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  • Asahi: Tokyo District Court rules denying J citizenship to children born overseas with one J parent constitutional

    Posted by Dr. ARUDOU, Debito on March 27th, 2012

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    Hi Blog. In an important decision regarding how Japanese nationality is granted, the Tokyo District Court ruled constitutional on March 23, 2012, that if a person with Japanese blood is born overseas and has another nationality, and if the parents have not registered the child with Japanese authorities within three months of birth, Japanese nationality will be denied.

    This fruity ruling is in contrast to the Supreme Court’s June 2008 landmark ruling regarding Japanese-Filipina plaintiffs in a similar situation, where their Japanese nationality would be recognized despite similar bureaucratic registry snafus (as in, Japanese paternity not being recognized within a certain time frame, and if the child was born out of wedlock). That ruling was justified in part by the judges candidly admitting that lack of Japanese nationality would mean clear and present discrimination in Japan towards these people.  (In a related note, the GOJ months later declared a “false paternity” panic, and declared countermeasures were necessary; wheels turn slowly within the Japanese judiciary — perhaps this ruling is a countermeasure to keep the Half riffraff out.)

    The possibility of discrimination seemed to make no difference in this ruling, as paternity and wedlock don’t seem to be an issue.  Place of birth is, meaning this ruling erodes the primacy of Japan’s jus sanguinis (citizenship by blood) conceits in favor somehow of jus soli (citizenship by birthplace).

    Granted, Japanese judges are a fruity lot, and District Court rulings are often overturned for their fruitiness (see the McGowan Case, where an African-American plaintiff was refused entry to an eyeglass store by a manager who expressly disliked black people, and the judge said it was unclear that refusal was due to him being black; and the Oita Zainichi Chinese Welfare Case, which tried to rule that foreigners were not eligible for social welfare, despite it being made legal by the Japanese Diet since 1981! — see here also under item six). Let’s hope there is an appeal and this gets taken before a less fruity court. Arudou Debito

    ////////////////////////////////////////////////

    Court rules nationality law on foreign country-born children legal
    Asahi Shimbun March 25, 2012, courtesy of JK
    http://ajw.asahi.com/article/behind_news/social_affairs/AJ201203250003

    A Tokyo court ruled as constitutional March 23 a clause in the nationality law which stipulates that children of Japanese nationals born overseas who have acquired foreign nationality cannot get a Japanese passport unless their parents take steps to obtain nationality within three months of birth.

    The district court was ruling in a lawsuit filed against the Japanese government by 27 Philippine nationals who were fathered by Japanese between 1986 and 2007.

    They were unable to gain Japanese nationality because their parents were unaware of the requirements in the nationality law.

    The clause on stating intentions within three months of birth was added to Article 12 of the revised nationality law in 1985.

    The decision was the first concerning the law’s clause, according to the Justice Ministry.

    The plaintiffs argued that the stipulation was discriminatory because it amounted to reserving nationality based on birthplace, thereby going against the spirit of Article 14 of Japan’s Constitution, which guarantees equality for all.

    In the ruling, Presiding Judge Makoto Jozuka explained the legislative purpose of the clause was to prevent individuals from holding dual nationality without a legitimate reason to claim Japanese nationality.

    However, the court granted the request of one plaintiff on grounds that the individual had taken steps to acquire Japanese nationality.

    One of the plaintiffs, Hiroko Ishiyama, 21, broke down in tears at a news conference after the ruling.

    “My father is Japanese,” she said. “I have the right to become Japanese.”

    She said her father did not know of the provision in the nationality law and missed the three-month deadline to file for Japanese nationality by one week.

    Her younger sister has Japanese citizenship, as her parents filed the request within the prescribed period.

