The Provisional Release Association in Japan was founded on October 31, 2010. It was created by us, the people those on provisional release themselves, and has been run by ourselves since then.
Those on provisional release are people who have received a deportation order from the immigration authorities, are under various pressure and threats, but have reasons why we cannot go home. Most of us were detained at the immigration detention centers for a long time under harsh conditions, but chose to obtain a resident status and remain in Japan.?
There are many reasons why we will not or cannot go home. Some of us are refugees, and some have a family in Japan, and others have lived in Japan for a long time. And yet beyond such differences of reasons, we have sought to unite as people on provisional release.
“Resident Status for those on Provisional Release!”
This is the goal we have upheld since we founded the Provisional Release Association in Japan. It is not “resident status for refugees” or “resident status for those with a family in Japan,” for example. It is “resident status for those on provisional release” that we have been calling for.
Refugees and non-refugees are the same in that they have not been treated as human beings by the immigration authorities. Also, those who have a family and those who do not are the same in that they have been treated as “presence below the human” by the immigration authorities. Another word, the immigration authorities and the Japanese government do not see us all as human beings.
That is why we have had to fight as “all on provisional release.” We have had to seek unification as “all on provisional release” including refugees and non-refugees, married and unmarried people, those who were in prison, and those who merely overstayed.
Beyond differences in positions and circumstances, we claim that we all be treated as human beings. Furthermore, our demands lead to a larger goal to change the attitudes of Japanese government toward all foreigners in Japan.
Since the 1940s, the core of the attitudes of the Japanese government toward foreigners has not changed. It is the view that “foreigners do not have human rights,” and “it is up to the Japanese government no matter how they treat foreigners.” In 1965, Tsutomu Ikegami, a counselor of the Immigration Bureau of the Ministry of Justice, stated in his book that “we can do whatever we please with them.”
In 1978, the Supreme Court also made a decision on the McLean case(*1), which is equal to saying that foreigners do not have human rights in effect. It is the case that Mr. Ronald Alan McLean, an American national living in Japan, was refused to renew the permission to stay because he was involved in anti-Vietnam War activities. Mr. McLean, unsatisfied with the decision, filed a lawsuit. The Supreme Court, however, ruled that it leaves to the discretion of the Minister of Justice whether or not to grant a renewal of a foreigner’s period of stay, and the minister does not need to consider the foreigner’s human rights when he makes decisions. Quite simply, the court also accepted the Japanese government’s view that “foreigners do not have human rights” and that “it is up to the Japanese government no matter how they treat foreigners.”
Unless these long-lasting attitudes of the Japanese government change, we cannot live in Japan as human beings with rights. Even if we are granted a resident status one day, it may be taken away on the following day.
Therefore, we have a larger goal beyond “resident status for those on provisional release,” which is, “we seek to change the Japanese society into the one in which human rights of all foreigners are respected.” In order to achieve this goal, we need to change the government’s view that “foreigners do not have human rights” and that “it is up to the Japanese government no matter how they treat foreigners.”
Now, to change the government’s views and the Japanese society as well, we can learn various things from the long history of struggles experienced by the foreigners who came to Japan before us. The history of their struggles to win the rights gives us courage, and their experiences give us strength. As we continue fighting to change as our predecessor did, we will be able to leave assets to our children and others coming after us. We also believe that it is good even for Japanese who hope to have an equal and free relationship with others as human to create a society without any discrimination against foreigners .
It is true that the immigration authorities and the Japanese government have not treated us as human beings. Beyond those differences in circumstances, positions, nationality, race, ethnicity, ideology/beliefs, religion, sex, and sexual orientations, however, we should be able to acknowledge each other as equal human beings. Therefore, while acknowledging each other as equal human beings and fighting against any thoughts and attitudes of discrimination within ourselves, we argue toward the immigration authorities, the Japanese government, and the Japanese society that “we have human rights. It is our rights to be here.”
October 27, 2013.
Members of the Provisional Release Association in Japan
1. The ruling of the Mclean case
Let us quote from the ruling of the Mclean case at length:
It should be understood that the guarantee of fundamental rights included in Chapter Three of the Constitution extends also to foreign nationals staying in Japan except for those rights, which by their nature, are understood to address Japanese nationals only. This applies to political activities, except for those activities which are considered to be inappropriate by taking into account the status of the person as a foreign national, such as activities which have influence on the political decision-making and its implementation in Japan. However, as mentioned above, permission of sojourn of foreign nationals in Japan is left to the discretion of the state. Foreign nationals staying in Japan are not guaranteed the right to stay in Japan or request to continue to stay in Japan under the Constitution, and merely granted a status by which they can have the period of stay renewed only when the Minister of Justice, by his discretion, determines that there is a "reasonable ground to acknowledge that the renewal of the period of sojourn is appropriate." Guarantee of fundamental rights to foreign nationals by the Constitution should be understood to be granted only within the scope of such a system of the sojourn of foreign nationals and does not extend so far as to bind the exercise of discretionary power of the state, i.e. does not include guarantee that acts which are guaranteed as fundamental human rights under the Constitution during the sojourn should not be considered as negative circumstances in renewing the term of sojourn. Even if the activities of a foreign national are constitutional and lawful, the Minister of Justice is by no means hindered from assessing those activities as undesirable in terms of appropriateness for Japan, and from assuming from such activities that this foreign national may act against the interest of Japan, despite the fact that such activities of the foreign national are guaranteed by the Constitution in the above sense.
What the ruling says here is basically the following:
Foreigners in Japan are guaranteed the basic human rights in the Japanese Constitution. Political freedom is also guaranteed for foreigners.
However, the Minister of Justice gets to decide whether a foreigner can stay in Japan.
Therefore, the basic human rights for foreigners are merely granted within the frameworks of the visa system (that is, the decision of the Japanese government of whether to grant a resident status for a foreigner is made outside the Constitution, which guarantees the basic human rights).
The Japanese government does not have to consider the articles of the Constitution on the basic human rights when they decide whether to grant a renewal of the resident status of a foreigner living in Japan.
The Minister of Justice can refuse to renew the period of stay of a foreigner living in Japan even if he or she obeys the Constitution and the laws of Japan, if the Minister thinks that he or she is “not good for Japan” or “may hurt the interests of Japan.” In such cases, the Minister of Justice does not have to consider the human rights of the foreigner.
In a fashion, this ruling states that the constitution guarantees the basic human rights for foreigners. However, it recognized the discretion of the Minister of Justice very broadly as to whether he grants the renewal of the period of stay of a foreigner. It basically says that the Minister of Justice can choose to grant or not to grant a resident status for a foreigner at his will, and that he is not bound by the articles of the Constitution which guarantees the basic human rights when he decides.” This is equal to saying the human rights guaranteed by the Constitution are only for Japanese, not for foreigners.
The ruling of 1978, which recognized the discretion and authority very broadly, is often cited by the immigration in courts.