Japanese media have given prominent coverage to the nationality issue in the past two weeks. The Tokyo District Court ruled April 13 in favor of a lawsuit seeking confirmation of Japanese nationality for a boy born to a Filipino woman and a Japanese man who are not legally married. According to the ruling, the Nationality Law makes an “unreasonable distinction” between a child of legally married parents and a child of common-law parents. Such discrimination, the court concluded, constitutes a violation of the Constitution, which states that all people are equal under the law.
Meanwhile, the Liberal Democratic Party is mired in a debate over whether to include a “nationality clause” in a government bill on human rights, which is likely to reach the Diet floor in the current regular session. Proponents of the clause argue that all members of local human-rights commissions, established in cities, towns and villages throughout the country, should have Japanese nationality.
People tend to view nationality through different prisms. This often complicates matters, as shown by recent developments. Although the Constitution guarantees various human rights, in practice they may be denied, justifiably or not, for reasons of nationality. The argument for the nationality clause reflects a combination of factors peculiar to Japan, including emotionally charged relations with North Korea and other Asian neighbors.
Nevertheless, strict compliance with the nationality requirement may hamper efforts to protect the human rights of non-Japanese residents. The human-rights bill, now in the drafting stage, would enable human-rights commissions to recommend relief measures for victims of discrimination and abuse. Since non-Japanese residents are likely to be among these victims, particularly in communities with large numbers of foreign residents, commissions will be able to work more efficiently and effectively if they have non-Japanese members as well.
It will be better, therefore, if the proposed nationality clause is dropped. Such a provision, if strictly enforced, would likely create conditions that restrict, rather than protect, human rights and freedoms, which, their nature being what it is, should be guaranteed regardless of nationality. Moreover, it would contradict the international trend toward guaranteeing human rights across national borders.
Human-rights commissioners are selected from a pool of influential residents and appointed with the endorsement of mayors, town heads and village masters. In 2001, their number stood at approximately 14,000. Taken together, human-rights commissions handle roughly 170,000 inquiries and complaints each year. However, they are said to be rather slow in handling these cases, in part because many members are elderly.
The question, then, is how to strengthen the commissions. Obviously, one effective way of doing so is to appoint additional qualified members, including non-Japanese residents. Excluding foreigners from these community-level human-rights watchdogs, particularly in areas with large non-Japanese populations, would not be helpful.
In the nationality suit, the Tokyo District Court, noting that the 7-year-old boy is living with his parents, stated: “At a time of diversified values, it is difficult to think that only families of legally married parents are normal; decisions on whether or not to grant (Japanese) nationality cannot be made solely on the basis of the legal relationship of parents.”
In today’s society, families take various forms. The same is also true of marriage, which is not always concluded through legal proceedings, such as those required under the Family Registration Law. A Supreme Court ruling defines an unregistered common-law marriage as a “relationship equivalent to (legal) marriage.” These days, in fact, quite a few men and women do not legally register their unions.
While it is not desirable to make light of legal marriage, it does not stand to reason that a child’s nationality depends on whether his or her parents are legally married — a question that is completely beyond the control of a child yet to be born. Indeed, treating a child’s nationality in such a manner amounts to unreasonable discrimination.
The Tokyo District Court rightly calls for a review of the Nationality Law and related regulations to bring them more in line with the realities of marriage in today’s society. As a first step in this direction, the nation should conduct a serious discourse on the future shape of the family and the ways in which to best uphold and protect human rights.
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