What is the “McLean case” mentioned in the article in the Lawyer JP News on August 24, 2025? I would like to provide an overview of the case and the evolution of the judicial decision.
1. Background of the Case
The so-called McLean case refers to the Supreme Court’s Grand Bench decision of October 4, 1978 (Showa 53), which is a landmark case on the scope of constitutional rights for foreign nationals in Japan. The dispute arose when McLean, a U.S. citizen lawfully residing in Japan, applied for an extension of his period of stay. The Minister of Justice refused the renewal. Behind this refusal was the fact that McLean had participated in political activities in Japan, such as anti–Vietnam War demonstrations and involvement in labor union movements.
McLean filed a lawsuit seeking to annul the refusal, arguing that foreign nationals, as “persons” under the Japanese Constitution, should also enjoy basic human rights, particularly freedom of expression under Article 21. He contended that denying an extension of stay because of his political activities amounted to an unconstitutional restriction of his rights. The government, however, argued that foreign nationals were not constitutional rights-holders in the same sense as citizens, and that decisions regarding residence fell within the sovereign discretion of the state.
2. Holding of the Supreme Court
The Supreme Court made several key points in its judgment:
- Foreign Nationals as Bearers of Rights
The Court recognized that foreign nationals are included in the “people” who enjoy constitutional rights. Thus, in principle, they are entitled to basic human rights. However, rights that are inherently limited to Japanese nationals (such as suffrage) are excluded, and rights may also be restricted where they conflict with the government’s broad discretion over residence and immigration. - Residence and Sovereign Discretion
The Court held that decisions regarding whether to permit a foreigner’s residence are matters of national sovereignty, and the Minister of Justice has broad discretionary authority in this area. Consequently, the refusal to renew residence is not, in principle, unlawful. - Application to McLean’s Case
With respect to McLean, the Court concluded that the refusal was not aimed directly at suppressing his political expression, but rather was an exercise of discretionary authority in immigration control. Thus, it did not constitute an unconstitutional violation of freedom of expression.
In short, while the Court formally acknowledged foreign nationals as rights-holders, it confined the enjoyment of such rights to the limits of their permitted stay and subordinated them to the state’s immigration discretion.
3. Significance of the McLean Judgment
The McLean decision has a twofold significance:
- Positive Aspect: It officially recognized foreign nationals as subjects of constitutional rights, clarifying that the Constitution’s guarantee of “human rights” extends beyond citizens.
- Restrictive Aspect: At the same time, it tied the enjoyment of rights to the condition of lawful residence and gave precedence to state discretion over immigration matters.
Thus, the case represents both a step forward in recognizing foreigners’ rights and a strong affirmation of state authority, creating an ambivalent foundation for later developments.
4. Later Developments and the Emergence of “Substantive Review of the Decision-Making Process”
After the McLean judgment, Japanese courts continued to address disputes involving the rights of foreign nationals. While maintaining the basic framework established in McLean, judicial review of administrative discretion evolved. A particularly important development is the emergence of the concept of “substantive review of the decision-making process” (jittai-teki handan katei tōsei shinsa).
(1) What is Substantive Review of the Decision-Making Process?
Traditionally, judicial review of administrative discretion in Japan was quite limited. Courts often confined themselves to checking for formal defects, such as misapprehension of facts, lack of reasons, or procedural errors. However, immigration decisions such as denial of residence extensions or deportation orders have profound impacts on the lives and rights of individuals. Merely reviewing formal legality proved insufficient.
To address this, courts began to examine not only the final conclusion of the administrative authority but also the substantive process of judgment: whether the relevant factors were properly considered, whether irrelevant factors were excluded, and whether the balancing of interests was reasonable. This approach, known as substantive review of the decision-making process, allows for closer scrutiny of how discretion was exercised, thereby providing a more robust safeguard for fundamental rights without entirely negating administrative discretion.
