2009.11.18

2009(Gyo-Hi)83

Minshu Vol. 63, No. 9

Judgment concerning whether or not the parts of the provisions of the four clauses of the Order for Enforcement of the Local Autonomy Act, i.e. Article 115, Article 113, Article 108, paragraph (2), and Article 109, which prohibit a public officer from acting as a representative requester for the removal of an assembly member through application mutatis mutandis of Article 89, paragraph (1) of the Public Offices Election Act, are valid as provisions to be established by Cabinet Order under Article 85, paragraph (1) of the Local Autonomy Act

Case to seek revocation of the decision to dismiss the objection filed against the decision invalidating the list of signatures of requesters for the removal of an assembly member

Judgment of the Grand Bench, quashed and decided by the Supreme Court

Kochi District Court, Judgment of December 5, 2008

The parts of the provisions of the four clauses of the Order for Enforcement of the Local Autonomy Act, i.e. Article 115, Article 113, Article 108, paragraph (2), and Article 109, which prohibit a public officer from acting as a representative requester for the removal of an assembly member through application mutatis mutandis of Article 89, paragraph (1) of the Public Offices Election Act, go beyond the allowable limits of provisions to be established by Cabinet Order under Article 85, paragraph (1) of the Local Autonomy Act and therefore said parts of the provisions are invalid to the extent that such restriction on eligibility is applied to the procedure for making a request for removal.

Article 80, paragraph (1) and paragraph (3) and Article 85, paragraph (1) of the Local Autonomy Act, Article 108, paragraph (2), Article 109, Article 113, and Article 115 of the Order for Enforcement of the Local Autonomy Act, Article 89, paragraph (1) of the Public Offices Election Act, Article 90, paragraph (2) and Appended Table 2 of the Order for Enforcement of the Public Offices Election Act Article 80, paragraph (1) and paragraph (3) of the Local Autonomy Act (1) Persons who have the right to vote in an electoral district may, as provided for by Cabinet Order, with joint signature of one-third or more of the total number of such persons with the right to vote in said electoral district (or if the total number of such persons with the right to vote exceeds 400,000, with joint signature of the number of such persons with the right to vote calculated by totaling one-sixths of the number of such excess and one-third of 400,000) and via their representative, make a request to the election management commission of an ordinary local public entity for the removal of a member of an assembly of the ordinary local public entity who belongs to said electoral district. In this case, if there is no electoral district, persons who have the right to vote may make a request for the removal of a member of an assembly with joint signature of one-third or more of the total number of such persons with the right to vote (or if the total number of such persons with the right to vote exceeds 400,000, with joint signature of the number of such persons with the right to vote calculated by totaling one-sixths of the number of such excess and one-third of 400,000). (3) When the request set forth in paragraph (1) is made, the committee shall make such request subject to voting by the voters in the electoral district. In this case where there is no electoral district, the request shall be subject to voting by all voters. Article 85, paragraph (1) of the Local Autonomy Act (1) Except for those otherwise specified by Cabinet Order, the provisions of the Public Offices Election Act concerning an election in an ordinary local public entity shall apply mutatis mutandis to the voting for dissolution under the provision of Article 76, paragraph (3) and to the voting for the removal under the provisions of Article 80, paragraph (3) and Article 81, paragraph (2). Article 108, paragraph (2) of the Order for Enforcement of the Local Autonomy Act (2) Where the provisions of the Public Offices Election Act concerning an election of an ordinary local public entity shall apply mutatis mutandis, pursuant to the provision of Article 85, paragraph (1) of the Local Autonomy Act, with regard to the voting for dissolution of an assembly of an ordinary local public entity, the parts of the provisions of said Act concerning an election of an assembly member and the head of an ordinary local public entity shall be deemed to be the provisions concerning the voting for dissolution of an assembly of an ordinary local public entity, and the parts of the provisions of said Act concerning a candidate for public office or recommendation submitter shall be deemed to be the provisions concerning the assembly of an ordinary local public entity or a representative requester for dissolution thereof. Article 109 of the Order for Enforcement of the Local Autonomy Act Where the provisions of the Public Offices Election Act concerning an election in an ordinary local public entity shall apply mutatis mutandis, pursuant to the provision of Article 85, paragraph (1) of the Local Autonomy Act, with regard to the voting for dissolution of an assembly of an ordinary local public entity, the following provisions of the Public Offices Election Act shall not apply mutatis mutandis to the voting for dissolution of an assembly of an ordinary local public entity: Articles 1 to 4, Articles 5-2 to 5-5, Article 9, paragraph (1), Article 10, Article 11, paragraph (3), Article 11-2, Article 12, paragraph (1), paragraph (2), and paragraph (4), Articles 13 to 18, Articles 20 to 35, Article 37, paragraph (3) and paragraph (4), Article 42 (limited to the part concerning the list of overseas voters), Article 46, paragraph (2) and paragraph (3), Article 46-2, Article 48-2, paragraph (2) (limited to the part concerning Article 46, paragraph (2) and paragraph (3)), Article 49, paragraph (7) and paragraph (8), Article 49-2, Article 55 (limited to the part concerning the list of overseas voters), Article 56 (limited to the part concerning the list of overseas voters), Article 61, paragraph (3) and paragraph (4), Article 62, paragraph (2), items (ii) to (iv), paragraphs (3) to (5), and the proviso to paragraph (8), Article 68, paragraph (1), items (ii) to (v) and the proviso to item (vi), paragraph (2), and paragraph (3), Article 68-2, Article 75, paragraph (2), Article 77, paragraph (2), Article 81, the second sentence of Article 84, Articles 86 to 86-7, Article 86-8, paragraph (1) (limited to the part concerning Article 11-2), and paragraph (2), Article 87, Article 87-2, Article 89, the proviso to paragraph (1), (excluding the part concerning item (ii) of said paragraph), paragraph (2), and paragraph (3), Articles 90 to 99-2, Article 100, paragraphs (1) to (4), and paragraphs (6) to (9), Articles 101 to 106, Article 108, Chapter XI, Article 126, Article 129, Article 130, paragraph (1), items (i) to (iii), Article 131, paragraph (1), items (i) to (iii), and paragraph (3), Article 136-2, paragraph (2), the proviso to Article 139, Article 140-2 (limited to the part concerning the act of repeatedly shouting a candidate’s name from an automobile or ship used for an election campaign), Articles 141 to 147-2, Article 148, paragraph (2) and paragraph (3), Articles 148-2 to 151-2, Article 151-5, Article 152, Articles 161 to 164-5, Article 164-7, Article 165-2, Articles 167 to 172-2, Articles 175 to 177, Article 178-2, Article 178-3, Article 179, paragraph (1) and paragraph (3), Articles 179-2 to 197, Article 197-2, paragraphs (2) to (5), Article 199-5, Chapter XIV-2, Chapter XIV-3, Article 204, Article 205, paragraphs (2) to (5), Article 208, Article 209, paragraph (2), Articles 209-2 to 211, Article 213 (excluding the part concerning litigation), Article 216, Article 217, Article 219, paragraph (1) (limited to the part concerning Articles 25 to 29 and Article 31 of the Administrative Case Litigation Act (Act No. 139 of 1962)), and paragraph (2), Article 220, paragraph (2), Article 221, paragraph (3), item (iii) and item (iv), Article 223-2, Article 224-2, Article 224-3, Article 235-2, item (ii) and item (iii), Article 235-3, Article 235-4, item (ii), Article 235-6, Article 236, paragraph (1) and paragraph (2), Article 236-2, Article 238-2, Article 239, paragraph (2), Article 239-2, paragraph (1), Article 240, paragraph (2), Article 242, paragraph (2), Article 243, paragraph (1), items (ii) to (ix), and paragraph (2), Article 244, paragraph (1), items (ii) to (v)-2, item (vii) and item (viii), and paragraph (2), Article 246, Article 247, Article 249-2, paragraph (3) and paragraph (6), Article 249-5, Articles 251 to 251-5, Article 252-2, Article 252-3, Article 254-2, Article 255, paragraph (4) and paragraph (5), Articles 255-2 to 262, Article 263, item (iv) (limited to the part concerning the voting under the provisions of Article 49, paragraph (7) and paragraph (8)), item (iv)-2, item (iv)-3, and items (v)-2 to (xii), Article 264, paragraphs (1) to (3), Articles 266 to 268, Article 269-2, Article 270, paragraph (1) (limited to the part concerning the list of overseas voters and overseas voting), paragraph (2) of said Article (excluding the part concerning the voting under the provisions of Article 49, paragraph (1) and paragraph (4)), Article 270-2 (limited to the part concerning the voting under the provisions of Article 49, paragraph (7) and paragraph (8)), and Articles 271 to 272. Article 113 of the Order for Enforcement of the Local Autonomy Act The provisions of Article100-2, Articles 103 to 105, Article 107, Article 108, paragraph (2), Article 109 (excluding the part concerning Article 12, paragraph (1) and paragraph (4), Article 15, Article 15-2, paragraph (4), Article 68, paragraph (1) item (ii) and the proviso to item (vi), and Article 271 of the Public Offices Election Act), Article 109-2, and Article 109-3 shall apply mutatis mutandis to the voting for the removal of a member of an assembly of an ordinary local public entity. In this case, the term "the preceding Article" in Article 100-2, paragraph (1), and the term "Article 100" in Article 104, paragraph (1) shall be deemed to be replaced with "Article 110." Article 115 of the Order for Enforcement of the Local Autonomy Act (1) Where the provisions of the Public Offices Election Act concerning an election in an ordinary local public entity shall apply mutatis mutandis, pursuant to the provision of Article 85, paragraph (1) of the Local Autonomy Act, with regard to the voting for the removal of a member of an assembly of an ordinary local public entity, the terms and phrases in the provisions of the Public Offices Election Act as listed in the middle column of the following table, which appear in the clauses listed in the left-hand column of said table, shall be deemed to be replaced with the terms and phrases listed in the right-hand column of said table, respectively. Article 89, paragraph (1): candidate for public office: representative requester for the removal of a member of an assembly of an ordinary local public entity (Other parts of the tables shall be omitted here.) (2) The provisions of Article 12, paragraph (3) and Article 131, paragraph (1), item (iv) of the Public Offices Election Act shall not apply mutatis mutandis to the voting for the removal of a member of an assembly of an ordinary local public entity, notwithstanding the provision of Article 113. Article 89, paragraph (1) of the Public Offices Election Act (Restrictions on Standing as Candidate for Public Office) (1) Public officers of the State or a local public entity, or officers or employees of a specified incorporated administrative agency (meaning the specified incorporated administrative agency prescribed in Article 2, paragraph (2) of the Act on General Rules for Incorporated Administrative Agency (Act No. 103 of 1999); the same shall apply hereinafter) or specified local incorporated administrative agency (meaning the specified local incorporated administrative agency prescribed in Article 2, paragraph (2) of the Local Incorporated Administrative Agency Act (Act No. 118 of 2003); the same shall apply hereinafter) may not stand as a candidate for public office during their term of office; provided, however, that this shall not apply to the public officers listed in the following items (including officers and employees of a specified incorporated administrative agency or specified local incorporated administrative agency; the same shall apply in the following Article and Article 113, paragraph (3)): (i) the Prime Minister and other Ministers of State, the Deputy Chief Cabinet Secretary, the Special Advisor to the Prime Minister, the Senior Vice-Minister, and the Parliamentary Secretary; (ii) public officers other than those technicians, supervisors, and personnel in charge of administrative affairs, who are designated by Cabinet Order; (iii) temporary or part-time public officers who hold the office of councilor, advisor, consultant, commissioned personnel or any other office equivalent thereto as their exclusive office, who are designated by Cabinet Order; (iv) the chiefs of volunteer firefighting corps and other members of volunteer firefighting corps (excluding those working on a full-time basis) and the chiefs of flood fighting corps and other members of flood fighting corps (excluding those working on a full-time basis); (v) employees prescribed in Article 3, item (iv) of the Local Public Enterprise Labor Relationships Act (Act No. 289 of 1952), who are designated by Cabinet Order Article 90, paragraph (2) and Appended Table 2 of the Order for Enforcement of the Public Offices Election Act (Public Officers Eligible for Standing as Candidate) Persons who are eligible to stand, during their term of office, as a candidate for public office pursuant to the provision of Article 89, paragraph (1), item (iii) of the Act shall be Self-Defense Forces reserve personnel (including persons who serve as Self-Defense Forces personnel pursuant to the provision of Article 70, paragraph (3) of the Self-Defense Forces Act); Self-Defense Forces ready reserve personnel (including persons who serve as Self-Defense Forces personnel pursuant to the provision of Article 75-4, paragraph (3) of said Act); Self-Defense Forces assistant reserve personnel; and temporary or part-time public officers of the State or a local public entity (excluding those holding a part-time government position prescribed in Article 81-5, paragraph (1) of the National Public Service Act (Act No. 120 of 1947) (including the cases where applied mutatis mutandis under the Act on Temporary Measures concerning Court Officials (Act No. 299 of 1951)), a part-time position prescribed in Article 15-5, paragraph (1) of the Diet Officers Act (Act No. 85 of 1947), a part-time government position prescribed in Article 44-5, paragraph (1) of the Self-Defense Forces Act, or part-time government position prescribed in Article 28-5, paragraph (1) of the Local Public Service Act (Act No. 261 of 1950)); or temporary or part-time officers or employees of a specified incorporated administrative agency (meaning the specified incorporated administrative agency prescribed in Article 2, paragraph (2) of the Act on General Rules for Incorporated Administrative Agency (Act No. 103 of 1999) or specified local incorporated administrative agency (meaning the specified local incorporated administrative agency prescribed in Article 2, paragraph (2) of the Local Incorporated Administrative Agency Act (Act No. 118 of 2003); hereinafter the same shall apply in this Article) (excluding those holding a part-time government position prescribed in Article 81-5, paragraph (1) of the National Public Service Act or part-time position prescribed in Article 28-5, paragraph (1) of the Local Public Service Act), who hold the office as listed in the following items: (i) those holding the office called chairperson and member of a commission or committee except for those listed in Appended Table 2; (ii) those holding the office called consultant, advisor, president, vice president, member of a commission or committee, councilor, expert investigator, examiner, reporter, and observer, and those holding the office of statistical researcher, mediator, volunteer probation officer, and counselor; and (iii) commissioned personnel of a local public entity or specified local incorporated administrative agency, except for those who fall under the preceding two items. Appended Table 2 Chairperson and members of the Fair Trade Commission Members of the Central Election Management Council Members of the National Public Safety Commission Chairperson and members of the Environmental Dispute Coordination Commission Chairperson and members of the Public Security Examination Commission Members of the Central Labour Relations Commission Chairperson and members of the Transport Safety Board Members of the Council on the House of Representatives Electoral District Members of the Board of Education Members of the Election Management Commission Audit committee members Members of the Personnel Commission Members of the Equity Commission Members of the Public Safety Commission of a local public entity Members of the Prefectural Labor Relations Commission Members of the Agricultural Commission Members of the Expropriation Commission Members of the Fisheries Adjustment Commission (excluding members of the Wide Sea-area Fisheries Adjustment Commission; the same shall apply hereinafter) Members of the Inland Waters Fishing Ground Management Commission Members of the Fixed Property Valuation Commission Note: In this table, the members of the Agricultural Commission, members of the Fisheries Adjustment Commission, and members of the Inland Waters Fishing Ground Management Commission shall be eligible only in cases where they stand as a candidate in an election other than an election of an assembly member or head of a municipality.

