Japan Times: Colin Jones on schizophrenic J constitution regarding civil and human rights of NJ residents
Posted by debito on November 9th, 2011
http://www.debito.org/?p=9644
Schizophrenic Constitution leaves foreigners' rights mired in confusion
By COLIN P. A. JONES
有道氏が褒めているということは、たいした記事ではない、ということだろう。
こうしたのはHO氏が詳しいのだが、有道氏のところで投稿がないので私が一言。
Japan Times と有道氏のブログのおかげで、一部の外国人のなかに、なぜか、日本国憲法では人権は日本国民に限定されているように信じている人がいるが、もちろんそれは間違っている。
外国人の人権 なんかが、大学生が習うことをよくまとめていると思うが、
外国人の人権は、権利の性質上、日本国民のみを対象としているものを除き、在留外国人にも人権保障が及ぶ
■外国人の人権（国家公務員２種〔2000年〕）
外国人の人権に関する次の記述のうち、判例に照らし、妥当なのはどれか。
１） 憲法第３章の諸規定は同表題が「国民の権利義務及び義務」とされているこ
とから、外国人には適用されない
■解説
１） 誤り。かつては本肢のような学説も少数説ながら存在したが（佐々木惣一な
ど）、現在では外国人の人権享有主体性を認めるのが通説（定説といえよう）・判
例である。
公務員試験の問題になっている。
もっとも、上記記事もそれについて言及していないわけではない。
according to the Supreme Court, they are entitled to all the same rights as Japanese people, except for those which by their nature are only to be enjoyed by Japanese people.
ところが、結論として、
The fact that many of us expats are still here nonetheless may thus be because of the inherent kindness of the Japanese people rather than any high expectations of their government.
なぜか感情的になってしまうのである。
外国人に認められない権利がある、ということに不服で、外国人はお情けで日本にいるのだ、ということらしい。
たしかに、一般に、外国人は、公権力を行使する地位には外国人はつけない、といわれる。
国籍条項
こうけんりょく 3 【公権力】
国または公共団体が国民に対して命令・強制し、法律関係を形成する力。また、その力を行使する公的機関。
公権力
公権力とは国家権力のことです
国家権力（＝公権力）は、
①立法権（法律を定立する作用。国会が担当）
②司法権（訴訟等を裁定する作用。裁判所が担当）
③行政権（上記以外の作用。内閣が担当）
に分類されます。行政権と公権力とはどう違うのですか？
しかし、そうした制限は、日本に限られた話ではない。
3. Are non-citizens eligible for Federal employment?
Under Executive Order 11935, only United States citizens and nationals may compete for competitive jobs. Agencies are permitted to hire non-citizens only when there are no qualified citizens available. A non-citizen may only be given an excepted appointment and may not be promoted or reassigned to another position in the competitive service, except in situations where a qualified citizen is not available. The non-citizen may be hired only if permitted by the appropriations act and immigration law.
Last updated: 1 December 2009
Citizenship in the Australian Public Service
1.4 Consequences of failing to meet a citizenship condition
A person can be engaged and commence employment subject to satisfactorily meeting, within a specified timeframe, the condition that they obtain Australian citizenship. If that person subsequently fails to meet that required condition, the agency is able to terminate their employment under section 29(3)(f) of the PS Act (‘failure to meet a condition imposed under subsection 22(6)’). Termination may, however, cause considerable disruption to the employee, the employer and the workplace. Agencies should therefore consider implementing arrangements to ensure that, as far as practical, they are satisfied that a prospective employee meets, or is able to meet, all the relevant requirements before they are engaged.
Additional information can be found in the document Termination of Employment.
2. Citizenship as a condition of engagement
Section 22(6)(b) of the PS Act enables an agency head to impose, as a condition of engagement, a requirement that a person hold Australian citizenship. Section 22(8) requires an agency head not to engage a person who is not an Australian citizen as an APS employee, “unless the agency head considers it appropriate to do so”.
また、スポーツの分野などでも、
The nationality clause in sports
by Simon Busuttil MEP
Patrick Carter asks:
Is it possible for a sport association within an EU Member State, to approve an amendment within its statute, stating that only players of Maltese nationality can register for its competitions?
