Codified-Uncodified constitution

Blondel (1995) states that: 'constitutions have introduced ideas and precepts about the organisation of governments which have deeply affected both theory and practice, even where there is no formal constitution. Constitutional developments which have occurred since the end of the eighteenth century have resulted in a universal debate about the principles of the organisation of governments and about how best to implement those principles' (p.217).

When we talk of rights and entitlements, one important aspect is to consider what is the last resort for their guarantee, namely, parliamentary sovereignty and the rule of law for Britain, and the Constitution for Japan. The difference between a codified constitution and one which is uncodified (and partly written) is certainly one of interest. The British uncodified constitution appears to offer less protection to individual rights, although the case is not straightforward. In Britain, constitutional

debate is explained as historical rather than legal. This can be found for instance, in Dicey (1885): The rights are based not upon abstract constitutional statements but upon the actual decisions of the courts' (in Lively and Lively eds., 1994). In comparison with Belgium (the Continental system), the same author writes:

In Belgium, individual rights are deductions drawn from the principles of the constitution, whilst in England the so-called principles of the constitution are induction or generalization based upon particular decisions pronounced by the courts as to the rights of given individuals (Dicey: 1885, quoted in Lively and Lively eds., 1994:180).

Although these statements are rather old and may not be strictly applicable to the present English system, especially when we consider the expansion of administrative work since the war, nevertheless, the relationship between the uncodified constitution and the guarantee of individual rights in Britain offers an interesting comparison with the Japanese system. This point is elaborated by some Japanese researchers of English law, such as Ito (1963) or Kuramochi (1995), in order to draw comparison. In particular, works of Dicey are often referred to by Japanese scholars for their comparative ideas with Japan.

After the Meiji Restoration, the modem Japanese legal system borrowed a number of ideas from different European countries, for instance, the Meiji Constitution from Prussia, the Civil Code from France and the cabinet system from Britain. After the Second World War, common law especially that of the United States had influence upon Japanese law, for instance, upon the present Constitution and Immigration law.

The Japanese post-war written Constitution is an enlightened document in some ways (Ito, 1963). Since there is no revolutionary struggle for individuals’ rights against authority, the passive nuance of rights as 'given from above' is quite strong. It is difficult for imported legislation to become living law and to become embedded. With this background, unlike Britain, without the tradition of the 'rule of law', it makes the role of the (codified) Constitution important for the guarantee of rights in Japan (Kuramochi, 1995) especially after the war. Therefore, the comparison seems to be between the codified constitution which emerged as a f a i t accompli in Japan,

and a wealth of historical background in Britain which has no single constitutional document (Kuramochi, 1995).

A further point which singles out the British system from others is that 'virtually all British civil liberties stem from a fundamental principle: that people may do what they like so long as no law prevents them' (Coxall and Robins, 1994:316). This is in contrast to continental countries where people are prohibited from actions unless the law permits them (Owers, 1994).

There is another major difference between Britain and Japan in the relationship between the constitution and international aspects. The supremacy of European Community Law to Britain (over domestic law) has no equivalent in Japan. Nor is there a similar body to the European Court of Justice for Britain in Japan, in the sense that its judgment has direct effect. On the other hand, the effect of the

European Court of Human Rights (ECHR) on British judgment has some similarities with the ICCPR (or Human Rights Committee of United Nations) for Japan. With relation to ECHR:

Unlike the other countries who have signed the document, it has never incorporated the convention into British Law. British citizens cannot use the Convention to appeal to British courts when their rights are infringed. They can appeal to the European Court, but only after they have tried and failed to find remedies in the British court (Coxall and Robins, 1994:327-8).

In general, the courts in Japan are said to be not so sympathetic to international conventions. Choe Chang-hwa, who was active on Koreans’ rights in Japan, recalled that he was advised to bring the issue to the attention of the United Nations Human Rights Committee after he had tried all the court procedure in Japan. This was done finally in 1979 (Choe, 1995:54).

3.6 ‘Race’ vs kokuseki

Issues relating to the former empire subjects- Commonwealth citizens in the British case and Koreans and Taiwanese in the Japanese case, are often described and conceptualised as 'race' in Britain and as 'nationality' (kokuseki) in Japan

respectively, as we saw in the discussion on 'nationality' of Britain and Japan in the previous chapter. With regard to the 'race vs kokuseki' perspective, Neveu (1989)

points to a similar comparative perspective between France and Britain. She considers that the experience of maintaining an empire affects the issue of citizenship and nationality in France and Britain. She argues that they ‘have built such considerable empires overseas and for which those empires played a very important

