Departmental Bulletin Paper Naturalization as a Constitutionally Protected Institution : Revisiting Article 22.2 of the Japanese Constitution

Pedriza, Luis

64pp.1 - 24 , 2017-02 , Graduate School of Law and Politics, Osaka University
Naturalization, as the legal process whereby a non-national living in a country may acquire citizenship of that country, has never attracted particular attention by most scholars of constitutional law in Japan. However, naturalization has a significant impact in the protection of foreignersʼ fundamental rights and in the enhancement of the political accountability of democratic institutions. This research was aimed at providing naturalization with a constitutional pedigree by approaching it as a constitutionally protected institution. In doing so, the article analyzes the traditional concept of ʻinstitutional guaranteeʼ and explores adaptability to the field of fundamental rights of different categories of ʻcapacityʼ as used in the sphere of private law. Finally, the article revisits the conventional interpretation of Article 22.2 of the Constitution by challenging the, as of now, uncontroversial assumption that the right to abandon oneʼs nationality only matters to Japanese nationals. Thus, by proposing a new construction of Article 22.2 as the right to have access to Japanese citizenship, the article tries to reconcile the wide discretionary powers granted to the Diet to determine the conditions to be a Japanese national (Article 10 of the Constitution) with the constitutional necessity for a mechanism that allows non-nationals to become fully fledged members of the polity, as a result of having acquired close ties with it. As an Appendix, this paper also includes a partial translation of the Japanese Nationality Act, i.e., Articles 4-10, which regulate the rules of naturalization under Japanese law.

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