Problems in view of the realities for Korean residents in Japan
KANG Yoo-Mi
Lawyer
1. Introduction
The fifth periodic report prepared by the government (hereafter referred to as “the government report”) takes up the issues concerning Korean residents in Japan in relation to Article 2 (the obligations for the implementation of the Covenant), under the heading “Concerns pertaining to foreign nationals”, which deals with “Issues related to foreign nationals living in Japan” and “Concerns pertaining to Korean residents in Japan” separately. With regard to treatment of Korean residents in Japan, including the issue of their legal status, the government of Japan has limited itself to providing for separate status of residence for them, different from that for foreigners in general, without officially acknowledging the special contexts of Korean residents in Japan. Given the reluctant attitude on the part of the government, it may be appreciated that the government report takes up the issues concerning Korean residents in Japan in a separate section.
The section on “Concerns pertaining to Korean residents in Japan”, however, only refers to “Awareness-raising activities to eliminate prejudice and discrimination”, “Obligation to carry the Alien Registration Certificate” and “Korean schools”. The explanations on awareness-raising activities are no more than superficial general outlines, and the problems concerning “Korean schools” are among the recent hot issues. In view of this, the government report virtually makes no reference to “Concerns pertaining to Korean residents in Japan”. I will specifically examine the relevant issues in the following.
2. Who Are “Korean Residents in Japan”?
The term “Korean residents in Japan” refers to those who had been forced to reside in Japan under the Japanese colonial rule and their descendents. In this regard, they are consistently called “special permanent residents” in the government report, as is the case in the part on “Obligation to carry the Alien Registration Certificate”.
When the Korean Peninsula was liberated from the colonial rule, however, no legislation was adopted to provide for legal status of those from the Peninsula, in other words those from the former colonies. Without being granted specific status of residence, they were only allowed to reside in Japan “for the time being” on the condition that they met arbitrary requirements, including that those who had made temporary visits back to the Peninsula were excluded. Their status of residence was determined later with another unjustified requirement that they “have continued to reside in Japan”, thus excluding all those who had made temporary visits back to the Peninsula. Since status of residence was not granted to those who quickly went back to see what their homeland looked like after the liberation, they were categorically treated as “illegal entrants” when they came back to Japan. In spite of the contingent nature of their visits to the homeland, legality of their continued residence in Japan was determined on the basis of whether or not they had made such visits. Status of residence of Korean residents in Japan has been influenced by political situations, as is illustrated by the fact that the special status of residence, “the agreement right to permanent residence”, was granted only to those who have what is called “Republic of Korea” (ROK) nationality after the conclusion of the 1965 Treaty on Basic Relations between Japan and the ROK. Those who have what is called “Korean” nationality were granted “the exceptional right to permanent residence” only after Japan acceded to the Refugee Convention some twenty years later.
“The agreement right to permanent residence” and “the exceptional right to permanent residence” are now integrated into the status of “special permanent resident”. Even after a series of amendments to the relevant laws, there is no basic legislation to provide for legal status of those from the former colonies.
Korean residents in Japan continue to be treated differently in terms of legal status in spite of the similarities in their historical backgrounds, circumstances that had made them reside in Japan and histories of residence in Japan. They are either “special permanent residents” (those who had “the agreement right” or “the exceptional right” to permanent residence), “permanent residents in general” (who applied for and were granted permanent residence as foreigners in general) or “long-term residents” (who have not applied for or were denied permanent residence as foreigners in general). Among non-permanent residents, there are so-called “Korean political offenders residing in Japan” who were detained in the ROK and could not return to Japan within a specified period for re-entry. Many Koreans were deprived of their right to permanent residence because they had left Japan without valid re-entry permit, having refused to submit their fingerprints, and were treated as newcomers when they came back to Japan. Korean residents in Japan are treated in a discriminatory manner in accordance with these divisions in terms of re-entry permit or grounds for deportation. If they are not “special permanent residents”, they continue to share the same problems facing foreigners in general, including the need to renew the authorized period of residence.
Equating “Korean residents in Japan” with “special permanent residents”, therefore, means that the descriptions focus only on those who have been granted status of permanent residence in accordance with the inconsistent political decisions of the government of Japan, totally disregarding their historical contexts. The existence of the “Korean residents in Japan” who have been forced to reside in Japan, having been denied or deprived of permanent residence, is made invisible. The issues of concern to some of “Korean residents in Japan”, who had emerged from the colonial rule, are not discussed at all.
