Japan's Supreme Court invalidates distinctions on nationality

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Friday, June 6, 2008

The Supreme Court of Japan ruled on Wednesday that a condition imposed by an Act for acquiring Japanese nationality is unconstitutional, and confirmed the nationality of the plaintiffs. Each of the ten plaintiffs is a child who was born to a Filipino mother and later acknowledged by a Japanese father. They filed claims for Japanese nationality between 2003 and 2005, but the government turned down because the parents were not legally married in each case.

According to Japan's Act on nationality, a non-Japanese child (under 20) who was after its birth legitimated by marriage and acknowledgment can acquire Japanese nationality by filing notification, with some requirements which the plaintiffs had already fulfilled.

The Supreme Court ruled on Wednesday that the condition 'legitimated by marriage' results in unreasonable distinctions to violate Article 14 of the Constitution of Japan, which guarantees equality under the law. The Supreme Court left effective the rest of this provision and accepted the plaintiffs' claims for Japanese nationality. The judgment pointed out recent changes in people's notions in Japan as to family life or parent-child relationship, and also referred to two conventions which Japan has ratified.

There are estimated to be tens of thousands of children in similar situations in Japan and a considerable number overseas.

Chief Cabinet Secretary Nobutaka Machimura on Wednesday made a comment about the judgment at a press conference. Machimura said, "This judgment, saying violation of Constitution, weighs so much. As a government, we should take it gravely, and we want to examine its content in detail and consider how to react." He added, "I have an impression, just hearing of it, that it's a reasonable judgment. Equality under the law is an important point of view."

According to Japan's Act on nationality:
Father Mother Parents Acknowledgment Japanese nationality is
any Japanese not legally married needless automatically granted by birth.
Japanese non-Japanese not legally married before birth automatically granted by birth.
Japanese non-Japanese not legally married after birth offered when the child is naturalized.
Japanese non-Japanese legally married after birth offered by filing notification.

The ten plaintiffs filed their appeals through lawyers after Tokyo High Court dismissed their claims in February, 2007.

Wednesday's judgment was a major opinion of ten among fifteen judges. The five dissenting thought more highly of the legislative power of the Diet. (See the table below.)

Opinions of the 15 judges Supplementary opinions are omitted. # This judge added another opinion.
Judges The 'legitimacy' distinction is This distinction is caused by Dissolving this distinction is
Major opinion 9 unconstitutional an excessive condition in this provision within the scope of the Judiciary
1# unconstitutional non-existence of a provision within the scope of the Judiciary
Dissenting opinions 2 unconstitutional non-existence of a provision within the scope of the Legislation
3 not unconstitutional non-existence of a provision within the scope of the Legislation

The judgment is to say:

(a) while it's within the scope of the Legislation of the Diet how conditions are set for acquiring / losing Japanese nationality (Article 10), a distinction without rational reasons brought by such a condition may be unconstitutional (Article 14: Paragraph 1).
(b) being legitimated by the parents' marriage or not is a thing the child can not change by its will or endeavor.
(c) the purpose of legislation of this provision is rational, because that is considered to demand the child's tight connection with Japan's society.
(d) after this provision was added in 1984, both notions and actual situations of people in Japan have been becoming of variety, as to family life or parent-child relationship.
(e) the child's tight connection with Japan's society can not be measured instantly by whether the parents have got legally married.
(f) many foreign countries have lifted a legitimacy condition through revision of the law; two conventions (#) that Japan has ratified include provision meaning that a child is not to face any discrimination as to its birth. # International Covenant on Civil and Political Rights, and Convention on the Rights of the Child.
(g) this provision results in distinctions not only as to legitimacy but also as to two other factors: any non-Japanese child without legitimacy acknowledged before its birth by a Japanese father, and any child without legitimacy born to a Japanese mother, can acquire Japanese nationality provided by this Act. These distinctions have no rational relation with the purpose of legislation.
(h) another provision in this Act states a child in this situation may be naturalized with fewer conditions, but it doesn't justify the relation between the purpose and the distinctions, because naturalization is within discretion of the Minister of Justice.

One judge in the majority, who supported the conclusion, shared a view with the five dissenting: the distinction as to legitimacy is caused by non-existence of due legislation. This judge concluded that the Judiciary can remedy the lack, because it doesn't betray the will of the Legislation of the Diet as to this Act.

Two dissenting judges of the five concluded that these distinctions are unconstitutional, but correction of it depends, in principle, on legislative measures by the Diet.

The other opinion of three dissenting judges is contrary to the major opinion. They argued, for example,

the distinction as to legitimacy is not unconstitutional and is within the range of choice of legislative measures.
even if it's unconstitutional, the plaintiffs' appeals are to be dismissed, following the viewpoint in the other dissenting opinion.
it's dubious whether or how people in Japan have been making changes as in (d).
it's rational to offer Japanese nationality in two other situations as in (g).
easy naturalization as in (h) to offer Japanese nationality is rational both as a measure and in practice.
foreign countries' movement as in (f) is not to be instantly reflected in judgment on constitutionality; they are different from Japan, with a large number of international marriages and expansion of regional unification like EU.


Sources

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