The grand bench of the Supreme Court ruled on September 4 as unconstitutional over the property inheritance rules of the Civil Code applied to a non-marital child. The court decision is too late, but it is courageous judgment from the conservative, highest judicial body. It is 17 years since the advice from the Legislative Council of the Ministry of Justice was given. The Diet should immediately revise relevant laws.
IMMEDIATE AMENDMENT OF CIVIL CODE SHOULD BE MADE
The court decision was made on the two special appeal cases of family affairs in which plaintiffs had claimed against the rules of the Civil Code on the succession of assets to a child born out of wedlock (=a non-marital child). As an heir he/she is entitled to inherit a half of that of the child born in the matrimony. The point is whether the rules are constitutional or not. All 14 judges unanimously reached the same conclusion.
In 1996, seventeen years ago, the Legislative Council advised to arrange legislative procedures in order to eliminate discrimination against non-marital children in terms of property inheritance and to introduce a selective family name system for a married couple. In spite of this fact no revision has been made in legal sphere up to today.
When the grand bench ruled in 1995 that the inheritance practices were constitutional, it put a complementary opinion that 'the Diet should work on legislation'. Since 2003 the Supreme Court has told that the rules are extremely doubtful to be constitutional, urging the legislative body to amend the relevant laws. In 2011 the Osaka High Court, too, rigorously accused that 'to leave discrimination as it is exceeds the boundary of discretion of the legislative body', but the Diet has not committed in.
Laws justify and assure discrimination
The government of Japan has ratified the UN International Convention of Elimination of All Forms of Discrimination against Women, the Convention for the Protection of Human Rights and Fundamental Freedoms and the Convention on the Rights of the Child, but it has been repeatedly pointed out by the international organizations and human rights groups that the Japanese society keeps discrimination.
Children are born without any responsibility for the environment where he/she was born. Discrimination due to marital status of his/her parents and family relationship must be ended. The modern society has a norm that everyone is born equal and free and is respected as a human being. In light of this concept the practice of discrimination against a non-marital child is too old-fashioned.
The Supreme Court told; 'judging from diverse forms of family structure and changes of people's awareness, disadvantage against a child because of an irrational reason that his/her parents are not married cannot be allowed'. The highest court turned down the previous 1995 ruling, which implies that the Court expressed its judgment that it cannot expect the legislative body.
However, the previous decision of 'constitutional' had brought cautious attitudes of lawmakers in the Diet. It has practically involved in hindering enactment processes.
Writer Ochiai Keiko, who has suffered, too, from discrimination as a non-marital child, points that 'we need to notice a horrible fact that laws assure discrimination'. Though the Court has given right judgment, disadvantageous heirs have long been annoyed with agonies. The Diet must respond sincerely to the Court decision to swiftly enact necessary laws.
Supreme Court expected to respond right to selective family name system
The Tokyo High Court rejected last May the plea of five housewives who have de fact marriage so as to keep different family names from their husbands. The plaintiffs insist that the civil code's provision that does not permit a married couple to use a different family name is unconstitutional and demand the state to pay compensations. Some day the Supreme Court will be requested to give judgment. A speedy, right decision is expected in light of the world criteria.
October 1, 2013