(2) Changes in Judicial Practice
The McLean decision emphasized the “broad discretion” of the Minister of Justice. However, subsequent cases, particularly in the context of deportation and special residence permits, show courts applying more stringent scrutiny. They examine whether authorities gave due consideration to family unity, the best interests of children, or international human rights obligations.
This shift reflects an effort to reconcile two competing values: respect for state sovereignty in immigration control, and protection of the fundamental rights of foreign nationals. By focusing on the rationality of the decision-making process rather than the outcome itself, the courts have found a way to balance these concerns.
5. Development in Specific Case Areas
(1) Social Rights and Political Rights
- Welfare Benefits Case (Supreme Court, 2014)
The issue was whether a permanent resident foreign national could claim benefits under the Public Assistance Act. The Court held that the Act was intended for “citizens” and did not grant enforceable rights to foreigners. Nevertheless, in practice, permanent residents continue to receive benefits through administrative application. - Local Suffrage Case (Supreme Court, 1995)
Permanent residents argued for the right to vote in local elections. The Court ruled that the right to vote is a “right inherent to the Japanese people” under Article 93(2) of the Constitution. However, it left open the possibility for the legislature to grant such rights by statute.
These decisions concretely applied the McLean framework, distinguishing between rights inherently limited to nationals and those available to foreigners.
(2) Labor Rights and Freedom of Expression
- In cases concerning labor unions, the courts have recognized that foreign nationals qualify as “workers” under the Trade Union Act, thereby enjoying rights of association regardless of nationality.
- Freedom of expression, including participation in demonstrations and assemblies, is generally recognized for foreigners, as long as they are lawfully residing in Japan.
These developments indicate a broader recognition of civil liberties for foreign nationals within the scope of their lawful residence.
(3) Deportation and Special Residence Permits
In deportation and residence permit cases, courts increasingly apply substantive review of the decision-making process. They scrutinize whether immigration authorities have adequately considered factors such as family life, long-term residence, and humanitarian circumstances. For example, failure to consider the welfare of minor children or marital ties may be deemed a flaw in the judgment process, leading to a finding of illegality.
Thus, while the courts do not substitute their judgment for that of the Minister of Justice, they ensure that the administrative process respects fundamental rights.
6. Academic Evaluation and Challenges
Scholarly assessments of the McLean judgment are divided.
- Positive evaluations highlight that it was the first decision to explicitly acknowledge foreigners as subjects of constitutional rights, a progressive step in the 1970s context.
- Critical evaluations argue that by subordinating rights to the condition of residence, the Court effectively denied substantive guarantees, leaving foreigners vulnerable to discretionary control.
The emergence of substantive process review has been welcomed as a judicial innovation that strengthens protection while respecting administrative discretion. Yet, it has limitations. Since it stops short of fully substituting judicial judgment, it cannot always guarantee effective protection when discretion is exercised narrowly or arbitrarily. Moreover, compared to international human rights standards, Japan’s framework remains relatively restrictive.
7. Conclusion
The McLean judgment represents both a recognition and a restriction of foreigners’ rights in Japan. It affirmed that foreigners are, in principle, entitled to constitutional rights, but only within the scope of their permitted residence, subordinating them to the state’s immigration discretion.
Subsequent case law has elaborated on this framework: denying political and social rights such as suffrage and welfare as rights inherent to citizens, while recognizing civil liberties and labor rights for foreigners. Importantly, the development of substantive review of the decision-making process has allowed courts to scrutinize the exercise of discretion in deportation and residence cases, thereby providing more meaningful protection of rights without undermining state sovereignty.
In this sense, the McLean case can be seen as a transitional judgment. While limited and ambivalent in its own time, it laid the groundwork for later developments, culminating in a more nuanced approach that combines administrative discretion with judicial oversight of the decision-making process. The ongoing challenge is to harmonize Japan’s immigration sovereignty with international human rights standards, ensuring that foreigners’ fundamental rights are protected in substance, not just in form.