The voting rights of Japanese citizens living abroad

With the globalization of the world's economy, there are many Japanese now living abroad. It is estimated that almost 960,000 Japanese live outside the country, and 720,000 among them are eligible to vote in Japanese elections. For these overseas voters, no system of voting existed until May 6, 1998, when an amendment to the Public Offices Election Act was promulgated in order to allow them, for the first time, limited rights to vote in the national election. On September 14, 2005, the Japanese Supreme Court held that it was unconstitutional to use nonresidence as a limitation on the voting rights of those Japanese living abroad.1 This ruling is significant. It is one of the few occasions on which the Supreme Court has found legislation to be unconstitutional; it is a surprising decision, as well, given that the Supreme Court had adopted a particularly deferential stance toward the legislature regarding the election system. The Japanese Constitution of 1946, based on the principle of popular sovereignty, established a parliamentary democracy in Japan. The Diet, the national legislature, comprises two houses; the House of Representatives and the House of Councillors. The Constitution stipulates that “[b]oth Houses shall consist of elected members, representative of all the people.”2 It also guarantees that “[t]he people have the inalienable right to choose their public officials and to dismiss them,”3 and that “[u]niversal adult suffrage is guaranteed with regard to the election of public officials.”4 Moreover, the Constitution protects equality rights by providing that “[a]ll of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin.”5 With respect to elections, the Constitution, while relegating to the Diet the decision regarding the qualifications of members of both houses and of their electors, provides that “there shall be no discrimination because of race, creed, sex, social status, family origin, education, property, or income.”6 So, under the Constitution, all Japanese adult citizens are guaranteed the right to vote in elections. According to the Public Offices Election Act, however, only persons registered as eligible voters on the Election Registration List could vote.7 Registration on that list was limited to Japanese over the age of twenty, who lived in the registering municipality and had been listed as residents on a Resident Registration List for more than three months.8 Those citizens who chose to reside abroad could not be registered on the Resident Registration List and were thus ineligible to vote.9 The absence of voting opportunities for Japanese living abroad was challenged as unreasonably discriminatory, violating protected equality rights, and unduly restrictive of their constitutionally guaranteed right to vote.10 In response to these criticisms, the Diet passed an amendment to the Public Offices Election Act in 1998, creating the Overseas Voters Registration List and enabling those who were on this list to vote in an election. However, this participation is limited to elections based on proportional representation in the House of Representatives and the House of Councillors “for a time being” (appendix clause 8) and, therefore, is not extended to the elections of representatives and councillors in individual districts.11 Some fifty Japanese overseas voters filed a suit, primarily seeking a declaration that the Public Offices Election Act was unconstitutional prior to the 1998 amendment and remained so even after the amendment. Second, the plaintiffs sought a declaration that they had the right to vote in elections in their respective election districts for both houses of the Diet. They also sought a damage award of 50,000 yen for each plaintiff who had been prevented from participating in the House of Representatives election on October 20, 1996, because of the Diet's failure to amend the Public Offices Election Act in time to allow the eligible plaintiffs to vote.12 On October 28, 1999, the Tokyo District Court rejected all the plaintiffs' claims.13 With respect to the claim for damages, the District Court relied on the Supreme Court decision in the Handicapped Persons' Voting Right case,14 which limited damage actions against the legislature to cases where the Diet, by legislation or by omission, intentionally contravened the unequivocal language of the Constitution. The District Court held that the Constitution relegated specific decisions concerning the electoral system to the broad discretion of the Diet, and that the Constitution did not unequivocally mandate the Diet to secure a voting opportunity for Japanese living abroad with respect to elections in their home districts. The District Court found that the Diet, in passing the 1998 amendment, had limited the eligibility of voters living abroad to elections for seats based on proportional representation due to the concern that, with respect to voting in the election districts, it might be difficult to supply sufficient information on candidates in the election districts to voters overseas. The District Court found that this consideration was sufficient justification for the limitation imposed by the Diet. With regard to the declarations sought by the plaintiffs, the District Court held that these claims were not justiciable since they were not concerned with issues arising from a dispute concerning specific rights and obligations or from legal relationships between parties—that is to say, they did not arise from the application of the statute in a specific context. Even if the claims were justiciable, the District Court concluded, they must be rejected since they were, in reality, claims that the Diet had illegally failed to amend the law and, as already stated, such claims should not be allowed unless that failure contravened an