The Supreme Court on July 10 heard arguments from lawyers representing legitimate and illegitimate children over a provision of the civil code that stipulates that an illegitimate child’s share in inheritance should be half of a legitimate child’s. Arguments concerning two disputes, one in Tokyo and the other in Wakayama Prefecture, over inheritances were heard that day at the top court’s Grand Bench, where its 15 justices sit. Usually the Supreme Court hears arguments at the Grand Bench when it is going to set a legal precedent.
There is a possibility that the top court will strike down the civil code’s provision. It should give a clear constitutional judgment on the provision, which obviously runs counter to the spirit of Article 14 of the Constitution, which says in part, “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.”
The Supreme Court in 1995 ruled that the civil code’s provision over inheritance among legitimate and illegitimate children was constitutional from the viewpoint of protecting de jure marriage. At that time, five justices presented minority views finding the provision unconstitutional.
Since 1993, human rights bodies of the United Nations, including the U.N. Human Rights Committee, have recommended several times that Japan abolish the provision. Their view that children should not be discriminated against because of the legal conditions surrounding their birth is reasonable.
In 1996, the Legislative Council, an advisory body for justice minister, presented an outline to revise the civil code, including a call for abolishing its stipulation that an illegitimate child is entitled to only half a legitimate child’s share in inheritance as well as a call for allowing married couples to retain their separate family names. But the ruling party refused to submit a revision bill to the Diet.
Since the 1995 ruling by the Supreme Court, social conditions have changed. It is becoming more common for couples to have children without getting married and the number of single mothers is increasing.
In 1995, 1.24 percent of children born in Japan were illegitimate. But the rate climbed to 2.22 percent in 2011. People’s views on family and marriage also have undergone transformation.
A parent may leave a large inheritance to his or her illegitimate children by writing a will accordingly. But attention must be paid to the fact that illegitimate children suffer psychologically from the civil code’s provision on inheritance among legitimate and illegitimate children. On Aug. 24, 2011, the Osaka High Court ruled that the provision was unconstitutional.
What is before the Supreme Court is an issue of legal discrimination against a category of citizens. The top court should hand down a ruling that will lead to the removal of this discrimination once and for all. It also should pay attention to the fact that Japan is the only developed country that treats illegitimate children this way.
There is also no reason for the Diet to wait for a Supreme Court ruling before enacting legislation that will eliminate this discriminatory provision from the civil code. It should take action.