As mentioned above. Koreans can take exams for certain specific jobs for local authorities. In spite of the direction of the Ministry of Home Affairs, some local authorities are gradually trying to open up posts to aliens. The case of Chong Hyang-kyon is the first suit relating to an administrative post for an individual already working for a local authority. A ruling was made by the Tokyo District Court, against her. Chong appealed to the Tokyo Appellate Court, and she won. The government side appealed to the Supreme Court in time, but the final outcome is not known yet.
The plaintiff is employed as a full-time public health nurse. A tokubctsu eijusha,
she was the first Korean employee for that position in the Tokyo Metropolitan Office (local authority) after the ‘nationality’ criterion was removed from the job application form in 1988. After she was promoted to the present position, she received an application form for a management position. However, she was even refused permission to submit her application form, let alone take the examination itself, as she was told that she does not have Japanese nationality (an important condition for the Ministry of Home Affairs, which supervises local authorities’ matters). She filed a suit for recognition of her right to take the examination for managerial posts (this suit only asks for ‘recognition of the right to sit the
examination’, i.e. she has not yet taken it or been discriminated against by way of the result).
The plaintiff's side argued that the right to take the exam was part of the (civil right) to choose an occupation, according to Article 22-1, the Constitution. Chong contends the following:
-There is no Japanese nationality restriction clause in the present public servants’ act (at state or local level) and therefore, to prevent aliens becoming managers by ‘the principle' is unconstitutional. Furthermore, this rejection of the exam application is contrary to the right to choose an occupation and against the equal protection of law, according to Articles 22-1 or 14 of the Constitution.
-Many ‘special permanent resident' (tokubetsu eijusha) status holders like herself
have exactly the same life-style as Japanese nationals, and have a closeness to Japanese society, which are not taken into account.
-Judging from the Supreme court ruling on voting rights on 28/2/1995, new legislation (or revision) is needed to extend entitlement to aliens. Regarding the right to work as a public servant in local authorities, there is no clear restriction of aliens within the related acts, and therefore the new legislation is not required, entitlement to hold public office should be easier to obtain than suffrage (Hanji: 1566:23).
-Furthermore, the defendant (Tokyo Metropolitan Office) does not indicate that it considers alien managers to be unsuitable for managerial posts (in the local authority), nor does it express any argument that the nationality criterion is necessary and a minimum condition for holding managerial positions (argument,
22/3/1995). The defendant’s side argues that the issue is one of ‘political right’. It says that according to the principle of the exercise of public will (‘local authorities have many (state level) delegation jobs,) with regard to aliens' employment, has no rational reason to distinguish local level from the national level (argument, p29).
The result of this case was entirely unlike that of the Son case. The Tokyo District Court dismissed Chong’s demand and ruled in favour of the Tokyo Metropolitan Office (and also the Ministry of Home Affairs). The ruling says that ‘the Constitution requires that those working in the position of public servant (which is related to sovereignty) must hold Japanese nationality...’ (the judgement, 16/5/1996:43).
Although the point of dispute was similar to the Son case (in the way that there is no clear requirement which refers to Japanese nationality), the Chong case was dismissed on the grounds of the circular issued by the Ministry of Home Affairs, which prohibits ‘exercises of public power and participation for the formulation of public will. The evaluation of this judgement is however, accepted ‘within the framework' of the 28/2/1995 judgement on suffrage (Asahi Shinbun; Mori
Yasunori, verbal communication, 1996). Part of the reason for the difference in the ruling between the Son and Chong cases may lie in whether ‘judges have historical recognition of Koreans’ existence in Japan at present’ (Azusawa, 1996); other reasons could depend on the extent of the importance to sovereignty, or the question of how many people share the same situation with those who make complaints. Chong argued at the court as ‘...Neither at the time I was offered this
job nor after starting to work, I have ever been explained (about my Korean Nationality). And one day, when I work in the same way as others do, all of a sudden, I am told that I am a foreigner and that the labour conditions are different from others. I cannot agree with it.’(argument, 6/12/1995). Chong’s case received the Appellate Court ruling in November 1997, which she won. It has now gone to the supreme court for further ruling.
