Japan’s Supreme Court rules Japan’s marriage requirement for Japanese nationality unconstitutional


Handbook for Newcomers, Migrants, and Immigrants to Japan\Foreign Residents and Naturalized Citizens Association forming NGO\「ジャパニーズ・オンリー 小樽入浴拒否問題と人種差別」(明石書店)JAPANESE ONLY:  The Otaru Hot Springs Case and Racial Discrimination in Japan
Hi Blog.  I think this will be the best news we’ll hear all year:

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!

News photo

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.

==Kyodo  ENDS



June 6, 2008
Giving children their due


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.

The Japan Times: Friday, June 6, 2008

15 comments on “Japan’s Supreme Court rules Japan’s marriage requirement for Japanese nationality unconstitutional

  • Bravo to japan but its 30 years too late for alot of kids that had to suffer from this insane law. finally japan does something right for a change. i guess better late then never, and can you believe that they had to fight this all the way to the supreme court, priceless one of those only can happen in japan moments..

  • So what about the thousands of other children in the same situation? Since the court case only applied to these ten, does a law have to be passed for the thousands of others or is it to late for them?

    –No, it’s not too late for them, as long as they’re not born before 1985–when the new nationality laws took effect allowing nationality to pass through the J mother (before that, it was only through the J father). Those unfortunate relics of a more discriminatory time cannot be grandfathered in, I bet.

    However, I don’t know how this new SC decision will be enforced. I’m hoping this sort of scene doesn’t happen: Japanese child without citizenship goes to ward office to register as citizen, tetchy bureaucrat says, “Those ten children got a court order–you’ll need one too, so sue for it or else we can’t grant you citizenship.”

    Sounds terribly unreasonable. But we have now more than three court precedents saying that “Japanese Only” signs are quasi-illegal (citing international treaty and Japanese civil law, as well as social convention). But you’re not going to get the police (another form of bureaucrat) to force the management to take the signs down. A court decision is not a law, and without it, a bureaucrat is still within his mandate to say, “Show me the law that expressly grants you citizenship and we will do so.” The JO signs, likewise, have stayed up. You must sue each individual business to get them down.

    However, in a different decision in 2005 saying that local prefectures must grant suffrage to overseas absentee voters (and penalizing them for not establishing a system), this has worked to establish, AFAIK, universal suffrage for Japanese overseas by now. (I’ll have a Japan Times FYI column up on this in a few days. Here’s the link to it if you want to read it now.) So a Supreme Court decision can force the hand of bureaucrats sometimes, sometimes not. Let’s hope it does for these children. Debito

  • This is a link to the Supreme Court judgment.

    On page 12, there is a passage underlined by the court itself.
    “A child who is born between a father that is a Japanese national and a mother that is not a Japanese national and who is recognized as his child by the father after birth shall be granted conferment of Japanese nationality per article 3 paragraph 1 of Nationality Law, provided all the conditions of the paragraph except the condition that the child acquired the status of a child in wedlock due to the marriage of the father and the mother are satisfied.”

    I think (or hope) the ruling promptly applies to everyone concerned.

  • The ruling is at http://www.courts.go.jp/hanrei/pdf/20080604174246.pdf (in Japanese, natch). Key operative language:


    In terms of enforceability, if an official refuses to grant a child citizenship, the family should have recourse for administrative review, or to petition the family court. I would think it highly unlikely that a lower court or review board would contradict the Supreme Court on something like this…

    But from the sound of it, the government is willing to conform the statute to the Supreme Court’s interpretation, which is good news since it would make everything much easier to argue.

  • Excellent news.
    I’ve seen it many newspapers all morning.
    The morning edition of the 日経新聞 had a pretty good cover story article.

    Here are a few online links:

    「国籍法は違憲」婚外子10人に日本国籍 最高裁判決」

    「国籍法の規定は「違憲」 最高裁判決、婚外子に日本国籍認定」

    「官房長官「重い判決だ」 国籍法改正も示唆」



    I am concerned exactly how the Citizenship Law will be revised. I do not have much faith in Hatoyama…

    (As with most online articles, grab them fast if you are interested; all too often they either move or are removed over time.)

