The rebirth of the right to equality?

Reassessing the Supreme Court's Nationality Act judgment

A year ago this week, the Supreme Court of Japan issued a judgment that struck down a clause in the Nationality Act as being a violation of the Constitution. There are good reasons for everyone in Japan to celebrate that decision. While little noted outside of specialized legal journals at the time, the decision may have been the beginning of a more robust judicial protection of the right to equality in Japan.

The Nationality Act judgment was, of course, hailed as an historic decision — in part because it was only the eighth time the Supreme Court has struck down a law as unconstitutional; and in part because it would extend the benefits of nationality to tens of thousands of children born in Japan to Japanese fathers and foreign mothers who were not married. But much less noticed were the reasons of the court, and what that analysis meant for the right to equality itself.

Prior to this case, the courts of Japan employed a simplistic "reasonableness" test to determine if discrimination constituted a violation of the right to equality enshrined in Article 14 of the Constitution.

According to this test, the court would first decide whether the subject matter of the impugned law, which discriminated on the basis of some prohibited ground such as race, gender, creed, social status and the like, was an area upon which the government had the legitimate authority to legislate. If it was, and the means chosen by the law to advance the legislative purpose was rationally connected to its objective, then any discrimination it may have caused was deemed to be reasonable. It collapsed the entire analysis into a simplistic inquiry into whether the discrimination could be justified.

For example, a provision of the Civil Code limits the inheritance of illegitimate children to half that of legitimate children in the event that a parent dies without a will. This is discrimination based on family and social status, in apparent violation of Article 14 of the Constitution. The Supreme Court, in 1995, held that the objective of the law was to encourage people to marry, and to foster respect for the institution of marriage. The court reasoned that since the discrimination against illegitimate children might encourage prospective parents to marry, there was a rational connection between the objective and the means chosen, and so the discrimination was reasonable.

Now, the most insidious discrimination could be justified under this test. Indeed, something as horrendous as the Holocaust could be justified on the basis of a mere rational connection between objective and means. As such the right to equality in the Constitution of Japan, which on its face provides a strong protection against discrimination, in the hands of the courts was no protection at all.

But the Supreme Court may have finally abandoned this doctrine in the Nationality Act case of last year. The majority of the Supreme Court employed a more sophisticated analysis, looking at several key elements, and employing criteria external to the law in question. First, before examining the question of justification or "reasonableness," the court carefully examined the nature of the discrimination itself and the harm that it caused. It explored how the provision discriminated against children on the basis of illegitimacy, and how the law not only harmed those children who were denied Japanese citizenship, but added to the stigmatization of all illegitimate children in Japan.

Turning to the question of justification, the court noted that the objective of the legislation was to ensure, as a condition of acquiring citizenship, that there is a close bond between the children born to unwed couples of mixed nationality, and the Japanese nation.

While the court accepted that the objective was legitimate, and within the scope of government authority to enact, it also concluded that the discrimination it created was not reasonable.

Yet, in its analysis of this "reasonableness," the court employed external criteria in a manner that it had not done before. To begin with, it examined the extent to which marriage between parents was a sufficiently accurate proxy for a close bond between the child and Japan. The court concluded that, in this day and age, it was not. Marriage is simply no guarantee of where the child might live or grow up.

Moreover, the court looked to Japan's obligations under international law to not discriminate against persons on the basis of legitimacy, as yet another yardstick for assessing the law's reasonableness. It further inquired into whether there were alternative methods of ensuring a close bond between children and Japan, which would not discriminate on the basis of legitimacy.

Finally, the court examined the proportionality between the grievous harm caused to children by the discrimination, and the marginal benefit alleged to be gained by the legal distinction in the Nationality Act. It was only able to do this, of course, because it had initially made a careful inquiry into the nature of the discrimination and the harm that it caused, and the objective of the law itself. Each of these elements of the analysis went far beyond the "reasonable discrimination" test traditionally employed by the courts, and together form a framework that is designed to give real effect to the right to equality.

The right to be treated equally, and not to be discriminated against on the basis of personal characteristics in a manner that perpetuates unfair stereotypes and prejudice, and unjustly denies benefits or imposes burdens, is one of the most basic and profoundly important legal rights in a democracy. If the more sophisticated analytical framework employed in the Nationality Act case becomes the standard doctrine for discrimination claims, then the right to equality enshrined in the Constitution will be given new life. All minorities in Japan, not just foreigners, will benefit.

Indeed, since discrimination against the aged is one of the forms of discrimination that is prohibited by Article 14, everyone in Japan's aging society may have good cause to celebrate the development of this new doctrine, and the re-birth of the right to equality in Japan.

This post was first published in the Japan Times, June 10, 2009, and is available on the Japan Times website.

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