1985.11.21

1978 (O) 1240

Minshu Vol.39, No.7, at 1512

Judgment on a case concerning the question of whether the legislature violated the Law Concerning State Liability for Compensation, Article 1, Paragraph 1 by abolishing and subsequently failing to reinstate an at-home voting system

Case Concerning At-Home Voting System

Judgment of the First Petty Bench; dismissed

Sapporo High Court, judgment of May 24, 1978

1. Legislative acts of the Diet, with the exception of the enactment of laws clearly contravening the fundamentals of the Constitution, are not subject to assessment of legality for the purpose of applying the Law Concerning State Liability for Compensation, Article 1, Paragraph 1.
2. The legislative act of abolishing and subsequently failing to reinstate an at-home voting system does not constitute an illegal act under the Law Concerning State Liability for Compensation, Article 1, Paragraph 1.

Law Concerning State Liability for Compensation, Article 1, Paragraph 1; Public Offices Election Law, Article 49, Paragraph 1

A Jokoku Appeal was filed by the Appellants seeking reversal of the judgment handed down by the Sapporo High Court on May 24, 1978, on a claim of compensation for damages, Case (NE) No. 299 of 1974 of the Sapporo High Court.

The Jokoku appeal is dismissed.
Appellant shall bear the costs of the Jokoku Appeal.

On the Grounds for Jokoku Appeal by Appellant's attorneys Yamanaka Yoshio, Yokomichi Takahiro, Emoto Hideharu, Yokomichi Tamio, Umasugi Eiichi, and Kuroki Toshiro:

Outline of Facts:
1. The legally relevant facts found by the Court of Appeals are as follows:

(a) Before the Law to Partially Amend the Public Offices Election Law (Law No. 307 of 1952) came into effect, the Public Offices Election Law, together with the Enforcement Order of the Public Offices Election Law which was mandated thereby, had established a system (hereinafter "At-Home Voting System") to enable voters who had severe difficulty in walking due to disease, injury, pregnancy, physical disability, or impending or recent childbirth (excluding those voters listed in any item of Paragraph 2 of Article 55 of the Enforcement Order of the Public Offices Election Law; hereinafter "At-Home Voters") to cast their votes by ballot from their present location, without needing to go to a polling station. However, because abuse of the At-Home Voting System in the unified local elections of April 1951 led to many lawsuits seeking to invalidate elections or election results, the Diet abolished the At-Home Voting System by enacting the above Law to Partially Amend the Public Offices Election Law, and did not thereafter enact any law to establish an At-Home Voting System (the abolition and subsequent failure to act are collectively referred to as "Legislative Acts").

(b) Jokoku Appellant is a Japanese citizen, born on January 2, 1912, who has resided in Otaru City since 1924, and who possessed the right to vote under Article 9 of the Public Offices Election Law. However, since 1931 he has had difficulty in walking due to a back injury incurred in a fall from the roof of his house while shoveling snow. He voted in the 1953 elections for the House of Councillors by going to the polling station in a wheelchair, but in about 1955 the stiffness in the lower half of his body, which had been gradually worsening, deteriorated to the extent that not only walking but using a wheelchair became very difficult. He was thus unable to go to a polling station unless carried on a stretcher or by similar means, and was unable to vote in eight elections for the Diet, the Governor of Hokkaido, the Hokkaido Prefectural Assembly, the Mayor of Otaru, and the Otaru Municipal Assembly that were held between 1968 and 1972.

2. In the original suit, Jokoku Appellant contended that an At-Home Voting System is required under the Constitution to guarantee At-Home Voters the opportunity to vote, and that the Legislative Acts, which abolished and failed to reinstate such a system, constitute an illegal exercise of public power by members of the Diet because the exercise of At-Home Voters' voting rights is thereby prevented and are therefore in violation of Article 13, Article 15, Paragraphs 1 and 3, Article 14, Paragraph 1, and Articles 44, 47, and 93 of the Constitution. Accordingly, Jokoku Appellant sought compensation from Jokoku Appellee under the Law Concerning State Liability for Compensation, Article 1, Paragraph 1, for his mental suffering resulting from his inability to vote in the eight elections described above.

