Of Aliens and Inalienable Rights

A hot topic in recent Japanese politics has been: Should suffrage be extended to resident aliens?
As an underlying principle of suffrage, Article 15 of the Constitution of Japan stipulates that “[t]he people have the inalienable right to choose their public officials and to dismiss them.”

On the strength of this provision, many of politicians in this country have posited that suffrage is exclusively vested in the Japanese people--those who have Japanese nationality--and that the enfranchisement of aliens is prohibited constitutionally.

In 1995, the Supreme Court of Japan stated, however, that a legislative measure to grant aliens—or foreigners—with permanent residency the right to vote in local elections is permitted constitutionally, because a local government’s activity is closely related to a resident’s daily living.[1] It is juristically called the “permission doctrine.”

This landmark triggered a political movement for the extension of suffrage. In this decade, many bills aiming to give local suffrage to aliens have been submitted to the Diet. When conservative Liberal Democratic Party (LDP) was the biggest force, those bills were all rejected. However, through the 2009 Lower House election, the center of political power shifted to more liberal Democratic Party of Japan (DPJ).

At last, this electoral reform plan gets a grip on reality now.

Arguments For And Against

So why, in the first place, should local suffrage be extended to resident aliens? Proponents state several reasons. In particular, tax payment is one convincing argument. Since aliens are liable to taxation just like the Japanese, likewise aliens should have the right to check the ways the government uses taxpayers’ money.

Another persuasive reason is, as the Supreme Court remarks, the close relationship between a local government’s activity and a resident’s daily life.
Unlike national politics dealing with diplomacy or security, local politics directly influences many aspects of community life. For example, should surveillance cameras be installed all around the city? Should a mono railway be laid in the town?
These all depend on local politics and administration.

As such, the participation in local elections may be one of the “daily necessaries” for resident aliens, along with property rights or social security. On the other hand, there are many opponents of aliens’ suffrage. They argue that suffrage has not been associated with tax payment in Japan for a long time.[2] Taxes are paid in exchange for not political rights but public services such as road, park, police or fire fighting. In short, citizenship cannot be bought with money.

Next, according to such “anti-suffragists,” the daily connection between local politics and residents is not an adequate ground for the extension of local suffrage. If an alien takes root in Japanese society so deeply as to need local suffrage, all he or she has to do is acquire Japanese nationality.

In Japan, the conditions for naturalization are not too difficult.[3] Seen in that light, the extension of suffrage is an unnecessary measure.
Moreover, some xenophobes fear that local suffrage for alien will lead to the intervention of foreign power in Japan’s national politics. In this country, local politics is deeply committed to national politics.

Local governments play a major role in some national policies including welfare, education and even security. More importantly, the support of local politicians is one of the most crucial factors in the outcome of national elections. In that context, there is a future possibility that local politicians without Japanese nationality will have a certain influence on Japan’s national politics.

Is Suffrage Inalienable To Aliens?

This suffrage issue has been debated widely from various perspectives. Above all, Article 15 of the Constitution still seems the most focal point. This provision defines suffrage of the Japanese people as an “inalienable right.”

This “inalienable” is traditionally considered as “exclusive” in this country. In sum, suffrage is seen as the exclusive right of the Japanese people. From such a standpoint, the enfranchisement of aliens can be interpreted to violate this Article 15, even if this measure is limited to a local level.Additionally, to reinforce the argument, these anti-suffragists often bring up one political idea: popular sovereignty.

The Preamble to the Constitution stipulates that “sovereign power resides with the people.”[4] Japan must be governed by the Japanese people themselves only. Therefore, according to the anti-suffragists, resident aliens--those who are not indigenous Japanese--are not qualified to participate in Japan’s governance.Supposing that the anti-suffragists are right, how then should we consider the “permission doctrine” once adopted by the Supreme Court?

On this point, anti-suffragists focus on the fact that this doctrine is not the ratio decidendi (rationale for the decision) but merely the obiter dictum (incidental remark) included in the body of the court opinion. This means that the doctrine is not legally binding. The anti-suffragists argue that such a thing has little authority and hardly deserves mention.

What Right?

