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1993 (Gyo-Tsu) 163

1995.02.28
1993 (Gyo-Tsu) 163
Judgment upon case of claim for the rescission of the decision to dismiss the objection by Korean sojourners against the decision to refuse the registration on the voter's list
Judgment of the Third Petty Bench, dismissed
Osaka District Court Judgment of June 29, 1993
Articles 11 and 18 of the Law on Local Self Government and Article 9, para.2 of the Law on Public Election which provide that only those inhabitants with Japanese nationality have the right to vote for the members of the local councils and the chief executive of the local self government are not against articles 15, para.1 and 93, para.2 of the Constitution.
Article 15, para.1 of the Constitution [official translation]
The people have the inalienable right to choose their public officials and to dismiss them.

Article 93, para.2 of the Constitution [official translation]
The chief executive officers of all local public entities, the members of their assemblies, and such other local officials as may be determined by law shall be elected by direct popular vote within their several communities.

Article 11 of the Law on Local Self Government

Inhabitants of local self governments of the ordinary type with Japanese nationality have the right to vote in the election for the said local self government in accordance with the present Law

Article 18 of the Law on Local Self Government

Those who are Japanese nationals, are 20 years or over of age and have had residence in the city, town, or village for 3 months or more without interruption have the right to vote for the members of the local assembly and the chief executive of the local self government in accordance with the law.

Article 9, para.2 of the Law on Public Election

Those who are Japanese nationals, are 20 years or over of age and have had residence in the city, town, or village for 3 months or more without interruption have the right to vote for the members of the local assembly and the chief executive of the local self government.
The appeal is dismissed.
The cost of appeal is to be borne by the appellant.
On the grounds of appeal by the representatives of the appellant, Tatsuo Soma, Junjiro Hiraki, Toshibumi Nose

Guarantee of fundamental rights by the provisions of Chapter Three of the Constitution also extends to foreign nationals on sojourn in Japan except for those rights that, by their nature, are intended for Japanese nationals only. Whether or not the right to elect and dismiss public officials as guaranteed by Article 15, para.1 extends to foreign nationals on sojourn in Japan should be considered in the following. These provisions of the Constitution are understood to have declared that the ultimate power of electing and dismissing public officials lies with the people based upon the principle of people's sovereignty. Judging from the preface and Article 1 of the Constitution which declares that sovereignty lies with 'Japanese nationals', it is obvious that 'people' in 'people's sovereignty means' Japanese nationals, i.e. those with Japanese citizenship. Therefore, it is reasonable to conclude that Article 15, para.1 which guarantees the right to elect and dismiss public officials, by its nature, addr esses Japanese nationals only and that the guarantee of this provision does not extend to foreign nationals on sojourn in Japan. Furthermore, Chapter Eight of the Constitution which covers local self government, in Article 93, para.2, provides that the chief executive of the local self government, members of the local assembly, and other officials provided by law should be elected by the inhabitants of the said local self government. In the light of the above-mentioned principle of people's sovereignty and Article 15, para.1 of the Constitution which is based upon this principle, and taking into account that local self governments are an integral part of the ruling system of Japan, it is reasonable to understand 'inhabitants' as provided in Article 93, para.2 of the Constitution to mean Japanese nationals who have residence in the territory of the said local self government. This provision cannot be construed to have guaranteed the right to vote for foreign nationals on sojourn in Japan in the election for the chief executive of the local self government, members of the local assembly, and others. The justifiability of this conclusion is obvious in the light of the Judgment of the Grand Bench of the Supreme Court (Supreme Court 1960 (O) Case No.579; Judgment of December 14, 1960, Minshu 14-14-3037; Supreme Court, 1975 (Gyo-Tsu) Case No.120, Judgment of October 4, 1975, Minshu 32-7-1223).
Thus, Article 93, para.2 of the Constitution cannot be construed as guaranteeing the right to vote in the election for local self governments. However, in the light of the significance of the local self government in a democratic society, provisions on local self government accommodated in Chapter Eight of the Constitution are designed, to institutionally guarantee a political system in which public administration closely related to the day-to-day life of the inhabitants is handled by the local self government of the territory based upon the will of the inhabitants. Therefore, as regards foreign nationals on sojourn in Japan, it is reasonable to understand that the Constitution does not prohibit taking measures to grant voting rights to those permanent residents and others who have come to have an especially close relationship with the local self government in the area of residence in elections for the chief executive of the local self government, members of the local assembly, and other officials by law. However, whether or not such measures should be taken is exclusively a matter of the legislative policy of the state, and even if such measures are not taken, it is not a matter of unconstitutionality. This is evident from the substance of judgments of the Grand Bench of the Supreme Court (supra, judgment of December 14, 1960; Supreme Court, 1962 (A) Case No.900, judgment of March 27, 1963, Keishu 17-2-121; Supreme Court, 1974 (Gyo-Tsu) Case No.75, judgment of April 14, 1976, Minshu 30-3-223; Supreme Court, 1979 (Gyo-Tsu) Case No.65, judgment of the Supreme Court, April 27, 1983, Minshu 37-3-345).
Based upon the above, Articles 11 and 18 of the Law on Local Self Government and Article 9, para.2 of the Law on Public Election which limit the right to vote for the members of the local councils and the chief executive of the local self government to those inhabitants with Japanese nationality cannot be regarded to be against articles 15, para.1 and 93, para.2 of the Constitution. Other parts of the original judgment which upheld the decisions in question have not erred in the interpretation of the above provisions of the Constitution. The appellants also argue that Articles 11 and 18 of the Law on Local Self Government and Article 9, para.2 of the Law on Public Election are against Article 14 of the Constitution, and that even if this is not the case, the original judgment which upheld the decisions in question has erred in the interpretation of Article 14 and the above-mentioned laws. However, these arguments are, in substance, arguments on the errors in the interpretation of articles 15, par a.1 and 93, para.2, and, as has been discussed above, are without grounds.
Thus, the judgment of the original instance on the above arguments can be recognised as justifiable.
Therefore, the justices unanimously rule as the main text of the judgment in accordance with Article 7 of the Law on Administrative Litigation and articles 401,95,89, and 93 of the Code of Civil Procedure.
Justice Tsuneo Kabe
JusticeItsuo Sonobe
JusticeMasao Ohno
JusticeHideo Chikusa
JusticeYukinobu Ozaki
(Translated by Sir Ernest Satow Chair of Japanese Law, University College, University of London)