A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

X1 and X2 v Government <strong>of</strong> Japan (Japan)
morals and paternalism. Even if the purpose was reasonable they argued the waiting
period was unreasonable and did not address the purpose <strong>of</strong> Article 733 for a number
<strong>of</strong> reasons. First, it did not reflect the reality that many couples would have ceased
sexual relations and lived apart for some time prior to an <strong>of</strong>ficial divorce. Further,
since de facto remarriages could not be avoided, the waiting period did not reduce
the possibility that a child <strong>of</strong> a new de facto husband might be born, but still be
presumed to be the child <strong>of</strong> the former husband. Further, the appellants argued that
there were other reliable means <strong>of</strong> determining paternity. These included blood tests
or an alternative law creating a paternity presumption in favour <strong>of</strong> a later husband
but making it subject to challenge by a former husband. The appellants concluded
that if a waiting period was reasonable then 180 days was too long. They claimed
that a period <strong>of</strong> 101 days after the end <strong>of</strong> the marriage should be sufficient to clarify
paternity.
Finally, the appellants argued that the provision, since it applied only to women and
not to men, was discriminatory and in breach <strong>of</strong> Articles 13, 14.1, 15, 16 and 24 <strong>of</strong>
the Constitution, the Preamble, Articles 2, 15 and 16 <strong>of</strong> CEDAW, and Article 23 <strong>of</strong> the
ICCPR. The appellant concluded that the provision represented an illegal exercise <strong>of</strong>
public authority by government <strong>of</strong>ficers and should be abolished or amended.
Decision
The Court dismissed the appeal. It held that the appropriate standard that applies
to discrimination is reasonableness as provided by Article 1 <strong>of</strong> the State Redress
<strong>Law</strong>. Consequently, either the purpose <strong>of</strong> Article 733 <strong>of</strong> the Civil Code must
be unreasonable or if the purpose is reasonable the provisions must provide
unreasonable methods <strong>of</strong> achieving those purposes. For example, if the waiting
period does not prevent confusion in relation to paternity but instead unnecessarily
limits the remarriage <strong>of</strong> women, then the method (i.e. the waiting period) would be
considered unreasonable.
The Court held that neither the purpose <strong>of</strong> the Article nor the restrictions it imposed
were unreasonable. The Court referred to the Constitution and a number <strong>of</strong>
international conventions including CEDAW and the ICCPR. Although the Court
conceded that Article 733 discriminated against women it held it did not breach the
Constitution or international conventions because discrimination was acceptable
where it aimed to protect the welfare <strong>of</strong> newly born children by clarifying paternity.
The Court noted that the purpose <strong>of</strong> the law was not to enforce paternalism, but rather
to avoid confusion in paternity. Further, the Court stated that this waiting period was
necessary because in Japan, married couples may divorce by agreement, without
any required period <strong>of</strong> being apart. Hence, without the legal waiting period, children
could be born without certainty <strong>of</strong> their paternity. In relation to alternative measures
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