To be sure, an obiter dictum does not have the force of law, but at least it sometimes has de facto binding effect. There are many previous cases that a mere incidental remark by a court had some influence on subsequent trials or government activities. Originally, Japan’s legal system is not common law but civil law. Generally, under the civil law system, a judicial opinion scarcely has the force of law, whether ratio decidendi or obiter dictum. It is only de facto binding effect to some extent.According to the anti-suffragists, the permission doctrine is meaningless because it appeared merely in an incidental remark by the court. However, such an argument is based on a misunderstanding about Japan’s legal system.

That said, the most important thing is the “inalienable right” stipulated in Article 15 of the Constitution should be considered. If you are a native English speaker, you ought to know that the word “inalienable” means “untransferable” or “unforfeitable.”

Moreover, if you are American, you ought to know that the phrase “unalienable Rights” appears in the U.S. Declaration of Independence. If you are French, you ought to know that the phrase “les droits naturels, inaliénables et sacrés” appears in the Declaration of the Rights of Man and of the Citizen.The point is that the meaning of “inalienable right” must be guessed from the context of natural right theory, which was once elaborated by some Western philosophers or politicians in the 17-18th centuries.

This theory challenged the divine right of kings, and argued that citizens have some basic rights which cannot be transferred to a sovereign. In some ways, the above two historical declarations came under the influence of this political theory.It is safe to bet that the Allied Powers’ senior officials playing a major role in drafting the postwar Constitution of Japan also drew their inspiration from that classical theory.
Considering that one of the most serious matters at that time was the governing power of the Emperor, the phrase “inalienable right” provided in the Constitution of Japan ought to mean the Japanese people’s right untransferable to the state or sovereign.[5]

According to the anti-suffragists, suffrage is not sharable with resident aliens because this political right is the exclusive right of the Japanese people. However, such an argument shows no regard for the historical context of the word “inalienable.”

Issues At Large

Can tax payment be a path to citizenship? Should nationality and suffrage be discussed separately? Are national politics and local politics two different things? These are issues with highly political implication. At this time, we must avoid rough-and-ready conclusion. On the other, it suffices to say here that the Constitution of Japan can be interpreted to leave the door open for further extension of suffrage.There is also a more fundamental point: the exclusive nature of Japanese society.

To meet international expectations, Japan’s government has tried to improve aliens’ human rights situation for over the past two decades. However, Japanese society is still not much receptive to resident aliens on the whole. For some Japanese, aliens are always gaijin--literally, “outsiders.” Many resident aliens are given discriminatory treatment in such occasions as job hunting, house hunting or community involvement. For resident aliens in this country, such a social situation is definitely a more pressing issue than political rights.

In that sense, the suffrage issue is perhaps placing the cart before the horse.

Takaaki OHTA is a research associate specializing in political and constitutional theory at Waseda University, Tokyo. He has recently published ‘Fairness versus Freedom: Constitutional Implications of Internet Electioneering for Japan,’Social Science Japan Journal vol.11 no.1 (2008), and ‘Constitutionalism, Cyberspace and Exits,’ Journal of Political Science and Sociology vol.9 (2008). He can be reached by email at ohta@toki.waseda.jp.

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[1] See Sup.Ct.. 28 Feb 1995. Keishu 49[2]:639. This case was brought before the court questioning the constitutionality of the Public Office Election Act (Koshoku Senkyo Hou, Act No. 100 of 1950 as amended by Act No. 86 of 2007) and the Local Autonomy Act (Chiho Jichi Hou, Act No. 67 of 1947 as amended by Act No. 96 of 2009), which qualify only the Japanese people as eligible voter.
[2] Since the revised Lower House Election Act 1925 (Shugiin Giin Senkyo Hou, Act No. 47 of 1925) was enacted, universal suffrage has been continually one of the basic principles in Japan’s electoral system.
[3] As to the statutory conditions for naturalization, see Article 5-8 of the Nationality Act (Kokuseki Hou, Act No. 147 of 1950, as amended by Act No. 88 of 2008).
[4] There is a similar phrase “the people with whom resides sovereign power” in Article 1 of the Constitution.
[5] The draft Constitution of Japan submitted by these officers in 10 Feb 1946 stipulated that “[t]he people are the ultimate arbiters of their government and of the Imperial Throne. They have the inalienable right to choose their public officials and to dismiss them.”