Abstract
This paper examines the suffrage rights of mukosekisha: Japanese who are not listed in a household registration (koseki). It explains that Japanese who are not listed in a household registration do not enjoy the right to vote unless they are recorded in a resident record (jūmin hyō), which differs from the household registration. Moreover, a provision in the Public Offices Election Act enacted soon after World War II may prevent some Japanese who are not listed in a household registration from exercising their right to vote even if they are recorded in a resident record. This out-dated provision should be amended to allow the right to vote of Japanese who are not listed in a household registration but are recorded in a resident record.
Keywords: Koseki, suffrage, nationality, Civil Code, Public Offices Election Act, colonialism
Introduction
All Japanese are expected to be listed in a household registration or koseki (戸籍) – an official document which legally identifies a person as being Japanese.1 In other words, a household registration establishes Japanese nationality. However, there are Japanese who are not listed in a household registration. As of March 2017, the Ministry of Justice (MOJ) has identified 1,305 Japanese nationals who are not listed in a household registration.2 They are called mukosekisha (無戸籍者). Ido, who has long supported Japanese who are not listed in a household registration, estimates that some 10,000 Japanese are not listed in a household registration.3 In many cases, Japanese who are not listed in a household registration are also not recorded in a resident record (jūmin hyō, 住民票), which identifies their place of residence and allows them to access social services.4 Since the household registration is often a basis of the resident record,5 registration in the household registration is significant not only to legally identify a person as Japanese, but also to secure access to social services.6 Japanese nationals who are not listed in a household registration face difficulties in daily life, such as obtaining health insurance and registering a marriage.
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Issues of Japanese who are not list in a household registration was reported by NHK, Japan Broadcasting Corporation. See here. |
However, recently, there have been cases in which Japanese nationals who are not listed in a household registration have been given resident records. This enables them to gain access to social services. The Ministry of Internal Affairs and Communications (MIC), the ministry responsible for resident record, circulated guidelines to municipal offices to record Japanese nationals who are not listed in a household registration in resident records in 2008.7 After this circular was issued, more Japanese nationals who were not listed in a household registration were recorded in a resident record.8
One significant issue is suffrage rights. It is sometimes said that Japanese nationals who are not listed in a household registration do not enjoy suffrage rights, although Japanese nationals are supposed to enjoy the right to vote.9 However, the reason why it is said that they do not enjoy suffrage rights is not clear. There are two possible reasons: they are not listed in a household registration, or they are not recorded in a resident record. The electoral roll, which determines voter eligibility, is prepared on the basis of resident records. Thus, it can be argued that Japanese nationals who are not listed in a household registration can enjoy the right to vote if they are recorded in a resident record. To analyse the relationship among suffrage rights, household registration and resident record, this article asks the following questions: do Japanese nationals who are not listed in a household registration enjoy suffrage, and why or why not?
The article shows that Japanese nationals who are not listed in a household registration do not enjoy the right to vote unless they are recorded in a resident record. However, a provision of the Public Offices Election Act, which was introduced after the end of World War II (WWII), may prevent Japanese nationals who are not listed in a household registration from exercising their right to vote even if they are recorded in resident records. This article focuses on national elections, and it assumes that Japanese nationals have the right to vote.10
The basic conclusion, explained and defended below, is that the out-dated provision of the Act should be amended to allow the right to vote to Japanese nationals regardless of whether they are listed in a household registration if they are registered in a resident record. It examines the issue of suffrage of Japanese nationals who are not listed in a household registration, and examines deliberations in the Diet to elucidate the purpose of the law, thus shedding new light on the underlying political concept of household registration within the current Japanese legal system.
Japanese who are not Listed in a Household Registration
There is no legal definition of mukosekisha. However, the MOJ referred to people without status (musekisha, 無籍者) in a 2014 administrative document in which the Ministry defined people without status as “people who are not listed in a household registration while they possess Japanese nationality.”11 This will be used as the definition of mukosekisha in this paper.