3. On “Awareness-raising activities to eliminate prejudice and discrimination”
The government report states that, “as one of their activities to protect the human rights of foreign nationals”, the authorities “are carrying out encouragement activities including activities to eliminate prejudice and discrimination against Korean residents in Japan”. What is essential in order to eliminate prejudice and discrimination against “Korean residents in Japan”, however, is to make their historical backgrounds widely known. No effort has been made to step up the awareness-raising activities to such a level. In particular, gratuitous remarks by high-level officials and other official figures concerning “North Korea” have brought about xenophobic attitudes against “Korean residents in Japan”, leading to serious situations. This also reflects disregard on the part of the government of Japan to the special circumstances of “Korean residents in Japan”.
The government report also refers to the distribution of pamphlets and leaflets as part of the responses to harassment, etc. against Korean children and students residing in Japan, which occurred in connection with “the issue of abduction”. Actually, however, governmental materials on “the issue of abduction” per se are distributed on an overwhelmingly larger scale, making it evident that “awareness-raising” is inadequate.
The government report goes on to state that the authorities “have called on Korean children and students residing in Japan to consult with the human rights organs under the MOJ if they are targeted with harassment”. There have been no cases of “awareness-raising” undertaken by the MOJ, however, in response to such complaints. While the majority of “harassment” cases in fact constitute criminal offences, such as intimidation and assault, there has been no indication of the policy of stringent sanctions against such perpetrators.
It can be said, on the contrary, that the general situation of “Korean residents in Japan” has worsened since the emergence of “the issue of abduction”. This is illustrated, for example, by a civil lawsuit filed by a Korean resident who has worked as a salesperson using his real name; he has claimed damages for the injury caused by slanders by his client, including by the words such as “You are a spy of the North [Korea]”.
Since awareness-raising activities are not enough, what is currently required in Japanese society is to take legislative steps against these kinds of discrimination. The UN Committee on Economic, Social and Cultural Rights (CESCR) also endorsed such a view, “strongly recommend[ing] that the State party strengthen its non-discrimination legislation” in 2001 (para. 39 of the concluding observations). There is no reference, however, to this recommendation in the government report.
In addition, a series of criminal action has been taken against the General Association of Korean Residents in Japan (Chongryon) on the grounds of petty violations of law. Such oppression through security-oriented law enforcement is a discriminatory application of criminal provisions.
4. On “Obligation to carry the Alien Registration Certificate”
While the government report positively describes the modification of the sanction for violating the obligation to carry one’s alien registration certificate at all times, from a criminal penalty to an administrative penalty, it also state, “Given the current situation in Japan in which there are a large number of foreign nationals who have entered or have been staying in Japan illegally, [the government intends] to maintain the system of obligating foreign nationals to carry the alien registration certificate at all times”.
First of all, the criminal penalty ceased to be applied only in relation to “special permanent residents”. Since they cannot be distinguished from what are called “Japanese” by language or customs, it is usually unlikely that they are suspected as “foreign nationals who have entered or have been staying in Japan illegally”. Nevertheless the very obligation to carry one’s alien registration certificate has not been abolished, not for identifying “foreign nationals who have entered or have been staying in Japan illegally”, but apparently with the purpose of securing a ground for arbitrary arrest when necessary.
With regard to foreigners residing in Japan with valid status of residence, their status can be confirmed by checking their address or workplace even if they do not carry their alien registration certificates. On the contrary, those without valid status of residence can only be identified as “foreign nationals who have entered or have been staying in Japan illegally” after going through such processes. In other words, one cannot be identified as a foreigner without valid status of residence just because he/she happens to be without his/her alien registration certificate when demanded by the authorities to produce the document. Therefore it cannot be a decisive means to identify “foreign nationals who have entered or have been staying in Japan illegally” to have foreigners carry their alien registration certificates at all times. There is no need to penalize the failure to follow the obligation, either. In particular, it is a serious concern to apply the penal sanction even against minors.
Furthermore Japan is not the only country “in which there are a large number of foreign nationals who have entered or have been staying in Japan illegally”. No countries in a similar situation, however, force foreigners with the threat of penal sanctions to carry alien registration certificates at all times.
Some Koreans residents in Japan have objected to the imposition of such an obligation and returned their alien registration certificates to the government, being in the state of constant violation of the law. It was revealed that the Ministry of Justice has instructed local authorities to refuse the provision of administrative services to these objectors, including by not accepting the notification of changing their address to the relevant municipality.
