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1998 (Gyo-Tsu) 93

2005.01.26
1998 (Gyo-Tsu) 93
Minshu Vol. 59, No. 1
Judgment concerning whether or not it is in violation of Article 3 of the Labor Standards Law and Article 14, Para. 1 of the Constitution for a local public body to take a measure to allow only Japanese employees to be promoted to managerial posts
Case to seek declaration of eligibility to become a candidate for an examination for selecting management level employees
Judgment of the Grand Bench, quashed and decided by the Supreme Court
Tokyo High Court, Judgment of November 26, 1997
1. It is not in violation of Article 3 of the Labor Standards Law and Article 14, Para, 1 of the Constitution for the local public body to establish an integrated management appointment system consisting of the posts of local government employees in charge of conducting acts by exercising public authority and the posts to be assumed for the purpose of acquiring necessary job experience for promotion to the former posts, and then take the measure to allow only Japanese employees to be promoted to managerial posts.
2. Given the fact that the Tokyo Metropolitan Government has established a management appointment system under which it is taken for granted that employees once promoted to managerial posts would eventually take office as local government employees in charge of conducting acts by exercising public authority, the measure taken by the Tokyo Metropolitan Government to require its employees to have Japanese nationality as a qualification for promotion to managerial posts is not in violation of Article 3 of the Labor Standards Law or Article 14, Para. 1 of the Constitution.
(There are a concurring opinion, opinions, and dissenting opinions concerning 1 and 2.)
(Concerning 1 and 2) Article 14, Para. 1 of the Constitution, Articles 3 and 112 of the Labor Standards Law, Article 58, Para. 3 of the Local Public Service Law (before amendment by Law No. 112 of 1998), and Articles 13, 17, and 19 of the Local Public Service Law

Article 14, Para, 1 of the Constitution
All of the people are equal under the law, and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.

Article 3 of the Labor Standards Law
(Equal treatment)
An employer shall not apply discriminatory treatment to workers with respect to wage, working hours or other working conditions by reason of nationality, creed or social status.

Article 112 of the Labor Standards Law
(Application to national and public organizations)
This law and orders issued thereunder shall apply to the national, prefectural, and municipal governments, and other similar entities.

Article 58(3) of the Local Public Service Law (before amendment by Law No. 112 of 1998)
(Exemption from application of other laws)
The provisions of Article 2, Article 24, Para. 1, Articles 32-3 to 32-5, Article 38-2, Para. 2 to 5, Article 39, Para. 5, Articles 75 to 93, Article 102 of the Labor Standards Law, the provisions of Article 92 of the Industrial Safety and Health Law, the provisions of such part of Article 6 as is relating to Article 2 of the Labor Standards Law, Article 30, such part of Article 37 as is relating to the working conditions, Article 53, Para. 1, Articles 89 to 100, Article 102, and such part of Article 108 as is relating to the working conditions, of the Mariners Law (Law No. 100 of 1947), the provisions of Article 62 of the Law for the Promotion of Mariners Accident Prevention Activity, and provisions of orders issued thereunder shall not apply in regard to the employees. However, the provisions of Article 102 of the Labor Standards Law, the provisions of Article 92 of the Industrial Safety and Health Law, the provisions of such parts of Article 37 and Article 108 as are relating to the working conditions, of the Mariners Law, the provisions of Article 62 of the Law for the Promotion of Mariners Accident Prevention Activity, and provisions of orders issued thereunder shall apply in regard to the employees engaged in such enterprises conducted by local public bodies as set forth in Article 8, Sub-para. 1 to 10 and Sub-para. 13 to 15 of the Labor Standards Law, and the provisions of Articles 75 to 88 of the Labor Standards Law and the provisions of Articles 89 to 96 of the Marines Law shall apply in regard to the employees not covered under Article 2, Para. 1 of the Local Government Employees' Accident Compensation Law (Law No. 121 of 1967).

Article 13 of the Local Public Service Law
(Principle of Equal Treatment)
In the application of this Law, all of the people must be treated equally and must not be discriminated because of race, creed, sex, social status or family origin, or because of political opinion or political affiliations, except for the cases provided in Article 16, Sub-para. 5.

Article 17 of the Local Public Service Law
(Method of appointment)
1. In case of vacancy in a post, the appointing authority may appoint an employee for the post by any one of the following methods: initial appointment, promotion, demotion or transfer.
2. In a local public body with a personnel commission (including an equality commission in charge of holding competitive examinations; hereinafter the same applies in Articles 17 to 19, 21, and 22), the personnel commission may fix general standards by which the appointing authority shall choose any of the methods of appointment mentioned in the preceding paragraph.
3. In a local public body with a personnel commission, initial appointment or promotion of employees shall be made through competitive examinations. However, with respect to the posts designated by the personnel commission, appointment may be made by means of selection if approval for such appointment has been obtained from the personnel commission.
4. In a local public body without a personnel commission, initial appointment and promotion shall be made through competitive examinations or by selections without competitive examinations.
5. The personnel commission (or the appointing authority in local public bodies without a personnel commission; hereinafter the same applies in Articles 18 and 19 and Article 22, Para. 1) may provide for necessary matters concerning the qualifications, appointment procedures, and status upon appointment for employees who return to the posts that they once had been formally appointed and then had left as a result of amendment or abrogation of the personnel organization or the staff size, or abolition of posts due to excess personnel or budget cut.

Article 19 of the Local Public Service Law
(Eligibility for examination)
1. Competitive examinations shall be open and on equal terms to all persons who are eligible for examinations as provided by the personnel commission. No person or employee belonging to the examination body shall disclose any special or secret information for the purpose of obstructing or giving undue influence on examinations.
2. The personnel commission shall set, as necessary qualifications for examinees, objective and uniform requirements that are minimum necessary for and appropriate for performance of the required duty.
3. Promotional examinations shall be open only to regular employees appointed to the posts designated by the personnel commission.
1. The judgment of the second instance shall be quashed with respect to the part for which the jokoku appellant lost the case.
2. The koso appeal filed by the jokoku appellee with respect to the part mentioned in the preceding paragraph shall be dismissed.
3. The jokoku appellee shall bear the whole costs of the koso appeal and the jokoku appeal.
Concerning the grounds for jokoku appeal argued by the attorneys for jokoku appeal KANAOKA Akira, et al.
1. This is a case in which the jokoku appellee who was appointed by the jokoku appellant as a public health nurse, to seek compensation for non-pecuniary damage from the jokoku appellant under Article 1, Para. 1 of the Law Concerning State Liability for Compensation, alleging that she was denied eligibility for the examinations for management selection held by the Personnel Commission of the Tokyo Metropolitan Government in FY1994 and FY1995, by reason of lack of Japanese nationality.
2. The outline of the facts legally determined by the judgment of the second instance is as follows.
(1) The jokoku appellee is a person with the nationality of the Republic of Korea who was born in Iwate Prefecture in 1950 and has the status of special permanent resident under the Special Law on the Immigration Control of, Inter Alios, Those Who Have Lost Japanese Nationality on the Basis of the Treaty of Peace with Japan.
(2) In 1986, the jokoku appellant, the Tokyo Metropolitan Government, abolished the requirement of having Japanese nationality as a qualification for appointment as a pubic health nurse. In April 1988, the jokoku appellee was appointed by the jokoku appellant as a public health nurse.
(3) At the time when the Examination for Management Selection were held in FY1994 and FY1995 as described later, the jokoku appellant assigned managerial posts to employees who were authorized to make decisions on matters relating to affairs under the authority of the Tokyo Metropolitan Governor (i.e. directors of bureaus, departments, and divisions at the metropolitan government and some senior employees belonging to organs other than the metropolitan government), and employees who were not directly authorized to make decisions on those matters but involved in the decision-making process (deputy directors of bureaus, advisory engineers, executive directors (which is ranked as a bureau director-level post), counselors (which is ranked as department director-level post), and deputy counselors (which is ranked as a division director-level post ) at the metropolitan government, and some employees belonging to organs other than the metropolitan government). There were also a small number of managerial posts engaged in planning or specialized research. Persons appointed to those posts were not authorized to make decisions on those matters and were less likely to be involved in the decision-making process. Under the appointment and management system adopted by the jokoku appellant, employees promoted to managerial posts were not always only engaged in duties in their specialized fields. For instance, even those who passed examinations and were promoted to managerial posts in the field of medical chemistry were not only engaged in their conventional duties in that field but also likely to be engaged in duties in managerial posts in any other fields due to promotion.
(4) The Examination for Management Selection implemented by the Personnel Commission of the Tokyo Metropolitan Government is a preliminary selection for promotion to division director-level posts for employees, for which the appointing authorities respectively belong to the Tokyo Metropolitan Governor, the President of the Tokyo Metropolitan Assembly, administrators of public corporations operated under Tokyo Metropolitan Government, and Representative Auditors, the Board of Education, the Board of Elections, the Area Fishery Adjustment Committee, and the Personnel Commission of the Tokyo Metropolitan Government. The Examination for Management Selection is conducted by dividing examinees into three class-Class A, Class B and Class C-each of which further divided by type of job, administrative or technical. The jokoku appellee intended to take examinations in Class A, technical, which is further divided into civil engineering, construction, machinery, electrics, biology, and medical chemistry. Those who have passed the selection are enrolled in the list of candidates, and several years later, appointed to managerial posts after going through the final selection.
(5) The Outline of Management Selection in FY1994 of the Personnel Commission of the Tokyo Metropolitan Government provided for qualifications for the preliminary selection for promotion to division director-level posts mentioned in (4) above, based on the premise that examinees should have Japanese nationality, though it was not expressly provided in the Outline.
(6) The jokoku appellee decided to take the Examination for Management Selection in Class A, technical, medical chemistry, which was held under the Outline. On March 10, 1994, the jokoku appellee submitted an application form to the deputy director of the Hachioji Public Health Center, Tokyo, where she worked, but the deputy director refused to accept the application form on the grounds that the jokoku appellee lacked Japanese nationality. The jokoku appellee was unable to take the paper test held in May 1994 because the application form was thus refused, even though she met all the qualifications for the examination required under the Outline, except for Japanese nationality.
(7) The requirement of having Japanese nationality came to be expressly provided as a qualification for the Examination in the Outline of Management Selection in FY1995 of the Personnel Commission of the Tokyo Metropolitan Government. By reason of lack of Japanese nationality, the jokoku appellee was unable to take the examination.

