In a decision that concerned two inheritance disputes, the Grand Bench of the Supreme Court on Sept. 4 in a unanimous 14-0 decision declared unconstitutional the Civil Code provision that denies full inheritance to heirs born out of wedlock. The decision rightfully recognizes that the provision, which entitles them to only half of what their legitimate siblings inherit, violates the equality under the law as guaranteed by Article 14 of the Constitution.
The inheritance disparity, based on the rigid family system under the Meiji Constitution, dates back to 1898. It is unfortunate that it took so long for the Supreme Court to declare it unconstitutional. The Diet should immediately revise the Civil Code accordingly.
The Civil Code was revised in 1947 in accordance with the current Constitution but the discriminatory clause on inheritance remained intact and in 1995, the Grand Bench of the Supreme Court declared it constitutional in a 10-5 decision. But even at that time, four of the 10 justices of the majority opinion said that the code needed to be revised.
Since 1993, human rights bodies of the United Nations, including the U.N. Human Rights Committee, have repeatedly recommended that Japan abolish the Civil Code provision on inheritance. In 1996, the Legislative Council, an advisory body for justice minister, called for abolishing the provision as well allowing married women to retain their maiden names. But the conservative Liberal Democratic Party refused to submit a revision bill to the Diet.
Apparently in view of the fact that de facto marriages and single mothers are now largely accepted by society, the Supreme Court’s Sept. 4 decision said that it is unforgivable to cause disadvantage to children because of circumstances over which they had no control and that the social trend is now toward respecting illegitimate children as individuals and securing their rights. It said that the Civil Code provision, due to social changes, had become unconstitutional in July 2001 at the latest, a time when the inheritance procedure for the earlier of the two disputes before the top court began. But to prevent confusion and trouble, the court said that its decision will not apply retroactively to inheritance disputes that were settled after July 2001.
When the Diet revised the Civil Code in 1947, it passed a supplementary resolution that the law should be further revised at an early date. But the Diet has taken no action on this issue for more than 60 years. It must pay serious attention to the fact that the Supreme Court pointed out that Japan is the only developed country that still discriminates against illegitimate children in matters of inheritance. For its part, the Supreme Court should be lauded for its decision, which upheld the constitutional rights of a marginalized group. It should keep in mind that it is the last resort in such cases and ensure equal justice under law.