Filipinos v. State, 2014-2015

Distinction made by Article 12 not unconstitutional

By William Wetherall

First posted 4 April 2015
Last updated 1 August 2023

Overview Origin • 2012 CNJFC petition • Quality of opinions • Sources, presentation, commentary
Judgment Particulars • Findings • Summary • Relevant laws • Main text • Reasons • Justices
Related article   Filipinos v. State, 2003-2008: Legitimacy distinction is unconstitutional

Overview of Filipinos v. State, 2010-2015

I am arbitrarily assigning the name "Filipinos" to the 15 male and female appellants in this this Supreme Court case. The ruling describes the appellants as having been born to Japanese national fathers and Republic of the Philippines national mothers, and as having acquired the nationality of the Republic of the Philippines. Apparently they were born in the Philippines, and apparently all were all, at the time of the litigation, legitimate offspring. At the time the Supreme Court's ruling they were reported 7-28 years of age, which implies they were 2-23 years old at the time of the original lawsuit.

Children v. State, 2010-2015

Tokyo District Court, 2010-2012

Filed:     21 July 2010
Court:     Tokyo District Court
Case:      Heisei 22 [2010] (Gyo-U) 38, 45-47, 375, 382-402, 404
Litigants: 27 children v. State
Judgment:  23 March 2012
Ruling:    Article 12 does not violate Constitution
           Recognized 1 case (plaintiff lived in Japan)
           Dismissed 26 cases (plaintiffs lived in the Philippies)

The case originated in 2010 in the Tokyo District Court as a request for confirmation of nationality on the grounds that Article 12 of the Nationality Law violated Article 13 and Paragraph 1 of Article 14 of the Constitution. The court ruled on 23 March 2012 against the plaintiffs and in favor of the State, namely, that Article 12 of the Nationality Law did not contrevene the Constitution (判例時報 Hanrei jihō No. 2173 page 28, 判例タイムズ Hanrei taimuzu No. 1404 page 106).

Among the 27 plaintiffs, 1 was found to qualify for acquisition of Japanese nationality because the person's parents had taken recognizeable steps to reserve the person's nationality.

Tokyo High Court, 2012-2013

Court:     Tokyo High Court
Case:      Heisei 24 [2012] (Gyo-Ko) 177
Litigants: Children v State (Children appeal)
Judgment:  22 January 2013 [Heisei 25-01-22]
Ruling:    Dismissed; Article 12 does not violate Constitution

The Tokyo District Court plaintiffs appealed to the Tokyo High Court, which on 22 January 2013 similiary ruled against the appellants (Hanrei taimuzu No. 1404 page 122).

Supreme Court, 2013-2015

Court:     Supreme Court, Third Petit Bench
Case:      Heisei 25 [2013] (Gyo-Tsu) 230
Litigants: Children v. State (Children appeal)
Judgment:  10 March 2015 [Heisei 27-03-10]
Ruling:    Dismissed; Article 12 does not violate Constitution

The Tokyo High Court appellants took their contention that Article 12 of the Nationality Law violated Paragraph 1 of Article 14 of the Consitution to the Supreme Court, and on 10 March 2015 the Third Petty Bench of the court also ruled that the article was not unconstitutional.

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Origin of case

Nationality through birth is "birthright" nationality if its acquisition results from the automatic operation of the law rather than from permission. A child is considered to be of a certain nationality by virtue of being born under circumstances which qualify it for the nationality -- being born in the country (jus soli), or having a mother and/or father who is a national of the country (jus sanguinis). However, all states have formalities for actualizing the acquisition of their "birthright" nationality -- such as presenting a valid birth certificate (United States), or filing a notification of birth (which includes a valid birth certificate) followed by municipal household registration (Japan).

In Japan, failure to notify the birth of a child who stands to qualify for recognition as Japanese results in the child's birthright nationality not being unconfirmed, hence for practical purposes the child is not Japanese. Even if the child retains a residual right to Japanese nationality, the nationality is not recognized until the child has a household register in a municipality of Japan.