3. Given the facts mentioned above, the court of the second instance partially upheld the jokoku appellee's claim to seek compensation for non-pecuniary damage, ruling that the measure taken by the jokoku appellant's employee to refuse the jokoku appellee from taking the Examinations for Management Selection in FY1994 and FY1995, was illegal because it deprived the jokoku appellee of the opportunity to take Examinations for Management Selection by reason of lack of Japanese nationality and barred the door for the jokoku appellee to be promoted to division director-level managerial posts.
The outline of the reasons for the judgment of the second instance is as follows.
(1) It cannot be said that persons without Japanese nationality are constitutionally guaranteed the right to take office as national or local government employees.
(2) In particular, local government employees in managerial posts are likely to be involved in performing governing functions of the local public body, by exercising the local public body's public authority or participating in public decision-making. For this reason, it would be inappropriate, in light of the principle of sovereignty of the people, to consider that foreign nationals appointed as local government employees are necessarily guaranteed, as Japanese employees, the right to be promoted to managerial posts. However, managerial employees are engaged in a broad range of duties, and they may be involved in performing governing functions of the local public body, especially in public decision-making, in different manners and on different levels. Also, some managerial employees may be not so deeply involved in performing governing functions of the local public body, because they do not exercise its public authority or they are less likely to participate in public decision-making. Therefore, it is necessary to distinguish between managerial posts that must not be open to foreign nationals and those that may be open to foreign nationals, depending on the contents of duties as well as how and to what extent the authority granted to each post is involved in performing governing functions. It is not against the principle of sovereignty of the people to appoint foreign nationals residing in Japan to the latter type of managerial posts.
(3) In fact, the jokoku appellant appoints a small number of managerial employees engaged in planning or specialized research who are not authorized to make decisions on matters relevant to governing functions or are less likely to be involved in the decision-making process. Considering that managerial employees are involved in the decision-making process in different manners and on different levels, it is not appropriate to uniformly deny appointment (promotion) of foreign nationals to managerial posts of the jokoku appellant, but rather it is necessary to operate the appointment and management system by distinguishing between managerial posts that must not be open to foreign nationals and those that may be open to foreign nationals, depending on the contents of duties as well as how and to what extent the authority granted to each post is involved in make decisions on matters relevant to the governing functions. It should be considered that foreign nationals residing in Japan shall also be guaranteed the right to be appointed to the latter type of managerial posts under Article 22, Para. 1 and Article 14, Para. 1 of the Constitution.
(4) Where the jokoku appellant's employees need to take Examinations for Management Selection in order to be promoted to division director-level posts and there are some managerial posts that would cause no problems even if they were assigned to non-Japanese employees, measures to deprive non-Japanese employees of the opportunity to take Examinations for Management Selection bar the door for non-Japanese employees to be promoted to division director-level managerial posts and therefore are in violation of Article 22, Para.1 and Article 14, Para. 1 of the Constitution. Due to such illegal measures taken by the jokoku appellant's employee, the jokoku appellee was unable to take the Examinations for Management Selection in FY1994 and FY1995. Two hundred thousand yen is adequate to compensate non-pecuniary damage suffered by the jokoku appellant in relation to each examination.

4. However, the judgment of the second instance that upheld, given the facts mentioned above, the jokoku appellee's claim to seek compensation for non-pecuniary damage, cannot be accepted on the following grounds.
(1) The Local Public Service Law does not expressly provide for whether or not it is allowable to appoint foreign nationals residing in Japan (hereinafter referred to as "foreign residents") as local government employees in regular service (hereinafter referred to as "employees") (See Article 19, Para. 1 of the said law). However, it does not mean to prohibit an ordinary local public body from appointing foreign residents as employees within the bounds of the law and in accordance with ordinances and regulations of the personnel commission. An ordinary local public body shall not apply discriminatory treatment to its employees who are foreign residents, with respect to wage, working hours or other working conditions by reason of nationality (Articles 3 and 112 of the Labor Standards Law and Article 58, Para. 3 of the Local Public Service Law), and such promotion as provided by ordinances on wage under Article 24, Para. 6 of the Local Public Service Law (i.e. change to the superior job grade in the salary scale) is also included in working conditions mentioned above. However, these provisions do not go so far as to prohibit an ordinary local public body from treating, based on reasonable grounds, its employees who are foreign residents differently from Japanese employees. Also, such difference in treatment is not in violation of Article 14, Para. 1 of the Constitution if it is based on reasonable grounds.
As promotion to managerial posts generally involves advancement to superior job grades, reasonable grounds would be required when appointing foreign residents as employees under the condition that they cannot be promoted to managerial posts.
(2) With respect to local government employees who are engaged in performing duties that involve exercise of public authority, such as directly creating rights and obligations of inhabitants or defining the scope thereof, or decision-making or participation in the decision-making process relating to important policies of an ordinary local public body (hereinafter referred to as "local government employees with public authority"), it is appropriate to consider as follows. The performance of duties of local government employees with public authority is directly or indirectly related to the lives of inhabitants to a significant extent, because it defines the rights and obligations of inhabitants or their legal status or has in effect a significant influence on these matters. Therefore, considering that the Japanese people shall, as the sovereign of the nation under the principle of sovereignty of the people, have final responsibility for governance by the national government and ordinary local public bodies (See Article 1 and Article 15, Para. 1 of the Constitution), it is contemplated that, in principle, Japanese nationals shall take office as local government employees with public authority, and it is not contemplated under the Japanese legal framework that foreign nationals who belong to a nation other than Japan and have rights and obligations as the people of the nation, may take office as local government employees with public authority in Japan.
In addition, it is allowable for an ordinary local public body to establish, based on its own judgment, an integrated management appointment system consisting of the posts of local government employees with public authority and the posts to be assumed for the purpose of acquiring necessary job experience for promotion to these posts, aiming to ensure appropriate personnel management. It follows that where an ordinary local public body establishes such an integrated management appointment system and then takes a measure to allow only Japanese employees to be promoted to managerial posts, the ordinary local public body is deemed to distinguish between employees who are Japanese nationals and those who are foreign residents based on reasonable grounds, so it is appropriate to construe such measure not to be in violation of Article 3 of the Labor Standards Law or Article 14, Para. 1 of the Constitution. This reasoning also applies to employees having the status of special permanent resident.
(3) Given the facts mentioned above, the jokoku appellee who had been appointed by the jokoku appellant as a public health nurse in April 1988, intended to take the Examinations for Management Selection (Class A, technical, medical chemistry) held by the Personnel Commission of the Tokyo Metropolitan Government in FY1994 and FY1995, but was unable to take either examination because the Personnel Commission denied the eligibility of non-Japanese people for the examinations. Under the appointment and management system adopted by the jokoku appellant at that time, employees promoted to managerial posts were not always only engaged in duties in their specialized fields but rather it was taken for granted that employees once promoted to managerial posts would eventually take office as local government employees with public authority. Therefore, the jokoku appellant can be deemed to have established an integrated management appointment system consisting not only of managerial posts of local government employees with public authority but also of other related posts.
Consequently, even if the jokoku appellant requires its employees to have Japanese nationality as a qualification for promotion to managerial posts based on the recognition that such qualification is necessary for appropriate operation of the integrated management appointment system mentioned above, the jokoku appellant is deemed to distinguish between employees who are Japanese nationals and those who are foreign residents based on reasonable grounds, so such measure is not in violation of Article 3 of the Labor Standards Law or Article 14, Para. 1 of the Constitution. This reasoning shall not be influenced by the fact, as pointed out by the court of the second instance, that the jokoku appellant appoints a small number of managerial employees engaged in planning or specialized research who are not regarded as local government employees with public authority. Furthermore, other claims made by the jokoku appellee alleging violation of the Constitution lack premise. The judgment of the second instance that is contrary to this reasoning contains an apparent violation of laws that has affected the judgment. The jokoku appellant's argument is well-grounded in this respect, and the judgment of the second instance shall inevitably be quashed with respect to the part for which the jokoku appellant lost the case. In addition, since the judgment of the first instance that dismissed the jokoku appellant's claim to seek compensation for non-pecuniary damage is justifiable, the koso appeal filed by the jokoku appellee shall be dismissed with respect to the dismissal.

