Constitutionality of the Japanese Nationality Act: A Commentary on the Supreme Court’s Decision on 4 June 2008

Abstract:     
The article discusses the Supreme Court’s judgment from 4 June 2008 on the constitutionality of Article 3 of the Japanese Nationality Act. The decision concerned a very technical question left out in the recent development of nationality law in Japan – whether the requirement of legitimation is discriminatory and unconstitutional against those children acknowledged by their father after birth in the absence of the parents’ marriage. In reaching its conclusion, the majority took a bold approach to the application of the non-discrimination principle to nationality issues as well as to the role of judicial review in providing relief for those affected by an unconstitutional provision. There are still some aspects of the judgment that remain unsatisfactory in its reasoning, especially with regard to the understanding of nationality law from international law and human rights perspectives, as well as the use and analysis of the practice in foreign countries. Nevertheless, the judgment should be commended for paving the way for developing a modest form of dialogue with the legislature on constitutional issues. It is hoped that this judgment becomes a model upon which constitutional issues are actively dealt with by the judiciary, giving impetus for wider debate by the legislature and the public at large

Keywords: Japanese Constitution, Nationality Act, citizenship, judicial review, dialogue

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