The judgment in prior instance is quashed. The decision indicated in the list of decisions attached hereto is revoked. The appellee of final appeal shall bear the total court costs.

Concerning the reasons for acceptance of final appeal argued by the appeal counsel, NAKAKITA Ryutaro, and the reasons for acceptance of final appeal argued by the appeal counsels, KABASHIMA Masanori, KONISHI Kentaro, and SATAKE Akira (except for those excluded) 1. The Toyo Town Election Management Commission (hereinafter referred to as the "administrative agency concerned") made a decision to invalidate all of the signatures entered in the list of signatures of requesters for the removal of a member of the Toyo Town Assembly (hereinafter referred to as "Member A"), on the grounds that the representative requesters for the removal include a member of the Agricultural Commission who served as a part-time public officer, and further made a decision, as of May 20, 2008, to dismiss the objection filed by the appellants, who are related to the representative requesters, etc. (this decision shall hereinafter be referred to as the "Decision on Objection"). In this case, the appellants seek revocation of the Decision on Objection. 2. The outline of the facts legally determined by the court of prior instance is as follows. (1) On March 14, 2008, the six persons including Appellant X1 (hereinafter referred to as the "Representatives"), upon submitting a written request for the removal against Member A, applied to the administrative agency concerned, for the issuance of a certificate to the effect that the Representatives were the representative requesters for such removal, and obtained the certificate to that effect issued by the administrative agency concerned on March 17. At that time, Appellant X1 was a member of the Agricultural Commission, which is categorized as a part-time public officer. (2) The public officers prescribed in the main clause of Article 89, paragraph (1) of the Public Offices Election Act, except for those prescribed in the proviso to said paragraph, may not stand as a candidate for public office during their term of office. Meanwhile, the Local Autonomy Act and the Order for Enforcement of the Local Autonomy Act provide that when applying mutatis mutandis Article 89, paragraph (1) of the Public Offices Election Act to the voting for the removal of an assembly member, the phrase "candidate for public office" shall be deemed to be replaced with "representative requester for the removal of a member of an assembly of an ordinary local public entity," and the proviso to said paragraph (excluding the part concerning item (ii) of said paragraph) shall be excluded from such application mutatis mutandis (Article 85, paragraph (1) of the Local Autonomy Act, and Article 115, Article 113, Article 108, paragraph (2), and Article 109 of the Order for Enforcement of the Local Autonomy Act; hereinafter the parts of the provisions of these four clauses of the Order for Enforcement of the Local Autonomy Act, which restrict the eligibility for acting as a representative requester for the removal of an assembly member through application mutatis mutandis of Article 89, paragraph (1) of the Public Offices Election Act, shall be collectively referred to as the "Provisions"). This means that, according to the Provisions, a member of the Agricultural Commission, in cases where he/she is either eligible or ineligible for standing as a candidate for public office, may not act as a representative requester for the removal of an assembly member during his/her term of office. (3) On April 14, 2008, the Representatives submitted to the administrative agency concerned a list of signatures of 1,124 persons regarding the aforementioned written request for the removal (hereinafter referred to as the "List of Signatures"), which was accepted by the agency on April 17. However, the administrative agency concerned made a decision, as of May 2, 2008, to invalidate all of the signatures entered in the List of Signatures on the premise that in accordance with the Provisions, a member of the Agricultural Commission may not act as a representative requester for the removal of an assembly member. (4) The appellants filed an objection to this decision. The administrative agency concerned made the Decision on Objection, as of May 20, to dismiss their objection on the grounds that all of the signatures entered in the List of Signatures were collected through an illegitimate procedure because they were collected through the signature collection procedure conducted by the representative requesters for the removal, one of who was a member of the Agricultural Commission. 3. Given the facts mentioned above, the court of prior instance dismissed the appellants' claim, holding as follows. Article 85, paragraph (1) of the Local Autonomy Act, which is the basis for the delegation to the Provisions, allows the relevant provisions of the Public Offices Election Act to be applied mutatis mutandis not only to the procedure for voting on a request for the removal of an assembly member but also to the procedure for requesting such removal, which is closely related to the former as if together constituting a single set of procedures, from the perspective of securing neutrality in public officers' performance of their duties and ensuring procedural due process. In this respect, the Provisions can be construed to be legal and valid provisions within the bounds of the delegation thereto. In consequence, all of the signatures entered in the List of Signatures collected through the signature collection procedure conducted by the representative requesters for the removal, one of who was a member of the Agricultural Commission, are invalid signatures collected through an illegitimate procedure. 4. However, we cannot affirm the holdings of the court of prior instance mentioned above, on the following grounds. (1) Persons who have the right to vote in an election of a member of an assembly of an ordinary local pubic entity may, with joint signature of the number of persons as specified by law, make a request to the election management commission of the ordinary local public entity for the removal of a member of the assembly via the representative requesters for the removal (Article 80, paragraph (1) of the Local Autonomy Act). The election management commission, when receiving such a request, shall immediately give public notice of the gist of the request within the district concerned (paragraph (2) of said Article), and shall make the request subject to voting by voters (paragraph (3) of said Article). Thus, the Local Autonomy Act stipulates two stages of the procedure for requesting the removal of an assembly member, i.e. making a request for the removal and voting for the removal. Since Article 85, paragraph (1) of the Local Autonomy Act provides that the provisions of the Public Offices Election Act concerning an election in an ordinary local public entity (hereinafter referred to as the "election-related provisions") shall apply mutatis mutandis to the voting for the removal under Article 80, paragraph (3) of the Local Autonomy Act, it can be construed that the subject to which these provisions shall apply mutatis mutandis is the procedure for voting, separated from the procedure for making a request. This construction is derived not only literally from the text of the provision of Article 85, paragraph (1) of the Local Autonomy Act, but also from the facts that: (i) the procedure for voting for the removal has the same nature as the procedure for voting in an election in that both are official procedures in which voters cast their votes, and the procedure for voting for the removal is in substance appropriate as the subject to which the election-related provisions in the Public Offices Election Act shall apply mutatis mutandis; (ii) on the other hand, the procedure for making a request for the removal is a procedure by which persons who have the right to vote initiate such voting procedure, and it has no equivalent system in the Public Offices Election Act, and therefore the procedure for making a request for the removal cannot be regarded as a procedure having similarity to or the same nature as the procedure for voting in an election under the Public Offices Election Act to the extent that it should be subject to application mutatis mutandis of the election-related provisions of said Act; (iii) because of this, Article 80, paragraph (1) and paragraph (4) of the Local Autonomy Act specify the details of the procedure for making a request for the removal not by applying mutatis mutandis the election-related provisions of the Public Offices Election Act, but by including provisions specific to this procedure in the Local Autonomy Act or delegating the relevant matters to the Order for Enforcement of the Local Autonomy Act. In consequence, Article 85, paragraph (1) of the Local Autonomy Act is a provision which exclusively addresses the voting for the removal. The matters that may be specified by Cabinet Order based on this provision are limited to those relating to the voting for the removal, and said paragraph does not allow Cabinet Order to specify the matters relating to the making of a request for the removal as well. (2) As indicated in 2(2) above, the Provisions stipulate that in accordance with Article 85, paragraph (1) of the Local Autonomy Act, the main clause of Article 89, paragraph (1) of the Public Offices Election Act shall apply mutatis mutandis to the eligibility for acting as a representative requester for the removal of an assembly member, thereby prohibiting a public officer from acting as a representative requester for the removal. This, as already explained above, goes beyond the allowable limits of provisions