Before the Chong case, there were a couple of court cases which focused on the right to take the ‘employment selection’ exam. For instance, there is an examination to be a postman, and until 1984, when it was withdrawn, there was a nationality criterion on the qualification to sit for the recruitment exams. Until 1991, aliens could not sit for the examination to be a teacher, because there was a nationality criterion for the qualification for the examination guidelines, as mentioned above. In 1991 March, after Japan-South Korea Memorandum, this criterion was removed from the examination application forms. Nowadays, aliens can sit for entrance exams to enter the teaching profession, but without promotion. These were regulated by the National Personnel Authority's rule 8-18, which only speaks of restriction for ‘qualification for entrance examinations’, but not mentioning of nationality clause.
5.13 Conclusion
This chapter has explored, to what extent rights and nationality in Japan can be separated. It has looked at the gradual development or emergence of 'teiju
entitlement to aliens. Though these have in some cases been transitional measures, in most cases pending diplomatic negotiations or agreements, they have helped to exclude aliens. In addition, although these nationality clauses have gradually been abolished, we see by the two cases detailed here that it is quite hard to argue on behalf of (settled) aliens even when there is no explicit nationality clause.
We have also seen that the concept ‘teiju gaikokujin' is historic, gradual, and
grass-roots orientated, and that it has not yet been accepted as an official concept. At the same time, it has taken quite a long time to have substantial permanent resident status, to become those 'special permanent residents (tokuhetsu eijusha)’.
It signifies that different categories of 'permanent residence' had been insecure for a long time and shows that the dichotomy between aliens and nationals in Japanese society is quite strong. In the Son case, for instance, his previous ties with Japan are completely forgotten by the fact of his illegal entry from South Korea.
Furthermore, when it comes to making a distinction, most of the time the dividing line falls between nationals and aliens, rather than between nationals, settled aliens and other aliens. This partly comes from the weak concept of aliens' rights within the theories. There is clearly a mismatch between the traditional framework of state vs state (or Japan vs Korea or China, for example) and legislation which recognises the existence of teiju gaikokujin to some extent.
The two cases discussed in this chapter are about social rights and political rights (the classification of political/social is the Japanese concept) and both concern
former empire subjects. Where ‘nationality clauses’ survive in Japanese society, there can be different interpretations over their continued existence. The most benign view is that requirements for 'nationality clauses' were intended to promote the naturalisation of certain aliens in Japan, such as Koreans and Taiwanese ex subjects who were already working in central government just after the war. Or, the menace against tc/wo was a real issue, in particular, when communists activities
were dominant just after the war. However, after aliens are settled, or become 'denizens', nationality clauses or the difference of citizenship status is the only thing which can distinguish those teiju gaikokujin, in particular, tokubetsu eijusha
(special permanent residents) and Japanese nationals.
As a short summary of Chapters 4 and 5, in these two chapters, the theme was the distance between the two concepts of citizenship and nationality. Concerning issues around 'nationality', such as the meaning or significance of a nationality criterion, it appears that the areas in which nationality matters are much broader, and that the meaning is more fixed in Japan than in Britain. On issues of permanent residence, however, internal entitlements are overall more stable in Britain than in Japan, while notably, rights of permanent residence relating to immigration is relatively more tolerant in Japan than in Britain. This may be due to the different emphasis on policies within Britain and Japan, the former focusing on immigration, while the latter focuses on internal control; in Britain, issues relate to 'citizens', while in Japan, they relate to 'aliens'. In regard to the status of former empire subjects, it appears that in Japan, whilst legislation was originally lacking, the situation for
aliens is improving, whilst in Britain, measures are becoming increasingly restrictive, as it tries to rid itself of the legacy of the empire.
When we attempt to apply these issues to Brubaker's six ideals of nation-state membership models (1989), nationality criterion can be regarded as a 'socially consequential- aspect, the stability of permanent resident status as 'egalitarian', and entitlement of political rights as a ‘democratic’ aspect. In the case of Japan, it appears that, as far as this chapter is concerned, aspects of social-consequence are very much dominant, while democratic and egalitarian aspects are less clear, in comparison with the British case. It is also quite symbolic, though that the rights of eligibility as well as past conscription compensation are still matters of dispute in Japan. In the British case, it seems that egalitarian and democratic aspects are much stronger than the socially consequential aspect.