“serves as the core of parliamentary democracy, and a democratic nation should
give this right equally to all citizens who have reached a certain age.” Except for
disenfranchisement in order to maintain fairness in elections, any disqualification
from voting or limitation on the right to vote should not be allowed in principle,
unless it is necessary for compelling reasons. Since the court could not find such
compelling reasons in this case, it held that the total exclusion of overseas voters
from the election constituted an unconstitutional denial of equal protection.
The third case is the 2008 Illegitimate Children Nationality Discrimination
case,^52 in which the court struck down paragraph 1 of Article 3 of the Nationality
Act. Article 2 of the Nationality Act grants Japanese nationality to a child born to a
Japanese father or mother. However, under Article 3 , paragraph 1 , an illegitimate
child born to a foreign mother could acquire Japanese nationality only after his or
her parents married. This paragraph was held by the court to constitute unreason-
able discrimination.
The fact that these three decisions were handed down in the first decade of the
twenty-first century suggests that this decade could be characterized as the eventual
“period of awakening of the Grand Bench of the Supreme Court of Japan.”
53
However, it is not clear whether the court has finally abandoned its conservative
attitude or not.
First, the court appears to still be maintaining its conservative stance in the sense
of sharing the ideological preferences of conservative political forces. Recent
decisions of the court, even including the three aforementioned decisions where
the court held statutes to be unconstitutional, has not provoked strong criticism
from conservative political forces. In other cases where the court has been con-
cerned about appearing “politically sensitive,” it appears to have maintained its
conservative position, rejecting many constitutional challenges to governmental
actions. For example, in the 1995 Discrimination against Illegitimate Children
case,^54 the court rejected a challenge to Article 900 of the Civil Code, which gave
an illegitimate child only one-half of the inheritance share of a legitimate one. The
court held that the Diet had a very broad discretion in this area and this differential
treatment was constitutional.
Second, with respect to decisions where the court has held statutes unconsti-
tutional, they might be characterized as conservative decisions in the sense that
they have been so cautious that they never squarely challenged the government.
Even in the Overseas Voters case and the Illegitimate Children Nationality
Discriminationcase, where the court held the statutes to be unconstitutional, the
court incorporated in its decisions some device to mitigate their radical implica-
tions. In these cases, the court did not rule that these statutes were unconstitutional
(^5262) Minshu 1367 (Sup. Ct., G.B., June 4 , 2008 ).
(^53) Joji Shihido, “Shiho no puragumatic” (Pragmatism of judiciary) ( 2007 ) 322 Jurisuto 24 at 24.
(^5449) Minshu 1789 (Sup. Ct., G.B., July 5 , 1995 ).