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Equality
Under the Law (Article 14)
Supreme
Court Grand Bench Decision of July 5, 1995, 49 Minshu 7-1789. With a ten
to five majority, the Court reversed a lower court decision which held unconstitutional
Civil Code Article 900(4), which provides that an illegitimate child's allocated portion
of inheritance shall be one-half of the portion of the legitimate child. (Tokyo High
Court Decision of November 30, 1994, 1512 Hanji 3). The Court stated that the
purpose of the provision was to balance the need to respect legal marriage while
protecting the needs of the illegitimate child. Allocating one-half of the legitimate
childs portion to the illegitimate children was a reasonable means of achieving this
goal.
Supreme
Court Third Petty Bench Decision of December 5, 1995, 1563 Hanji 81. The
Court dismissed claims for damages stemming from the unconstitutionality of Civil Code
Article 733. The claims asserted Article 733 violates Article 14 of the Constitution
insofar as it requires a six-month waiting period between a woman's divorce and remarriage
with no similar requirement imposed upon men. The Court dismissed the plaintiff's appeal
based on interpretation of Article 1 of the State Redress Law, without any discussion of
whether the provision amounted to an invasion of the right of equal treatment, stating
that the contested provision was designed to prevent disputes regarding paternity. The
provision simply did not comprise an "illegal legislative act" actionable under
the State Redress Law.
Supreme Court First Petty Bench Decision of January 21, 1999,
1675 Hanji 48, 1002 Hanta 94. The Court dismissed the appeals of an
unmarried couple and their child who sought to challenge the legality of a municipality's
recording the child in the family register of the child's father simply as
"child," rather than as "eldest daughter" or "eldest son" as
was required for children of married parents under the registration guidelines then in
effect. The plaintiffs asserted the difference in the nature of registration between
children of married and unmarried children violated the guarantee of equal treatment under
Article 14 of the Constitution, sought to revise the registration and sought damages
stemming from the allegedly negligent action of the municipality. The lower court (Tokyo
High Court Decision of March 22, 1995) had dismissed the plaintiffs' claims in light
of a revision to the guidelines for registration which stipulated that acknowledged
children of unmarried couples as well as children of married couples would be entered into
the citizen's register as "child" and the subject registration was amended
accordingly. Although the lower court had questioned the legality of the municipality's
action in light of the discrimination likely to be suffered by the plaintiff child as a
result of the difference in the nature of registration of children of married and
unmarried parents, it dismissed the plaintiffs' damage claims reasoning that the
municipality could not be said to be at fault in its interpretation of the then applicable
guidelines for registration. While similarly dismissing the plaintiffs' appeals, the Court
found that the method of registration of citizens is an administrative function without
legal effect and therefore does not give rise to an individual right of action.
Tokyo High Court Decision of September 16, 1997 (Unpublished).
The court affirmed a lower court ruling allowing a homosexual group access to
publicly-maintained meeting facility. The homosexual group had sought to
reserve the Tokyo District Fuchu City Youth House for two days and one night. The
reservation was initially refused by the director of the facility, and ultimately, the use
of the facility by the group was denied by the Tokyo Education Committee as inconsistent
with the facilitys rule that men and women sleep in separate rooms. While
acknowledging that the Tokyo Education Committee was entitled consider compliance with the
rule regarding the separate sleeping arrangements in determining whether or not to permit
the group's use of the facility, the court nonetheless found the committees failure
to pursue less restrictive means of balancing its concerns with the groups right to
access to public facilities amounted to prejudicial treatment under Article 14(1) of the
Constitution.
Tokyo
District Court Decision of March 23, 1995, 1531 Hanji 53, 874 Hanta
298. The Court, through indirect application of Article 14 of the Constitution, ruled a
provision which limited ownership of golf memberships to Japanese nationals comprised
tortious conduct with respect to a Korean national living in Japan.
Tokyo
High Court Decision of November 26, 1997, 960 Hanta 79. The court
affirmed a lower court determination (Tokyo District Court Decision of May 16, 1996)
regarding the refusal of the Tokyo civil service municipal government to allow the
plaintiff, a Korean permanent resident, to sit for a management selection
examination. The plaintiff had joined the Tokyo municipal government as a public
assistance nurse in 1986, and 1994 applied for a management position, which in turn
required she pass a civil service management selection examination. However in 1994
as well as in 1995, the defendant municipal government refused to accept her registration
for the examination on the basis that the Local Public Employees Law required that all
candidates be Japanese citizens. The plaintiff sought a declaration of her
qualification to take the examination in 1994 and 1995 as well as damages for mental
anguish stemming from the defendants refusal. Drawing a distinction between those
public employees with direct management functions, those with indirect management
functions for which Japanese citizenship was reasonably required, for which Japanese
citizenship was less important with respect to the third category., as opposed to those
with special technical or academic skills who assist those with governing functions, the
court affirmed the lower courts refusal to acknowledge the plaintiffs
qualification to sit for the examination, suggesting that the position she sought fell in
the first or the second of these categories.
Shizuoka District Court Decision of October 12,
1999, (Unpublished). The Court awarded damages and attorneys fees in the amount
of 1.5 million yen to the plaintiff, a Brazilian journalist with the Portuguese language
broadcast company IPC Television Network Corporation, who alleged that the defendant
owners of a Shizuoka jewelry shop had discriminated against her based on her national
origin. The plaintiff had entered the defendants shop, and upon discovering that she
was Brazilian, the defendant shop owner told her that foreigners were not welcome in the
shop, thrusting a handwritten note scrawled with the words "foreigners not
welcome" in front of her and ordered her out of the shop. The defendants ultimately
called the authorities, indicating they suspected the plaintiff of criminal activity and
of preparing to rob the shop. There being no specific provision in the Japanese Civil Code
for the award of damages for discriminatory acts, the plaintiff alleged that the
defendants actions comprised discrimination in violation of the International
Convention for Elimination of All Forms of Racial Discrimination ("Convention"),
to which Japan is a signatory, and that under Article 2(1)(d) of the Convention, which
requires signatories to "prohibit and bring to an end, by all appropriate means,
including legislation as required by circumstances, racial discrimination by any persons,
group or organization." and Article 6, which requires signatories to "assure to
everyone within their jurisdiction effective protection and remedies, through the
competent national tribunals . . . against any acts of racial discrimination . . . as well
as the right to seek from such tribunals just and adequate reparation or satisfaction for
any damage suffered as a result of such discrimination," an award of damages in a
private action is appropriate. Alternatively, the plaintiff argued that even in the
absence of the Convention, the defendants actions comprised compensible tortious
interference with the plaintiffs rights under Article 709 of the Civil Code. In
finding for the plaintiff, the Court emphasized the supremacy of the Constitution, which
provides in the preamble and elsewhere for international cooperation and the recognition
of individual rights of all people including life liberty, and the pursuit of happiness
without discrimination based on race creed sex social status or family origin. The
guarantees of basic human rights contained in Constitution precluded the necessity of
further legislation to implement the Convention and the Court concurred that the
defendants actions, particularly the unreasonable suspicion of criminal activity
based solely upon the plaintiffs national origin, had violated the plaintiffs
rights and caused compensible nonpecuniary damages to the plaintiffs person, liberty
or reputation under Articles 709 and 710 of the Civil Code. |