    「国籍法は違憲」婚外子10人に日本国籍 最高裁判決











    国籍法の規定は「違憲」 最高裁判決、婚外子に日本国籍認定
     判決理由で大法廷は「家族生活や親子関係に関する意識が変化し、実態も多様化したことを考慮すると、原告が国籍取得の届出をした2003年当時には、父母の婚姻を国籍取得要件にしている国籍法の規定は不合理な差別といえ、憲法に違反する」と述べた。(04日 22:25)



















    (2008年6月5日11時51分 読売新聞)

  • Mark Mino-Thompson says:

    This is good news for those caught up in this bureaucratic mess. Since the article doesn’t seem to mention it would it be correct to assume that children born to NJ women and fathered by Japanese (but who choose not to acknowledge the fact) will be denied citizenship? I can assume that there may be many children in such a situation. Can there be some sort of DNA testing to prove that the father was Japanese?

  • Boogie Gee says:

    Mark Mino-Thompson wrote:

    “Can there be some sort of DNA testing to prove that the father was Japanese?”

    DNA has absolutely nothing to do with being Japanese.
    Japanese, just like other citizenships, is a legal status conferred by the government.

    Our own Debito is Japanese, but I imagine his DNA is quite different from much of Japans populace.

    –That it is.

  • “A court decision is not a law, and without it, a bureaucrat is still within his mandate to say, “Show me the law that expressly grants you citizenship and we will do so.””

    Hang on. Under Article 81 of the Constitution Supreme Court rulings on the the unconstitutionality of laws do have legal status. “Bureaucrats” can’t and don’t ignore them. You’ve already cited the case involving overseas voters, and there is also the notorious case on unfair apportionment of seats in the Diet in the 1970s as well as others that stand as examples that were followed to the letter. The Supreme Court never ruled on the Otaru case (somewhat reasonably I would argue, given that the authority of municipal bodies is constitutionally restricted to that which the national government delegates to them), so it really has no relevance here. The other cases you cite weren’t Supreme Court decisions.

    In any case, a good decision all round.

    –Points taken. Thanks for making them.

  • this law was nuts to begin with, and why does japan inc. continue to pick and choose who can be citizen and who cant, its seems like there trying to play GOD or something like that..oops i forgot this is japan, at least i hope that now the 10 families can go back to court and SUE the japan inc..government for compensation damages..oops the comfort woman are still waiting since WW2 for there government compensation…DAH..

  • Justice minister wants law revised following kids’ citizenship ruling
    (Mainichi Japan) June 5, 2008

    Justice Minister Kunio Hatoyama said the Nationality Law should be revised following a top court decision that ruled that foreign women and Japanese men need not be married for their children to obtain Japanese citizenship.

    “Basically, we should look into revising the law,” said Hatoyama at the House of Councillors Committee on Judicial Affairs on Thursday.

    Hatoyama’s remarks came a day after the Supreme Court ruled unconstitutional a provision in the Nationality Law that makes marriage of foreign women and Japanese men a requirement for their children to obtain Japanese nationality.

    The ruling on Wednesday confirmed citizenship for 10 children who were born out of wedlock between Filipinas and Japanese men.

    Referring to the ruling that suggested in its supporting opinion that such factors as children being born in Japan or living in Japan for a certain period of time could also serve as conditions for obtaining Japanese citizenship, Hatoyama said, “We need to examine whether new conditions to obtain Japanese nationality should be included in the amendment by taking such opinions into consideration.”

    Meanwhile, the Ministry of Justice has instructed legal affairs bureaus across the nation to accept applications filed by children who are under similar circumstances and who seek to obtain Japanese citizenship, and not to judge whether their requests are acceptable or not.

  • 国籍法規定違憲:「改正の方向で」…判決受け法相




    毎日新聞 2008年6月5日 13時26分

  • >“Can there be some sort of DNA >testing to prove that the father >was Japanese?”
    >DNA has absolutely nothing to do >with being Japanese.

    No, but it has everything to do with a parent child relationship, which I think was Mark’s point.


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