Children born overseas, who stand to become Japanese nationals through birth, also have to be registered for their nationality to be confirmed. Japan's Nationality Law requires that such children who acquire a foreign nationality through birth in a foreign country declare a desire to reserve their presumtive Japanese nationality at the time their births are registered, and the registration and declartion must be done in a timely manner. Failure to do so will result in loss of their presumptive birthright Japanese nationality retroactive to their date of birth.

The 1899 Nationality Law had no no provisions for renunciation and no provisions for nationality reservation if born overseas. Provisions for renunciation were in introduced in 1916 in response to pressure from the United States to allow dual national Japanese in America to singularize their status. The nationality reservation system was introduced in 1924 in response to pressure, again from mainly the United States, to eliminate or minimize the occurence of dual nationality among children born to Japanese immigrant parents.

Article 20-2 in the 1924 revision to the 1899 Nationality Law provided that, if a child who qualified for birthright Japanese nationality was born in a designated right-of-soil country, consisting of the United States and a number of other American hemisphere states, its parents had to declare a desire to reserve the child's Japanese nationality within a period of time stipulated in the Family Registration Law or the child will lose its birthright nationality retroactive to its date of birth.

Article 9 of the 1950 Nationality Law generalized the provisions of Article 20-2 in the older law to require an expression of desire to reserve Japanese nationality on the part of all overseas-born Japanese children who aquire a foreign nationality through birth. Article 9 became Article 12 in the 1984 revisions to the 1950 law that came into effect from 1985. The Supreme Court's 2015 decision confirmed the state's contention that Article 12 did not violate Article 14 in Japan's Constitution.

Article 12 provides that a child born anywhere outside Japan, who presumably qualifies for birthright Japanese nationality, and who acquires a foreign nationality through birth, will lose its presumptive Japanese nationality retroactive the date of its birth if its parents fail to complete formalities in a timely manner. There are no provisions for such statutory loss of Japanese nationality for children born in Japan who acquire a foreign nationality through birth in addition to Japanese nationality.

The formalities consist of filing a notification of birth which includes a declaration of desire to reserve Japanese nationality. Today the notification must be made within 3 months of the child's birth.

Nationality not truly "automatic"

When considering the realities of nationality acquisition, one must bear in mind that Japanese nationality -- indeed no nationality -- is never truly "automatically" acquired. A child is only presumed to be Japanese through automatic application of the law if the circumstances of the child's birth warrant its acquisition of Japanese nationality through birth, whether as a matter of right-of-blood (jus sanguinis) or right-of-soil (jus soli). The former is based on lineal descent from a Japanese parent, meaning anyone who possesses Japan's nationality. The latter is based on birth in Japan.

Since 1985, Japan's Nationality Law has been primarily ambilineal. Until 1985 it was primarily patrilineal and secondarily matrilineal. Since 1899 it has been place-of-birth for children born in Japan to stateless or unknown parents.

The Nationality Law can only operate if officials are aware of a child's birth and the circumstances of its birth. It operates through the Family Registration Law, which requires that births be notificed and their circumstances vetted within a specified period of time after birth.

For trouble-free "automatic operation" of the Nationality Law, a birth must be registered within 14 days if a child is born in Japan, and within 3 months if born abroad. Municipal registrars, and consulate officials, may recognize natural disasters and other reasonable grounds for delay. Late registrations may be referred to a family court for a ruling on whether to permit late registration. Evidence of intent and action are everything. Ignorance of the law is generally not an acceptable excuse.

Purpose of registration

One would think that such short periods of time -- which are constraints of the Family Register Law, not the National Law -- are themselves unreasonable. Why limit the time to notify a birth? What's the rush?

If born in Japan, whether one stands to be recognized as a Japanese or alien, one does not legally exist with registration. And registration begins with filing a notification of birth. If the circumstancs of birth do not warrant acquisition of Japanese nationality, then the child is an alien -- whether of another country, or of no country. If Japanese, then one is entered in a family register -- of one's Japanese parent or parents, or in one's own register born in Japan to stateless or unknown parents. If one is alien, then one acquires a status of residence and is duly registered as an alien.

In Japan, registration is just a matter of going to a local municipal office. In most areas of Japan this will involve only a few minutes by foot, bicycle, bus, or car. In some rural areas it may involve traveling from one to several hours. Filing notifications at consulates overseas can be true ordeal requiring serious travel time and expense -- hence the extension of the period of time in 1985 from 14 days to 3 months.