    “I want to work and live in Japan,” Ishiyama said. “If there is a chance to acquire Japanese nationality, even if it is 1 percent, I want to get it.”
    ENDS

    ////////////////////////////////////////////////

    国籍確認訴訟:国籍法12条「合憲」 外国生まれ、留保3カ月以内に--東京地裁初判断

    毎日新聞 2012年3月24日 東京朝刊

    http://mainichi.jp/select/jiken/news/20120324ddm041040084000c.html

    外国で生まれ、外国籍と日本国籍を持つ子供が3カ月以内に日本国籍留保の意思表示をしないと日本国籍を喪失すると定めた国籍法12条は憲法に違反するとしてフィリピン生まれの男女27人が国に日本国籍の確認を求めた訴訟の判決で、東京地裁(定塚誠裁判長)は23日、「立法目的は合理的で違憲とは言えない」として合憲判断を示した。その上で26人の請求を棄却した。同12条に対する憲法判断は初めて。(3面に「質問なるほドリ」)

    原告はいずれも日本人父とフィリピン人母の間の嫡出子で4~25歳。国籍が確認された1人は日本在住の21歳の男性で、国籍喪失後、再取得の届け出をした事情が考慮された。

    判決は同12条の立法目的を「形骸化した国籍との重国籍を防止することにある」と指摘。日本と結びつきの薄い人に国籍が与えられると、国内法で定められている義務や権利の実効性が確保されなかったり、外交上の保護権を巡り国際的摩擦が生じる恐れがあり、立法目的は合理的と判断した。

    原告は国内出生者との不公平を主張したが、定塚裁判長は「出生地に国との結びつきを見いだすことは、不合理ではない」とした。

    また原告は、08年の国籍法改正で未婚の日本人父と外国人母との子は、父親の認知があれば20歳まで、「出生から3カ月」などの期限にかかわらず国籍取得が可能になった規定と比べて不均衡と主張した。だが、判決は「認知の時期を制限していない以上、非嫡出子の国籍取得時期を制限しないのは当然」と述べ、不合理な差別はないと判断した。【野口由紀】

    ////////////////////////////////////////////////

    国籍法:フィリピン人原告「どうして認められないの」

    http://mainichi.jp/select/jiken/news/20120324k0000m040073000c.html

    判決後、記者会見で涙を流すヒロコ・イシヤマさん(左端)。左から2人目は父親の石山博美さん=東京・霞が関の司法記者クラブで2012年3月23日、竹内幹撮影

    判決後、記者会見で涙を流すヒロコ・イシヤマさん(左端)。左から2人目は父親の石山博美さん=東京・霞が関の司法記者クラブで2012年3月23日、竹内幹撮影

    国籍法12条を合憲とした東京地裁のフィリピン人の日本国籍確認訴訟で、原告2人と日本人の父親たちが判決後の23日午後、東京・霞が関の司法記者クラブで記者会見した。

    原告の一人でマニラ在住のヒロコ・イシヤマさん(21)は判決日に合わせて父親の石山博美さん(73)と来日した。石山さんは長女のヒロコさんの出生時に規定を知らず国籍留保の届け出をしなかったが、次女は届け出をしたため姉妹で国籍が違う。ヒロコさんは「父を責めることはできない。私の父は日本人なのに、どうして私には国籍が認められないのか」と涙を流した。

    同法では国籍を喪失した人も、20歳未満であれば「日本に住所を有する」という条件で再取得できるが、ヒロコさんは「フィリピンで通う学校を長期間休み、日本で生活するのは無理だった」とハードルの高さを指摘した。

    日本国籍確認の判決を受けたマニラ出身のマサミ・ツネタさん(21)も「27人で闘ってきたのにみんなで勝てずに残念」と肩を落とした。【野口由紀】

    毎日新聞 2012年3月23日 20時56分(最終更新 3月23日 21時00分)

    ////////////////////////////////////////////////

    質問なるほドリ:外国生まれの日本人の国籍は?=回答・伊藤一郎

     <NEWS NAVIGATOR>

    http://mainichi.jp/select/wadai/naruhodori/news/20120324ddm003070121000c.html

     ◇紛争避け重国籍排除 22歳までに選択、外国では例外も

    なるほドリ 父親が日本人なのに外国で生まれて3カ月以内に届けないと日本国籍を失うという規定を巡る判決があったけど、なぜそんな規定があるの?

    記者 日本と外国の国籍を両方同時に持つことを「重国籍」といいます。生地の外国で生活し、日本に戻るつもりもないのに日本国籍を持っていても意味がないですよね。そうした形だけの日本国籍を持っている人を増やさないようにすることが規定の目的の一つとされます。また、重国籍は、さまざまな弊害を起こす恐れがあるため、そうした人を増やしたくないという考え方もあるようです。

    Q 重国籍だとどんな弊害があるの?