to be established by Cabinet Order issued under Article 85, paragraph (1) of the Local Autonomy Act, and it is appropriate to construe that the Provisions are invalid to the extent that the restrictions on eligibility under these provisions are further applied to the procedure for making a request for the removal. In conclusion, when a request is made for the removal of an assembly member, it is impermissible to deny the validity of the signatures entered in the list of signatures of requesters for such removal only on the grounds that the representative requesters include a member of the Agricultural Commission. The judicial precedent of this court, 1953 (O) No. 1439, judgment of the Second Petty Bench of the Supreme Court of May 28, 1954, Minshu Vol. 8, No. 5, at 1014, should be modified to the extent that it conflicts with our reasoning presented above. (3) When making the Decision on Objection, the administrative agency concerned determined that all of the signatures entered in the List of Signatures were collected through an illegitimate procedure and therefore invalid because they were collected through the signature collection procedure conducted by the representative requesters for the removal, one of whom was a member of the Agricultural Commission, and as shown above, the judgment in prior instance made the same determination. However, as we reasoned above, the Provisions should inevitably be judged to be illegal and invalid as long as they are applied to the procedure for making a request for the removal, and therefore we cannot treat said signatures as those collected through an illegitimate procedure in accordance with said provisions. It should be noted that it has been a consistently-accepted administrative construction of Article 85, paragraph (1) of the Local Autonomy Act, that a public officer, irrespective of whether he/she is in the regular service or special service, may not act as a representative requester for the removal of an assembly member from the initial stage, that is, upon making a request for the removal. The aforementioned judicial precedent, judgment of the Second Petty Bench of May 28, 1954, affirmed this construction. Nevertheless, although it is not known exactly why, the Representatives including Appellant X1 applied for the issuance of a certificate of representative requesters and then the administrative agency concerned issued one to them. One of the causes of such an instance that is not in line with said administrative construction may be that the administrative construction is incompatible with the literal meaning of the text of the Local Autonomy Act and that the Provisions specifying the restrictions on the eligibility for acting as a representative requester for the removal are not sufficiently clear. If any restriction is to be imposed on the eligibility for acting as a representative requester with regard to a direct request for the removal under the Local Autonomy Act, the scope of persons subject to such restriction should be, needless to say, defined as clearly as possible under provisions of laws, from the perspective of making the system of requesting the removal of an assembly member easier to use for residents, and ensuring proper implementation of the system. 5. For the reasons stated above, the determination of the court of prior instance which invalidated all of the signatures entered in the List of Signatures contains violation of laws and regulations that apparently affects the judgment. The appeal counsels' arguments are well-grounded, and the judgment in prior instance should inevitably be quashed. According to our reasoning presented above, the Decision on Objection is illegal, and the appellants' claim to seek its revocation is well-grounded, and therefore we have decided to revoke the Decision on Objection. Therefore, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices, except that there is a dissenting opinion by Justice HORIGOME Yukio, Justice FURUTA Yuki, and Justice TAKEUCHI Yukio. There are concurring opinions by Justice FUJITA Tokiyasu and by Justice WAKUI Norio, respectively, and a concurring opinion jointly by Justice MIYAKAWA Koji and Justice SAKURAI Ryuko. The concurring opinion by Justice FUJITA Tokiyasu is as follows. I am in agreement with the majority opinion, but I would like to give some supplementary comments regarding why the Provisions should be construed to be beyond the bounds of delegation under Article 85, paragraph (1) of the Local Autonomy Act and therefore judged to be illegal and invalid. 1. In my opinion, the final judgment on the issue of this case depends on the manner of legal construction (the viewpoint for choosing a method of legal construction) that should be taken when construing the provisions of laws and regulations in question (especially the provision of Article 85, paragraph (1) of the Local Autonomy Act). As long as we use a strict literal construction, Article 85, paragraph (1) of the Local Autonomy Act provides that the provisions of the Public Offices Election Act concerning an election in an ordinary local public entity shall apply mutatis mutandis to "the voting for the removal under the provision of Article 80, paragraph (3)…," whereas Article 80 of the Local Autonomy Act clearly distinguishes the making of a request for the removal (paragraph (1)) from the voting for the removal (paragraph (3)), and it naturally follows that the "voting for the removal" set forth in Article 85, paragraph (1) of the Local Autonomy Act does not include the "making of a request for the removal." If so, when we consider the fact that Article 115 of the Order for Enforcement of the Local Autonomy Act, which is established under Article 85 of the Local Autonomy Act, denies the eligibility of a public officer for acting as a "representative requester for the removal of an assembly member" by replacing therewith the phrase "candidate for public office" set forth in Article 89, paragraph (1) of the Public Offices Election Act, we should inevitably reach a conclusion that Article 115 of said Order is beyond the bounds of delegation by law and therefore illegal and invalid (complete invalidity), or it is invalid at least to the extent that it imposes restrictions on such eligibility beyond the role of a representative requester for the removal at the stage of "voting for the removal" (limited construction in line with law). The majority opinion may be basically backed up by these legal constructions. However, if we take, as the methodology for legal construction, the method of construing a legal provision in line with the intended purpose or putting a reasonable construction on the legislative purport, we could say that: (i) if the political neutrality of public officers must ever be guaranteed through a single set of procedures for requesting the removal (in a broad sense), it is exactly at the stage of making a request for the removal, and at the stage of voting for the removal, that the representative has little role that is worth considering from such aspect (in other words, there are not many reasonable grounds for the Local Autonomy Act to deny the eligibility of a public officer for acting as a representative, particularly focusing on the stage of voting for the removal); (ii) after all, the basis of the direct request system prescribed in the Local Autonomy Act is that residents can directly request the removal of an assembly member, and under this system, the voting for the removal is regarded merely as the measure that the administrative body should take as a result of a request having been made directly (and accepted as a valid one) (in this respect, such a request is equivalent to a resolution of an assembly to enact a prefectural or municipal ordinance) (the Local Autonomy Act does not at all anticipate the role of a representative voter for the removal which has separate significance from the role of a representative requester for the removal; see Article 82, etc. of said Act). In view of these points, it seems to me that it is not acceptable to say that the "voting for the removal" as set forth in Article 85, paragraph (1) of the Local Autonomy Act, at least in terms of this case, should be construed to refer to the voting as part of the single set of procedures for requesting the removal (in a broad sense). To put it another way, although it is true that the Local Autonomy Act distinguishes "making a request for the removal" and "voting for the removal" by providing for separate procedures, they are originally intended to form a process for pursuing a single purpose. Therefore in some aspects, emphasis must be placed on the totality of these procedures, and it could be said that exactly in this sense, the system of designating the "representatives" is designed as a system that is common to both procedures. All of the past court decisions on this issue adopted such construction, and the State (former Ministry of Home Affairs, current Ministry of Internal Affairs and Communication) does not, at least, dare to argue against it. This construction does not necessarily cause any substantial problem (a question may be raised as to whether or not it is reasonable to impose such restrictions on any public officer, but this is a question about the extension of the concept of public officers, and it is completely different from a question of how to construe Article 85, paragraph (1) of the Local Autonomy Act). In consideration of these matters, I can find some reasonable grounds for the dissenting opinion which argues that the final appeal should be dismissed, without needing to venture to modify the judgment of the Supreme Court of 1954. Another question may be raised as to why we have to nevertheless choose the way of adopting a strict literal construction. This