After weeks of foot-dragging by its more conservative members, the Liberal Democratic Party has finally endorsed a bill to amend the Civil Code provision already declared unconstitutional by the Supreme Court concerning inheritance rights of heirs born out of wedlock.
During the process, LDP members who opposed the bill — which was proposed by the LDP-led Cabinet in response to the top court decision — had charged that the change would destroy what they viewed as Japan’s traditional family system.
Some lawmakers quoted in the media even suggested that they might defy the ruling by the nation’s top judicial authority if it appeared to conflict with their own values.
The endorsement by the LDP judicial affairs division came only after some opposition parties had jointly submitted a separate bill to amend the provision. The Diet needs to act quickly to enact the legal changes and end the discrimination in inheritance rights.
The Supreme Court on Sept. 4 ruled unconstitutional the Civil Code provision — unchanged since 1898 — stipulating that children born out of wedlock are entitled to only half the worth of an estate handed down to their “legitimate” siblings.
The court determined that the current provision is irrational given the increasing diversification of families in Japan and the changing social perception of marriage.
Members of Prime Minister Shinzo Abe’s Cabinet said the Supreme Court decision needs to be “humbly accepted” and that legislative action must be taken as quickly as possible. But LDP conservative ranks refused to endorse the Cabinet-proposed bill, charging that giving the same inheritance rights to legitimate and illegitimate children would destroy Japan’s traditional family system based on a legal marriage.
The top court said the current provision of the law goes against the constitutional principle of equality, noting that children themselves have no control over their parents’ marital status when they are born. Opponents countered that equal treatment of children born to the legal spouse and those born out of wedlock could threaten the marriage system itself.
The LDP panel endorsed the bill in its Nov. 5 meeting only after the panel’s chair offered a compromise in which the LDP would set up a special committee to discuss “ways to protect family bonds.” The agenda of this discussion will include increasing the legal spouse’s share in inheritance rights to effectively preserve the preferential treatment of “legitimate” children.
Conservative ranks have reiterated that legal marriage has priority over common-law marriage. Some reportedly charged that changing the Civil Code provision would amount to a “surrender” of the legislature to the judiciary. Others suggested that stronger measures are needed to keep the judiciary’s powers in check.
Under the separation of three powers of government, the administration, the legislature and the judiciary hold each other in check. Since the Supreme Court is “the court of last resort with power to determine the constitutionality of any law”(Article 81 of the Constitution), it naturally follows that the Diet is obliged to respect a top court decision if a law is deemed unconstitutional.
The course of the LDP’s discussion over the Civil Code revision may indicate that conservative elements within the party are beginning to have their say — even to the point of openly challenging the highest judiciary powers — now that the party has become an unrivaled force in the legislature. Such an action will only serve to weaken the separation of powers that underpins Japanese democracy. Instead of trying to dilute the bill’s impact, the lawmakers should focus on upholding the constitutional mandate that all citizens be afforded equal treatment under the law.
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