    A 例えば国家間の紛争を招く恐れがあるとされます。重国籍者が一方の国で迫害を受けた際、もう一方の国が保護に乗り出そうとすれば国同士の争いに発展しかねないという指摘があります。また重国籍者が二つの国に異なる名前を登録することで、本名以外の偽名を用いるように、犯罪などの不正行為に悪用する恐れもあるとされます。

    Q 出生3カ月以内に届け出ずに日本国籍を失った場合、二度と取得できなくなるの?

    A いいえ、20歳未満で日本に住所があることを証明できれば、改めて日本国籍を取得できる制度があります。ただし、観光や親族を訪ねる目的で一時的に日本に滞在しただけでは住所があるとは認められません。再取得するためには「生活の本拠が日本にある」ことを証明する必要があります。

    Q 重国籍の状態になった人は一生そのままなの?

    A 日本の国籍法は原則として22歳までにどちらかの国籍を選択する義務があると定めています。正当な理由もなく期限までに選択せず、さらに法相による催告にも応じなければ、最終的に日本国籍を失います。ただし、外国には例外的に重国籍を認めている国もあります。

    Q 国籍取得の考え方って、日本と外国で違うの?

    A 日本は親の国籍が子の国籍になるという「血統主義」と呼ばれる考え方を基本とし、多くの国も血統主義を採用しています。一方、親の国籍にかかわらず生まれた国の国籍を取得する「生地主義」を採用している国もあります。ただ、どちらの主義の国で生まれても、一方の親が日本人、もう一方が外国人の場合、原則的にどちらかの国籍を選択しなければなりません。(社会部)

    ==============

    ◆国籍取得に関する各国の考え方◆

    <血統主義>

    日本、中国、韓国、フィリピン、ドイツ、フランス、ロシアなど

    <生地主義>

    米国、カナダ、ブラジル、英国(条件付き)など

    ==============

    なるほドリコーナーへの質問をお寄せください。〒100-8051(住所不要)毎日新聞「質問なるほドリ」係 naruhodori@mainichi.co.jp

    毎日新聞 2012年3月24日 東京朝刊

    22 Responses to “Asahi: Tokyo District Court rules denying J citizenship to children born overseas with one J parent constitutional”

    1. Tom r Says:

      So, its well known and established the GOV wants to keep NJ out and citizenship out of reach. But whats the purpose? What can the GOV or the power holders, whoever, possibly gain by keeping foreigners from becoming Japanese? Power and control through isolation? Control over what a Japanese should and should not be and by extension control over society? Limiting economic competition?

      Wheres the conspiracy. Whats the point? Why do it.. Seems there’s a lot more suffering and hard work in keeping these NJ out then could be gained by just letting them stay. Weird.

    2. plasticparadox Says:

      This happened to me as well. I’m a Canadian citizen, born in Canada. My mom is Japanese, my father Canadian. When I was 20 or 21, I went to the houmukyoku to inquire about my potential citizenship rights in Japan. I fulfill all the requirements except that my mother didn’t know she had to register me on her koseki before I reached 3 months, so I was rejected on the spot. They didn’t even want to take my application.

    3. Olaf Says:

      Those are heartbreaking cases. When our oldest was born in Germany, we registered him at the jp consulate within those three weeks. We knew the law. Well, not knowing a law does not exempt you from it’s consequences. Those kids (now adults?) can always apply via the route open to everyone: naturalization.

    4. Giovanni Says:

      Wow this is a very sad news! I think it just shows how the country is closing onto itself, it might be too late when they realize what they have done.
      It will happen the same way as the whole ecology thing: until teh 90′s they poured concrete on anything green, now they promote ecology, so are we to expect teh governemt to promote both nationality in 20-30 years time when tehy won’T be able to pay pensions?
      This is all really worrying.

    5. Nogbad Says:

      Is there any similar time limits for birth registration/adding to family koseki for children born in Japan?

    6. B Says:

      I deeply wish Japan was a more active society when it came to social rights and litigation. Just for the fact that they would be more involved in opposing crap like this.