question can theoretically be answered as follows. If we take the aforementioned stance of construing Article 85, paragraph (1) of the Local Autonomy Act in line with the intended purpose, it would be a problem how we could explain the difference between such construction and the express provision of said paragraph. Whatever explanation we would give, we cannot avoid using a kind of broad construction in that we understand the concept that is used in laws and regulations in a broad sense, broader than it is ordinarily understood. In this case, such broad construction is adopted for the purpose of extending the range of the restrictions on the right of public officers. (This is an issue of legislative technique. If we take a view that the "voting for the removal" can be construed to include the "making of a request for the removal" under the existing express provision of Article 85 of the Local Autonomy Act, the construction mentioned above would not be a "broad construction." However, I use the term "broad construction" while taking into consideration how said express provision can be construed from the viewpoint of the general public, rather than the viewpoint of an expert in legislative issues.) It cannot necessarily be said that in the part of the field of public law that is not included in the field of criminal law, we are prohibited in any case from putting a broad construction on an express provision of law for the purpose of enhancing the range of the restrictions on the people's rights, and it cannot be denied that there may be cases where such method of legal construction is unavoidable in order to fulfill more significant public interest. However, when dealing with the restriction on the right disputed in this case, it cannot necessarily be assumed that prohibiting such expansion of the range of the restriction on the right (through legal construction) would result in irrecoverable serious infringement to public interest (for instance, there are other regulations under the existing law, in addition to those disputed in this case, which are intended to assure the political neutrality of public offices in the course of directly requesting the removal of an assembly member). On the other hand, the right to be restricted per se can be deemed to be important in nature as it relates to the people's right to participate in the political process. Assuming so, if an attempt is ever made to expand the range of the restrictions on such right, it would be reasonable to achieve this by making a new law that clearly shows the legal basis and defines the content of the restrictions, instead of putting a broad construction on the express provision of the existing law. 2. There is a further question---in this case, should the Supreme Court make a decision, in its case law policy, to go so far as to modify the judicial precedent for the purpose of urging clarification of these regulations? This time, the Supreme Court has chosen the way of construing the Provisions to be beyond the bounds of delegation by law and judging them to be illegal and invalid, and how to pick up the pieces after we thus made this decision is beyond the bounds of judgment authorized to the judiciary. If the legislature (law) or the executive (Cabinet Order) considers it as an absolutely necessary policy to deprive public officers of the eligibility for acting as a representative requester for the removal in any case, the authorities concerned are supposed to immediately take the legislative measure as appropriate. If they fail to take such measure, it follows that their failure proves that such regulation is not absolutely necessary (in this respect, if Article 115 of the Order for Enforcement of the Local Autonomy Act is declared invalid, there would be a kind of vacuum in law with regard to the restrictions on the eligibility for acting as a representative requester for the removal. Concerning this problem, I personally do not consider that any critical situation would occur unless perfect regulations were put in place by laws or regulations in terms of the restrictions on public officers’ political activities, without causing a vacuum even for a moment in any situation.) In light of the ideal provisions of laws and regulations that impose restrictions on the people's rights, as described above, it seems to me to be relatively significant to reconsider this issue by taking the opportunity to deal with this case in which the issue is raised by the people whose rights are subject to such restrictions. It is obvious that residents file lawsuits such as this case and their claims are supported by scholars partly because there is a question as to whether or not it is reasonable at all to impose such restrictions on the rights of any public officers, including a member of the Agricultural Commission involved in this case. It may be significant just to provide the opportunity to review the restrictions on eligibility of public officers, including such question. For the reasons stated above, I consider it to be a reasonable choice to modify the judgment of the Supreme Court of 1954 based on the aforementioned decision and make a judgment on this case while assuming the illegality of the Provisions, and therefore I agree with the majority opinion. The concurring opinion by Justice WAKUI Norio is as follows. My view is in line with the majority opinion, but I am concerned that the dissenting opinion attached to this judgment has some aspects that might cause a misunderstanding regarding the basic viewpoint of the majority opinion in dealing with this case. I would like to clarify such viewpoint by way of precaution. The issue in dispute in this case is whether or not it is appropriate for the administrative agency concerned to have made a decision to deny the eligibility of a member of the Agricultural Commission for acting as a representative requester for the removal of an assembly member. The center of the issue is whether or not the Provisions of the Order for Enforcement of the Local Autonomy Act, which restrict the eligibility for acting as a representative requester for the removal of an assembly member, can be deemed to be valid in relation to the literal provision of Article 85, paragraph (1) of the Local Autonomy Act, which is the basis for delegation to these provisions. The majority opinion judges, exclusively from the literal meaning of the legal text, that the provision of Article 85, paragraph (1) of the Local Autonomy Act relates to the voting for the removal and it cannot be construed to allow Cabinet Order to prescribe the matters relating to the making of a request for the removal as well, and based on this ground, it concludes that the Provisions, which prescribe the eligibility for acting as a representative requester for the removal, go beyond the bounds of delegation by law and cannot be deemed to be valid. In other words, the majority opinion considers purely an issue of jurisprudence, and it does not further make a judgment on the substantial issue, that is, whether or not it is a reasonable legislative measure to impose such restrictions as those prescribed in the Provisions on the eligibility for acting as a representative requester for the removal. Where the validity of the Provisions are denied as determined by the majority opinion, it would be necessary to put a clear legal provision in place in order to impose restrictions on the eligibility of public officers for acting as a representative requester for the removal. In such case, what kind of restrictions are acceptable or how such restrictions should be provided by law are, needless to say, legislative issues that the authorities concerned have the power and responsibility to consider. The concurring opinion by Justice MIYAKAWA Koji and Justice SAKURAI Ryuko is as follows. We are in agreement with the majority opinion, but we would like to give some supplementary comments to explain our view. 1. The background of this case is as follows. In relation to a request for the removal of an assembly member, the administrative agency concerned issued a certificate of representative requesters to the Representatives, including Appellant X1 who is a member of the Agricultural Commission, and gave public notice to that effect. Following this, the Representatives started to collect signatures, and within one month, they submitted to the administrative agency concerned the list of signatures containing the signatures for the request for the removal of the assembly member collected from 1,124 persons, more than one-third of the total number of persons who have the right to vote, and this list of signatures was accepted by the administrative agency concerned. However, the administrative agency concerned subsequently made a decision to invalidate all of the signatures entered in said list of signatures on the grounds that these signatures were collected through an illegitimate procedure because a member of the Agricultural Commission was included in the representative requesters for the removal who conducted the signature collection procedure. We consider that this instance poses a serious question regarding the core of the system of residents’ direct request for the removal of an assembly member. The foundation of local self-government is indirect (representative) democracy (Article 93 of the Constitution, Article 89 and Article 139 of the Local Autonomy Act). After residents have elected their representatives in an election by exercising their sovereign power, there may be a situation where a representative’s will runs away from the residents’ will. In order to make up for such defect in indirect democracy by applying the principle of direct democracy, the Local Autonomy Act provides for the system for residents’ direct participation