The 14-day rule has been in effect since early in the Meiji period. The time limit for overseas registration was also 14 days until 1985, when it was extended to 3 months. Again, these are provisions in the Family Registration Law. The Nationality Law does not itself limit the period of time in which someone who stands to acquire Japanese nationality is able to confirm its acquisition.

For children born in Japan, Japanese and aliens alike, there are social and medical benefits in registration. Benefits provided by local governments in Japan are not available overseas.

The object of overseas registration is mainly to confirm the birth of a child who qualifies for Japanese nationality for the purpose of (1) establishing the foreign (Japanese) nationality of the child if born in a country with a primarily right-of-blood nationality law, and (2) establishing, regardless of whether the child acquires the country's nationality through birth, the child's Japanese nationality so the child will be able to obtain a Japanese passport at which time the child is brought to Japan or, when older, wishes to come to Japan on one's own accord.

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2012 Citizens Network for Japanese-Filipino Children (CNJFC) petition

The lawsuits in Filipinos v. State 2010-2015 were organized by Citizens Network for Japanese-Filipino Children (CNJFC), in Tokyo, and litgated by a group of supportive attorneys.

After the ruling handed down by the Tokyo District Court, CNJFC circulated a petition to attach to the appeal it planned to file in the Tokyo High Court. The petition read as follows (pdf file, CNJFC's homepage). The single [bracketed "sic" remark], and the highlighting and boxed comments, are mine.

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Relevant laws

The relevant laws in what I am calling Filipinos v. State 2010-2015 are as follows. The translation of the Constitution is the official translation. The translation of the Nationality Law is the Ministry of Justice translation. The translation of the Family Register Law is my own structural translation.

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Quality of opinion

I do not especially like the Supreme Court's 10 March 2015 decision in what I am calling Filipinos v. State 2010-2015.

I have always thought the fuss about dual nationality to be exaggerated, since it is easy enough to legally ensure that dual nationals don't abuse their statuses. I have also always felt that the rules for nationality acquisition should favor the needs of children born into families of parents of different nationalities to be able to possess the nationalities of both of their parents, at least until they are well into their 20s if not permanently.

At the same time, I understand the decision from the point of view of the history of the Nationality Law, which carries the momentum of yesteryear's concerns about dual nationality in the case of children born outside Japan, imposed first by the United States in 1916, and again in 1924. The 1899 Nationality Law was revised in 1916 to permit Japanese dual nationals to renounce their Japanese nationality. Article 20-2 in the 1924 revision required that the parents of Japanese born overseas in designated American hemisphere countries, beginning with the United States, express an intent that their child retain the nationality of Japan or lose it retroactive to the time of its birth.

Article 20-2 in the 1924 revision of the 1899 Nationality Law was generalized in Article 9 of the 1950 Nationality Law to require an expression of desire to retain or reserve Japanese nationality on the part of all overseas-born Japanese children who aquire a foreign nationality through birth. Article 9 became Article 12 in revisions to the 1950 law that came into effect from 1985. The Supreme Court's 2015 decision confirmed the state's contention that Article 12 did not violate Article 14 in Japan's Constitution.

The practice of law everywhere is essentially conservative in that lawyers and judges are trained to interpret and work with the laws as law makers have made them, mindful of the legacies of intent and interpretation that come with existing laws.

Upholding national laws as constitutional, or avoiding constitutional judgments, is expected of Japanese courts. Rulings of unconstitutionality are rare and hence surprising.

Courts in Japan prefer to avoid judgments that fault laws passed by the Diet, which are mostly the work of legal bureaucrats who are themselves trained to be legally conservative -- i.e., respectful of the status quo and its claims to rationality. Those who would change the status quo, whether a law maker who wants to revise a standing law, or an attorney who might argue in court that a standing law is unconstitutional, have to convince other law makers, and judges, that the present law is irrational. And they have tp argue in legal, not moral, terms.

To be continued.

The problem is, though, that children born in right-of-soil states would have a nationality, even if they lost Japanese nationality, whereas those born in right-of-blood states would become stateless if they lost Japanese nationality.