    7. Jay Says:

      This makes no sense: “We don’t have enough people to populate the country and keep us from financial ruin with our pension system. It’s the fault of women since they work instead of having children! We need people to have more children! Unless those children are born abroad and don’t register themselves by the time they are three months old. If they try at four months, we don’t want them.”

      Does this mean that two Japanese nationals could have a child in a jus soli country, like France, not register in time, and the child would not be allowed to have Japanese citizenship? Or were they only thinking about those nasty half-breeds?

    8. jjobseeker Says:

      Meanwhile, Japanese citizenry are slightly buzzing about comedian/marathon runner “Neko” Hiroshi’s taking on Cambodian citizenship (thus forfeiting his Japanese citizenship, right Debito?) and why some feel that it shouldn’t have been necessary for him to do such a thing—that is to say, he should have been able to stay “Japanese” and someday run for “us” instead of Cambodia. Of course, this flies in the face of the fact that many sports stars are given token citizenship in order to play soccer or become sumo wrestlers. The blind hypocrisy of it all, eh?

      So, is it place of birth? Is it blood? Or is it a scribble on a koseki? Perhaps it’s just their own convenience.

    9. Scipio Says:

      Jay Says:
      Does this mean that two Japanese nationals could have a child in a jus soli country, like France, not register in time, and the child would not be allowed to have Japanese citizenship? Or were they only thinking about those nasty half-breeds?

      That’s an interesting question, I suspect not, because the Japanese government would be making the child a stateless person.
      However some countries award nationality by jus solis, the USA for example, and the placing of a newborn into a stateless status would not arise.
      It would be a good way for some people to show the ass of the ruling and that it is clearly a case of racial discrimination,
      Now you need to find a Japanese couple who are expecting a child and pay for them to give birth to the child in Kores for example.

      Personally while I understand the articulations of the district court ruling, it quite clearly goes against the previous ruling of the supreme court and in any other country it would be a formality to overturn what was quite clearly an incorrect ruling according to the supreme court’s ruling.

      However this is Japan and never have I read so many and such bad deliberations of a supreme court (examples;enforcing kimigayo/ housing renewal fees ) as that which are passed down by the Japanese supreme court,

      We will have to see how this plays out. Obviously they are appealing it. However all the drama at the press conference – this is only the district court – is really uncalled for.

    10. Mumei Says:

      I look forward to seeing how this progresses in the courts.

      Regarding Q1 in Mainichi, one of the reasons given for this statue is:
      また、重国籍は、さまざまな弊害を起こす恐れがあるため、そうした人を増やしたくないという考え方もあるようです。
      Examples of this 弊害 are given as: 例えば国家間の紛争を招く恐れがあるとされます。重国籍者が一方の国で迫害を受けた際、もう一方の国が保護に乗り出そうとすれば国同士の争いに発展しかねないという指摘があります。また重国籍者が二つの国に異なる名前を登録することで、本名以外の偽名を用いるように、犯罪などの不正行為に悪用する恐れもあるとされます。

      Regarding both points, why is this not an issue with for those presently with multiple citizenship through the age of 22?
      Regarding the first point, this does not seem to be a problem for other countries. I have a colleague with five citizenships.
      For the second point, NJ in Japan are already entitled to register names that may differ from that used in another country, so this cannot be an issue.

      – Y’know, it’s funny how so much historical hay was made on both sides of the Pacific of the “racist American policies” for doubting the loyalties of American citizens of Japanese descent during WWII (and incurring all the internment camp stuff; indeed, to be sure, a crime against humanity, and worthy of all the infamy and apology it has occasioned). Yet at the heart of this ruling is a similar inherent mistrust of the loyalties of people who have another citizenship. As you say, there is already a built-in safety catch in the Nationality Law with having to choose your one citizenship by age 22. Unless the judge(s) believe that measure is ineffective, and this is the next pressure point for revision looming on the horizon.

    11. Jim Di Griz Says:

      Great article Debito.

