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3RD LD: Top court says marriage requirement for nationality unconstitutional.

TOKYO, June 4 Kyodo

(EDS: UPDATING WITH COMMENTS FROM PLAINTIFFS, LAWYERS, OTHER INFO)

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 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.
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Publication:Japan Policy & Politics
Date:Jun 9, 2008
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