5. Therefore, the judgment was rendered in the form of the main text by the unanimous consent of the Justices, except that there are dissenting opinions by Justice TAKII Shigeo and Justice IZUMI Tokuji, and there is also a concurring opinion by Justice FUJITA Tokiyasu and opinions by Justice KANATANI Toshihiro, and Justice UEDA Toyozo.

The following is the concurring opinion of Justice FUJITA Tokiyasu.
I am in agreement with the majority opinion, but considering that the jokoku appellee has the status of special permanent resident under the Special Law on the Immigration Control of, Inter Alios, Those Who Have Lost Japanese Nationality on the Basis of the Treaty of Peace with Japan (hereinafter referred to as the "Special Law on the Immigration Control"), I would like to give my opinion as a concurring opinion.
Taking into consideration the facts that the jokoku appellee was born and grew up in Japan, has lived in Japanese society without any particular problems, and has the statutory status of permanent resident in Japan, I do not say that it is not questionable whether or not it is an appropriate measure to give the jokoku appellee no chance at all to assume a managerial post in a local public body, only because the jokoku appellee lacks Japanese nationality. However, in my opinion, it is ultimately an issue of the appropriateness of the personnel policy of the local public body, and we cannot go so far as to say, because of such questionableness, that the measure taken by the jokoku appellant should necessarily be deemed to be illegal under the existing Japanese laws. The reasons for my opinion are as follows.

1. The status of special permanent resident provided under the Special Law on the Immigration Control is nothing but an exception under the current immigration control system, which is made only for the purpose of permitting a certain range of foreign nationals to reside in Japan (permanently) without any status of residence set forth in Article 2-2 of the Immigration Control and Refugee Recognition Act (hereinafter referred to as the "Immigration Control Act"), and only because of this, those with the status of special permanent resident are exempted from restrictions imposed for each of the statutory statuses of residence with respect to the possibility of their employment in Japan (See Article 19 and Appendix 1 of the Immigration Control Act). Consequently, for instance, special permanent residents may, without work permit granted by the Minister of Justice, engage in "activities involving the management of a business involving income or activities for which he receives remuneration" (Article 19 of the said act) only because of the legal effect of the such exceptional treatment as mentioned above; it is not that they are granted a special legal status so that they would be treated differently from other persons with foreign nationalities and treated similarly to Japanese nationals. Furthermore, under some of the existing business laws, Japanese nationality is required as a qualification for obtaining a license to engage in particular businesses and occupations under license systems (Article 12, Para. 1, Sub-para. 1 of the Notary Public Law, Article 5, Para. 1 of Pilotage Law, the main text of Article 17 of the Mining Law, Article 5, Para. 1, Sub-para. 1 of the Radio Law, Article 52-13, Para. 1, Sub-para. 5(b) of the Broadcast Law, etc.). Neither of these provisions distinguishes special permanent residents from other foreign nationals nor treats them similarly to Japanese nationals. On the other hand, under the National Personnel Authority Regulations 8-18 that denies the eligibility of non-Japanese people for national public service examinations, it is expressly provided that special permanent residents are eligible for examinations for regular employees of Japan Post (the provision in parentheses of Article 8, Para. 1, Sub-para. 3 of the said regulations). In light of the facts mentioned above, there are no grounds to construe special permanent residents to be distinguished from other foreign nationals and especially given preferential treatment under the existing Japanese laws with respect to appointment as local government employees, and unless such treatment is expressly provided in laws, the question is whether or not it is possible for foreign nationals in general to take office as government employees.

2. Regarding the possibility of foreign nationals in general taking office as government employees, the court of the second instance, while starting from the recognition that under the Constitution of Japan, foreign nationals are not guaranteed the right to take office as government employees, appears to adopt the view that in accordance with Articles 22, 14, etc. of the Constitution, foreign nationals are necessarily guaranteed, as Japanese nationals, the right to take office of government employees in particular posts that are not in conflict with the constitutional principle of sovereignty of the people. However, the following matters should be taken into consideration: (1) The principle of sovereignty of the people pointed out by the court of the second instance is not the only logically acceptable ground for denying that foreign nationals are constitutionally guaranteed the right to take office as government employees (for instance, the power to prohibit foreign nationals from engaging in certain types of occupations may subsist in the national sovereignty); (2) "Foreign nationals are constitutionally prohibited from taking office as government employees in particular posts" does not logically necessarily mean "foreign nationals are necessarily guaranteed by the Constitution the right to take office as government employees other than those prohibited"; (3) Freedom of choice in employment, the principle of equality, etc. are rights to freedom, which are originally intended to only protect inherent rights and freedoms from restrictions, rather than creating rights and freedoms that are not inherent. Considering these matters, such reasoning shown by the court of the second instance appears to be logically abrupt to some extent, and whether or not the Constitution of Japan basically guarantees foreign nationals the right to take office as government employees (in particular posts) remains as an important question. At any rate, this case is not a case where a foreign national intends to initially take office as a local government employee, but where a foreign national who has been appointed and engaged in work as a regular government employee seeks the opportunity for promotion to a managerial post. As pointed out in the majority opinion, there are no reasonable grounds for excluding the application of Article 3 of the Labor Standards Law to this case, so the consequence of the question mentioned above does not necessarily have a direct influence on the solution to this case.

3. Next, I take a step forward to examine whether or not there are reasonable grounds for not allowing foreign nationals to be promoted to managerial posts in this case, despite the provision of the said article of the Labor Standards Law. According to the records, the jokoku appellant took such measure probably based on its judgment under the "natural reasoning on government employees": "it is unallowable to appoint non-Japanese people as local government employees who are engaged in exercising public authority or public decision-making of the local public body" (See Response No. 28 as of May 28, 1973, from the Head of the First Public Service Personnel Division of the Ministry of Home Affairs to the Head of the Department of General Affairs of the Osaka Prefectural Government). However, as the concepts of "exercising public authority" and "public decision-making of the local public body" are too broad, if it is unallowable at all for foreign nationals to assume such posts that literally fall under such concepts, it would be extremely rare, if not completely impossible, for foreign nationals to take office as local government employees, and there would be no reasonable grounds for such consequence. In this regard, it cannot be denied that the comment made by the court of the second instance that it is necessary to distinguish between managerial posts that must not be open to foreign nationals and those that may be open to foreign nationals, depending on the contents of duties as well as how and to what extent the authority granted to each post is involved in governing functions, is worth listening to, and it should also be reconfirmed that the concept of "local government employees with public authority" adopted in the majority opinion has been defined based on close attention to this regard.
It is a generally-accepted idea in Japan that it is not necessarily unconstitutional or illegal not to allow foreign nationals to assume at least particular posts that involve making important decisions of the local public body, putting aside the question of how to specify the scope of such posts, and I am also not in disagreement with such an idea. In this case, under the appointment and management system adopted by the jokoku appellant, the Tokyo Metropolitan Government, employees once promoted to managerial posts were not always only engaged in duties in their specialized fields, so there was the possibility that a foreign national, if promoted to a managerial post, might be engaged in duties that must not be open to foreign nationals. In this respect, the court of the second instance ruled that managerial employees may be involved in the public decision-making process in different manners and on different levels, so it is not appropriate to uniformly deny appointment of foreign nationals to managerial posts for the jokoku appellant, but rather it is necessary to operate the appointment and management system by distinguishing between managerial posts that must not be open to foreign nationals and those that may be open to foreign nationals according to the criteria mentioned above. Indeed, such appointment and management system may be a possible option of personnel policy, but it also cannot be denied that if such special personnel consideration were always required only with respect to foreign nationals, it was likely to harm flexibility in personnel management as a whole. If the jokoku appellant, the Tokyo Metropolitan Government, while giving due consideration to this possibility, generally required Japanese nationality as a qualification for appointment to managerial posts, such measure could be deemed to be acceptable as exercising its power to organize the administration and manage personnel, putting aside the question of whether or not the measure was an optimal option of personnel policy.
If we only take into account the jokoku appellant's situation in this case, it is difficult to say that the court of the second instance made sufficient findings on whether or not promotion of the jokoku appellee to a managerial post was in reality significantly likely to harm flexibility in personnel management as a whole, so it might be a possible choice to quash the judgment of the second instance and remand this case to the court of the second instance for further examination on this point. However, needless to say, whether or not to open the door for foreign residents to become managerial employees should be considered not only in relation to the jokoku appellee alone but also as an issue related to foreign residents in general (otherwise, if a number of foreign residents have the same desire as the jokoku appellee in the future, it would be necessary to apply the same treatment to all of them). Also taking this into consideration, in my opinion, it cannot be necessarily said that the measure taken by the jokoku appellee Tokyo Metropolitan Government to prohibit, at the time of the case, foreign nationals in general from taking the Examinations for Management Selection is immediately deemed to be beyond the bounds of legally acceptable personnel policy, and it is at least impossible to regard the jokoku appellant as having been negligent for taking such measure.