unequivocal mandate of the Constitution. The Tokyo District Court held that the Diet's failure did not meet this condition. The Tokyo High Court affirmed the District Court's decision on November 8, 2000,15 fully supporting the reasoning of the Tokyo District Court. Thirteen of the plaintiffs appealed to the Supreme Court. The Supreme Court affirmed the High Court judgment regarding the plaintiffs' primary request for declarations that the Public Offices Election Act was unconstitutional prior to and after its 1998 amendment; however, it reversed the High Court judgment with respect to the secondary request for a favorable declaration as to the plaintiffs' right to vote in district elections, and it awarded damages of 5,000 yen to each plaintiff. The Supreme Court first delineated its basic understanding of the significance of the right to vote. Because the right to choose the members of the Diet was a fundamental right, constituting the very foundation of parliamentary democracy, it should be extended equally in a democratic nation to all nationals over a certain age. The Supreme Court canvassed the popular sovereignty principle of the Constitution, as well as the provisions that guaranteed the right to vote16 and prohibited discrimination in connection with voting,17 concluding that the Constitution guaranteed the right to participate in politics through voting in elections for members of both houses as an inherent right, and that it guaranteed equal opportunity for voting to all nationals. Based on this understanding, the Supreme Court held that any restriction on the right to vote, or on the manner in which that right was exercised, could only be justified by a compelling reason. The only exception, the Court held, would be the imposition of voting restrictions on those who had, in some way, violated the fairness of an election. To find a compelling reason for such restrictions, it must be shown that it would be virtually impossible or extremely difficult to maintain the fairness of the election without them. The Court held that overseas Japanese citizens were equally guaranteed their right to vote, and that the Diet was obliged to enact all necessary measures to enable them to exercise that right. Only if adopting such measures proved incompatible with securing the fairness of the election would the Diet be justified in not adopting them. The Supreme Court found that the challenged restriction was due to the purported practical difficulties of securing facilities and personnel to enable Japanese living abroad to participate in the election. The cabinet had submitted a bill to amend the Public Offices Election Act in 1984 to secure such a voting opportunity for nationals living abroad, but the bill died after little serious discussion. For more than a decade, the Diet had failed to act, until the October 20, 1996, election. The Supreme Court found that such a failure could not be justified since the cabinet itself had acknowledged, in submitting the 1984 bill, that all the practical difficulties of granting access to the election system to nationals living abroad could be overcome. The Supreme Court, therefore, concluded that the absence in the Public Offices Election Act, prior to the 1998 amendment, of any provision for overseas voters to participate in elections was unconstitutional. With respect to the constitutionality of the act after the 1998 amendment, the Court found that it was not altogether unreasonable to restrict the participation of overseas voters in district elections, given the difficulty of supplying sufficient information, in advance of the vote, regarding each candidate running for office in each election district. However, it held that such obstacles could not justify the restrictions, in light of the rapid advance of information technology globally. The Supreme Court also took notice of the fact that the Public Offices Election Act had been amended in 2000 to alter the proportional representation system for members of the House of Councillors to allow voters to write in either the party's name or the individual candidate's name on the party-prepared list. Accordingly, the Supreme Court held that, in subsequent elections for the House of Representatives or House of Councillors, the act's exclusion of voters living abroad would violate the Constitution. Turning to the question of remedies, the Court found with respect to the primary request for a declaration that the Public Offices Election Act was unconstitutional prior to 1988, that the plaintiffs did not have sufficient legal interest for such a declaration, since the claim was concerned with past legal relations. There was no need for such a declaration in order to solve the present legal disputes. With respect to a declaration that the act remained unconstitutional even after 1998 amendment, the Supreme Court found the plaintiffs lacked the requisite legal interests, since alternative legal redress was available; the Court held that a declaration that the plaintiffs were eligible to vote in election district ballots—the subject of their secondary claim—was available and more adequate. The Court then construed the plaintiffs' secondary claim as a request, in light of the unconstitutional infringement of their right to vote, for a declaration that they were eligible to vote in subsequent district elections. The Court found that this suit was legally adequate; once the right to vote had been infringed, there could be no effective redress against that infringement. In light of the significance of the right to vote, the Court held that it should affirm the plaintiffs' legal interest in seeking a declaration in advance. The Court also found that this suit was justiciable. The Court then concluded that the act's limitation on the plaintiffs' participation in district elections was unconstitutional