Posted by debito on June 5th, 2008
Thanks to the vagaries (and there are lots of them) of Japan’s koseki Family Registry system, if a child is born out of wedlock to a Japanese man and a NJ woman, and the father’s parentage is not acknowledged BEFORE birth, Japanese citizenship up to now has NOT been conferred. Japanese citizenship is still NOT conferred EVEN IF the J man acknowledges parentage AFTER birth.
(If the situation was reversed i.e. J mother-NJ father, it doesn’t matter–obviously the mother and child share Japanese blood, therefore Japanese citizenship is conferred. Of course, the NJ father has no custody rights, but that’s a separate issue… More in HANDBOOK pp 270-2.)
But as NHK reported tonight, that leaves tens of thousands of J children with J blood (the main requirement for Japanese citizenship) either without Japanese citizenship, or completely *STATELESS* (yes, that means they can never leave the country–they can’t get a passport!). It’s inhumane and insane.
But the Japanese Supreme Court finally recognized that, and ruled this situation unconstitutional–conferring citizenship to ten international children plaintiffs. Congratulations!
Photo by Kyodo News
(NHK 7PM also reported last night that three Supreme Court judges wrote dissents to the ruling, some claiming that the Diet should pass a law on this, not have the judiciary legislate from the bench. Yeah, sure, wait for enough of the indifferent LDP dullards in the Diet to finally come round, sounds like a plan; not.)
Read on. I’ll add more articles to this blog entry as they come online with more detail. One more step in the right direction for Japan’s internationalizing and multiculturalizing society! Arudou Debito in Sapporo
Top court says marriage requirement for nationality unconstitutional
TOKYO, June 4, 2008 KYODO
The Supreme Court on Wednesday declared unconstitutional a Nationality Law article requiring parents to be married in order for their children to receive Japanese nationality, ruling in favor of 10 Japanese-Filipino children.
The top court’s grand bench made the landmark decision in two separate cases, filed in 2003 by one such child and in 2005 by a group of nine who were born out of wedlock to Japanese fathers and Filipino mothers and who obtained recognition of the paternity of their fathers after birth.
After the ruling, the children — boys and girls aged 8 to 14 years who live in areas in eastern and central Japan — and their mothers celebrated in the courtroom by exchanging hugs, with some bursting into tears.
One of the children, Jeisa Antiquiera, 11, told a press conference after the ruling, ”I want to travel to Hawaii with on Japanese passport.”
One mother, Rossana Tapiru, 43, said, ”I am so happy that we could prove that society can be changed,” while another said, ”It was truly a long and painful battle.”
Hironori Kondo, lawyer in one of the two cases, said it is the eighth top court ruling that has found a law unconstitutional in the postwar period and that ”it will have a significant bearing on the situation facing foreign nationals in Japan.”
Yasuhiro Okuda, law professor at Chuo University who has submitted an opinion on the case to the Supreme Court, said that in the past 20 years tens of thousands of children are estimated to have been born out of wedlock to foreign mothers, citing data by the Health, Labor and Welfare Ministry.
A majority of the 15 justices including Presiding Justice Niro Shimada on the grand bench ruled the Nationality Law clause goes against the Constitution.
The justices said in a statement, ”there might have been compelling reasons that the parents’ marriages signify their child’s close ties with Japan at the time of the provision’s establishment in 1984.”
”But it cannot be said that the idea necessarily matches current family lifestyles and structures, which have become diversified,” they said.
In light of the fact that obtaining nationality is essential in order for basic human rights to be guaranteed in Japan, ”the disadvantage created by such discriminatory treatment cannot easily be overlooked,” the justices stated in the document.
Without nationality, these children face the threat of forced displacement in some cases and are not granted rights to vote when they reach adulthood, according to lawyer Genichi Yamaguchi, who represented the other case.
Chief Cabinet Secretary Nobutaka Machimura told a press conference following the ruling, ”I believe the government needs to take the verdict seriously, and we will discuss what steps should be taken after examining the ruling carefully.”
Three justices countered the majority argument, saying it is not reasonable to take into consideration the recent trend in Western countries that have enacted laws authorizing nationality for children outside marriages, on the grounds that the countries’ social situations differ from that in Japan.
In both of the cases, the Tokyo District Court in its April 2005 and March 2006 rulings granted the children’s claims, determining that the differentiation set by the parents’ marital status is unreasonable and that the Nationality Law’s Article 3 infringes Article 14 of the Constitution, which provides for equality for all.
Overturning the decisions, however, the Tokyo High Court in February 2006 and February 2007 refused to pronounce on any constitutional decisions, saying it is the duty of the state to decide who is eligible for nationality, not the courts.
Under Japan’s Nationality Law that determines citizenship based on bloodline, a child born in wedlock to a foreign mother and Japanese father is automatically granted Japanese nationality.
A child born outside a marriage, however, can only obtain nationality if the father admits paternity while the child is in the mother’s womb. If the father recognizes the child as his only after the child’s birth, the child is unable to receive citizenship unless the parents get married.
In short, the parents’ marital status determines whether the child with after-birth paternal recognition can obtain nationality.
Children born to Japanese mothers are automatically granted Japanese nationality, irrespective of the nationality of the father and whether they are married.
JAPAN TIMES EDITORIAL
In a landmark ruling, the Supreme Court on Wednesday declared unconstitutional a Nationality Law clause that denies Japanese nationality to a child born out of wedlock to a foreign woman and Japanese man even if the man recognizes his paternity following the birth.
It thus granted Japanese nationality to 10 children who were born out of wedlock to Filipino women and Japanese men. The ruling deserves praise for clearly stating that the clause violates Article 14 of the Constitution, which guarantees equality under the law. The government should immediately revise the law.
The 12-3 grand bench decision concerned two lawsuits filed by the 10 children aged 8 to 14, all living in Japan. The Tokyo District Court, in two rulings, had found the clause unconstitutional, thus granting Japanese nationality to the children. But the Tokyo High Court had overturned the rulings without addressing the issue of constitutionality.
Under the Nationality Law, a child born to a foreign woman married to a Japanese man automatically becomes a Japanese national. Japanese nationality is also granted to a child of an unmarried foreign woman and Japanese man if the man recognizes his paternity before the child is born. If paternal recognition comes after a child’s birth, however, the child is not eligible for Japanese nationality unless the couple marries.
The law lays emphasis on both bloodline and marriage because they supposedly represent the “close connection” of couples and their children with Japan.
The Supreme Court, however, not only pointed out that some foreign countries are scrapping such discriminatory treatment of children born out of wedlock but also paid attention to social changes. It said that in view of changes in people’s attitude toward, and the diversification of, family life and parent-child relationships, regarding marriage as a sign of the close connection with Japan does not agree with today’s reality.
The ruling is just and reasonable because children who were born and raised in Japan but do not have Japanese nationality are very likely to face disadvantages in Japanese society.