The following is the opinion of Justice KANATANI Toshihiro.
I am in agreement with the conclusion of the majority opinion that does not accept the judgment of the second instance, which found unconstitutionality in the measure taken by the jokoku appellant to refuse the jokoku appellee from taking the Examinations for Management Selection in FY1994 and FY1995, but I cannot agree with part of the reasons attached thereto.

1. The Constitution of Japan includes no provision to generally guarantee the right to take office as government employees in Japan, but as a natural premise under the Constitution or in accordance with the principle of sovereignty of the people and the provision of Article 14 of the Constitution, I think it can be construed that any Japanese national is eligible to take office as a government employee.
However, how to build national and local public service systems is significantly related to the national governing functions. There are various types of posts of government employees, many of which are deemed to be constitutionally unallowable to be assigned to foreign nationals due to the principle of sovereignty of the people (how to define the scope of such posts is a controversial and difficult issue) or are inappropriate to be assigned to foreign nationals. Also, whether or not it is appropriate to allow a foreign national to assume a particular post depends on the contents of duties entrusted to the post and the actual operation of the personnel system. Considering these circumstances as well as the legal histories in Japan and overseas, it seems appropriate to construe that the constitutional right to take office as government employees is afforded to Japanese nationals but, due to its nature, may not extended to foreign nationals (It may not be appropriate to construe that the Constitution, the fundamental law of Japan, differentiates some posts of government employees from other posts and guarantees foreign nationals the right to take office as government employees in particular posts, unless it expressly provides to that effect). The Constitution does not guarantee foreign nationals the right to take office as government employees but leaves it to the legislative discretion to decide whether or not to allow foreign nationals to take office as government employees within the bounds of the Constitution.

2. Next, I examine legal frameworks on local government employees. The Local Public Service Law does not include any provision on whether or not it is allowable to appoint foreign nationals as local government employees in general or provision to prohibit such appointment. Therefore, local public bodies may, at their discretion, decide whether or not to allow appointment of foreign nationals as their employees. In other words, under existing Japanese law, whether or not to open the door for foreign nationals to become local government employees depends on ordinances or regulations of the personnel commission of individual local public bodies.
The discretion of local public bodies in this regard is not of an all-or-nothing nature. Rather, it is construed that local public bodies may provide foreign nationals with the opportunity to assume limited posts, may provide them with the opportunity to take office as local government employees within the limit of promotion set in light of the contents and duties of posts, or may provide them with the opportunity to assume limited posts within the limit of promotion. Decisions made by local public bodies at their discretion will not raise a question of illegality unless such decisions are deemed to go beyond the bounds of their discretion or constitute an abuse of their discretion (concerning the details on this point, I apply the opinion by Justice UEDA).
Regarding the connection with Article 3 of the Labor Standards Law that is also applicable to local government employees under Article 112 of the said law, from my viewpoint that whether or not to open the door for foreign nationals to become local government employees is left to the discretion of local public bodies, it is extremely unreasonable if their discretion is restricted in taking the measure to partially open the door with a certain limit for promotion of employees who are foreign nationals, although no question of illegality will be raised even if they chose to completely close the door on foreign nationals assuming particular posts of local government employees. This would also make local public bodies unnecessarily cautious about opening the door for foreign nationals to become government employees. Consequently, Article 3 of the Labor Standards Law is not applicable to the discretion on whether or not to open the door but is only applicable to the operation of the personnel system that has been open to foreign nationals.

3. In this case, on the grounds as stated in the first paragraph of 4(3) of the majority opinion, the measure taken by the jokoku appellant, the Tokyo Metropolitan Government, to require its employees to have Japanese nationality in order to be promoted to managerial posts, is not deemed to be illegal as going beyond the bounds of their discretion or constitute an abuse of their discretion. Therefore, in my opinion, the jokoku appellant's measure to prohibit the jokoku appellee from taking the Examinations for Management Selection in FY1994 and FY1995 is not illegal.

4. As an additional remark, there are some posts of government employee that would cause no problems even if they were assigned to non-Japanese employees. In the age of advancing globalization, it goes along with the trend of the times to widely open the door for foreign residents to become government employees, and it is also understandable that special permanent residents such as the jokoku appellee strongly demand a further open-door policy. However, in my opinion, this issue should basically be discussed as to the appropriateness of political or policy options, and it does not raise a question of unconstitutionality or illegality.

The following is the opinion of Justice UEDA Toyozo.
I am in agreement with the majority opinion that finds no illegality in the measure taken by the jokoku appellant to refuse the jokoku appellee from taking the Examinations for Management Selection in FY1994 and FY1995 and therefore does not accept the judgment of the second instance, which found illegality in this measure and upheld the jokoku appellee's claim to seek compensation for non-pecuniary damage, but I cannot agree with the reasons attached thereto.

1. It is appropriate to construe that the Constitution does not guarantee foreign nationals the right to take office as government employees but leaves it to the legislative discretion to decide whether or not to allow foreign nationals to take office as government employees.
Regarding the appointment of foreign residents as local government employees, the Local Public Service Law does not include any provision to require or prohibit such appointment. Therefore, the law can be deemed to take the position that this issue may be decided depending on ordinances or regulations of the personnel commission of individual local public bodies (or in other words, it is left to the discretion of individual local public bodies).

2. When deciding upon the issue of appointment of foreign residents as local government employees, each local public body has the discretion not only to decide whether or not to allow foreign residents to assume particular posts ("horizontal discretion") but also to decide to what level or grade foreign nationals may be promoted depending on the duties and responsibility granted to the posts ("vertical discretion"). In other words, how to build the personnel system with regard to the issue of appointment of foreign residents as local government employees (from both horizontal and vertical perspectives) is left to the direction of individual local public bodies (Private entrepreneurs may freely choose the type and scale of businesses they intend to run, and even when they plan to employ foreign residents for their businesses, such choice shall not be restricted by Article 3 of the Labor Standards Law. Consequently, foreign residents thus employed may claim protection under the said article only within the type and scale of businesses chosen by the entrepreneurs. In other words, the said article is inapplicable as a ground for restricting entrepreneurs' choice of type and scale of business, and at the same time, it should be deemed to be also inapplicable as a ground for restricting local public bodies' policy for building local public service systems for foreign residents).

3. However, there is also a limit to such discretion of local public bodies, so decisions made by local public bodies at their discretion would be construed to be illegal if such decisions were deemed to go beyond the bounds of discretion or constitute an abuse of their discretion. Currently, I consider that the limit of vertical direction should be construed as follows. If decisions made by a local public body at its vertical discretion are not acceptable at all from the perspective of the framework of local public service as a whole based on the Local Public Service Law, such decisions are deemed to go beyond the bounds of discretion. For instance, where Japanese nationality is construed to be necessary for the post of local government employee in charge of conducting acts by exercising public authority or making decisions or participating in the decision-making process relating to important policies of the local public body, if the local public body also allows foreign residents to take office as such local government employees (in other words, if the local public body opens the door for foreign residents or exercises its vertical discretion too widely), such measure is deemed to go beyond the bounds of discretion. On the other hand, if, for instance, a local public body limits the salary level for foreign residents to the level of starting salary without any special reasons and allows them to take office as local government employees only in charge of duties corresponding to such limited salary level (in other words, if the local public body opens the door for foreign residents or exercises its vertical discretion too narrowly), such measure is deemed to be against public order and morals under the framework of local public service, as building a system that disdains or only causes pain to foreign residents or a system that exploits their labor power, and therefore also to go beyond the bounds of discretion.
Where the system built by a local public body for appointment of foreign residents as local government employees is not deemed to go beyond the bounds of its discretion, no question of illegality would be raised, particularly by reason of treating foreign residents in a manner that is beyond the bounds of acceptable treatment under the system. On the other hand, within the scope of the system thus built, equal treatment shall be required between foreign residents and Japanese nationals in accordance with the principle of equal treatment under Article 3 of the Labor Standards Law and Article 13 of the Local Public Service Law.