and that the plaintiffs should be admitted as legally qualified to vote in district elections. The Supreme Court also ordered a damage award. In Japan, the Government Liability Act provides for a certain level of governmental liability when public officials, exercising governmental power, violate their official duties and harm the public. It is settled that members of the Diet are also public officials, and that the public can seek damages against harmful legislative acts of the Diet. In order to justify the damage awards, the conduct of the legislators must be “illegal.” A finding that legislation passed by the Diet is unconstitutional does not necessarily lead to a conclusion that its members acted illegally. However, the Supreme Court said that when it is apparent that the content of legislation, or the failure to enact adequate legislation, illegally infringes on rights protected by the Constitution, or when the Diet unjustifiably fails for a long period of time to adopt necessary measures to secure a constitutional right, then the conduct of the Diet members will be regarded as illegal under the Governmental Liability Act. The Supreme Court held that the decision in the Handicapped Persons' Voting Right case, discussed above,18 conformed to this principle. In this case, it was essential for the Diet to enact adequate measures to enable the plaintiffs to exercise their constitutionally guaranteed right to vote; however, the Diet had failed to do so for more than a decade before the 1996 election. The Supreme Court held that the plaintiffs experienced emotional suffering and ordered a damage award of 5,000 yen for each plaintiff, taking into account that their grievances would be ameliorated by the declaration of unconstitutionality by the Supreme Court. Justices Kazuko Yokoo and Houzou Ueda dissented. While they agreed with the majority as to the standard of review, they found that allowing overseas voters to participate only in the proportional representation elections was based on a reasonable concern. They agreed with the majority as to the inappropriateness of the plaintiffs' primary claims. They also agreed with the majority with respect to the appropriateness of the plaintiffs' secondary claim, although they insisted that this claim should be rejected because the limitation was constitutional. For similar reasons, they also rejected the damage claim. Justice Tokuji Izumi also dissented with respect to the damage award. He believed that the emotional suffering allegedly suffered by the plaintiffs could not be compensated by money, and that the plaintiffs had achieved redress by virtue of the declaration that the limitation on their eligibility to vote was unconstitutional. The Japanese Constitution guarantees the citizens of Japan “the inalienable right to choose their public officials.”19 Moreover, it guarantees an equality right20 and prohibits discrimination with respect to voting.21 However, the Constitution does not spell out a specific mechanism for holding elections. It says that the qualifications for members of both houses and their electors shall be fixed by law.22 Likewise, “[e]lectoral districts, method of voting and other matters pertaining to the method of election of members of both Houses shall be fixed by law.”23 As a result, the Supreme Court has construed the Constitution as vesting broad discretion in the Diet as to the method of conducting elections. For instance, the Supreme Court held that the Constitution does not mandate any specific method of election, and the Diet has discretion to enact laws providing for proportional representation or single-member districts, or a combination of both.24 The Supreme Court held it was reasonable to bar violators of the Public Offices Election Act from exercising the right to vote,25 rejecting the challenge of a person convicted of violating the act who claimed that the consequent deprivation of his voting right under section 252 was unconstitutional. The Supreme Court rejected his claim in a short opinion, insisting that it was appropriate to exclude, for a certain period, those who violated election law and harmed the fairness of an election. The Handicapped Persons' Voting Right case26 concerned a suit filed by a physically disabled person who, due to his handicap, could not go to the polling place as mandated by the Public Offices Election Act. For such persons, there had been a system that enabled them to vote at home but, because of abuses, this system had been abolished. As a result, the plaintiff could not participate in the election, and he sought a damage award on that basis. At issue was whether the Diet had unconstitutionally infringed the right to participate in elections by abolishing the home-voting system and by failing to provide a substitute. The Supreme Court found that the Diet's actions did not meet the test of having intentionally contravened the unequivocal language of the Constitution, and so it rejected the damage award, because the Constitution did not unequivocally mandate the enactment of a home-voting system. The Court also took a highly deferential attitude in several malapportionment cases. In Japan, the electoral system for members of the House of Representatives used to be a multimember election district system with each voter having only one vote. Although the Public Offices Election Act distributed seats corresponding to the population in each district, subsequent economic development and urbanization among districts. The Supreme Court that the equality rights protected by the Constitution that each vote be of equal thus equal of seats among districts. At the time, the Supreme Court held that the malapportionment should be held unconstitutional only when the among the districts a level where it could not be said to be reasonable in light of the Diet could