Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

“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.”
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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 ).


Major constitutional developments in Japan 71

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