4. In this case, the jokoku appellant allowed, at the time of the case, foreign residents to take office as public health nurses while denying their promotion to division director-level or upper managerial posts. Such system does not go beyond but remains within the bounds of vertical discretion, and therefore shall not be deemed to be illegal.
Consequently, the measure taken by the jokoku appellant to refuse the jokoku appellee from taking the Examinations for Management Selection in FY1994 and FY1995 is not illegal.

The following is the dissenting opinion of Justice TAKII Shigeo.
I am also in agreement with the opinion that foreign nationals should be subject to certain restrictions under the principle of sovereignty of the people when they intend to take office as government employees in Japan, and I uphold the measure to require Japanese nationality as a qualification for appointment to particular posts if it is allowed by law and there are reasonable grounds to do so. However, in the case of a local public body in which many people are engaged in various duties, such as the jokoku appellant, no reasonable grounds can be found if such local public body requires all its employees in managerial posts to have Japanese nationality, irrespective of the nature of their duties. Consequently, I consider that the measure taken by the jokoku appellant to require Japanese nationality as a qualification for the Examinations for Management Selection closes the door on its employees who are foreign residents being promoted to managerial posts only by reason of nationality, and therefore it is in violation of Article 3 of the Labor Standards Law that prohibits discriminatory treatment by reason of nationality under Article 14 of the Constitution. The reasons for my opinion are as follows.

2(1) Under the principle of sovereignty of the people, only the people of the nation may participate in governing the nation, and the right to participate in politics is guaranteed only to the people of the nation. The people may freely elect who shall play roles in national governance, and from the perspective of maintaining the autonomy and independence of the nation, foreign nationals shall be excluded from becoming persons who shall play important roles in national governance.
(2) Article 15, Para. 1 of the Constitution provides that the people have the inalienable right to choose their public officials and to dismiss them. However, the right under this provision is based on the principle of sovereignty of the people, so it is construed that the right, due to its nature, shall not be guaranteed to foreign nationals residing in Japan.
(3) Article 93, Para. 2 of the Constitution provides that the heads of all local public bodies, the members of their assemblies, and such other local officials as may be determined by law shall be elected by direct popular vote within their several communities. The right under this provision is also only guaranteed to Japanese nationals.
Japanese positive laws provide for election of public officials in accordance with the provisions of the Constitution mentioned above. For instance, the members and presidents of assemblies of all local public bodies may be elected only by Japanese nationals and from among Japanese nationals (Articles 11, 18, and 19 of the Local Autonomy Law). Also, only Japanese nationals are entitled to the right to demand dissolution of the assembly of the local public body and the right to demand removal from office of any member of the assembly, the president of the assembly, the deputy governor or deputy mayor, the treasurer or receiver, any member of the board of election, any audit commissioner, any member of the public safety commission or any member of the board of education of the local public body (Article 13 of the said law).
However, the Constitution of Japan guarantees that public affairs closely related to daily lives of inhabitants shall be administered by the local public body to which they belong based on their intentions. Therefore, with respect to foreign nationals residing in Japan who have especially close relationships with the local public body covering the area where they live, the Constitution, for the purpose of reflecting their intentions in the administration of public affairs by the local public body, does not prohibit granting them by law the right to vote on the head of the local public body or members of its assembly (1993 (Gyo-Tsu) No. 163, judgment of the Third Petty Bench of the Supreme Court of February 28, 1995, Minshu Vol. 49, No. 2, at 639).
In other words, under Japanese positive laws, only Japanese nationals are eligible to elect and to be elected as public officials in particular posts, but this does not necessarily mean that as a natural consequence from the principle of sovereignty of the people, only Japanese nationals are guaranteed all rights relating to the right to participate in politics.
(4) The subject matter of this case is eligibility to assume particular posts of public officials, rather than such rights that are constitutionally guaranteed only to Japanese nationals as a natural consequence from the principle of sovereignty of the people, such as the rights to elect and to be elected as public officials. Appointment of all government employees shall ultimately be based on the will of the Japanese people. Even if such appointment involves an element of the right to participate in politics, it does not mean that Japanese nationality is necessarily required for eligibility for appointment as a government employee in any post as a natural consequence from the principle of sovereignty of the people, without questioning the nature of the duties entrusted to such posts.
In my opinion, considering that the people's involvement in the foundation of governance differs between local administration and national administration, it should be considered that, in local administrative bodies, posts for which Japanese nationality is required as a natural consequence from the principle of sovereignty of the people should be limited only to principals of local public bodies, such as the heads of the bodies and there are no constitutional restrictions on appointment as government employees in other posts. If so, even though a legislative limit may be imposed, there are no grounds to construe that such other posts should be assigned only to Japanese nationals as a natural consequence from the nature of the posts, without any legislation to that effect.
(5) The majority opinion points out that performance of duties of local government employees with public authority are directly and indirectly related to the lives of inhabitants to a significant extent, and that since the Japanese people have, under the principle of sovereignty of the people, final responsibility for the governance by local government employees with public authority it is not contemplated under the Japanese legal framework that foreign nationals may take office as local government employees with public authority.
However, I would like to point out the following. While a local public body has an assembly as its decision-making organ, it is provided that the executive organ of a local public body shall have the duty to faithfully manage and enforce administrative affairs for the body based on its own judgment and responsibility (Article 138-2 of the Local Autonomy Law). The law also provides that only the head of a local public body, such as the governor or mayor or the administrative committee, are granted the authority to execute such affairs in its name, and that the deputy governor, deputy mayor or other assistant officials is responsible only for assisting the head (Articles 161 and thereafter of the said law).
On the other hand, the head often entrusts assistant organs with performance of his or her duties or causes them to act on his or her behalf (Articles 152 and 153 of the Local Autonomy Law), and each administrative decision is, as a general rule, finally publicized under the name of the administrative authority after going through the review by assistant organs. In light of these circumstances, it is true that important matters concerning the administrative and organizational operation of the local public body appear to be practically conducted by assistant organs. However, such assistant organs shall perform their duties under the control and supervision of the head (Article 154 of the said law), and in performing their duties, they shall comply with laws and regulations, ordinances, and rules set by the local public body and its organs, and shall faithfully observe their superiors' orders on performance of duties (Article 32 of the Local Public Service Law). In other words, under the law, assistant organs are in charge of assisting the heads of the local public body in conducting his or her duties at his or her own judgment and responsibility. Therefore, even if assistant organs are involved in important affairs, their status, by nature, differs from the status of the head in respect of the relation with the exercise of sovereignty. Such difference in nature is also the basis of the provision of Article 93, Para. 2 of the Constitution, guaranteeing that only the head of a local public body shall be elected by popular vote and leaving it to legislative policy to decide whether or not to apply a popular vote to appointment of government employees in other posts. It is inappropriate to construe that the Japanese legal framework contemplates, as a matter of course from the principle of sovereignty of the people, that Japanese nationality is required for eligibility for appointment to assistant organs as in case of appointment of the head of a local public body, only because the duties of assistant organs are significantly involved in the lives of inhabitants.

3. As described above, there are no restrictions under the principle of sovereignty of the people when foreign nationals intend to take office as assistant organs for the head of the local public body. And, eligibility for appointment as assistant organs including promotion falls under "working conditions" as provided in Article 3 of the Labor Standards Law, so those who have already been appointed as government employees shall have such eligibility under the application of the said article. There are no reasons to apply a different reasoning to foreign nationals who have already been appointed as government employees.
However, this does not mean that foreign nationals must be always granted eligibility to assume all posts, including those that are not subject to restrictions under the principle of sovereignty of the people. It is allowable to enable only Japanese nationals to assume particular posts if it is allowed by law and there are reasonable grounds to do so. In other words, considering that the executive organ of a local pubic body shall have the duty to faithfully manage and enforce the affairs of the body and it needs the understanding and support of inhabitants in order to perform such duty as appropriate, it is construed to be allowable, in light of the general normative consciousness and view of public officials among inhabitants that demand that foreign nationals should have no influence on public affairs, to require Japanese nationality as a statutory qualification for appointment to particular posts.
Furthermore, which employee should be appointed to a post should be decided on a case-by-case basis in consideration of the contents of the duty required for the post and the qualities of the expectants, and such decision is left to the employer's broad discretion unless it violates laws. Therefore, reasonability can be found in cases where a local public body, from the purpose of winning understanding and trust from inhabitants, only appoints Japanese nationals as public officials in particular posts, such as those who make sophisticated judgments and use broad discretion or those who directly order and force inhabitants to do something, and the Local Public Service Law seems to allow such measure. Consequently, such measure cannot be deemed to be discriminatory treatment without reasonable grounds.