3. Article 1, Paragraph 1 of the Law Concerning State Liability for Compensation provides that when public officials, in the course of performing their duties, exercise public powers of the State or of a public body that violate a legal obligation toward a particular citizen, thereby inflicting harm on that person, the State or public body concerned shall be liable to compensate such damages. Thus, the question of whether a legislative act (including failure to enact) by the Diet is deemed illegal for the purpose of applying that paragraph becomes a question of whether the Diet members' conduct in the legislative process violates a legal obligation toward a particular citizen that arises in the course of performing their duties. This question is to be distinguished from that of whether the legislation itself is unconstitutional. Even if there were reason to suspect that the acts concerned were in violation of the Constitution, legislative acts of Diet members would not be automatically subject to scrutiny of legality.
We will now examine what, if any, legal obligation Diet members incur in relation to particular citizens in making laws. Under the system of parliamentary democracy adopted under the Constitution, the role of the Diet is to ensure that the legislative process fairly reflects the many opinions and diverse interests that exist among the people, to reconcile those opinions and interests through free debate among the Diet's members, and ultimately to form a unified national will by applying the principle of majority rule. Further, members of the Diet are required to act with regard to the welfare of the people as a whole, while also taking into account the diversity of public sentiment. If parliamentary democracy is to function fairly and effectively, the conduct of Diet members in the legislative process, when it relates to the substance of legislative acts, should be determined by the political judgment of each member, and the fitness of his or her judgment should ultimately rest on political assessment by the people through free discussion and elections. Moreover, diverse opinions can exist among the people even in the interpretation of the Constitution, which provides a model for legislative acts, and Diet members are expected to reflect this diversity of opinion in the legislative process.
Moreover, Article 51 of the Constitution stipulates "Members of both Houses shall not be held liable outside the House for speeches, debates, or votes cast inside the House," thereby exempting Diet members from legal liability for their utterances and their votes. This exemption recognizes that it is consistent with the aim of achieving government by the people's representatives to limit Diet members' liability for their conduct in the legislative process to political liability.
Legislative acts, which are essentially political, of Diet members are, by their nature, not amenable to legal restraint. It is, therefore, not permissible, in principle, to posit an ideal legislative act and then use this as a basis to assess the legal propriety of an actual legislative act to determine liability for compensation to a particular individual. In the event that a complaint is brought claiming that a law infringes specific rights or interests of an individual, the court may determine whether the law is constitutional; its judgment, however, pertains to the validity of a law that has already been enacted. It does not follow that, because the validity of an existing law is subject to judicial review, the actions of Diet members in the process of making that law, in other words, their legislative acts, are subject to an assessment of legality.
In view of the foregoing and as a general rule, members of the Diet in making laws incur only a political liability toward the people as a whole, not a legal obligation in relation to any right of a particular citizen, and, with the exception of the unlikely event of enactment of laws clearly contravening the fundamentals of the Constitution, the legislative acts of Diet members are not subject to assessment of their legality for the purpose of applying the Law Concerning State Liability for Compensation, Article 1, Paragraph 1.

4. We will now examine the above principles in relation to the case at bench. Jokoku Appellant contends that the Legislative Acts are illegal on the premise that the Constitution directs the establishment of an At-Home Voting System. However, the Constitution contains no explicit provision which positively directs establishment of an At-Home Voting System; on the contrary, Article 47 of the Constitution states: "Electoral districts, method of voting, and other matters pertaining to the method of election of members of both Houses shall be fixed by law." This Court has previously found that the intent of this provision is to leave, as a general rule, the determination of voting methods and other concrete matters pertaining to elections to the discretion of the Diet as the legislative branch of government (Supreme Court Case [O] No. 422 of 1963; judgment of the Grand Bench of February 5, 1964; Minshu Vol. 18, No. 2, p. 270; Supreme Court Case [Gyo-Tsu] No. 75 of 1974; judgment of the Grand Bench of April 14, 1976; Minshu Vol. 30, No. 3, p. 223).
The Legislative Acts, both abolishing and failing to reinstate the At-Home Voting System before the above-mentioned eight elections took place, cannot be construed as an exceptional case that clearly contravenes the fundamentals of the Constitution. In conclusion, the Legislative Acts are not subject to assessment of legality for the purpose of applying the Law Concerning State Liability for Compensation, Article 1, Paragraph 1.

5. Accordingly, the original claim of Jokoku Appellant is dismissed, and it is unnecessary to rule on the remainder of the claim. The decision by the Court of Appeals to dismiss the original suit is hereby affirmed. Moreover, this Court does not accept Appellant's arguments that criticize points of the original judgment that do not affect the validity of the conclusion reached.

Therefore, in accordance with Articles 401, 95, and 89 of the Code of Civil Procedure, this Court unanimously finds as stated in the Main Text of the Judgment above.

First Petty Bench of the Supreme Court

Justice WADA Seiichi
Justice TANIGUCHI Masataka
Justice TSUNODA Reijiro
Justice YAGUCHI Koichi
Justice TAKASHIMA Masuo