be used as Chinese or Korean names. So Japanese Hayashi could be Rim in Korean or Lin in Chinese, while Japanese Kon or Kin could be Korean Kim or (less likely) Chinese Zin.
Other precedents include the adoption of passing names, stage names, pen names, and other aliases that one has used for a long time; and names that one must take for business or professional reasons, such as when becoming a Shinto or Buddhist priest, or when succeeding to the headship of a school of art.
Petitioners seeking to change a name because it is thought unlucky, however, will probably not be allowed to do so. Nor will those who are thought to want a new name to conceal a crime or confuse their creditors. But there are precedents where a new surname has been permitted because the former name caused the petitioner to be associated with a Burakumin (former outcaste) community where the surname happened to be common.
Dancer Hanayanagi Wakana, wife of actor Jerry Ito, has written that she has had to contend with at least four other names: Ito Sakae and Yamaguchi Sakae in kanji, and Sakae Yamaguchi Ito and Mrs. Jerry Ito in roman letters. Hanayanagi Wakana is her professional name; her legal name is Yamaguchi Sakae.
Jerry Ito, born in the United States to an American mother and Japanese father, became only an American citizen rather than a dual national, for his father did not register his birth with a Japanese consulate. Because Ito was not Japanese, he had no family register, nor could his name appear as a member of Yamaguchi's register. And so Ito and Yamaguchi have faced their share of public doubt that they are really married, or that their children -- which Japanese law considers his but not hers -- are legitimate.
When traveling to the United States, Yamaguchi had difficulty passing as Ito because her passport showed only Yamaguchi. She once contemplated changing her name to Ito by being adopted into her father-in-law's register as his daughter, but decided not to do this because some people might think that she had married her brother.
There are, of course, easier ways. The most expedient is for the Japanese woman married to a non-Japanese to have her husband's surname put on her Japanese passport in parentheses. A more permanent solution, however, is for the Japanese spouse to legally change his or her name in a family court.
In the past several years, a number of Japanese women married to non-Japanese have petitioned family courts, under Article 107 of the Family Register Law, for permission to adopt a katakana form of their husband's surname as their legal register name. To do so, the woman usually establishes an independent register, or her parents and others in the original register would have to take the same name. But postwar Japanese laws allow any adult Japanese to establish an independent register. Many such surname changes have been reported in the Katei Saiban Geppo, a monthly journal of the family courts published by the Supreme Court.
Article 750 of the Civil Code requires that one spouse assume the surname of the other at the time of marriage. The catch is that this applies only when both spouses are members of family registers, hence Japanese.
Until the present Nationality Law was promulgated in 1950, it was possible for a foreign spouse to be adopted into the Japanese spouse's register, thereby becoming Japanese and assuming the surname of the register. This is how in 1895 -- before the first civil code in 1898, and the old nationality law in 1899 -- Lafcadio Hearn became Koizumi Yakumo.
Well into the Meiji period, it was possible -- if not customary -- for Japanese women to continue after marriage to refer to themselves by their natal names. But the first constitutional civil code required that all persons entered in a single family register must bear the same family name.
This dohon doshi (same register, same surname) criterion was one of two reasons why the old nationality law conferred Japanese nationality on (1) non-Japanese women who married Japanese men, (2) non-Japanese men who were adopted as a husband into the family of their Japanese wife, and (3) immediate family members of non-Japanese who naturalized and, as Japanese citizens, were both allowed and required to establish family registers. But the main reason was the mononational family principle, which held that all members of a nuclear family should be of the same nationality.
According to the postwar Nationality Law, Japanese citizenship can be acquired only through birth or naturalization. While the old law also discriminated against internationally married Japanese women and their offspring (at a time when it was not unconstitutional to do so), it accommodated multinational families by allowing non-Japanese members to become Japanese without naturalizing.
The present Nationality Law is more modern than its predecessor only in the sense that it gives less weight to the idea of mononational families. But it still operates on the outmoded (and now unconstitutional) principle of patrilineality, while the registration system which defines corporate families in Japan continues to be based on the principle that all members of a family must be Japanese and must bear the same surname.
So even should the Nationality Law be changed to allow the children of internationally married Japanese women to become Japanese through birth, under the present Family Register Law the Japanese woman could not adopt her husband's surname (which is not to say that she should) without petitioning a family court. Nor could her children be members of her register with their father's surname (again not that they should be) unless she were to adopt his surname.
As for surnames and given names that are allowed to be used by Japanese nationals thus defined as members of family registers, the law limits only the kinds of scripts in which a name can be written, not the name's ostensible ethnicity. Paragraph 1 of Article 50 of the postwar Family Register Law, promulgated in 1947, provides that simple, daily-use scripts must be used in assigning names to children, while Paragraph 2 states that the permissible scripts are to be determined elsewhere.
The permissible scripts are categorically defined in the postwar Family Register Law Enforcement Regulation, also promulgated in 1947, Article 60 of which limits the scripts to those on three lists, (1) standard general-use kanji, (2) standard name-use kanji, and (3) standard kana (katakana and hiragana). Other scripts, such as Roman letters and Arabic numerals, cannot be used in family registers, although non-standard kanji can be used to record the names of Koreans and Chinese in information-only entries like records of marriage.
In principle, any name expressed in the scripts on these three lists, which are determined by cabinet order, is acceptable as the legal name of a Japanese national. And it appears that this "principle" is more than a mere "guideline" subject to the whims of the Ministry of Justice.
When local registrars face a birth-certificate name that does not lend itself to unequivocal acceptance or rejection, they refer the name to a division of the civil courts which replies in what amounts of a judgment of permissibility.
