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Thursday, June 5, 2008
Bar to kids' citizenship ruled illegal
Supreme Court opens door to unwed foreign moms' children
By JUN HONGO
In a ruling sure to affect thousands of others born out of wedlock to non-Japanese mothers, the Supreme Court on Wednesday granted 10 children of Filipino women the right to Japanese nationality.
Saying it led to unreasonable discrimination, 12 of the 15 justices on the top court's grand bench ruled unconstitutional a provision in the Nationality Law that states that such children can only become citizens of the mother's home country.
The children, aged between 8 and 14, were all born out of wedlock and recognized by their Japanese fathers only after they were born. Under the law, had the fathers stepped forward before birth, the children would have been deemed Japanese.
The Tokyo High Court had denied them Japanese nationality based on this stipulation in the Nationality Law. It is believed that in many cases, the Japanese fathers were married to other women when the mothers became pregnant with their children.
In overturning the high court decision, Supreme Court Chief Justice Niro Shimada ruled that the provision in the law resulted in "discrimination without any rational reason" and thus violated Article 14 of the Constitution, which stipulates equality under the law.
In finding unlawful the clause requiring that the parents be married, the ruling stated, "The disadvantages caused to the children by this biased treatment cannot be disregarded."
The case marks the eighth time the Supreme Court has found a law unconstitutional. Most recently, in September 2005, the top court ruled the election law unconstitutionally denied full voting rights to Japanese living abroad.
Following Wednesday's decision by the top court, the Diet and the Justice Ministry are expected to begin talks on revising the Nationality Law to grant full citizenship to children with similar backgrounds, estimated to number tens of thousands.
Lawyer Genichi Yamaguchi, who represented one of the plaintiffs, called the ruling "highly significant."
"The verdict clearly acknowledged that (the law) was irrationally discriminatory," Yamaguchi told reporters after the ruling.
"I would like to achieve my dream, which can come true now that I am Japanese. I want to become a police officer," plaintiff Masami Tapiru, 10, told reporters after the ruling.
Her mother, Rosanna, also thanked her lawyers and supporters for helping secure her child's human rights.
Lawyer Hironori Kondo, who represented the family, told reporters he would contact the Justice Ministry for instructions on how to proceed with obtaining Japanese nationality for his client.
"This is a huge ruling that affects many foreign nationals residing in Japan," Kondo said, adding he expected a considerable number of children to surface and seek Japanese nationality following Wednesday's ruling.
An article in the Nationality Law, enacted in 1950, states that a child born out of wedlock to a Japanese man and foreign woman can only obtain Japanese nationality if the father recognizes paternity before the baby is born, or if the couple marry before the child turns 20.
The 10 plaintiffs' Japanese fathers, none of whom married the mother, acknowledged paternity only after their children were born. All the children have Philippine citizenship, and live with permanent resident status in the Kanto and Tokai regions.
Although the children attend local schools and speak Japanese, they do not have access to full voting rights nor can they enter or leave Japan freely, the defense lawyers have said. "It is a great discrimination to deny nationality to these children, based on the fact that their parents are not married. Such conditions cannot be controlled by the children," they argued in court.
The 10 children filed suit with the Tokyo District Court in two separate groups, arguing that the law violated their constitutional right to impartiality.
The district court ruled in favor of the children in 2005 and 2006, acknowledging that the clause "obstructs the constitutional right to equality" and has put the plaintiffs at "an immense disadvantage."
But the Tokyo High Court overturned the rulings on grounds that the Nationality Law is justified and does not interfere with the children's constitutional right to equality. The high court stated that the decision to grant nationality is "an inherent right of the state," and that it did not have the authority to award the children nationality.
The Civil Affairs Bureau of the Justice Ministry has argued in court that there are "rational reasons to the legal clause," which it said are backed by historical and cultural precedent.
The government has also said the law promotes legal marriages, adding that it would be inconsistent with the judicial duty of the court to find a law unconstitutional and involve itself with legislative matters.