All Japanese are expected to be listed in a household registration.12 A family which is composed of a married couple and unmarried children forms one unit under the household registration system. Children are listed in their family’s household registration when their birth is registered. The birth of a child needs to be reported to the relevant municipal office by his or her parents within 14 days of birth,13 and this registration becomes the basis for inclusion in the family’s household registration. It is the responsibility of the parents of the child to report the birth. If a birth of a child who is Japanese is not reported to a municipal office, the child will not be listed in the family’s household registration.
There are numerous reasons why parents (in many cases the mother) of a child may not report the birth of a child to a municipal office. The majority of reported cases are related to Article 772 of the Civil Code. Article 772 of the Civil Code states that:14
- A child conceived by a wife during marriage shall be presumed to be a child of her husband.
- A child born more than 200 days after the formalization of a marriage or within 300 days of the dissolution of a marriage shall be presumed to have been conceived during that marriage.
The mother of a child may hesitate to register the birth in cases in which she wants to deny the presumption of fatherhood. There are two types of such cases. The first is when the mother (A) of the child is married to a man (B), but the relationship between A and B has collapsed, while the legal relationship between them persists. Paragraph 1 of Article 722 of the Civil Code is relevant to this issue. Some cases of this type are related to domestic violence by a man against a woman. When a child’s birth is recorded in the municipal office, the child will be listed in the household registration of the father, who will be able to identify the child as his own. In situations where the mother escapes from domestic violence, she will hesitate to register the birth of the child out of fear for the child as well.15 The second type of case involves the relationship between a woman and her ex-husband and is caused by paragraph 2 of Article 772 of the Civil Code. If a child is born within 300 days after the dissolution of a marriage, the child will be presumed to be the child of the mother’s ex-husband. Mothers may hesitate to register a birth in order to prevent this, because they do not want their ex-husband to gain knowledge about the child.16 These are only some of the types of cases in which children are not listed in a household registration, but they are the major ones.
As noted earlier, mukosekisha are assumed to be Japanese and entitled to the rights guaranteed to Japanese nationals. However, since they are not listed in a household registration, they do not enjoy equal rights with those Japanese who are listed. For example, in principle, they cannot be recorded in a resident record. The standard procedure is for each municipal office to record individuals in a resident record when notified of the birth of the child. In other words, children are recorded in a resident record when they are listed in a household registration because submission of notification of birth is the basis of both household registration and resident record. While municipal offices can record individuals whose birth is not recorded in a resident record,17 such a practice has not been common. As a result, resident records and household registration were linked in practice.18 When Japanese are not recorded in a resident record, their access to social services is limited in practice since many officials in municipal offices mistakenly believe that Japanese who are not listed in a household registration are ineligible to receive social services on the same basis as other Japanese. Japanese who are not listed in a household registration also experience difficulty in marrying and applying for a passport.19
Recently, issues of Japanese who are not listed in a household registration have been reported by the Japanese media and have received public attention. As a result, the government has begun to deal with these issues. One significant development has been to encourage municipal offices to record Japanese nationals who are not listed in a household registration in resident records as mentioned in the introduction. This practice allows Japanese nationals who are not listed in a household registration to be recognised as de facto Japanese nationals by the authorities even before they are listed in a household registration, and many of their rights as Japanese begin to be guaranteed.20 In practice, this is an important development indicating that the resident record secures certain rights of being Japanese.
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MOJ prepares a special webpage for Japanese who are not listed in a household registration. |
A Household Registration and Suffrage
Suffrage is sometimes mentioned as one of the many rights that Japanese who are not listed in a household registration are denied. In order to exercise suffrage rights, Japanese nationals need to be listed in the electoral roll.21 Since the electoral roll is prepared based on the resident record, the resident record plays a significant role in determining the right of Japanese nationals to vote.22 Therefore logically, Japanese who have been recorded in a resident record for more than three months should be able to vote if they are over 17 years old even if they are not listed in a household registration.23
Nevertheless, there is a possible legal barrier to Japanese who are not listed in a household registration exercising suffrage. Paragraph 2 of the Supplementary Provisions of the Public Offices Election Act provides that “[v]oting rights and eligibility to vote of persons whom the Household Registration Act (Law No. 224 of 1947) does not apply to are suspended for the time being.”24 While the interpretation of “persons whom the Household Registration Act (Law No. 224 of 1947) does not apply to” is not straight forward, it appears to refer to Japanese nationals who are not listed in a household registration. If so, voting rights and eligibility to vote of Japanese who are not listed in a household registration could be suspended.