Does this rule provide legal grounds for clubs and offended EU nationals to challenge the association on the basis of free movement of workers within the EU?
***
Rules of associations that treat other EU citizens differently from Maltese citizens solely on the basis of their nationality, that is, on the basis that they are not Maltese, are not compatible with EU law.
This is a basic principle of EU law.
If an association has changed its statute to limit registration to Maltese nationals, there is a clear case of discrimination against other EU citizens. As such, such a provision cannot be considered as compatible with EU law and would need to be changed.
Of course this applies in relation to EU citizens. It does not apply in relation to non-EU nationals.
、サッカーのメンバーについて、EU以外の人を閉め出すのは違法ではない、とされているようである。
Here's another pop quiz: Which of the following vocations are open to non-Japanese? 1) National university professor; 2) family court mediator; 3) nonmanagerial local government bureaucrat; 4) managerial local government bureaucrat; 5) member of a national government panel advising on national policy; 6) trainee at the Supreme Court's legal research and training institute; 7) Diet member's secretary.
この点について、鄭 香 均 さんの事件が注目されたが、しかし、彼女は管理職になれなかったが、普通の公務員ではあったわけである。
Nationality Elements of citizenship Aliens and the Constitution
Chong v Tokyo, 2005
ロバート・キャンベルさんは国立大の教授、
小沢さんの秘書は韓国人らしい。
2007/08/09 18:55 KST
【東京９日聯合】日本の参議院選挙で圧勝した民主党の小沢一郎代表の秘書を務める韓国女性が注目されている。国際担当秘書の金淑賢（キム・スクヒョン）さんだ。金さんは２０００年に当時自由党の党首だった小沢代表の秘書に抜てきされ、以来７年間にわたり小沢代表を陰で支え続けてきた。韓国聨合ニュース
森川キャサリーン事件 および、マクリーン事件などに言及されている。
外国人には入国の権利があるわけではない。
APRIL 11TH, 2011 21:17
UK Muslim extremists banned from France
By riteway
Three Muslim extremists Anjem Choudry Abu Izzadin and Omar Bakri were banned from entering France. They had intended to join the burka ban protest.
France is to be congratulated for implementing the burka ban. They also have shown their determination to keep undesirables out of their country. What we should have done is to refuse those extremists re-entry into the UK. These despicable creeps are a danger and a liability we would be well rid of them. Some hope however. The Human Rights lawyers would have a field day. One has to admire France their government seems to respond to the will of the vast majority. Here we back the other side.
では、再入国の権利があるか、というと、
ロシアのみならず、
Guardian Moscow correspondent denied re-entry to Russia
Luke Harding was attempting to re-enter the country at the weekend after a two-month stint covering the WikiLeaks embassy cables in London
Posted: 8 February 2011 By: Joel Gunter
he Guardian's Moscow correspondent, Luke Harding, has been denied re-entry to Russia, it was announced last night.
Harding's expulsion follows his coverage of the WikiLeaks US embassy cables release for the Guardian, in which he said the country was being run like a a "virtual mafia state".
He tweeted last night: "The Russians have been unhappy with my reporting for a while. But it seems WikiLeaks may have been the final straw."
Harding was attempting to re-enter Russia at the weekend after a two-month stint in London working on the newspaper's cables coverage.
According to a statement from the Guardian, he was stopped at the airport and detained in a cell for 45 minutes. He was then reportedly placed on a return flight and told, "For you, Russia is closed."
Cuban journalists say U.S. denied them visas
Updated 9/29/2008 4:27 PM | Comments 19 | Recommend 3 E-mail | Print |
UNITED NATIONS (AP) Two Cuban journalists covering the United Nations said Monday that the U.S. government denied them re-entry after they took a vacation in their homeland.
Ilsa Rodriguez Santana and Tomas A. Granados Jimenez have covered the United Nations for the Prensa Latina news agency since 2005.
"We would also want to voice our strongest protest against such an outrageous and arbitrary act, which violates all standards regarding relations between the U.N. and the United States as the host country," they wrote in a letter to the president of the United Nations Correspondents Association.
Tuyet Nguyen, president of the correspondents association, said the UNCA "has never been involved in helping journalists from any country get visas to enter the United States."
The U.S. State Department in Washington did not immediately respond to a call about the matter.