in the political process to some extent. For example, residents are given the right of initiative in that they can urge an ordinary local public entity to take the measures that they desire, by requesting the enactment, revision, or repeal of prefectural or municipal ordinances (Article 12, paragraph (1), Articles 74 to 74-4) and requesting an audit of affairs (Article 12, paragraph (2), Article 75). They are also given the right to recall by requesting the dissolution of the assembly (Article 13, paragraph (1), Articles 76 to 79) and request the removal of an assembly member, the head or any other officer of the ordinary local public entity (Article 13, paragraph (2) and paragraph (3), Articles 80 to 88). The latter right can be regarded as embodiment of the "right to dismiss public officials" as set forth in Article 15, paragraph (1) of the Constitution. Important procedures for realizing such rights of residents must be defined by law clearly and indisputably. Looking at the provisions giving the basis for the restrictions on the eligibility for acting as a representative requester, as pointed out in the majority opinion, we should say that it is difficult to find clear grounds for supporting the construction and application in the past practice or the view indicated in the judgment of the Supreme Court of 1954. In light of the seriousness of said provisions in that they result in invalidating all of the signatures entered in the list of signatures, we have no choice but to say that said judgment of the Supreme Court should be modified. 2. The Public Offices Election Act provides that public officers may not stand as a candidate for public office during their term of office (the main clause of Article 89, paragraph (1) of said Act), while lifting this restriction with regard to a certain range of public officers (the proviso to said paragraph). For instance, part-time members of volunteer firefighting corps or volunteer flood fighting corps (item (iv) of said paragraph) and temporary or part-time members of commissions or committees as designated by Cabinet Order (item (iii) of said paragraph) are excluded from said restriction. Members of the Agricultural Commission may stand, during their term of office, as a candidate in an election of members of a municipal assembly and an election of a municipal mayor (Article 90, paragraph (2), item (i), Appended Table 2 with its notes of the Order for Enforcement of the Public Offices Election Act). The cause of the confusion in the practices implemented by the administrative agency concerned may be such inconsistency, i.e. allowing members of the Agricultural Commission to stand as a candidate as described above, while denying their eligibility for acting as representative at the stage of making a request in the procedure for requesting the removal of an assembly member. Today, there are various types of part-time public officers in the special service, who support the administration of the local public entities. In particular, as compared with the situation at the time when the Local Autonomy Act was enacted, the number of local councils has significantly increased, and members of these councils are appointed from a wide range of persons. More local public entities appoint council members even from among residents in general through public recruitment. According to the case records, Toyo Town has a population of about 3,300. In an ordinary local public entity of such scale, a considerable number of young or matured residents are supposed to play some roles for the entity. If it is ever necessary to restrict such part-time public officers in the special service, similarly to full-time public officers in the regular service, from acting as a representative requester for the removal, the basic provisions and reasons, etc. for such restriction must be indicated as clearly as possible and in a manner so that they are understood and publicized among residents in general. 3. The legislative purport of Article 85, paragraph (1) of the Local Autonomy Act also cannot be deemed to be clear enough. The Local Autonomy Act designs each system for residents’ direct participation in the political process in the form of a procedure consisting of two stages, i.e. the stage of making a request and the stage of realizing the effect of the request, and it prescribes application mutatis mutandis of the provisions concerning the request for the enactment, revision, or repeal of prefectural or municipal ordinances with regard to other procedures for request (Article 75, paragraph (5), Article 76, paragraph (4), Article 80, paragraph (4), Article 81, paragraph (2), Article 86, paragraph (4)). The request under these provisions must be made by the representative of the requesters, and the Local Autonomy Act does not impose any restriction on the eligibility for acting as a representative requester with regard to the request for the enactment, revision, or repeal of prefectural or municipal ordinances, except that the representative requester must have the right to vote. In view of this feature of the direct request system, it cannot be easily determined whether or not the Local Autonomy Act is intended to impose such restriction on the eligibility for acting as a representative requester at the stage of making a request with regard to other types of direct request. 4. The direct request system cannot be deemed to have been used at full value in Japan. However, in recent years, as residents become more aware of self-government, it seems that this system has been used more frequently and become more important. In particular, through the promotion of decentralization of power led by the national government, prefectures and municipalities have more autonomous control over the affairs that they administer. In order to ensure the development of local self-government in a true meaning in combination with the establishment of self-government by local public entities as described above, it is essential to enhance self-government by residents, in that residents make judgments of their own and assume responsibility for such judgments. It is requested that the functions of direct democracy, such as various direct request systems and referendum systems, be improved as a means for promoting such enhancement of self-government by residents. Through our supplementary comments, we would stress that with regard to the requirements for the eligibility for acting as a representative requester under the direct request system disputed in this case, the persons in charge of drafting and making laws are responsible for clearly defining such requirements by law as the issue concerning residents’ exercise of their fundamental right, while taking into consideration the trends of decentralization of power as described above, and developing the environment where residents will be able to make their own decisions without interruption. The dissenting opinion by Justice HORIGOME Yukio, Justice FURUTA Yuki, and Justice TAKEUCHI Yukio is as follows (Justice TAKEUCHI Yukio also presents an additional dissenting opinion). In our opinion, the judgment in prior instance is justifiable and there is no ground for modifying the judgment of the Second Petty Bench of May 28, 1954, and therefore the final appeal should be dismissed. The reasons for our opinion are as follows. 1. The system for requesting the removal of a member of an assembly of an ordinary local public entity (hereinafter referred to as an "assembly member of a local government"; this system shall hereinafter be referred to as the "removal system") consists of the procedure for making a request for the removal as required to conduct signature collection, etc. and the procedure for voting for the removal. They are a single set of procedures, each of which forms a part of the removal system. The representative requesters for the removal play their role throughout the removal system as a whole, and in accordance with the relevant provisions of law, they are recognized under the removal system as the major players who are to make a request for the removal, take the lead in carrying out a series of activities, including not only collection of signatures but also the activities for gaining votes in favor of the removal (hereinafter referred to as the "voting campaigns"), and become involved in the procedure for voting for the removal, in the capacity of the representatives of requesters with the aim of successfully having the assembly member removed, and in this respect, they are the important element constituting the removal system. Article 85, paragraph (1) of the Local Autonomy Act provides that "except for those otherwise specified by Cabinet Order, the provisions of the Public Offices Election Act concerning an election in an ordinary local public entity shall apply mutatis mutandis to…the voting for the removal under the provisions of Article 80, paragraph (3)…" Whether or not to remove an assembly member of a local government elected in an election should be determined based on the residents’ will presented by their votes, and in light of the fact that such voting has substantially the same nature as the voting in an election of assembly members of a local government in that in both cases, the voting is intended to identify the residents’ will, fairness must be assured for the voting for the removal as in the case of the voting in an election. For this reason, Article 85, paragraph (1) of the Local Autonomy Act basically requires the voting for the removal to be held under the same system for voting in an election. This provision also prescribes application mutatis mutandis of all of the provisions concerning the restrictions on eligibility such as Article 89, paragraph (1) of the Public Offices Election Act