4 (1) However, the jokoku appellant did not impose eligibility restrictions on appointment to particular managerial posts while giving consideration to the contents of the duties of the posts, but uniformly excluded foreign nationals from assuming any managerial posts. The question in this case is whether or not such measure taken by the jokoku appellant is reasonable.
Unequal treatment in promotion of government employees will not be regarded as being discriminatory if it is based on reasonable grounds and the employer proves reasonability. However, in this case, the jokoku appellant cannot be deemed to have proven such reasonability. Even if it is an acceptable reasoning that it is contemplated under the Japanese legal framework that Japanese nationality is required for eligibility for some posts to assist the head of a local public body, it is not appropriate to go so far as to find reasonability in requiring Japanese nationality for eligibility for all managerial posts and to construe that it is allowable to uniformly exclude non-Japanese government employees from management selection. Also, the jokoku appellant has not proven any other reasons to ascertain that its appointment system could not be operated as appropriate without taking such measure.
(2) In general, managerial employees refer to employees who are in charge of supervising and managing their subordinates, and most of such employees are given organizational titles such as department directors and division directors. In some cases, however, those who are not in charge of managing or supervising their subordinates are treated similarly to managerial employees for the reason of balance in treatment (in addition, there are also management systems under which employees in charge of making important administrative decisions or participating in the decision-making process and those in charge of supervising other employees are treated as managerial employees while being members of labor union-like organizations for government employees). Such managerial posts have been established, when local public bodies design their appointment systems, from the perspective of ensuring a democratic and efficient public service system and personnel administration. They have not been established by selecting posts that highly involve the exercise of sovereignty (which may serve as a criteria for determining whether or not foreign nationals must be excluded from assuming particular posts).
(3) According to the majority opinion, local public bodies may, at their discretion, regard local government employees with public authority as superior employees and establish subordinate managerial posts in order to acquire the necessary job experience for promotion to such superior posts, thereby establishing an integrated management appointment system and attempting to ensure appropriate personnel management. The majority opinion held that, in such cases, even if local public bodies only allow Japanese to be promoted to managerial posts, such measure is not necessarily deemed to be discriminatory treatment by reason of nationality or in violation of Article 3 of the Labor Standards Law.
It may indeed be reasonable to some extent not to adopt an appointment and management system under which managerial employees only engage in duties in their specialized fields. However, what matters here is whether or not it is appropriate to require Japanese nationality as a qualification for any and all managerial posts, only on the grounds that employees once promoted to managerial posts may take office as local government employees with public authority.
The scope of employees engaged in performing duties by exercising public authority, such as directly creating rights and obligations of inhabitants, or by making decisions or participating in the decision-making process relating to important policies of the local public body, cannot be clearly defined and may extend infinitely. Should there be, within this scope, any posts that must be only open to Japanese nationals under the principle of sovereignty of the people, in my opinion, such posts are limited to those entrusted to make sophisticated judgments and use broad discretion or directly order and force inhabitants to do something (see the end of 3 above), and the number of such posts may not be so large.
Today, the scope of duties to be performed by local public bodies has expanded to include provision of administrative services that are similar to services provided by private enterprises, and a large part of such duties were originally not in the nature of exercise of governmental power. As duties of local public bodies as a whole have lost the nature of exercise of governmental power, the concept of government employees has also changed. In light of the current normative consciousness among the people, there are only a limited number of posts that must not be open to foreign nationals from the perspective of sovereignty of the people, irrespective of what abilities and qualities foreign nationals have. Therefore, even if among a large number of managerial posts, there are any posts that must be only open to Japanese nationals, it cannot be said at all that an integrated appointment and management system cannot be operated without limiting candidates for all managerial posts to Japanese nationals.
(4) The number of local government employees with pubic authority, as defined by the majority opinion, among all employees of the jokoku appellant, is not clearly shown. However, as of April 1, 1997, the total number regular employees in managerial posts working at the jokoku appellant (excluding those working at the Tokyo Metropolitan Police Department and Tokyo Fire Department) was 2,500, which may include a large number of managerial employees other than local government employees with pubic authority. Nevertheless, the jokoku appellant, only arguing that division director-level employees are authorized to make decisions on important matters or be involved in the decision-making process, thereby participating in public decision-making, and therefore it is reasonable to require Japanese nationality for management selection, fails to clearly show how many managerial employees are regarded as superior managerial employees and therefore as being contemplated by law to require Japanese nationality.
Unless the jokoku appellant clearly shows that it cannot operate its integrated appointment system without also requiring subordinate managerial employees to have Japanese nationality because there are a large number of such superior managerial posts and managerial employees do not always engage in duties in their specialized fields, the jokoku appellant cannot be deemed to have proven the reasonability of its measure to require Japanese nationality as a qualification for examinations for selection of candidates for any and all managerial posts.
Ultimately, the jokoku appellant fails to prove reasonability to ascertain that uniformly requiring Japanese nationality for management selection is not unreasonable discrimination or in violation of laws, so the jokoku appellant's measure should inevitably be deemed to be illegal discrimination against non-Japanese employees.
(5) Whether or not a particular employee has an aptitude for assuming a managerial post should be determined by the employee's qualities, abilities and skills. Under the system adopted by the jokoku appellant, employees who have passed management selection are enrolled in the list of candidates, and several years later, appointed to managerial posts after going through the final selection. During this period, the jokoku appellant has the opportunity to fully observe and examine whether or not such an employee who has passed the preliminary selection have adequate qualities and skills to serve as managerial employees.
Consequently, the management selection disputed in this case is a stage to select candidates for promotion to managerial posts, and there is no necessity, from the perspective of judging aptitude for assuming managerial posts, to uniformly exclude foreign nationals from selection by reason of lack of Japanese nationality.
(6) Today, as people have come to engage in economic and cultural activities in broader areas beyond national borders, in general, we have less frequently noticed conceptual differences between Japanese national and foreign nationals. In particular, with regard to local public bodies, foreign nationals perform duties as members of the community, so it has been more widely accepted that foreign nationals are entitled to be treated in the same manner as treating Japanese nationals (see Article 10 of the Local Autonomy Law). It has been recognized anew that the important factor for determining aptitude for serving as government employees is not whether or not the employee has Japanese nationality but whether or not the employee appropriately performs the duties of public interest as a public servant. Whether or not those who have passed management selection have an aptitude for assuming managerial posts from such perspective can be judged by examining their performance after management selection, and even though Japanese nationality may be one factor for such judgment, there are no reasons to regard foreign nationality as an absolute defect in the stage of management selection.
In addition, according to the records, the jokoku appellee was born to a Japanese mother in Japan and grown up and educated in Japan. However, since her father had Korean nationality, the jokoku appellee, upon the effectuation of the Peace Treaty with Japan, lost Japanese nationality irrespective of her will. In Japan, the majority of foreign residents are special permanent residents who, like the jokoku appellee, lost Japanese nationality under the Peace Treaty but have long lived as members of Japanese society and wish to continue such lives in Japan. It should be noted that the provision to require Japanese nationality, as that disputed in this case, closes the door on such special permanent residents being promoted to managerial posts, not because of their qualities but by reason of nationality, and therefore it is extremely harsh to such residents. From this perspective, in Japan, reasonability should be required when uniformly excluding various types of foreign nationals from managerial posts only by reason of nationality.
(7) For the reasons mentioned above, the measure to give foreign nationals no chance at all to take examinations for management selection only by reason of lack of Japanese nationality and close the door on them being promoted to any managerial posts, may be acceptable in terms of justifiability of the purpose thereof, e.g. ensuring appropriate personnel management, but it is not substantially relevant as a means to accomplish the purpose and therefore cannot be deemed to be based on reasonable grounds.

5. Consequently, the measure taken by the jokoku appellant to give the jokoku appellee no chance at all to take examinations for management selection only by reason of lack of Japanese nationality should inevitably be deemed to be illegal discrimination of workers by reason of nationality. Considering that such discrimination is in violation of Article 3 of the Labor Standards Law that is derived from Article 14 of the Constitution, negligence as provided under Article 1, Para. 1 of the Law Concerning State Liability for Compensation can be found. Therefore, the judgment of the second instance that upheld the jokoku appellee's claim is justifiable as conclusion and the jokoku appeal should be dismissed.

The following is the dissenting opinion of Justice IZUMI Tokuji.
1. The jokoku appellee is a special permanent resident who was born in Iwate Prefecture in 1950. Under Japanese law, she was licensed as a nurse in 1986 and as a public health nurse in 1988, and appointed as a public health nurse at the Hino Public Health Center, Tokyo, in April 1988. Since April 1993, she served as a Grade 4 chief public health nurse at the West Health Consulting Office of the Hachioji Public Health Center, Tokyo (according to the records, the jokoku appellee's mother had Japanese nationality, but upon marriage to a Korean national in Japan in 1935, she was excluded from the Japanese family register and entered the Korean family register, and lost Japanese nationality upon the effectuation of the Peace Treaty with Japan. The jokoku appellee completed compulsory education and finished high school and professional training college in Japan.)