role for their societies at large, reaching all parts of the population and giving birth to specific ideologies and policies (p.6), that this also influences the two countries afterwards. Neveu describes two indicators of difference between Britain and France, namely, ‘immigration rules and the legal rights available to ethnic minorities’ and ‘the way relationships were to be built with them’ (p.7), in other words, ideology and institution. In the British case, 'the fact that ethnic minorities from the Commonwealth enjoy civil rights in Britain is due directly to the existence of the category of ‘British Subject' (p.7) on the one hand, while on the other, to ‘the development of the use of such terms as ‘black' and ‘white- to designate people’ or ‘racialisation' (p.8). Neveu (1989:6, 8) points out that the reason for distinction by 'race' largely depends on the fact that everyone (British or Commonwealth citizens) is (or was) given 'equality before the law', even though in practice, ‘it is not really taken into account' (Neveu, 1989:6). In the French case, at the institutional level, ‘in spite of some feeble attempts to integrate colonies into the mainstream political system, colonies and their inhabitants have always had a second-class status as far as citizenship was concerned" (p.7), and at the present ideological level, ‘the terminology used is not a racially connoted one, but one in terms of ‘French’ and 'immigrants’, partly because 'the line was clearly drawn between those who were French nationals and had rights, and those who were not and had no rights’ (p.8). In this respect, the Japanese experience is similar to that of France, and similar points have been noted during comparisons between Japan and Britain.

In his chapter called 'The attempt to integrate the Empire', Chen (1984:241)

contends that Japan, as a late-industrialized and late-expanded empire, developed a 'legal compromise between the British and French systems regarding relationships between the mainland and overseas territories’, and tried to accommodate the assimilationist style of France and the differentialist style of Britain. This has resulted in a gap between ‘consciousness’ and 'the institution'.

On the ideological level, Oguma (1995:364) highlights an interesting issue on the difference between western (colonial) thought and that of Japan, saying that there is no representation of the 'Other' in the case of Japan. Rather, within Japanese thought, 'the Japanese do not want to make the existence of the Other, who is different from them' (p.368) in their Japanisation. He bases his arguments on the fact that Japan extended into surrounding areas and colonised them, and these areas had a similar cultural and religious background and their people looked similar to the Japanese. Because of this, it was possible to see these colonized people, mainly Koreans and Taiwanese as 'members of the family', or as 'adopted members’ (p.372). Once the war ended, and the empire was dissolved, the line was drawn between those who were Japanese and those who were not, based on koseki (the house

registration).

Therefore, in the Japanese case, with regard to the former empire subjects, a statement such as 'despite their former status as empire subjects...' makes sense and

has significance in the historic context to argue for the improvement of rights for these former empire subjects. Moreover, there was no 'equality before the law' before or after the Second World War with the Koreans and Taiwanese. In order to argue against their existing (legal) inequality, which is explained at present as the distinction between 'aliens' and 'nationals', the above statement is useful (for instance, Tanaka, 1974). In other words, the statement of 'racism' is not effective enough to argue against the present situation.

Furthermore, the application of the concept of 'race' has not paid enough attention to the difference between Japan and other countries. For instance, the application of 'race''’ cannot explain well the difference between ’race’ which is visible, or need not to be contested, or ’race' which is invisible and needs to be contested to be recognised as a 'minority'. As far as these works are concerned, the emphasis is on the deconstruction of the myth of the Japanese 'race' or homogeneity (for instance, Armstrong. 1989, and Weiner ed., 1997). However, the critique of the myth of homogeneity starts as early as the late 1970s (such as Ubukata, 1979; Onuma, 1986). In addition, application of ‘race’ issues to the Japanese context seems to be concentrated before the war (such as Abe, 1989; Weiner, 1994), and has not expanded to the 'post-war' period. But as Yoshino argues, on 'ideological discourse, there is clear division between pre-war and post-war' (Yoshino, 1992).

' Armstrong (1989); Weiner (199*1) on Koreans; Siddle (1996) on Ainu; De Vos and Wagatsuma (1966) on Burakumin. for instance.

As the link between ‘racism and nationalism’ in the Japanese case is not similar compared with the British case, clearly there is a perspective which cannot be explored in 'race' discourse (Kasama, 1988). For instance, Howell (1996) admits that ‘’Racism’ is not as serious a problem in Japan as it is elsewhere. Japanese society is in no immediate danger of collapsing under the weight of ethnic conflict, nor are minorities the targets of the sort of raw hatred and physical brutality seen so disturbingly throughout much of the world in recent years... it also reflects the fact that most minority individuals are not readily recognizable as such upon incidental contact’. However, significantly, ‘ethnic and racial discrimination is institutionally sanctioned to a degree in Japan that would be unacceptable in most western countries' (1996:185).

