Not allowing justice review by Japanese abroad ruled unconstitutional

Jiji Press

13:33 JST, May 26, 2022

TOKYO (Jiji Press) — The Supreme Court on Wednesday ruled a law unconstitutional for not allowing Japanese nationals living abroad to vote on whether justices of the top court are qualified for the job.

The justice review law does not allow expatriates to exercise the right to cast such votes at all, and this amounts to “a violation of the Constitution,” Chief Justice Naoto Otani said as he handed down the ruling at the Grand Bench of the Supreme Court. It was the first such ruling by the top court.

All 15 justices involved in the hearing related to the case supported the view.

The court also ordered the government to pay damages to plaintiffs, recognizing that parliament has failed to take legislative action to correct the situation without due reason for a long period of time.

Internal affairs minister Yasushi Kaneko said in a statement that the government will swiftly consider ways to enable Japanese abroad to cast votes on the review of Supreme Court justices.

Deputy Chief Cabinet Secretary Seiji Kihara told a press conference that the government takes the ruling seriously and that the law needs to be revised, while refraining from mentioning when it will be amended.

Voting on the review of Supreme Court justices takes place alongside an election for the House of Representatives, the lower chamber of parliament.

Natsuo Yamaguchi, head of Komeito, a ruling coalition partner, told reporters that the government needs to consider legislative measures swiftly to prepare for the next lower house election.

It was the 11th case since the end of World War II in which the top court has found a law unconstitutional. The last such ruling was handed down in 2015, over the remarriage ban period under the Civil Code.

The latest ruling was the second to grant state damages due to parliament’s inaction, after the 2005 ruling over the right to vote by Japanese abroad.

Tsukasa Hirano, a Japanese national living in Brazil, and four others launched the lawsuit in 2018 over not being able to vote from abroad on whether to approve Supreme Court justices at the time of the 2017 lower house election. The four other than Hirano have already returned to Japan.

Otani said the right to vote on a Supreme Court justice review is equally guaranteed under the Constitution as the right to vote in elections is. Restricting the use of the right is not allowed in principle, he said.

In the hearing, the government claimed that allowing Japanese abroad to vote on a justice review would be difficult because of the time-consuming process to make ballot papers with the names of justices written in and send these to Japanese embassies abroad.

The Supreme Court rejected the claim, saying, “It cannot be said that there is no room to adopt a different method.”

In 2006, the public offices election law was revised to allow Japanese nationals living abroad to cast votes in national elections for electoral constituencies, in response to a related unconstitutionality ruling by the Supreme Court the previous year.

Despite this, the government neglected taking legislative action that was obviously necessary, Otani said, ordering it to pay ¥5,000 in damages per plaintiff.

The top court also upheld Hirano’s claim that it would be illegal if Japanese abroad are not able to cast votes on the review of justices again next time.

There were about 1,344,000 Japanese living abroad as of October 2021, according to statistics from the Foreign Ministry. About 95,000 were registered on the electoral roll for Japanese living overseas as of September that year, according to internal affairs ministry data.