A similar provision in paragraph 2 of the Supplementary Provisions of the Public Offices Election Act was introduced in the 1945 House of Representatives Election Act. This provision suspended the suffrage of Koreans and Taiwanese.25 During the colonial period, Korean and Taiwanese persons were classified as Japanese nationals. However, they were differentiated from mainland Japanese in the legal system. Laws applying to the mainland were not automatically enforced in the colonies. The Household Registration Act enforced in mainland Japan was not applied in the colonies where different household registration systems applied.26 Household registration was used to differentiate Koreans and Taiwanese living in Japan from mainland Japanese after the end of WWII. After Japan lost WWII, the status of Korea and Taiwan was not clarified prior to the conclusion of the Treaty of San Francisco. In 1952, nine days before the treaty entered into force, the Japanese government decided that Koreans and Taiwanese living in Japan were no longer Japanese nationals and should no longer possess voting rights.27 Since Korean and Taiwanese persons were previously regarded as Japanese, their suffrage was suspended by the House of Representatives Election Act which suspended “[v]oting rights and eligibility to vote of persons whom the Household Registration Act (Law No. 224 of 1947) does not apply to.” The House of Representatives Election Act was integrated into the Public Offices Election Act,28 and the current paragraph 2 of the Supplementary Provisions of the Public Offices Election Act has existed since then.
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The Diet passed the 1945 House of Representatives Election Act which is a basis of the Supplementary Provisions of the Public Officed Election. See here. |
In reality, this provision does not seem to play a significant role in relation to voting rights of Japanese who are not listed in a household registration if they are recorded in resident records. In the Diet, an officer of the MIC stated that persons who are recorded in the resident record for more than three months are listed in the electoral roll even if they are not listed in a household registration.29 Thus, the household registration seems to play a minor role in terms of inclusion in the electoral roll, and paragraph 2 of the Supplementary Provisions of the Public Offices Election Act may not have any practical significance.30 But the actual situation remains somewhat ambiguous.
Although not the main focus of this paper, eligibility for election also needs to be touched upon. When a Japanese national seeks to run for office, a record of his or her koseki must be submitted.31 Therefore, Japanese who are not listed in a household registration may not be able to run for office, which shows that household registration still matters for elections in reality. This is a significant matter for Japanese nationals.
The Role of Household Registration in being “Japanese”
The issue of suffrage of Japanese who are not listed in a household registration gives insight into the role of household registration. The 1947 Constitution abolished the extended Japanese family system as defined under the 1889 Meiji Constitution. The character of the household registration changed, and the “family” came to be defined as a married couple and their unmarried children.32 Nevertheless, people who did not fit the family norm, even the new one, faced difficulties. If a couple’s relationship was a difficult one, a mother might opt not to register the birth of her child. Hence some people were not listed in a household registration and did not enjoy certain rights.
Historically, the household registration differentiated certain groups of Japanese nationals. During the period in which Japan colonised parts of Asia, mainland Japanese and Korean and Taiwanese people were listed in different household registration systems. After the end of WWII, the 1952 MOJ Circular eliminated Japanese nationality for Koreans and Taiwanese people living in Japan, and household registration was then used to deny the suffrage of people of the former colonies. The denial of voting rights to people who are not listed in household registration continues to this day, and can be used as a basis to deny the suffrage of Japanese who are not listed in a household registration. It must be emphasised that the original purpose of the provision was to deny suffrage to people from the former colonies who would not be classified as Japanese in the future. Such a provision remains and can provide a basis to deny the suffrage of Japanese who are not listed in a household registration. This provision can function to discriminate against some “mainland Japanese”, which was not anticipated when it was introduced.33 Although Japanese who are not listed in a household registration seem to be able to vote if they are recorded in a resident record, they cannot run for office. This indicates that the household registration remains important, although resident records also play a role in determining suffrage.