In Japan, groups such as Burakumin, Ainu, and Ryukyuans were incorporated as Japanese subjects in the same way as other ‘Japanese' after the modernisation period and kept their status as Japanese nationals. Because of this, at least from the Japanese government point of view, it is not easy to recognise these groups as 'minorities', as mentioned before. Therefore, we can say that there are two types of groups in Japan. The first has to do with people who are ’equal before the law' but not in practice, that is Japanese, Ainu, Burakumin, Ryukyuans, and women. However, in case of Burakumin, there is debate about whether to 'preserve distinction' or to aim for complete assimilation within the mainstream. The situation for these groups is similar to groups who experience 'social discrimination' in

Britain. The second type is excluded from the notion of 'equality before the law', and covers aliens including Koreans, the former empire subjects. In the latter case, discussion on the grounds of ’nationality’ in law makes sense, since the problem will depend on whether, or to what extent, this 'inequality' before the law is 'reasonable'.

Neary (1992) attempts to compare 'ethnic minority' issues in the United States, Japan, Britain and France. He contrasts 'immigrants' in Britain and France and ‘the former slave group' in the United States and 'Burakumin' in Japan. In relation to minority administration policy, he defines the first two countries as 'anti- discrimination' type, while the last two as 'affirmative action type', according to the nature of their legislation. Burakumin are not the focus of this study, and not all types of minorities fall into this classification (for instance, Koreans in Japan do not have 'affirmative action type' privilege and the Race Relations Act 1976 in Britain has only just been extended to Northern Ireland). Yet his indirect comparison of the 'race-relations' issue in Britain with 'affirmative action' in Japan together with its constitutional reference is helpful for the framework. The idea of 'affirmative action' with relation to Burakumin in Japan is initially found in (Upham, 1987), in which he thinks the closest analogy of the programme for Burakumin are the programmes administered by the 'Bureau of Indian Affairs' in the United States.

Without specific anti-discrimination legislation, the Constitution (Article 14: equality before the law) is the general protection clause for equality in Japan. However, as

will be explained, in relation to Koreans, the former empire subjects, this clause is not automatically applicable, as 'nationality' is not included in the clause itself.

In the case of Britain, with relation to the Race Relations Act, a statute law, Lester and Bindman (1972) argue that common law does not provide enough protection for equality before the law, and that the Race Relations Act was a positive attempt to change this situation. 'The Race Relations Act was a significant step in that direction - an attempt to influence social behaviour and attitudes by a statutory declaration that everyone in Britain was henceforth to be treated on the basis of individual merit, irrespective of colour or race, and to provide an effective legal remedy for the most unfair and degrading types of discrimination’ (ibid., p.15). They regard the concept of equality before the law as also being limited by common law.

As a result of colonialism and also in order to justify it. some British writers developed 'the concept of ''race" into racist theory', and 'it purported to offer an explanation of and justification for the subordination of blacks by whites in terms of those origins' (Mason, 1986:95-6). A pioneer of British 'race' issues, Banton (1977) argues that 'racial doctrine' was formulated in the 1850s, when 'the growing and the rather diverse utilization of the race[sic] idea has to be set against the whole social background of Victorian England' (p. 169). He places emphasis on the 'significance of psychological and cultural determinants of racial 'visibility' (1967:368), saying that 'British colour values have been heavily influenced by the country's imperial

experience, post-war immigration has occurred in an era of decolonisation when people have been much more conscious than before of the international implications of racial issues' (ibid., p.368) and that the 'implications of racial difference cannot be disentangled from the aspects that stem from the newcomers' handicaps and reception as immigrants' (ibid.,). However, historian Rich (1986) is rather cautious regarding the influence of imperialism on the post-war 'immigration/racial' issue. He argues that while it is possible to establish some continuity both in imperial ideas and policy in the field of ‘race’ and colonial development, the tradition was by no means absolute (1986:10). He does not, however, completely deny the effect of Victorian thought.

In the critique of 'new racism', which relates to immigration issues after the 1970s, Miles (1989) explains the difference between 'nationalism' and 'racism', as lying ‘in between the former's additional claim that the 'nation' can only express itself historically where it occupies exclusively a given territory wherein the 'people' can govern themselves. No similar political project is explicit in the ideology of racism' (p.89). In the case of Europe, 'the discourse of Europeans to define an Other beyond the boundary of Europe as biologically inferior was first used by certain political forces within Europe to differentiate populations, to constitute Self and Other dialectically as separate nations'...(p.l 13). By understanding 'racism' broadly, he points out the utility of the concept as well as a danger that everything can be conceptualized as 'racism'.