into The Supreme Court held that a that to to between and districts was unconstitutional; it held the of to to be in a subsequent the Court that a of to while was not unconstitutional since the Diet should be allowed to the issue a reasonable period of It held that the of to was not The Supreme Court does not that population is the in and it the Diet to other the of election district, population of and of thus the of to a practical outside on the discretion of the Diet. This that one vote in an district is three more in a representative to the Diet, than that of a voter in an In with the prior the Supreme Court in the September 14, 2005, decision took a stance against restrictions on the right to vote. In the absence of a compelling the Supreme Court held, such a restriction should not be This is a standard of Moreover, the Supreme Court mandated that the Diet adopt measures were necessary to enable voters to participate in elections and held that the failure of the Diet to adopt such measures was an unconstitutional infringement of the right to vote. This judgment is the fact that the Japanese Supreme Court had held legislation passed by the Diet unconstitutional on only occasions in its almost The of has been a of the Supreme This also the first time that the Supreme Court has legislation in a individual On the other the be as since it to a This the stance of the Supreme Court. many other allow the Court's ruling has for on the Diet's discretion in an electoral system. participation in elections is a foundation of a parliamentary democracy, it is that the Supreme Court will subject other restrictions on the right to vote, such as a deprivation of right to vote, to and the of such restrictions more the Supreme Court its to in a damage suit filed by a voter who is by virtue of a to go to a voting place on election As there used to be a system where physically voters could their at This system was in and the Supreme Court the constitutionality of its In the Public Offices Election Act was and certain physically voters were allowed to their from home through the no such voting by has been allowed for In this case, the Supreme Court the judgment of September 14, 2005, in the overseas voters however, it that it is difficult to whether a voter is to go to a voting and that this issue has been in the Diet to the Diet prior to this It thus concluded that the Court could not that it is essential for the to adopt legislative measures allowing voters to their the in order to the right to vote and that, the Diet had failed to adopt such measures for a long time without adequate reason. The Supreme Court thus held that the failure of the Diet to adopt such measures was not illegal under the Government Liability Act. The Supreme Court ruling in this is in the plaintiffs' request for a declaration that they are eligible to vote in election districts. In Japan, even the Supreme Court has the of the Court can exercise this only when it has been as a to on a specific dispute between two regarding their legal or on of their legal rights and by This that the can exercise only when there is a or that the of As a result, there must be at issue a or a that will the constitutional before the Supreme Court can judgment on the constitutionality of a of However, the Act does not provide for a suit seeking a declaration of unconstitutionality of a and the Act, which provides a for has been to allow citizens to only against the application of a statute by In the therefore, a suit in of a declaration of unconstitutionality regarding some of legislation has been for failure to meet the According to the Supreme Court, the plaintiffs must be a specific application by the of some legislation in order to the constitutional In this the two decisions in this to the On the other for the first time, the Supreme Court has that a suit seeking a declaration that a limitation on the plaintiffs' voting right was unconstitutional did the The holding thus the for seeking declarations that legislative restrictions on individual rights are unconstitutional. the Supreme Court decision is also in Even it was settled that the public could seek damage against the legislature, the Handicapped Persons' Voting Right serious on the of such an award. According to that it was only when the Diet legislation or intentionally failed to necessary legislation in light of the unequivocal language of the Constitution that damage could be believed that it was virtually impossible to this and that the of damage against the legislators were extremely In this case, however, the Supreme Court the Handicapped Persons' Voting Right as allowing damage when it was apparent that the content of legislation, or the failure to enact legislation, illegally infringed on constitutional rights, or that the Diet had failed without adequate for a long period of time to adopt measures that were essential to secure the exercise of such The Court held that, because the plaintiffs are constitutionally guaranteed the right to vote, it was essential for the Diet to enact adequate measures to enable them to do The Diet's failure to enact such measures for more than a decade before the 1996 election to the of damages by the Court. This holding the for damage actions against the legislature in the The cabinet to the limitation on overseas participation in district elections and submitted an amendment bill to the House of Representatives on The bill was passed on Japanese citizens living abroad will be to participate in the elections in the districts where they before the The amendment is also to the of even the for registering and voting and the Supreme Court's decision will be a toward securing the opportunity for those Japanese living abroad to participate in elections, although a more is to their

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