      @#4 Giovanni, and #7 Jay;
      If I was a cynic (and I am), I would say that you are absolutely correct. As a knee jerk reaction to Japan’s slipping economic power in the world (derived from increasing insecurity about the future), the Japanese are reverting, ever more, to social myths that they failed to purge after the war. In this case the idea that the ‘purity’ of the Japanese as a ‘race’ must be protected, even improved, for Japan’s fortunes to look up. Of course, this can only be achieved by that other wartime virtue of ‘gaman’ (in this case, reduced numbers of workers leading to higher tax rates and lower pensions).
      Anybody who reads this and thinks that ‘half’ is a harmless and cute euphemism, is a fool. HERE is the clear evidence of institutionalized discrimination against children with an NJ parent.

    12. Mark in Yayoi Says:

      Olaf, while I have no problem with “well, not knowing a law does not exempt you from its consequences” when the ignorant are the parents, it’s quite impossible for a newborn baby to know anything about nationality law (or much else, for that matter).

      Plasticparadox’s inquiry upon reaching the age of majority seems perfectly reasonable, since he hadn’t been legally permitted to do anything about his nationality when still a minor.

      This portion:

      Q 出生3カ月以内に届け出ずに日本国籍を失った場合、二度と取得できなくなるの?

      A いいえ、20歳未満で日本に住所があることを証明できれば、改めて日本国籍を取得できる制度があります。ただし、観光や親族を訪ねる目的で一時的に日本に滞在しただけでは住所があるとは認められません。再取得するためには「生活の本拠が日本にある」ことを証明する必要があります。

      …wouldn’t have helped him/her, since it’s for people under 20. And even for such minors, they have to show that Japan is their regular home and that they’re not just visiting relatives or otherwise living there temporarily.

      Before the age of majority it’s impossible to move to another country of your own will. You could only fulfill these conditions if your parents were to take you to Japan and establish a home for you there. And by the time you’re living independently, the above avenue would no longer apply to you. Basicaly the birthright of a child of Japanese parents isn’t much of a birthright — it’s entirely dependent on those parents obtaining the right on your behalf.

      How about children whose parents die while they’re still infants? How is their birthright to Japanese nationality to be protected?

    13. ML Says:

      Isn’t this looks like trap?
      I meant, noone inform them BEFORE or DURING the three monthes period.
      It’s like, government made law or rule without telling or inform those who need to watch out, then after they fell into that, government is like “yeah,but you should KNEW IT”
      It’s like, they made whole game implicit,and see if someone fell into that.

      …or government wish NJ fall into this kind of trap so they can get rid of NJ wihtout making their hands dirty?

    14. me myself and I Says:

      What will be really interesting to see is if those whose children are denied citizenship actually fight back. That is one of the most interesting of social aspects of Japan: A lack of fighting back against the asinine ideology of the GOJ.I mean in all the other AOCs people would be pounding on the doors until this BS was rethought out. But in Japan I have never seen a true protest happen.

    15. John Says:

      What’s Japanese “blood” anyway? Is there a DNA test, or does this allude to having a parent with citizenship?

    16. Charuzu Says:

      A forseeable and important effect of:

      “A Tokyo court ruled as constitutional March 23 a clause in the nationality law which stipulates that children of Japanese nationals born overseas who have acquired foreign nationality cannot get a Japanese passport unless their parents take steps to obtain nationality within three months of birth.”

      regards the many Japanese men who work abroad, either due to government service, such as the Japan Overseas Cooperation Volunteers, or with Mistubishi, etc.

      Given that a 3-month old child cannot file for a passport, it requires knowledge and consent by the parents.

      As such, if Japanese men father children while abroad, there are in effect no lasting consequences to them.

      This is similar to Japanese policies during World War 2.

      Japanese men father children while abroad in poorer countries, and then return to Japan, with children abroad who can never be Japanese or visit Japan.

    17. Nogbad Says:

      As nobody seemed to know the answer to my earlier question, may I provide it myself?
      I’m told that a child born in Japan to one or more Japanese parents has to be registered with the Japanese authorities within 14 days. I have no idea what happens if you don’t. If anything, there is a more generous time limit for those living abroad.

      Jay Says:
      March 27th, 2012 at 4:23 pm
      Does this mean that two Japanese nationals could have a child in a jus soli country, like France, not register in time, and the child would not be allowed to have Japanese citizenship? Or were they only thinking about those nasty half-breeds?