The obligation to carry the alien registration certificate at all times is not the only concern in relation to the document. Other problems include: the renewal system, in which foreigners are required to report periodically what is contained in their alien registration certificates to the municipal office in their place of residence; the criminal penalty for failing to report any changes in what is contained in the certificate; and too detailed requirements for the information to be contained in the certificate, including on the place of employment. There has been no improvement on these issues.
In accordance with the recent amendments to the Immigration Control and Refugee Recognition Act, “Korean residents in Japan” without the status of “special permanent resident” are now required to submit electronic personal identification information when they enter Japan, which will be checked into every time they re-enter the country. Article 6, para. 3 of the amended Act provides that foreigners shall submit, through electronic means, “personal identification information (fingerprints, photographs and other forms of information, prescribed by decrees issued by the Ministry of Justice, that allow for the identification of the individual)”. Fingerprints and photographs are no more than illustrations. Since fingerprints, a form of biological information, is indicated as an illustration, the Ministry of Justice is now authorized to collect other forms of biological information, such as iris records, and to process and manage them in electronic means on the basis of ministerial decrees instead of legislation.
Furthermore the Ministry issued a notice that obliges foreigners to carry the IC card containing these kinds of information at all times. The issuance of the IC card will lead to the unified management of a vast amount of electronized personal information, which will result in the reinforcement of security control of foreigners. While the alien registration certificate has been issued to foreigners without valid status of residence, the same practice will not be applied to the IC card. This may have serious impacts on the daily lives of foreigners without valid status of residence, including in relation to opening banking accounts for receiving salaries or going to hospital.
5. On “Korean schools”
The government report states, “Children of foreign nationals without Japanese nationality can receive all compulsory education at Japanese public schools free of charge if they wish so”.
Indeed, the overwhelming majority of Korean children residing in Japan receive compulsory education at Japanese public schools. This is, however, largely because the graduates of ethnic schools are not eligible to take university entrance examinations and because economic burdens are heavy due to lack of subsidies to ethnic schools, since such schools are not recognized as what are called formal schools under the School Education Act. The government report pays no attention to these contexts. In this regard, the CESCR recommended in 2001 that Japan “officially recognize minority schools, in particular Korean schools, ... and consequently make available to them subsidies and other financial assistance” (para. 60). At the same time, care should be taken to prevent unreasonable interference with what is taught at minority schools in the name of “the control of public authority” under Article 89 of the Constitution of Japan.
The government report also makes positive references to the expansion of the eligibility to take the University Entrance Qualification Examination and to the broadening of the eligibility to apply for admission to universities. The eligibility to apply for admission to universities is not recognized unconditionally, however; indeed some private universities still do not recognize the eligibility of graduates of Korean schools.
Because ethnic schools are not recognized as the equivalents to Japanese public schools, the authorities in Tokyo and then in Osaka took legal action to recover the sites of Korean schools, making it unstable to secure “places of learning” for Korean students.
On the other hand, compulsory education at Japanese public schools is not the right of foreign children, being provided only on the basis of the expression of their wish as such. Consequently, in Kyoto City, the principal of a public school at the lower secondary level has treated a Korean student residing in Japan as having been expelled, arguing that he could expel students of foreign nationality because they are not covered by compulsory education. Legality of such treatment is being challenged at court.
In the meantime, it has been argued these days that children of foreign nationality who are not enrolled in school should be subjected to compulsory education at Japanese public schools. This should be understood these children’s rights rather than “security measures” against them.
In addition, as part of the right of learning of children of foreign roots, ethnic education should be secured at public schools as well. Lawsuits have been filed against the authorities that have put an end to this form of education. In 2001, the CESCR “strongly recommend[ed] that mother-tongue instruction be introduced in the official curricula of public schools enrolling a significant number of pupils belonging to linguistic minorities” (para. 60). Irrespective of whether they have Japanese nationality, all children, including Koreans residing in Japan, should enjoy the right to learn mother tongues and other elements of their countries of origin.
6. Other issues
(i) Issues pertaining to the Immigration Control Act
“Korean residents in Japan” still need to obtain re-entry permit when they leave Japan on the same footing with foreigners in general. If they leave without re-entry permit and then return to Japan, they may be treated as new entrants and deprived of the status of residence they have enjoyed.
However, visits to their countries of origin by “Korean residents in Japan” have an aspect of family visits. The obligation to obtain re-entry permit in these cases imposes unreasonable restrictions on family reunification.
In addition, the Minister of Justice has wide discretion, as is the case in relation to foreigners in general, over the change of status of residence by “Korean residents in Japan”, including the acquisition of the right to permanent residence. What is called “the national interests provision” is also applied to them. No attention is paid to why they came to reside in Japan.