Conclusion
This paper has argued that although Japanese who are not listed in a household registration may enjoy voting rights if they are recorded in a resident record, the current Public Offices Election Act has a provision that can deny their suffrage. This provision was not drafted to deny the right to vote of Japanese who are not listed in a household registration per se but was directed against people of the former colonies. Furthermore, Japanese who are not listed in a household registration cannot run for elections.
Based on this discussion, this paper offers two proposals. The first is to eliminate paragraph 2 of the Supplementary Provisions of the Public Offices Election Act. The Public Offices Election Act has been amended several times, but this provision on the household registration has not been amended. One reason could be that issues of Japanese who are not listed in a household registration were not considered when the Act was amended. However, suffrage is a significant right of Japanese nationals. Since identification of Japanese nationals by the government may be a necessary precondition to vote, it may be justified to restrict the right of Japanese who are not listed in a resident record. However, this provision in the Public Offices Election Act should be eliminated to allow Japanese who are not listed in a household registration to vote if they are recorded in a resident record and listed in the electoral roll.
The second proposal, which may be more advanced or radical one, is to reconsider the birth registration system. The first proposal, if put into effect, would clarify that Japanese who are not listed in a household registration can enjoy the right to vote if they are listed in the electoral roll. However, it would not challenge the shortcomings of the household registration system which prevents some Japanese from registering. As a result, Japanese who are not listed in a household registration cannot run for office. In order to address this issue, it is necessary to reform the national registration system, which is based on the family system, in favour of an approach that is based on the individual. If registration were based on individuals, other members of the “family” would not gain access to the information; mothers would then not hesitate to record the births of children in cases involving family strife and division. As a result, more children would be listed in a new nationwide registration system, and their fundamental rights would be secured. When they reach voting age, they would be able to run for office because they would possess identity documents. In short, the preservation of the current household registration system is a threat to the right to vote of some Japanese nationals.
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Election in Japan. See here. |
Related Articles
- Karl Jacob Krogness, “Jus Koseki: Household Registration and Japanese Citizenship”, The Asia-Pacific Journal: Japan Focus, Vol 12 Issue 35 No.1, August 29, 2014.
- Yuki Miyamoto, Shuhei Ninomiya and Ki-young Shin, “The Family, Koseki, and the Individual: Japanese and Korean Experiences”, The Asia-Pacific Journal: Japan Focus, Vol 9 Issue 36 No 1, September 5, 2011.
- David Chapman, “Geographies of Self and Other: Mapping Japan through the Koseki”, The Asia-Pacific Journal: Japan Focus, Vol 9 Issue 29 No.2, July 18, 2011.
The author appreciates the insightful comments on the manuscript of Tessa Morris-Suzuki. This research was sponsored by JSPS KAKENHI Grant Number JP16J07839.
Notes
TANIGUCHI Tomohei, Koseki Hō [Household Registration Act] (Tokyo: Yūhikaku, 1957), p.33. However, it must be emphasised that there is no legal definition of a household registration, not even in the Household Registration Act. As Endo points out, this implies that Japanese are so familiar with the household registration system that the authorities assume that no legal definition is necessary. ENDO Masataka, Koseki to Mukoseki: “Nihon Jin” no Rinkaku [Koseki and Mukoseki: Contours of “Japanese”] (Kyoto: Jinbun Shoin, 2017), pp.17-18.
“Mukoseki: Kaishō ha Hansuu Ika Hōmushō Chōsa [Mukoseki: Less than Half of Mukosekisha were listed in the Koseki according to the Ministry of Justice]”, Mainichi Shimbun, April 3, 2017.
Foreigners with resident status are also recorded in a resident record. See the following. Osamu Arakaki, Statelessness Conventions and Japanese Laws: Convergence and Divergence (translated by Hajime Akiyama, Tokyo: UNHCR Representation in Japan, 2016), p.55.
However, for foreigners, who are not listed in the household registration, household registration and resident record are not linked. For the relationship between household registration and resident record, see the section on “Japanese who are not listed in a Household Registration”.
