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Home > Media Reviews > News Review Last Updated: 14:54 03/09/2007
News Review #311: September 15, 2005

Supreme Court Rules That Expats' Right to Vote Violated

Reviewed by Hitoshi URABE

Supreme Court Rules That Expats' Right to Vote Violated
The Japan Times


This news is one of those interesting cases where every legitimate news media in Japan posts the story at the very top - the first news in radios and TVs, and the headline news in literally all major newspapers - but virtually no sign of the story being conveyed, reported, or responded to, from any foreign media.

The big news was that the Supreme Court ruled legal provisions limiting the voting rights of Japanese living overseas while national elections are held violate the Constitution.

Until 1998, there was simply no way for Japanese living abroad to express their wills in elections held back home. The Public Offices Election Law was revised in 1998 to allow for the expatriates to vote, but only in the proportional representation section of the Upper and Lower House elections.

Several individuals, who have and are presently are living abroad sued the government for failure to take necessary (lawmaking) actions to provide facilities for Japanese citizens abroad to vote, considered to be one of the most fundamental rights of the people stipulated in the Constitution.

The Supreme Court judged that there was delinquency in the part of the government, and the situation needs to be remedied before the next national election.

The ruling may just seem to be a reflection of very orthodox and common sense - perhaps this being one reason why (foreign) reporters were apparently not excited at all. But it is a significant leap from the style maintained by the Supreme Court of Japan until now.

In line with most of (truly) democratic countries in the world, Japan also has the governing system based upon the notion of the separation of such power into three, legislative, executive, and judicial. All judicial power is vested in the Supreme Court and inferior courts, and the courts are the final adjudicators of all legal disputes, including those between citizens and the state arising out of administrative actions.

The judicial power is understood to include the powers to rule any law, passed by the Diet, as whether it is in accord with the Constitution. But as to how the power is to be exercised, the Court has taken a very cautious position. In other words, according to the expressions used by some scholars and legal professionals, the Court has tended to "dodge" decisions on "constitutionality" of the laws, and made necessary rulings based upon other factors than whether the relative laws are constitutional or not. In fact, this is (only) the seventh under the current constitution - during nearly 60 years of operation - in which "unconstitutional" ruling was made by the court.

But there is even more significance to the ruling this time. All the previous "unconstitutional" rulings were made on certain provisions or articles in certain laws which caused specific damages to certain citizens, and in the way of recovering the damages, the limited sections of the laws that lead to the damages were ruled unconstitutional. It is significant therefore, that this is the first time ever for the Court to decide the "failure to legislate in order to realize the rights stipulated in the Constitution" by the government as being against the Constitution.

Pundits versed in legal affairs see - and most of them seem to welcome - this as the Supreme Court's intention to be involved more actively in the affairs of the real world.

It could in fact be the beginning of a new era in Japan's governance system, by the judiciary taking up a more effectual role than the very passive and reactive stance they had themselves restrained to take. Of course, things are not going to change in a short while. The judiciary - in any country - has a built-in mechanism to behave conservatively, designed so as to preserve majesty of law in the way of maintaining stability of the society. But there is a good possibility that after a decade or two, people might look back this decision as the moment the judicial branch began to participate actively in establishing new Japan.

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