without exception because, when a public officer acts as a representative requester for the removal, there is concern such as that he/she would use his/her position to unduly affect the voting by residents, and this is likely to harm fairness in voting as in the case where a public officer stands as a candidate in an election for public office. In accordance with this, Article 115 of the Order for Enforcement of the Local Autonomy Act provides that when Article 89, paragraph (1) of the Public Offices Election Act is to be applied mutatis mutandis to the voting for the removal of an assembly member of a local government, the phrase "candidate for public office" shall be deemed to be replaced with "representative requester for the removal." Under these provisions, a public officer is prohibited from acting as a representative requester for the removal. The meaning of the phrase "voting for the removal" as set forth in Article 85, paragraph (1) of the Local Autonomy Act should also be construed in light of the aforementioned reasoning. That is, the phrase "voting for the removal" as set forth in said paragraph should be construed to refer to the system for voting for the removal as a whole, as a concept corresponding to an "election" under the Public Offices Election Act. 2. The majority opinion can be summarized as follows. Cabinet Order to be issued under Article 85, paragraph (1) of the Local Autonomy Act is not allowed to specify matters relating to the making of a request for the removal, and therefore it is impermissible to apply mutatis mutandis the provision of the main clause of Article 89, paragraph (1) of the Public Offices Election Act to the eligibility for acting as a representative requester for the removal to the extent that the restrictions on such eligibility are further applied to the procedure for making a request for the removal, on the following grounds: (i) since Article 85, paragraph (1) of the Local Autonomy Act provides that the election-related provisions of the Public Offices Election Act shall apply mutatis mutandis to the voting for the removal, it can be construed that the subject to which these provisions shall apply mutatis mutandis is the procedure for voting, separated from the procedure for making a request; (ii) the procedure for voting for the removal has the same nature as the procedure for voting in an election in that both are official procedures in which voters cast their votes, and the procedure for voting for the removal is in substance appropriate as the subject to which the election-related provisions shall apply mutatis mutandis; (iii) on the other hand, the procedure for making a request for the removal is a procedure by which persons who have the right to vote initiate such voting procedure, and it has no equivalent system in the Public Offices Election Act, and therefore the procedure for making a request for the removal cannot be regarded as a procedure having similarity to or the same nature as the procedure for voting in an election under the Public Offices Election Act to the extent that it should be subject to application mutatis mutandis of the election-related provisions of said Act; (iv) because of this, Article 80, paragraph (1) and paragraph (4) of the Local Autonomy Act specify the details of the procedure for making a request for the removal by including provisions specific to this procedure in the Local Autonomy Act or delegating the relevant matters to Cabinet Order. However, as explained above, Article 85, paragraph (1) of the Local Autonomy Act requires the system for voting for the removal to be held basically under the same system for voting in an election, from the perspective of securing fairness in such voting as in the case of an election. Said Act includes provisions concerning the requirements for making a request and the signature collection, etc., and all of these provisions exclusively specify necessary matters concerning the making of a request, whereas the Act basically leaves matters concerning voting to be governed by the provisions of the Public Offices Election Act concerning an election. The majority opinion emphasizes the separation between the procedure for making a request and the procedure for voting for the removal. However, as explained above, these procedures form an indivisible set of procedures, and the representative requesters for the removal are the element constituting the removal system, as the major players who aim to successfully have the assembly member removed through both procedures. Therefore, their eligibility relates to voting, and it is obviously subject to application mutatis mutandis of Article 89, paragraph (1) of the Public Offices Election Act (according to the majority opinion, persons such as members of the Election Management Commission who take charge of administering the affairs concerning a request and voting for the removal would also be eligible for acting as representatives in the procedure for making a request. This is obviously inappropriate). If we follow the majority opinion, it would result in dividing the eligibility for acting as a person who, in the capacity of the single player under law, is to take the lead in carrying out a series of integrated activities with the aim of successfully having an assembly member removed. Such a way of determining the eligibility is unnatural and unreasonable. This is also incompatible with the fact that voting campaigns are permitted even at the stage of collecting signatures. In addition, it is contrary to the purport of the law, i.e. prohibiting a public officer from acting as a representative requester for the removal so as to ensure that fairness in voting will not be harmed. If a public officer acts as a representative requester for the removal, there is concern that he/she would unduly affect the voting, and such concern would occur at any stage including the stage of signature collection. The law does not anticipate a person who is ineligible for acting as a representative in the procedure for voting to act as a representative requester for the removal. 3. The reasoning presented above can be fully understood from Article 85, paragraph (1) of the Local Autonomy Act and other relevant provisions of the Act, and the Order for Enforcement of the Local Autonomy Act clearly indicates the manner for applying Article 85, paragraph (1) of said Act, e.g. it provides that the parts of the provisions of the Public Offices Election Act concerning a candidate for public office shall be deemed to be the provisions concerning a representative requester (Article 108, paragraph (2), etc.) (the Order for Enforcement of the Local Autonomy Act is complicated due to a number of provisions requiring application mutatis mutandis. This may be because specific provisions have been required for each type of request). Our opinion is that to adopt a construction which can be deemed to be appropriate, it should be one reasonably drawn from Article 85, paragraph (1) of the Local Autonomy Act and other relevant provisions of said Act, and it must be in line with the purport of the law, and as well, it must not only be accepted in the administrative practices but also have already been affirmed by this court, and have been established through judicial precedents over many years. We should say that the majority opinion can be construed to declare that, with regard to the eligibility for acting as a representative requester for the removal, there is no restriction for any public officers, whatever positions they hold, in the procedure for making a request under the removal system for an assembly member of a local government, contrary to the purport of the law, i.e. ensuring fairness in voting. We find no reasons for modifying the aforementioned judgment of the Supreme Court of 1954 by going so far as to make such declaration. We cannot at all agree with the majority opinion. The additional dissenting opinion by Justice TAKEUCHI Yukio is as follows. My opinion is indicated in the dissenting opinion shown above. Although there may be some duplication, I would like to give some supplementary comments to state my basic view as to why I do not agree with the majority opinion. 1. The majority opinion states as follows. The Local Autonomy Act stipulates two stages of the procedure for requesting the removal of an assembly member, i.e. making a request for the removal and voting for the removal. Since Article 85, paragraph (1) of the Local Autonomy Act provides that the election-related provisions of the Public Offices Election Act shall apply mutatis mutandis to the voting for the removal under Article 80, paragraph (3) of the Local Autonomy Act, it can be construed that the subject to which these provisions shall apply mutatis mutandis is the procedure for voting, separated from the procedure for making a request. Therefore, the matters that may be specified by Cabinet Order under Article 85, paragraph (1) of the Local Autonomy Act are limited to those relating to the procedure for voting, and the restrictions on the eligibility for acting as a representative requester for the removal are not further applied to the procedure for making a request. Here, I do not repeatedly point out the problems with the construction of Article 85, paragraph (1) of the Local Autonomy Act adopted by the majority opinion, which limits the scope of application of the restrictions on the eligibility for acting as a representative requester for the removal only to the procedure for voting for the removal, for these problems are indicated in the dissenting opinion shown above. However, I should nevertheless say that the fundamental problem is in the majority opinion's attitude of construing the relevant legal provisions; more specifically, while placing too much importance on the language or formality of the legal provisions, the majority opinion did not give adequate consideration to the legislative purport of Article 85, paragraph (1) of the Local Autonomy Act or the reasonable construction that has been established through the judicial precedents, including the judgment of the Supreme Court of May 28, 1954 (hereinafter referred to as the "1954 Supreme Court judgment") as well as the administrative practices. 