In 1959, the bar which is used to lengthen a katakana syllable was questioned by a local registrar when a Japanese couple tried to file a birth certificate with the name Emii. The registrar observed in the query that the bar is a device used when transliterating the names of foreigners, and referred to a 1941 Cabinet Directive instructing that vowels were to be lengthened by adding the script for the vowel.
As Emii would strike many people as a non-Yamato name, the registrar's doubt about the bar may be seen as a thinly disguised test of an ostensibly foreign name. But the civil reply found nothing objectionable in using the bar, must less the name.
As a matter of fact, katakana surnames are also acceptable, as we have seen in the cases of internationally married Japanese women who have had their register surname changed to a katakana version of their husband's surname. I am also told, but have yet to confirm, that some stateless Russian emigres to Japan were permitted to naturalize with katakana transliterations of their names.
Family courts, which judge petitions for name changes, seem to take a fairly liberal view concerning the apparent ethnicity of names. But only Japanese can seek new names in Japanese family courts.
In April this year, the Kobe Family Court permitted a Japanese man named Nakai Hideo to change his name to Toran Dinton (Tran Dinh Tong), his legal name when a Vietnamese. His wife who was already Japanese, and their daughter who was naturalized with him, now also bear the surname Toran, the katakana form of Tran. Tran claimed that the Justice Ministry had forced him to adopt a Yamato name as a condition of naturalization, but that he could not identify with the name.
The Ministry of Justice takes a dim view of these trends against its long-standing tokekomu (melt-in) policy, which seeks to "assimilate" Koreans and other minorities who wish to be Japanese. The Japanese term for naturalization is kika (Chinese gui-hua), which in classical usage means something like "to submit to change". Thus the People's Republic of China, which constitutionally recognizes its multiethnicity, has abandoned this archaic term in its new nationality law, in favor of zhia-ru (Japanese ka'nyu), which literally means "to increase and enter" but in this context "to become a member of" Chinese society.
Freedom of choice
The freedom to choose one's names when naturalizing was recognized in Japan as early as 1925. But on 1 November 1939, Governor General of Korea Minami Jiro promulgated the soshi kaimei (create family name, change given name) policy. The policy was fully implemented from 11 February 1940 -- not just another National Founding Day, but the 2,600th anniversary of the accession of the fabled emperor Jinmu, by which date all colonial subjects were to have Yamatoized their names and nominally become members of the Great Yamato Race.
The story, too long to retell here, has many tragic folds, most of them still evident in the official attitude toward ethnic minorities, particularly former colonials and their descendants. Suffice it to say that the assimilation policy was too naive to work.
Yet reminiscent of the notion that being Japanese requires a Yamato name, the "Guide to Application for Permission to Naturalize" commissioned by the Ministry of Justice states that, "As for the post-naturalization family name and given name, the applicant can freely determine them, but as far as possible please make them Japanese names (narubeku Nihon-teki-na shimei ni shite kudasai)."
And this is more than just friendly advice, for naturalization clerks are said to reject any application that does not show a so-called "Japanese" (read "Yamato") name. That this "administrative guidance" was indirectly challenged by a Japanese national of Vietnamese ancestry, who was not too long off the boat so to speak, finds parallel in the United States, where Southeast Asian refugees may have been quicker than other Asian immigrants in learning to use the courts to claim their human rights.
As much as Koreans and other foreigners in Japan have complained of the Ministry of Justice policy concerning the names to be used after naturalization, no one to my knowledge has taken the issue to court. So as yet there is no precedent involving a complaint by an applicant, as opposed to what Tran did -- submit to the official pressure to adopt a Yamato name and, after receiving permission to naturalize, petition a family court to recover the forfeited symbol of his ethnicity.
While the family-court route requires momentary capitulation, it is no doubt the quicker and cheaper. name-change petitions can be filed without an attorney and cost only a few hundred yen, and decisions can be made within weeks. But a suit lodged against the Japanese government by a naturalization applicant could run a million yen at the district-court stage alone -- and take a decade to settle should the case go as far as the supreme court. While such a case would probably win, it would be more effective and economical if backed by an advocacy group.
But a number of feet have been squarely planted in the door. Everyone with a smattering of objective knowledge about Japanese history and society recognizes that Japan has always been, and continues to be, a multiethnic society -- that the myth of homogeneity owes most of its present-day thrust to the post-Tokugawa nationalistic expression of Yamato ethnocentrism.
There is a dramatic scene in Alex Haley's Roots where Kunta Kinte refuses to accept the slave name Toby and is lashed for his defiance. Apparently Juliet's dictum does not apply to people.
A rose, called bara, may smell as sweet. But as put in the song "Lady Li" by the T'ang poet Po Chu-i (772-846): "People are not wood or stone; all have passion." And names tend to evoke the strongest emotions when abused or deprived, for they are more symbolic of a person's identity than even nationality.
In Japan, where ethnic majorities who emigrate enjoy the right to preserve their names, though perhaps in a different script, the name issue has all the promise of becoming one of the most emotional civil-law issues of the century. For in a Japanese context, "What's in a name?" is to wonder why "If Suzuki can be a Canadian or Nigerian name, why can't Kim or Smith be Japanese?"
A Japanese journalist recently observed that "If un-Japanese-like names (Nihonjin-rashikunai namae) increase, the image of Japan as a monoethnic state will change" (Asahi Shimbun, 16 May 1983, morning edition). But it seems too late to argue whether "foreign" names should be recognized as "Japanese" names. For many already have, and therefore are no longer foreign.