Japanese nationals and foreigners have different access to social services. For instance, Japanese nationals have access to public assistance while there is no legal basis for foreign residents in Japan to access public assistance. See Arakaki supra note 4, pp.57-58.
Director of Administration Improvement Division, Local Administration Bureau, MIC, “Shusshō Todoke no Teishutu ni Itaranai Ko ni Kakaru Jūminhyō no Kisai nitsuite [Notification: Regarding Certificate of Residence of Children whose Birth is not Notified]” MIC Gyō Shi Dai 143 Gō. 7 July 2008. Local News Section, Mainichi Shimbun, Rikongo 300 Nichi Mondai Mukosekiji wo Sukue! [Problem of the 300 Days after Divorce: Save Mukoseki Children!] (Tokyo: Akashi Shoten, 2008), pp.183-186.
In 2009, 389 Japanese nationals who were not listed in a household registration were recorded in the resident record. Each year, the number increases, and 730 were recorded in the resident record in 2014. Mainichi Shimbun, “Mōichido Yomitai ‘Mukoseki Mondai Kyanpēn’ Mukoseki, Hinkon no Supairaru… Genkyō no 772 Jō [Archive: ‘Campaign on Mukoseki Problems’ Mukoseki, Endless Poverty… Article 772 as a Root Cause]” 4 December 2015.
SAKURAI Azusa, “‘Mukoseki Mondai’ wo meguru Genjō to Ronten [The Current Situation and Points at Issue of the ‘Mukoseki Issue’]”, Rippō to Chōsa, 381, p.100. See Article 15(1) of the Japanese Constitution.
It must be noted that some prefectures recognise the right of foreign permanent residents to vote in national elections. However, such practice is a challenge to the sovereignty of Japanese nationals, which is one principle of the Japanese constitution, and it does not seem to be acceptable in Japan at this time. This paper assumes that all Japanese nationals have the right to vote in national election.
Director of the Civil Affairs First Division, Civil Affairs Bureau, MOJ, “Koseki ni Kisai ga Nai Mono ni kansuru Jōhō no Haaku oyobi Shien nitsuite [Request: Regarding Identification of Information of and Assistance to People who are not Listed in the Household Registration]” MOJ Min Ichi Dai 817 Gō, 31 July 2014 (Requested in Disclosure of Administrative Documents in one of the Tokyo Metropolitan Special Wards).
Japanese nationality is conferred by birth when either parent has Japanese nationality (Article 2(i) of the Japanese Nationality Act). However, it must be noted that children “born in Japan both of whose parents are unknown or are without nationality” also acquire Japanese nationality (Article 2(iii) of the Act. The author draws on the MOJ’s Japanese Law Translation Database System (see here). It should be noted that this is not an official English translation of Japanese laws.). For the relationship between the household registration and nationality, see the following. Karl Jakob Krogness, “Jus Koseki: Household Registration and Japanese Citizenship” in David Chapman and Karl Jakob Krogness (eds.), Japan’s Household Registration System and Citizenship: Koseki, Identification and Documentation (London and New York: Routledge, 2014), pp.145-165.
See Articles 49 and 52 of the Household Registration Act. It must be emphasised that all children born in Japan need to be registered at a municipal office even if the child is not Japanese. See the following. MOJ, “Question 1: Gaikoku Jin ga, Nihon de Konin (Kekkon) shitari, Kodomo wo Unda tokiha, Koseki no Todokede ha Hitsuyō desuka? [Question 1: Is it necessary for foreigners to register a marriage or the birth of a child in Japan?]”.
This translation benefited from suggestions by Tessa Morris-Suzuki. The author appreciates her comment.
See the following. Local News Section, Mainichi Shimbun, supra note 7, pp.12-18. It is also possible that the husband may not have been the father of the child.
Municipal offices can record individuals in a resident record without parental notification of birth. If the birth is confirmed, municipal offices have the authority to record the individual in a resident record (Article 12 of Order for Enforcement of the Basic Residents Registration Act).
Japan Federation of Bar Associations, “Mukoseki de Okomari no Katahe [For Japanese who are not listed in a household registration]”.