      The rule seems to say the limit applies if they obtain other citizenship – so it only applies to dual nationals and the potential problem of statelessness would not apply. But if Japanese parents did not try to obtain foreign citizenship for their child, then they would have to register Japanese nationality quickly to arrange a passport and visa for their child to live in that country.
      So the rule is hardly discriminatory as it applies to children born to two Japanese parents abroad who have applied for another citizenship for their children also.

      Whilst this has led to difficult situations for some people, it’s hard to have sympathy for these children with lazy parents. Generally, it seems to happen with Japanese parent(s) that have permanently immigrated and it doesn’t occur to them that their child might want to be Japanese one day. Registering births, marriages etc. with your own country have particular rules that may be different when living abroad – it is as much your responsibility to know the regulations as it is to ensure your residency/work status is correct. It’s not like the event of a birth or a marriage (Japanese marrying outside Japan need to register marriages within a time limit also) isn’t known about in advance; a responsible person has plenty of time to find out the information. It is no different to foreigners living in Japan registering their children with their home countries: different rules/time limits apply to when you live at home (although admittedly not always as strict as Japan’s). I know Japanese citizens that have never been to Japan and speak no Japanese, but because their immigrant parents wanted their children to be Japanese, they went to the effort of registering them. Even as adults, they felt strongly about respecting their parents wishes and have never gained the nationality of the country they have always lived in. I find it strange that these Japanese of Japanese decent are considered more Japanese than say a Korean that have lived all their life in Japan, been educated in Japan, follows Japanese customs, and only speaks Japanese. I find this of nationality based on genetics a little odd.

    18. Danny Says:

      Well, good to see that Japan still hasn’t joined the civilized world.

      I would assume that the rule that you can hold onto both citizenships until age 22, because at that point you are expected to be able to make an informed decision about which nationality you would like to hold onto.

      As far as I know, in the rest of the world birthright citizenship cannot be revoked by the actions of one’s parents, even if those parents were to commit outright treason against their (and their child’s) country of birth. At least in the US, even if you renounce your citizenship – voluntarily – you can still get it reinstated if you renounced before the age of 18.

      The child’s citizenship should not be determined by whether or not their parents chose to register them at an office; it is the child’s birthright and they are entitled to it unless they choose to voluntarily give it up in adulthood.

    19. Charuzu Says:

      Danny:

      “The child’s citizenship should not be determined by whether or not their parents chose to register them at an office; it is the child’s birthright and they are entitled to it unless they choose to voluntarily give it up in adulthood.”

      is the heart of the issue.

      In Japan, the citizenship is NOT the child’s birthright; it is an inheritance (essentially of the father outside Japan).

      Moreover, Japanese society has chosen to provide incentives to Japanese men to engage in sex abroad with no consequences such as unwanted children claiming citizenship of visitation rights.

      It is a profoundly 19th century view of citizenship, but it is the Japanese view.

    20. Jim Di Griz Says:

      Some good points being raised here. When I discussed this with some of the Japanese guys I work with, one of them (jokingly?) said that it was a good thing, because now he didn’t have to use a condom on his trips to Thailand! (as an aside), When I asked him about the risks of HIV infection, he just told me that Japan has great medicine.

    21. Welp Says:

      Nogbad Says:
      March 29th, 2012 at 10:52 am
      As nobody seemed to know the answer to my earlier question, may I provide it myself?
      I’m told that a child born in Japan to one or more Japanese parents has to be registered with the Japanese authorities within 14 days. I have no idea what happens if you don’t. If anything, there is a more generous time limit for those living abroad.

      Nothing happens. My mother in law was born in early October, and her father didn’t get around to registering her birth until December 1st, so December 1st is her legally recognized birth date. She just has two birthdays now.

    22. debito.org » Blog Archive » Asahi: Tokyo District Court rules denying J citizenship to children born overseas with one J parent constitutional | Family Rijken in Japan Says:

      [...] debito.org » Blog Archive » Asahi: Tokyo District Court rules denying J citizenship to children bo…. ‹ Inlet manifold The Birdman project › Posted in [...]

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