On January 26 the 15-justice Grand Bench at the Supreme Court overturned,
in a 13-2 vote, a November 1997 Tokyo High Court ruling in favor of Korean
resident Chong Hyang Gyun, 54, and supported the Tokyo Metropolitan Government's
decision to bar her from taking a managerial promotion exam.
A second-generation South Korean with permanent resident status here, Chong said in a news conference after the ruling, "Laughter came before tears." She reportedly added: "I want to tell everyone in the world not to come to Japan. Working in Japan as a foreigner is just like being a robot that still pays taxes."
She was hired by the Metropolitan Government in 1988 to become Tokyo's
first foreign public health nurse. The Tokyo native was then promoted to
chief level in 1992. But that is where she hit a glass ceiling and perhaps
a glass wall as well. Having fulfilled all the prerequisites for seeking advancement
to a managerial position by March 1994, Chong applied to take the exam.
But the Metropolitan Government turned down her application on the grounds
that Japanese nationality was necessary for positions "linked to the exercise
of public authority."
In 1996 the Tokyo District Court dismissed her allegations against her employer saying that the Metropolitan Government's barring Chong from taking the exam was not unconstitutional because "the Constitution does not guarantee foreigners to be promoted to a position where public authority is exercised (in one way or the other.)" And then in 1997, the Tokyo High Court ruled in favor of the plaintiff saying administrative posts should be open to foreigners "depending on the nature of the job and authority to be exercised on it."
After the Supreme Court overturned the 1997 Tokyo High Court ruling, the Japan Times ran an editorial dealing with the case. (January 28, "Better use of talented people".) As if to defend the Tokyo Metropolitan Government, the editorial said: "It should be noted that the Supreme Court decision does not rule out foreign employment in the civil service. It supports Tokyo's position only insofar as barring foreign nationals from managerial appointments. In other words, it leaves the door open for employment in non-managerial positions." As usual the media are trying to trivialize the outcome of the lawsuit that in fact has far-reaching implications. It's no wonder the Japan's media had been turning a blind eye to those prostitutes yakuza organizations keep bringing in from Japan's backyard countries until the U.S. State Department and the ILO started to openly criticize Japan. (See Nov. 25 TFP story titled "Compliance with someone else's moral standards is far from enough".)
Actually what's at issue in the Chong's case is the Nationality Law, or to be more precise, arbitrary and opportunistic way the Japanese government has revised, interpreted and enforced it.
In November 2000, then-Peruvian President Alberto Fujimori attended the APEC conference held in Brunei. When he was through with the conference, he chose Japan as the next and final destination. On Nov. 19 he sent from Japan a letter of resignation to the Peruvian congress. Quite naturally the congress refused to accept his resignation and instead dismissed him and asked the Japanese government to hand him over to face embezzlement and murder charges back home. Ever since Japan has kept refusing to comply with the repeated requests for his extradition on the grounds that Fujimori, a son of Japanese immigrants to Peru, has a dual nationality, Peruvian and Japanese. It's quite intriguing to know the Japanese government and media have subtly changed their story about Fujimori's nationality over the last four years. The initial version of their runaround with which they justified the refusal of his extradition was: "It was learned and verified that Mr. Fujimori has kept dual nationality all along. And we cannot hand over any person with Japanese citizenship to a foreign country." But soon after then-Foreign Minister Yohei Kono lied, some legal experts started to argue that if ever Kono was telling the truth, the Fujimori's case was a downright violation of Article 11 of the Nationality Law because the law had been revised in 1984 to prohibit Japanese nationals from keeping any other foreign citizenship at the same time. Since then they've changed their story. Version 2 of the lie: "Fujimori, the son of Japanese immigrants, has been shielded from extradition by Japanese citizenship granted to him after his arrival (here)." (The Japan Times, Oct. 17, 2004.)
Just imagine what if this had happened the other way around. What if one day Prime Minister Junichiro Koizumi scratches his head and makes a confession that he holds dual nationality and that the other one is North Korean citizenship?
As is apparent from the sickening case with the ex-Peruvian President, the government and the media in this nation have long thrown away the law-abiding mindset and, needless to say, sense of justice, while still keeping preaching to us how to conduct ourselves. Therefore, it might be next to useless to suggest this, but I think Article 10 of Chapter III of the Constitution should be reworded so as not to allow an arbitrary and opportunistic way of defining "the people."
As you can see in the Feb. 2 TFP piece titled "Everybody has climbed onto bandwagon of constitutional debates now, but expectations for changes remain low", Article 14 of Chapter III provides: "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," while Article 10 of the same chapter defines, or to be more precise, falls a few words short of defining, "the people" here. It reads: "The conditions necessary for being a Japanese national shall be determined by law." This, in effect, is construed to imply that the lawmakers at all levels as well as the law enforcement can define, in any way as they please, the eligibility for being blessed with the constitutional rights to equal and fair treatment. But again, since the media and the government have been trying to misguide the people to believe Article 9 is the sole thing at issue in the ongoing constitutional debates, the likelihood is quite remote that Article 10 will be rewritten so the definition of the people is clarified within the boundaries of the Constitution on a self-contained basis.
Even if the fundamental law is amended that way, most probably there still remains a sticking point particular to Japan: Intangible barriers. In other words, even if we can somehow bring down tangible (legal) barriers such as the flaws in Article 10 of the Constitution and the subordinating Nationality Law, there still remain a lot of glass ceilings and glass walls to be removed. In the 1980s, the Ronald Reagan's Administration could have Japan remove most of the "non-tariff barriers" only by applying an incessant gaiatsu, or external pressures, through the U.S.-Japan Structural Impediments Initiative talks. Likewise we will still face ahead of us a daunting task of removing those non-legal barriers.
For one thing, according to letters those second- or third-generation zainichi, or ethnic Koreans living in Japan, flooded Japanese newspapers with soon after the Supreme Court ruling, the reason many zainichi haven't applied for Japanese citizenship is NOT because of the hard feelings toward Japan they have inherited from their parents or grandparents, but because of the prohibitively cumbersome red tape to be involved. Most of their parents and grandparents were abducted, so to speak, from the Korean Peninsula during wartime, and decided to stay on when the war was over. So they are not living here on their own will. And yet they have been more or less assimilated into this society. So it's all the more unacceptable that they have to face such an artificial deterrent when going through the procedure for naturalization.
It's a long way to go until we can remove all the tangible and intangible barriers they have put up between Chong Hyang Gyun or any other second-class citizens, perhaps including myself, and the full citizenship that they more than deserve, if ever the criminal who fled Peru after ripping off his people does in this country.