Article 1 of the Constitution makes it clear that sovereign power resides with the people, and Article 15 says, “The people have the inalienable right to choose their public officials and to dismiss them.” Thus the right to vote in elections is the most important constitutional right for Japanese citizens.

In this connection, the Supreme Court on Sept. 14 made a long-overdue decision when it found that a provision of the Public Offices Election Law — which prevents qualified Japanese voters living abroad from voting for local candidates in Diet elections — is unconstitutional.

The ruling is confirmation that, beginning with the next Diet election, voters living abroad may cast their ballots for individual candidates in local constituencies as well as for political parties in proportional-representation constituencies. An Upper House election is scheduled to be held in the summer of 2007, so the Diet must revise the Public Offices Election Law as soon as possible.

The 12-2 ruling by the top court’s Grand Bench has been viewed as epoch-making because, until now, the nation’s highest court has tended to avoid taking a clear stance on the constitutionality of an action or inaction by the government or the Diet. The latest ruling marks the seventh time since the inception of the current Constitution that the Grand Bench has deemed something “unconstitutional.” In effect, the ruling severely censures the Diet for not assuring the voting rights of Japanese citizens living abroad. Of the 960,000 Japanese who live overseas, more than 720,000 are expected to become eligible to vote.

Under the Public Offices Election Law, enacted in 1950, otherwise eligible voters living overseas were not allowed to vote in Upper and Lower House elections. Fifty-three Japanese voters living in eight countries decided to challenge this restriction by filing a lawsuit with Tokyo District Court. The plaintiffs, who had not been permitted to vote in the October 1996 Lower House election, claimed that the law was unconstitutional and sought a 5,000 yen solatium for each plaintiff.

In 1998, the law was revised to partially rectify the situation. The revision let eligible voters living abroad vote only in proportional-representation segments of Diet elections. The right was not extended to local constituencies, however, on the grounds that it was too difficult and time-consuming for election officials to send a fair amount of information on each candidate to each voter. The district court and the Tokyo High Court turned down the plaintiffs’ demand in 1999 and 2000, respectively, saying the state could restrict voting rights to operate elections equitably and efficiently. The two courts avoided passing judgment on the law’s constitutionality.

The Supreme Court last week overturned these lower court rulings, saying that restricting the exercise of voting rights cannot be condoned in principle, since the Constitution guarantees electoral equality. The court said the restriction at issue is unconstitutional and that an exception can be made only when it is impossible or extremely difficult for officials to let voters exercise their voting right while ensuring the fairness of an election. It added that the conditions creating such an impossibility or difficulty do not appear to exist.

The top court attached importance to the fact that a revision bill that the government submitted to the Diet in 1984 would have made it possible for eligible voters overseas to vote for individual candidates. That bill died after the Lower House was dissolved in 1986. The court, therefore, censured the Diet for doing nothing for almost a decade afterward.

Calling the Diet’s inaction an “extreme omission,” the court awarded the 5,000 yen solatium to the plaintiffs, who have dwindled to 13 in number. It also pointed out that, as the means of communication progresses rapidly on a global scale, it will not be so difficult for election officials to distribute the necessary candidate information to voters living abroad.

For the Sept. 11 Lower House election, about 83,000 Japanese living abroad were put on the rolls of registered voters who could exercise their voting rights. About a quarter of them actually voted. Although the Supreme Court’s ruling is a big step forward, it does not refer to specific forms the law should take after the Diet’s anticipated revision.

Procedures for voting abroad are complicated. A voter must go to a Japanese diplomatic mission and ask for a registered certificate in his or her name. The request is sent to the relevant election management committee in Japan, and the certificate is sent to the voter; this alone is said to take about three months. The voter then either casts his ballot at the diplomatic mission or mails it. Obviously the top court’s ruling will not become meaningful until the Diet and government ministries concerned work out a viable procedure convenient to overseas voters.

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