Prensa Latina said American officials in Havana opted not to issue the visas under a regulation that can deny entry to persons and groups considered prejudicial to U.S. interests, as well as Cuban government officials and employees.
Although the U.S. in recent years has increasingly denied entry to Cuban officials and others connected with the communist government, denying visas to full-time Cuban journalists permanently assigned to cover the United Nations was seen as highly unusual.
In the past, the U.S. has carried out expulsions of Cuban diplomats, including 14 from the island's Washington and U.N. missions in May 2003. They were judged by the U.S. State Department to be engaged in "inappropriate and unacceptable activities.
アメリカでもジャーナリストなどが再入国拒否される場合があるようである。
なお、歴史的ケースとして、
In 1952, Chaplin left the US for what was intended as a brief trip home to the United Kingdom for the London premiere of Limelight. Hoover learned of the trip and negotiated with the Immigration and Naturalization Service to revoke Chaplin's re-entry permit, exiling Chaplin so he could not return for his alleged political leanings. Chaplin decided not to re-enter the United States,
Du Bois, Shirley Graham:
In 1961 the couple renounced their U.S. citizenship and became nationals in pro-Communist Ghana, where they had been ardent supporters of President Kwame Nkrumah's revolutionary government. W.E.B. Du Bois died there two years later, but Graham Du Bois remained to create and manage the government television network. After a military coup there in 1967, she moved to Cairo, Egypt. Denied permanent re-entry to the U.S. because of her affiliation with known subversive groups, Graham Du Bois was permitted to return temporarily in 1976. In 1977 she traveled to Beijing, Chin, seeking treatment for breast cancer and died there on March 27. She and her husband are interred in Ghana.
特に、アメリカの場合
American citizen denied re-entry to US - Arab News
NYT
American Man in Limbo on No-Fly List
By SCOTT SHANE
Published: June 15, 2010
WASHINGTON ― As a 26-year-old Muslim American man who spent 18 months in Yemen before heading home to Virginia in early May, Yahya Wehelie caught the attention of the F.B.I. Agents stopped him while he was changing planes in Cairo, told him he was on the no-fly list and questioned him about his contacts with another American in Yemen, one accused of joining Al Qaeda and fatally shooting a hospital guard.
For six weeks, Mr. Wehelie has been in limbo in the Egyptian capital. He and his parents say he has no radical views, despises Al Qaeda and merely wants to get home to complete his education and get a job.
But after many hours of questioning by F.B.I. agents, he remains on the no-fly list. When he offered to fly home handcuffed and flanked by air marshals, Mr. Wehelie said, F.B.I. agents turned him down.
“The lady told me that Columbus sailed the ocean blue a long time ago when there were no planes,” Mr. Wehelie said in a telephone interview from Cairo. “I’m an innocent American in exile, and I have no way to get home.”
On Tuesday, the Council on American-Islamic Relations, a Washington-based group that has been working with Mr. Wehelie’s family, wrote to Attorney General Eric H. Holder Jr. to protest what its executive director, Nihad Awad, called “apparently illegal pressure tactics” against Muslim American travelers.
“If the F.B.I. wishes to question American citizens, they should be allowed to return to the United States, where they will be able to maintain their constitutional rights free of threats or intimidation,” Mr. Awad wrote.
アメリカ人でも再入国を邪魔される場合もあるらしい。
それ以外にも入国目的以外の目的で滞在していたと疑われる場合には、再入国を拒否される場合があるらしい。
Denied entry to the USA - why??
It sounds like the CBP officers were just doing their job. Based on the fact that you were not working, had already spent a considerable amount of time in the US, and were about to marry a US citizen, they decided you were abusing the VWP. The standard recommendation is to spend as much time out of the US as you spent in, before attempting to enter again.
You will need a fiance visa (K1) to get married in the US and live there.
From what I've heard, people who are denied entry to the UK are not treated much better.
I was recently denied re-entry to the UK
改善すべきところは各国にあるものの、日本が特段特異な制限を課しているわけでもない。
論者たちは、国籍にかかわらず、何人も自由にどの国を往来する権利があり、何人もどの国の公権力を行使する権利がある、といった過激な思想の持ち主なのかもしれない。それならそれで、いいが、その過激さを自覚しているのか、どうか。