2. The jokoku appellee was refused by the Personnel Commission of the Tokyo Metropolitan Government from taking the Examinations for Management Selection in FY1994 and FY1995 (hereinafter referred to as the "Selection") by reason of lack of Japanese nationality. In the ordinances of the Tokyo Metropolitan Government or regulations of the Personnel Commission of the Tokyo Metropolitan Government, there is no provision that requires Japanese nationality as a qualification for the Examinations for Management Selection. The Personnel Commission of the Tokyo Metropolitan Government did not address the necessity of Japanese nationality in the Outline of Management Selection in FY1994, but in the Outline of Management Selection in FY1995, the commission required Japanese nationality as a qualification for the first time.

3. Under international customary law, a nation is not obliged to allow foreign nationals enter its own territory, and unless otherwise provided under treaties, it may freely decide whether or not to allow foreign nationals to enter its own territory and what conditions should be imposed upon such entry (see 1954 (A) No. 3594, judgment of the Grand Bench of the Supreme Court of June 19, 1957, Keishu Vol. 11, No. 6, at 1663, 1975 (Gyo-Tsu) No. 120, judgment of the Grand Bench of the Supreme Court of October 4, 1978, Minshu Vol. 32, No. 7, at 1223). While the national government shall have such discretion as part of its sovereignty, local public bodies do not have such discretion and therefore may not freely restrict activities of foreign nationals who are permitted by the national government to reside in Japan.

4. First of all, I examine how the national government provides for the eligibility of special permanent residents to become local government employees (excluding those appointed through election; hereinafter the same) under laws and regulations.
(1) Under Article 3 of the Special Law on the Immigration Control of, Inter Alios, Those Who Have Lost Japanese Nationality on the Basis of the Treaty of Peace with Japan, the national government gives special permanent residents a status that allows them to permanently reside in Japan. Special permanent residents may, as aliens "otherwise provided by other laws" set forth in Article 2-2, Para. 1 of the Immigration Control and Refugee Recognition Act, permanently reside in Japan without any status of residence under the said act and shall be exempted from restrictions under the said act with respect to their work and other activities in Japan. The Local Public Service Law and other laws do not restrict special permanent residents from becoming local government employees.
(2) Fundamental human rights under the articles in Chapter 3 of the Constitution, except for those that are deemed to be guaranteed only to Japanese nationals due to their nature, should be construed to be guaranteed equally to foreign nationals residing in Japan (see 1975 (Gyo-Tsu) No. 120, judgment of the Grand Bench of the Supreme Court of October 4, 1978, Minshu Vol. 32, No. 7, at 1223). The principle of equality before law guaranteed under Article 14, Para. 1 of the Constitution shall also be applicable to foreign nationals (see 1962 (A) No. 927, judgment of the Grand Bench of the Supreme Court of November 18, 1964, Keishu Vol. 18, No. 9, at 579). Freedom of choice in occupation guaranteed under Article 22, Para. 1 of the Constitution should also be construed to be applicable to special permanent residents.

5. Considering that, as mentioned above, the national government permits, with national sovereignty, special permanent residents to permanently reside in Japan and does not restrict them from becoming local government employees, and the principle of equality and freedom of choice in employment under the Constitution are also applicable to special permanent residents, it can be preliminarily affirmed that special permanent residents should be treated equally to Japanese nationals in becoming local government employees.

6. Next, I examine whether or not it is allowable for local public bodies to put certain level of restrictions on appointment of special permanent residents as local government employees.
(1) Article 14, Para. 1 of the Constitution does not guarantee absolute equality but intends to prohibit discrimination without reasonable grounds, so it is not in violation of this provision to apply discriminatory treatment to people under law based on actual differences among them, if such discriminatory treatment is reasonable (see 1980 (Gyo-Tsu) No. 15, judgment of the Grand Bench of the Supreme Court of March 27, 1985, Minshu Vol. 39, No. 2, at 247). Article 22, Para. 1 of the Constitution provides for freedom of choice in occupation subject to the condition "it does not interfere with the public welfare," and it is allowable to permit only those who satisfy certain requirements to engage in particular occupations, if there are reasonable grounds to do so (see 1968 (Gyo-Tsu) No. 120, judgment of the Grand Bench of the Supreme Court of April 30, 1975, Minshu Vol. 29, No. 4, at 572).
(2) The preamble and Article 1 of the Constitution proclaim that the sovereign power resides with the people, and ascertain that government is a sacred trust of the people, the authority for which is derived from the people, the powers of which are exercised by the representatives of the people. Under this principle of sovereignty of the people, Article 15 of the Constitution guarantees that the people have the inalienable right to choose their public officials and to dismiss them. The principle of sovereignty of the people also means that the governing power that consists of legislative, administrative, and judicial powers resides with people, or in other words, the people are the subject to rule and the object to be ruled at the same time (hereinafter referred to as the "principle of self-governance" for the sake of convenience).Local public bodies shall administer and enforce affairs related to local self-government within the scope provided by the law, and the principle of self-governance shall be applicable to such administration and enforcement within such scope. Since the principle of self-governance is derived from the constitutional principle of sovereignty of the people, where local public bodies restrict special permanent residents from becoming local government employees in particular posts for the purpose of administering and enforcing affairs related to local self-government under the principle of self-governance, such restriction can be construed to be constitutional if the purpose is justifiable and the restriction is necessary and reasonable for accomplishing the purpose.
However, considering that the national government legally permits special permanent residents to permanently reside in Japan and does not particularly restrict their activities, that local public bodies are not authorized to freely restrict activities of special permanent residents, and that local public bodies may administer and enforce affairs related to local self-government within the scope provided by the law, local public bodies are construed to be only allowed, under the principle of self-governance, to restrict special permanent residents from taking office as local government employees who are closely related to the process of self-governance, or in other words, from taking office as employees who are directly involved in developing, enforcing, and examining a wide range of public policies and engaged in performing functions that are at the heart of self-governance, or employees who are authorized to exercise public authority directly to inhabitants such as police officers and fire department officers. Restriction from taking office as employees other than those closely related to the process of self-governance cannot be claimed to be reasonable even by applying the principle of self-governance.
(3) In cases where local public bodies need to restrict special permanent residents from becoming local government employees in particular posts in order to appropriately administer and enforce affairs related to local self-government, such restriction may be allowed as reasonable even if such posts are not closely related to the process of self-governance. However, special permanent residents are basically entitled to the principle of equality before the law and freedom of choice in occupation under the Constitution, and they are not particularly restricted by law from becoming local government employees. Freedom of choice in occupation is not limited only to freedom of economic activities but also includes aspects of moral rights to exercise their abilities and achieve self-fulfillment through work.
Furthermore, special permanent residents play a role in the self-government of the local public bodies governing the areas where they have their residence. In other words, the provisions on local self-government in Chapter 8 of the Constitution set a framework of local self-government in which affairs of a local public body that are closely related to daily lives of inhabitants in the areas shall be, in accordance with the law, administered by the local public body based on the will of the inhabitants, without involvement of the national government, while regarding such inhabitants as playing a role in local self-government. Accordingly, Article 10 of the Local Autonomy Law provides as follows. "Any person who has his/her residence within the area of a municipality shall be regarded as an inhabitant of the municipality and the prefecture which contains such municipality. Every inhabitant shall, in accordance with this law, have the right to equally enjoy services provided by the ordinary local public body to which he/she belongs and the duty to share the burdens thereof." These provisions indicate that "inhabitants" play the leading role in operating local self-government. Such inhabitants include both Japanese nationals and non-Japanese people. Under the Local Autonomy Law, only Japanese nationals are entitled to the rights that form the core of the right to participate in local politics, such as the right to elect or to be elected as members or president of the assembly of the local public body (Articles 11, 18, and 19), the right to demand enactment, amendment or abolition of ordinances (Article 12), the right to demand audit of administrative affairs (Article 12), the right to demand dissolution of the assembly (Article 13), and the right to demand removal from office of any member of the assembly, the president of the assembly, the deputy governor or deputy mayor, the treasurer or receiver, any member of the board of election, any audit commissioner, any member of the public safety commission or any member of the board of education (Article 13). However, in principle, the law regards inhabitants in general including non-Japanese people as playing the leading role in operating local self-government and also provides citizens' petition for audit (Article 242) and citizen suit (Article 242-2) as their rights. Although being subject to the restrictions mentioned above, it can be considered that special permanent residents are entitled to participate in administering affairs related to local self-government as inhabitants who belong to the local public body. Also, it might be said that although there is no difference between special permanent residents and other foreign residents with legal status of residence in that they both are inhabitants who belong to the local public body, since special permanent residents are far more closely connected to the local public body, their intention of seeking the opportunity to achieve self-fulfillment in the community to which they usually belong for life should be fully respected, and to this end, such restrictions on the rights of special permanent residents need more strict reasonableness.
Taking into consideration the legal status of special permanent residents, the moral right aspect of freedom of choice in occupation, and the rights of special permanent residents as inhabitants, in cases where a local public body restricts, for the purpose of administering and enforcing affairs related to local self-government as appropriate, special permanent residents from being appointed to posts other than those closely related in the process of self-governance, such restriction must be reasonable in more strict sense. In other words, the purpose of the restriction that is actually adopted must be important in administering and enforcing affairs related to local self-government, and there must be substantial relevance between the purpose and the restriction implemented as the means to accomplish the purpose. Reasonability can be found in the restriction only if the local public body successfully proves such relevance between the purpose and the means.

