The Grand Bench of the Supreme Court will give rulings on December 16 for two legal cases claiming as unconstitutional over social practices that a married couple should have a single, identical family name (Article 750, Civil Code) and that a divorced woman should be forbidden to remarry for a certain period of time (Article 733, the same code). The cases relate, respectively, to Article 13 of the Constitution (dignity of an individual) and Article 24 (gender equality). People expect the Supreme Court to rule that the provisions violate the Constitution.
SUPREME COURT SHOULD JUDGE CIVIL CODE PROVISIONS AS UNCONSTITUTIONAL
If a man/woman wants to keep his/her own family name when they get married, he/she cannot do so. He/she gives up the claim, facing a social structure. It is this structure that causes problems. Some say that they can use his/her popular name, but the point does not lie there. The litigation represents violation of the right of identity in terms of the family name, or infringement of the human right. It does not point out what a family should be like. It is not a claim that families vary and therefore each one of a couple can maintain his/her family name.
A person lives with his/her full name. A full name is the indispensable right to live with his/her own personality, a basis of respect to an individual. The fact that he/she must change his/her family name at the time of marriage violates the personal right.
The state of Japan, however, has maintained that the Constitution does not guarantee the said right. It is not true that a certain right does not exist unless the constitution stipulates it. Until today the judiciary has assured the right for environment and the right of identity even though they are not provided in the constitution. Law courts, as a duty, have acknowledged a new type of rights before legislation on the ground that they are necessary to people. People watch the Supreme Court carefully as it may approve another new rights.
Enforced Social Customs
A focal point is dignity of an individual.
The old clan-family system was abolished and an individual is respected as an independent person. A practice that a married couple has a single, identical family name continues as a custom. It is a trace of the past when a clan family used to live altogether in cooperation. A habit that a husband and a wife should have a single family name or that parents and children should have a single family name remains as coercion.
Gender equality is guaranteed by laws, but it is formal. Is a woman truly independent in the Japanese society today? 96.2% of married women prefer her husband’s family name. The rule, though it looks like neutral, causes indirect discrimination, gender discrimination.
The fact proves gender discrimination. That is why the Convention on the Elimination of All Forms of Discrimination against Women advises the Japanese government to amend laws, including an introduction of a system to allow a couple to select a family name. Japan ratified the convention in 1985. Consequently, the government must revise laws if practices violate the treaty, but it has failed to do so.
A new system was introduced in 1996 when guidelines were ready to revise the Civil Code. But the government has left it untouched. The fact shows negligence on the side of the government. Obviously this is violation of the personal right.
World Watches Carefully
Item 2 of Article 24 of the Constitution provides rules on marriage and family, saying that laws shall be enacted from the standpoint of individual dignity and the essential equality of the sexes. Therefore the state of Japan has obligation to verify and confirm at all times whether existing laws may be constitutional or not.
A point that the plaintiffs’ lawyers contended last month in the Grand Bench is ‘judicial relief’. Plaintiffs cannot wait for legislation. That is why they hope to have a juridical decision.
The litigation attracts attention of people not only in Japan but also in the rest of the world. The Supreme Court is expected to respond sincerely to the contemplation.
December 15, 2015