On June 4, the Japanese Supreme Court in a plenary ruling by a majority of 10 to 5 struck down as unconstitutional the provision of the Nationality Law that discriminates among children with unmarried parents, one Japanese and one non, as unconstitutional. Two of the five dissenters agreed that the provision was unconstitutional but required an act of the Diet to rectify the situation.
The current Nationality Law automatically gives Japanese citizenship to any child born out of wedlock from a Japanese mother. But the Act gives automatic citizenship to a child born out of wedlock to a Japanese father and a non-Japanese mother only if the Japanese father legally recognizes the child as his own before the child is born. This discrimination was somewhat eased—but totally eliminated—by a 1984 amendment, which conferred citizenship on children who had been recognized by their fathers post-birth when (and only when) their parents married (conferring post-facto legitimacy to such children). All the justices agreed that the discrimination had been constitutional at its incipience in 1984, but the majority cited changing family relationships as well as international trends and general provisions in treaties protecting children against discrimination by circumstances of their birth in their ruling.Tens of thousands of children believed to be living in Japan under those circumstances are expected to be affected by the most recent ruling, as the authorities have decided to accept all applications on behalf of such children. Needless to say, their mothers will be on much firmer legal ground with regard to their residency in Japan.
There’s a lot of food for thought here regarding constitutional law, demographics, gender issues, xenophobia/-philia, and whatnot, so I’m disappointed as well as somewhat surprised that the Anglo-Saxon media has ignored it altogether. (It was splashed all over the June 5 front pages in Japan.) In the meantime, I want to point out something that has failed to draw any attention here.
Of the 15 Supreme Court Justices, six are career judges (straight out of the leagal training center), two are former prosecutors (again straight out of the legal training center), two are former civil servants (one woman and one former head of the Cabinet Legislation Bureau), four are former private lawyers, and one is a former academic (elite scholars have not historically sought to register as lawyers, which they are entitled to do after a certain number of years teaching law). Now this syndicalist breakdown of the Supreme Court has been remarkably consistent over the decades. There usually has been an ex-ambassador in the lineup; on this court, the Foreign Ministry has been set aside, likely to accommodate the female ex-civil servant. (I can think of a couple of capable female diplomats who will be in line to kill two birds with one stone in, say, another ten years or so.)
But that’s not my point. My point is this. The five dissenters include the two prosecutors and the two ex-civil servants, and one of the six career judges. Both the ex-civil servants as well as one of the two former prosecutors ruled the measure constitutional, while the other ex-prosecutor and the career judge considered the measure unconstitutional but deferred to the Diet to rectify the situation.
Now this is not Pakistan; none of these justices are going to be removed from office because of their votes, other than through a once-a-decade national plebiscite on te4h occasion of a House of Representatives general election. I can only assume that they are voting their conscience. Which makes it all the more remarkable their faithfulness to the hive minds of their respective constituencies.