7. From the perspectives mentioned above, I examine whether or not the measure taken by the Personnel Commission of the Tokyo Metropolitan Government to refuse the jokoku appellee who was a special permanent resident from taking the examinations for the Selection is allowable.
(1) The Selection was a preliminary selection for promotion to division director-level posts. It is obvious that division director-level posts include posts closely related to the process of self-governance. If a local public body restricts special permanent residents from assuming such posts for the purpose of appropriately administering and enforcing affairs related to local self-government under the principle of self-governance, such restriction would be deemed to be reasonable and allowable.
However, the Selection is a preliminary selection for promotion to division director-level posts, the appointing authority of which is the Tokyo Metropolitan Governor, administrators of public corporations operated under the Tokyo Metropolitan Government, the President of the Tokyo Metropolitan Assembly, the Representative Auditors, the Board of Education, the Board of Elections, the Area Fishery Adjustment Committee or the Personnel Commission. As the coverage of the Selection is extremely broad, it cannot necessarily be said that all division director-level posts are closely related to the process of self-governance.
The jokoku appellant argues that all employees in division director-level posts are authorized to make decisions on administrative matters or not directly authorized to make decisions on administrative matters but involved in the decision-making process, thereby participating in public decision-making. However, acts of making decisions on administrative matters or public decision-making vary in content and in nature, so it is difficult to regard all such acts conducted by division director-level employees of local public bodies as directly pertaining to developing, enforcing, and examining a wide range of public policies and engaging in performing functions that are at the heart of self-governance.
It should be noted that division director-level employees are, as local government employees, prohibited from taking political actions, and in performing their duties, they are required to comply with laws and regulations, ordinances, and rules set by the local public body and its organs, and faithfully observe their superiors' orders on performance of duties (see Articles 32 and 36 of the Local Public Service Law).
In addition, the court of the second instance pointed out that the jokoku appellant appointed some managerial employees engaging in planning or specialized research who were not authorized to make decisions on administrative matters and were less likely to be involved in the decision-making process.
According to the Tokyo Metropolitan Government Organizational Rules (Tokyo Metropolitan Government Rule No. 164 of 1952), organs to administer affairs under the authority of the Tokyo Metropolitan Governor and the Comptroller General include bureaus, offices, and divisions of the metropolitan government set forth in Article 8, administrative agencies of the metropolitan government set forth in Article 31 and Appendix 3, local administrative agencies set forth in Article 34 and Appendix 4 (including eight public health centers), and affiliated agencies set forth in Article 37. Thus, the jokoku appellant administers a broad range of affairs through many agencies.
Furthermore, the jokoku appellant does not require Japanese nationality for appointment as a public health nurse, maternity nurse, nurse, or assistant nurse who is subject to Medical Profession Salary Scale III provided in Article 5 of the Ordinance on Salaries for Employees (Tokyo Metropolitan Government Ordinance No. 75 of 1951), whereas Article 3 of the Rules on Starting Salaries, Promotions, and Pay Rises (Tokyo Metropolitan Government Personnel Commission Rule No. 3 of 1973) and Appendix 1-H "Medical Profession Salary Scale III: Standard Duty Table by Grade" for the said rule set forth the duties of division directors of the metropolitan government as the standard duties for Grade 7 and the duties of general division directors as the standard duties for Grade 8, contemplating that employees subject to Medical Profession Salary Scale III may become division director-level employees.
These provisions imply that division director-level employees include a significant number of employees other than those closely related to the process of self-governance.
Consequently, it cannot be said that the jokoku appellant's measure to prohibit special permanent residents from taking examinations for the Selection, or the preliminary selection for division director-level posts, as a means to accomplish the purpose of appropriately administering and enforcing affairs related to local self-government under the principle of self-governance, does not go beyond the bounds of necessity and reasonability for accomplishing the purpose. Such measure should inevitably be deemed to be an excessively broad restriction and therefore denied reasonability.
(2) The jokoku appellant also argues as follows. Those who have passed the Selection are enrolled in the list of candidates, and several years later, appointed to managerial posts after going through the final selection. Those who have passed the final selection are not appointed or managed by their specialized fields. Rather, they may be appointed to managerial posts in other fields. They may follow a career track, such as being first appointed as division directors of branch offices, and then promoted to deputy counselors of the metropolitan government and further promoted to division directors of the metropolitan government. Also, they may not hold the same posts until retirement. As a result, through the career track until retirement, a person who is appointed to division a director-level post should inevitably assume the post with the authority to make decisions on matters. Therefore, it is allowable for the jokoku appellant to prohibit special permanent residents from even taking examinations for the Selection.
As mentioned above, exercising the authority to make decisions on administrative matters is not always closely related to the process of self-governance. The jokoku appellant's argument outlined above can be construed to mean that, under the jokoku appellant's promotion management and personnel management systems, those who have passed the Selection should inevitably assume posts that are closely related to the process of self-governance, so in order to operate the promotion management and personnel management systems effectively, it is allowable for the jokoku appellant to prohibit special permanent residents from taking examinations for the Selection, thereby restricting them from even becoming division director-level employees other than those closely related to the process of self-governance. I examine whether or not this argument is acceptable. As mentioned above, in order for such restriction to be justified, the purpose of the restriction that is actually adopted (i.e. to operate the jokoku appellant's promotion management and personnel management systems effectively) must be important in administering and enforcing affairs related to local self-government and there must be substantial relevance between the purpose and the restriction implemented as the means to accomplish the purpose (i.e. to refuse special permanent residents from taking examinations for the Selection, thereby restricting them from even becoming division director-level employees other than those closely related to the process of self-governance).
The purpose (i.e. to operate the jokoku appellant's promotion management and personnel management systems effectively) can be deemed reasonable in order to appropriately administer and enforce affairs related to local self-government, and therefore it can be deemed to be justifiable to certain extent, but it is difficult to consider it to be so important in administering and enforcing affairs related to local self-government that justifies detrimental treatment of special permanent residents in terms of the principle of equality before the law and freedom of choice in occupation.
Furthermore, even if Grade 4 employees have passed the Selection as a preliminary selection, they do not immediately assume division director-level posts but they have to go through additional selections and experience of duties of Grade 5 and Grade 6 for several years respectively. Considering that the jokoku appellant has a number of agencies and appoints a number of division director-level employees, even if the jokoku appellant takes the measure to allow special permanent residents to take examinations for the Selection so that they would be promoted to division director-level posts and appointed to posts other than those closely related to the process of self-governance, such measure would not cause many problems in operating its promotion management and personnel management systems. Therefore, it is impossible to say that the measure to prohibit special permanent residents from even taking examinations for the Selection, thereby restricting them even from becoming employees other than those closely related to the process of self-governance, is a means that is substantially relevant to the purpose of operating the promotion management and personnel management systems effectively.
Consequently, the restriction mentioned above cannot be deemed to be reasonable.

8. For the reasons stated above, refusing the jokoku appellee who is a special permanent resident from taking the examinations for the Selection is in violation of the principle of equality before the law and freedom of choice in occupation provided under the Constitution, so negligence as provided under Article 1, Para. 1 of the Law Concerning State Liability for Compensation can be found.

9. Consequently, the judgment of the second instance that goes along with this reasoning is justifiable and the jokoku appeal should be dismissed.
Justice MACHIDA Akira
Justice FUKUDA Hiroshi
Justice KANATANI Toshihiro
Justice KITAGAWA Hiroharu
Justice KAJITANI Gen
Justice HAMADA Kunio
Justice YOKOO Kazuko
Justice UEDA Toyozo
Justice TAKII Shigeo
Justice FUJITA Tokiyasu
Justice KAINAKA Tatsuo
Justice IZUMI Tokuji
Justice SHIMADA Niro
Justice SAIGUCHI Chiharu
Justice TSUNO Osamu
(This translation is provisional and subject to revision.)