The Supreme Court ruled recently on September 4 that provisions in the civil code on inheritance of property to children of unmarried couple are unconstitutional. Responding to that, the government is to pass a bill to amend the civil code during the current extraordinary session of the Diet. The bill will be approved by the parliament as it was finally accepted on November 5, though it is late due to strong opposition and resistance of the ruling Democratic Party of Japan (LDP).


JUDICIAL REVIEW MUST BE OBSERVED


The bill is to delete clauses in the civil code that stipulate on inheritance of property to children born outside marriage; the portion is, currently, a half of that for children of married parents.


The Supreme Court ruled unanimously, or all the 14 judges agreed to the special appeal on family affairs in which plaintiffs claimed that the provisions in the civil code are against the Constitution that ensures 'equality under the laws'.


Anachronistic LDP


One of the LDP lawmakers insists, however; 'the judgment of Supreme Court is far from our commonsense, but if it is checked against the Constitution, the consequence is naturally right. As for the relevant clauses in the civil code, they reflect people's feeling'. It is an LDP lawmaker, Nishida Shoji, of the Upper House, that has made the comment.


Some of the LDP members assert; 'if children are born outside marriage and are acknowledged positively, a rate of legal matrimony downs' and 'the Supreme Court's ruling is excessive. The Civil Code represents people's feeling'.


Those who oppose and resist against amendment of the Civil Code, including a parliamentarian Nishida Shoji, are not only unaware of the meaning of the separation of powers but also unaware of 'equality under laws', a notion of contemporary citizens. This fact is eloquently expressed as an old concept on family in the LDP version of new constitution.


Since days of implementation of Constitution


A lawyer, Mr. Izumi Tokuji, who was ex-judge of the Supreme Court, wrote a book in which he presented a minority's opinion that discrimination against children born outside marriage is unconstitutional. He had had two occasions when the Supreme Court ruled on the issue of property inheritance and says to the effect that the judicial review defends the basis of democracy and of the human rights.


Recently Mr. Izumi made a comment in the Symposium on Amendment of the Civil Code held in October in Tokyo, where participants demanded the government to make a right decision. He told that 'it took the court 66 years to reach the judicial review, though the discrimination against children of unmarried parents in terms of property inheritance has been kept as unconstitutional since the day of May 3, 1947, when the Constitution was implemented'.


Mr. Izumi continues to say that 'Article 81 of the Constitution specifies that the Supreme Court is the court of last resort with power to determine the constitutionality of nay law, order, regulation or official act. What is ruled as unconstitutional by the Supreme Court must be presented immediately. If such effort is absent, the governing system of Japan based on the principle of separation of powers will not work'.


Children have no responsibility for environment


In 1996, seventeen years ago, the Legislative Council of Ministry of Justice provided an outline for a bill to revise the civil code with a purpose to eliminate discrimination against children of unmarried matrimony in terms of property inheritance and introduce a system to allow free selection of family name for a married couple, but due to adamant resistance of the conservatives no change has been made to today in the civil code.


No child owes responsibility for environment in which he/she was born. Discrimination must be eliminated coming from the marital status and family relations. The discriminative system to children of unmarried couple is too obsolete in light of a principle of a modern society that a man is born equal and should be respected.


November 12, 2013