2. The purpose of Article 85, paragraph (1) of the Local Autonomy Act and of the Provisions is to ensure due process in the procedure for requesting the removal (recall) of a member of an assembly of an ordinary local public entity, and the legislative purport of these provisions can be construed as that public officers are not allowed to act as representative requesters for the removal in breach of their obligation to maintain neutrality in the course of performance of their public duties. In this respect, the 1954 Supreme Court judgment stated that in accordance with Article 85, paragraph (1) of the Local Autonomy Act, the election-related provisions of the Public Offices Election Act shall "apply mutatis mutandis to a set of acts leading to making a request and voting for the removal" of the village mayor or members of the village assembly. Said judgment further indicated that "it is always undeniable that the collection of signatures is likely to be affected by the fact that a person who is currently in the office of a member of the Agricultural Commission is included in the representative requesters, and therefore, in light of the legal intent of denying the eligibility of a member of such commission for acting as a representative requester for the removal during his/her term of office, there is no choice but to consider all of the signatures collected through such procedure to be invalid signatures collected through an illegitimate procedure." The lower courts have consistently adopted the same construction: decision of the Kobe District Court of October 9, 1953 (Gyosaishu Vol. 4, No. 12, at 3149), judgment of the Aomori District Court of October 31, 1953 (the judgment of first instance regarding the 1954 Supreme Court judgment), judgment of the Kobe District Court of April 20, 1954 (Gyosaishu Vol. 5, No. 4, at 879), decision of the Hiroshima District Court of April 1, 1994 (yet to be officially published), judgment of the Naha District Court of July 14, 2004 (published on the Supreme Court website). Also, in the administrative practices concerning the request for the removal, public offices have been restricted from acting as representative requesters for the removal at the initial stage of making a request (Local Autonomy System Study Group, ed., "Shintei chushaku chihojichi kankei jitsureishu" (Collection of cases regarding local autonomy with commentaries, newly revised edition), at 119 et seq., the same study group, ed., "Chihojichi kankei jitsurei hanreishu" (Collection of judicial precedents on cases regarding local autonomy, 13th revision) at 341 et seq.) 3. The majority opinion does not mention the "legal intent" or legislative purport of Article 85, paragraph (1) of the Local Autonomy Act, which was indicated in the 1954 Supreme Court judgment, nor does it address issues such as the public officers' obligation of neutrality or due process for the procedure for requesting the removal. However, the public officers' obligation of neutrality, in particular political neutrality, is an extremely important rule required under the Constitution. In consideration of this obligation, the rules of service discipline are prescribed in the National Public Service Act, the Local Public Service Act, etc., and needless to say, under the laws and regulations concerning public officers, it is provided that public officers are not allowed to organize the signature campaign or carry out the voting campaign not only at the stage of voting for the removal but also at the stage of making a request during the procedure for requesting the removal of an assembly member. It can be construed that from the viewpoint of ensuring due process in the procedure for requesting the removal of an assembly member in which residents make a direct request, Article 85, paragraph (1) of the Local Autonomy Act imposes restrictions to deny the eligibility of public officers for acting as a representative requester for the removal because they must maintain neutrality. It is true that the restrictions on the eligibility for acting as a representative requester for the removal, in some aspects, lead to a constraint on the people's exercise of their right to dismiss public officers, but such restrictions are not targeted at the right of the general public to participate in the political process, but only targeted at the right of public officers who must maintain neutrality for the reasons stated above. Furthermore, even under such restrictions, public officers are not at all prevented from giving their signatures or casting their votes, and they are also allowed to carry out the signature collection activities in the capacity of the person entrusted with the collection of signatures for the request for the removal. Therefore, it can be construed that Article 85, paragraph (1) of the Local Autonomy Act anticipates such a level of restrictions as a matter of course in order to ensure due process of the direct request system in which a request shall be made based on residents’ free will. According to the majority opinion, the restrictions on eligibility of public officers are not applicable at the stage of making a request for the removal. We have to say that such a new construction of law is a daring attempt to overturn a reasonable construction that has already been established based on judicial precedents and administrative practices. The representative requesters for the removal have the authority to carry out the signature campaign themselves or entrust others to collect signatures at the stage of making a request for the removal, and have the status as the persons responsible for the set of procedures toward submitting the list of signatures of requesters for the removal to the Election Management Commission. Thus, the representative requesters for the removal play an important role in taking the lead in requesting the removal through the procedure for making a request, rather than through the procedure for voting, thereby guiding residents toward a certain political direction. Public officers are not allowed to, in breach of their obligation of neutrality, use their positions and take the initiative as the leaders in charge of requesting the removal who have such authority and status, because if they do so, it would undermine due process of the system for requesting the removal, the basis of which is said to be that residents can make a direct request based on their free will. This is a construction of Article 85, paragraph (1) of the Local Autonomy Act and other relevant provisions that is natural and reasonable and in line with the legislative purpose of these provisions. Even though these provisions may be somewhat unclear in terms of the language or formality, such a reasonable construction has already been established through the judicial precedents, including the aforementioned Supreme Court judgment, as well as administrative practices, and we cannot find the necessity to venture to modify this reasonable construction already established. 4. In addition, the majority opinion would eventually lead to the conclusion that the Local Autonomy Act does not impose any restriction on public officers, to whom the National Public Service Act shall apply directly or mutatis mutandis and the Local Public Service Act shall apply directly, from acting as representatives at the stage of making a request for the removal of an assembly member of an ordinary local public entity, except that they are subject to the rules of service discipline under these Acts. It would follow that the Prime Minister and other Ministers of State, Senior Vice-Ministers, and Parliamentary Secretaries, as well as members of the Agricultural Commission, involved in this case, and the persons listed in Article 90, paragraph (2) and Appended Table 2 of the Public Offices Election Act, namely, members of the Central Election Management Council and the Election Management Commission, members of the National Public Safety Commission, members of the Environmental Dispute Coordination Commission, members of the Council on the House of Representatives Electoral District, members of the Board of Education, etc., are all eligible to act as representatives who are to take the lead in requesting the removal. The point indicated by the 1954 Supreme Court judgment--- it is undeniable that residents’ attitude is likely to be affected by the fact that a public officer is included in the representative requesters for the removal---still has significance. The right to request the removal of an assembly member under the Local Autonomy Act is an important right that residents are entitled to have under the system of direct democracy, and the basis of this request system is that residents can make a direct request based on their free will. We are afraid that modifying the aforementioned Supreme Court judgment would have the method of putting a reasonable construction on the legislative purport set back and would undermine the basis of the direct request system.

Justice TAKESAKI Hironobu Justice FUJITA Tokiyasu Justice KAINAKA Tatsuo Justice IMAI Isao Justice NAKAGAWA Ryoji Justice HORIGOME Yukio Justice FURUTA Yuki Justice NASU Kohei Justice WAKUI Norio Justice TAHARA Mutsuo Justice KONDO Takaharu Justice MIYAKAWA Koji Justice SAKURAI Ryuko Justice TAKEUCHI Yukio Justice KANETSUKI Seishi