The Supreme Court’s Grand Bench will examine two cases that question whether a Civil Code stipulation limiting inheritance rights of children born out of wedlock infringes on the Constitution, which guarantees equality for all under the law.
The Wednesday decision suggests the top court may be inclined to reverse its 1995 Grand Bench judgment that the provision is constitutional. The court convenes the Grand Bench when it wishes to rule on a case that changes a legal precedent or its interpretation of a constitutional provision.
The Civil Code’s Article 900, paragraph 4, says a child born out of wedlock is entitled to inherit half the worth accorded to a child born in wedlock.
The two cases were referred to the Grand Bench by the First Petty Bench.
They concern separate appeals to the top court in connection with family inheritance disputes, by two men, from Tokyo and Wakayama prefectures, both born out of wedlock.
The 1995 ruling was a 10 to 5 decision at the Grand Bench and set a precedent that has been backed by majority opinions at petty benches.
Dissent and comments questioning that decision have since been expressed in various courts.
In September 2009, the top court’s Second Petty Bench, for instance, ruled 3 to 1 that the provision was constitutional.
The dissent was expressed by Justice Isao Imai, who said, “It is not compatible with the idea of respecting an individual’s dignity if a child is discriminated against when he has no power over choosing whether to be (born) in or out of wedlock.”
Imai said, “We cannot wait until the legislature takes action.”
One of the three assenting justices, Yukio Takeuchi, meanwhile, said he suspected the stipulation could be unconstitutional and urged the Diet to take remedial steps.
He cited changing perceptions of family in light of the increasing number of children born out of wedlock and a United Nations recommendation to Japan to redress discriminatory treatment of such children.
Population data show a growing proportion of children born out of wedlock. They totaled around 23,000 in 2011, accounting for 2.2 percent of all births, according to health ministry population statistics. It represents an increase from roughly 14,000, or 1.2 percent, in 1995, when the Grand Bench last ruled on the issue.
In July 2010, a similar case went before the Grand Bench, generating expectations that the precedent may be reversed. But the parties involved in the case later reached a settlement and no decision was issued on constitutionality.
The Justice Ministry drafted in 2010 legislation to revise the Civil Code to ensure equal patrimonial inheritance between children born in and out of wedlock, but it was never revised because lawmakers could not reach an agreement on another key issue in the legislation — whether separate surnames should be allowed for married couples.
Normally, the Grand Bench mobilizes all 15 justices at the top court. In the latest case, Justice Itsuro Terada is not taking part in the deliberations, noting his official duties while he was with the Justice Ministry may be in conflict with the issue.