The only way to avoid this dilemna -- and treat both kinds of children equally -- is to give up the concern about the possibly higher incidence of dual nationality among children born overseas in right-of-soil states.

To be continued.

The opinion is legally expected. A child born outside Japan to a Japanese parent or parents residing overseas are presumed to be domiciled overseas unless the child's parent(s), as the child's legal guardian(s) and representative(s), indicate -- by making a timely notification to a competent Japanese government legation overseas, usually a Japanese consulate, the volition (will, wish) of the child to reserve their birthright Japanese nationality.

Such a declaration can be made only after the parent's or parents' claim that the child is a Japanese national is confirmed by vetting the circumstances of birth as recorded on a birth notification, which includes a birth certificate and particulars on the child's biological parents, including their civil status (residence or domicile and nationality). Hence Article 12 requires that the notification of desire to reserve nationality be made together with the birth notification.

Failure to register a child's birth at a competent Japanese office is viewed as tantamount to abandoning the birthright Japanese nationality of a child who, if the child's birth were registered, would be found to qualify for birthright nationality.

Children born overseas in right-of-blood states to parents who are not nationals of the state, who fail to acquire the nationality of either of their parents, stands to be stateless. Children born in Japan to parents who fail to register the child's birth do not legally exist in the eyes of Japanese law, and are thus in a legal twilight zone in which they cannot even be said to be stateless. The question of their nationality can arise and be resolved only at which time their existence is known, which requires a notification of birth.

Children born outside Japan in a right-of-soil state generally become nationals of that state, and Japan's Nationality Law presumes that their parents have a greater responsibility to clarify their intentions regarding their child's presumptive right to Japanese nationality. It is a "presumptive right" because it is only presumed to exist pending notification of birth and vetting of the circumstances of birth.

The entire history of the provision of reservation of nationality is itself irrational from the viewpoint that dual nationality shouldn't matter. But once given the historical and continuing reluctance to positively embrace dual nationality, practically all states are motivated to minimize its occurrence. And this is the intent of the provisions in Japan's Nationality Law and the Family Registration Law.

The Supreme Court is generally comfortable with decisions that are argued from a strictly legal -- not moral or ethical -- point of view. The justices will say if you press them -- and some say in their judgments -- that its up to the Diet, as the legislative power in Japan, to decide whether -- among those who stand to become multiple nationals, whether born in Japan or abroad, should be treated differently on account of their presumed residence at the time of their birth. If the Japanese parent or parent plans to return to Japan, or otherwise wants the child to have the same nationality-accorded right-of-abode in Japan, then let them make their intentions known in a timely matter.

The practical problem, of course, is that the requirement for filing a notification of birth overseas applies to all children born overseas to a Japanese parent or parents. And I have seen no evidence that the Japanese parents of children born in right-of-blood foreign states are more knowledgeable about the law or less attendant to bureaucratic requirements than the Japanese parents of children born in right-of-soil foreign states.

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Sources, presentation, and commentary

Received Japanese text of ruling

The Japanese text was extracted from a pdf file downloaded from the database accessible through the Japanese government's 裁判所 Courts in Japan website. Most case particulars and a summary were retrieved by a query using minimum case particulars. These particulars and the summary are also shown.

Structural English translation

The structural translations of highlighted parts of the received ruling are mine.

Formatting, markup, and commentary

I have divided the judgment into sections, and have somewhat reformatted the received texts and highlighted some words and phrases to facilitate analysis and commentary.

All underscoring and all (parentheses) in the received text are as received.

All remarks in [square brackets] and <angle brackets>, and all highlighting and boxed comments, are are mine.

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Judgment

The Supreme Court's judgment in Filipinos v. State 2010-2015 runs only 4 pages in the received pdf file from which I extracted the following Japanese text.

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裁判長裁判官
          大谷剛彦
  裁判官  岡部喜代子
  裁判官  大橋正春
  裁判官  木内道祥
  裁判官  山崎敏充

Presiding Judge Justice ŌTANI Takehiko
                Justice OKABE Kiyoko
                Justice ŌHASHI Masaharu
                Justice KIUCHI Michiyoshi 
                Justice YAMASAKI Toshimitsu

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