(ii) The right to hold public offices
On 26 January 2005, the Supreme Court declared that individuals of foreign nationality cannot be employed as civil servants who “participate in the exercise of public power or in public decision-making”, making it impossible for “Korean residents in Japan” to take managerial posts in the public sector. In Osaka Prefecture, for example, Korean residents in Japan who had served as teachers at public schools were demoted to “full-time instructors”.
In particular, the vague nature of the concept of “the participation in the exercise of public power or in public decision-making” has been used to exclude Korean residents in Japan from more and more occupations in an arbitrary manner. For example, some Korean residents in Japan have been excluded from mediation committees at court in spite of the fact that they had passed the bar examination on the same footing with Japanese nationals and are qualified as attorneys-at-law. In this way, restrictions are imposed on them even in qualification-based occupations.
In this regard, the third periodic report of Japan (1991) stated, “The Government made it possible for individuals not possessing Japanese nationality, including Korean residents in Japan, to be employed as teachers. Those who pass the same examinations as Japanese nationals are employed as full-time instructors, without a limited period of appointment. The Government pays attention to their stability and conditions of employment”. It is evidently unreasonable discrimination, however, to put those “who pass[ed] the same examinations as Japanese nationals” in inferior working conditions as “full-time instructors” compared to Japanese nationals.
The doctrine has been applied even to the recruitment of volunteer probation officers, who are not civil servants but seen as quasi-civil servants, resulting in the refusal to recruit an individual with foreign nationality as a volunteer probation officer. While it is important to be able to communicate with ex-offenders’ mother tongues for their rehabilitation, such a measure virtually prevent them from reintegrating into society.
(iii) The right to housing
In 2001, the CESCR noted that the government “is currently in the process of consultations with Koreans living in the Utoro area”. During the World War II, the Kyoto Prefectural Office brought many Koreans to the Utoro area, one of the sites of the barracks to accommodate the Korean workers mobilized for the construction of a military airport. After the war, many of the Koreans have continued to live in the Utoro area, Uji City, having received no compensations and having nowhere to go. In accordance with the Supreme Court judgment in 2000, they had been demanded by the landowner to evacuate the site. In October 2007, however, the landowner agreed to sell the eastern half of the site to the dwellers. It has also been revealed that the government of the ROK is planning to provide financial support and that the Ministry of Land, Infrastructure, Transport and Tourism of Japan is seeking to secure the 2008/09 budget for the construction of public housing, which is the wish of the dwellers.
On the other hand, “Korean residents in Japan” continue to be discriminated against in the field of housing. They filed civil lawsuits concerning discrimination in housing in succession in 2004 and 2005. Discrimination in the field of housing, which is the very basis of social life of human beings, means exclusion from local community. Administrative measures against such discrimination have never been taken, however.
(iv) Social security systems
Social security is not considered as rights of foreigners at all, provided only as “favors”. Foreigners therefore have no right to public assistance under the Livelihood Protection Act, being unable to appeal even if their applications were dismissed.
In addition, there are “Korean residents in Japan” who cannot receive pensions because of the gaps that have occurred in the process of the amendments to the Pension Act. Remedial measures have not been taken, not only by the legislative or administrative bodies but also by the judicial organs.
(v) Participation in a democratic society
On the basis of the doctrine of the people’s sovereignty, “Korean residents in Japan” have no rights to vote and to be elected in national elections. Nationality of “Korean residents in Japan”, however, was not determined on the basis of law in accordance with Article 10 of the Constitution of Japan; they were deemed as having lost Japanese nationality simply through the issuance of a notice, not having made their own choice in the exercise of “freedom to choose nationality”. First and foremost, it does not reflect the realities of their lives to keep excluding them from national politics.
Local suffrage has not been given to “Korean residents in Japan”, either. In view of the decision in the ROK to grant local suffrage to permanent residents, this is unfair in terms of the principle of reciprocity as well. While some municipalities have allowed foreigners to vote in local referendums, the results of local referendums do not have binding forces under the Japanese legal system. Therefore lack of the right to vote continues to be a major concern.
7. Conclusion
These forms of institutional discrimination affect social perceptions of foreigners, including “Korean residents in Japan”, and contribute to discrimination in the fields of employment and marriage. Without the elimination of discrimination in public spheres, it is evidently impossible to eliminate discrimination in private spheres.
Furthermore, the protection and promotion of minorities’ human rights leads to the modification of awareness among the majority and hence to respect for human rights in the society as a whole. The government of Japan is expected to take proactive measures for the elimination of discrimination.