Dai 189 Kai Kokkai Shūgiin Hōmu Iinkai Kaigiroku [Minutes of the Committee for Legal Affairs, House of Representatives, the 189th Session of the Diet] (No. 2, 20 March 2015) p.16. The minutes of the Diet are available here.
Article 21 of the Public Offices Election Act states that each municipal office prepares an electoral roll, and Japanese nationals older than 17 years old who have had an address in the municipality for more than three months are listed in the electoral roll.
Note that the MIC encourages municipal offices to record Japanese nationals who are not listed in a household registration.
Dai 89 Kai Teikoku Gikai Shūgiin Giin Senkyo Hou Chuu Kaisei Hōritsu An Hoka Ikken Iinkaigiroku (Sokki) Dai 1 Kai [Minutes of the Committee for Amendment of the House of Representatives Election Act, House of Representatives, the 89th Session of the Imperial Diet] (No. 1, 4 December 1945), p.3. The minutes of the Imperial Diet are available here.
In Korea, “Ordinance of the Household Registration in Korea” (Governor-General’s Ordinance No. 154 of 1922) was promulgated, and in Taiwan, “Regarding the Household Registration of the Mainland” (Ordinance No. 2 of 1932) was promulgated. (“Mainland” here means the mainland of Taiwan.) ENDO Masataka, Kindai Nihon no Shokuminchi Touchi niokeru Kokuseki to Koseki: Manshuu, Chosen, Taiwan [Nationality and Koseki in the Colonial Rule of Modern Japan: Manchuria, Korea and Taiwan] (Tokyo: Akashi Shoten, 2010), pp.130, 162.
The Circular of MOJ stated that “Korean and Taiwanese people including those living in mainland will lose Japanese nationality.” See the following for the text of the circular. CHONG Yong-hwan, “Shokuminchi no Dokuritsu to Jinken: Zainichi Chōsenjin no “Kokuseki Sentaku Ken” wo megutte [Colonial Independence and Human Rights: Focusing on the Rights of Nationality Choice for Koreans in Japan],” PRIME: International Peace Research Institute Meiji Gakuin University, 36 (2013) p.49. In case of Koreans, Onuma criticised the Japanese decision to deny Japaense nationality of Koreans and claims that the Koreans should be able to choose a nationality. ONUMA Yasuaki, “Zainichi Chōsen Jin no Hōteki Chii nikansuru Ichi Kōsatsu (6) [Legal Status of Koreans in Japan: With Special Reference to Nationality (6)],” Journal of the Jurisprudence Association, the University of Tokyo, 97(4) (1980) p.97. Japanese government discussed with the govenrment of the Republic of Korea (ROK) in 1951, and they agreed that Koreans’ Korean nationality was recovered in 15 August 1948 when the ROK was established. TOBITA Yūichi, “San Furanshisuko Heiwa Jōyaku to Zainichi Chōsenjin [The Peace Treaty and Korean Residents in Japan],” Zainichi Chousenjin Shi Kenkyuu [History of Korean Residents in Japan], 6 (1980) p.5.
YASUDA Mitsuru and ARAKAWA Atsushi, Chikujō Kaisetsu Kōshoku Senkyo Hō (Jō) [Commentary on the Public Offices Election Act I] (Tokyo: Gyousei, 2009), p.15.
Dai 189 Kai Kokkai Shūgiin Hōmu Iinkai Kaigiroku [Minutes of the Committee for Legal Affairs, House of Representatives, the 189th Session of the Diet], supra note 21, p.16.
Endo, supra note 1, p.324. See MIC, “Shuugiin, Sangiin Hirei Daijou Senshutsu Giin Senkyo niokeru Rikkouho no Todokede tou [Declaration to Run for Election of the Members of the Houses of Representatives and Councilors to be Elected under Proportional Representation]”.
Under the 1889 Meiji Constitution, the head of a family and those who comprised the family, including wives of the children of the head of family, were listed in the same unit of household registration. This system was abolished when the 1947 Constitution was enacted. See Arakaki supra note 4, pp.94-95.
Denial of the suffrage of people from the former colonies is another important issue. But this paper’s focus lies elsewhere.
