Citizens have right to freely campaign in elections

February 18, 2008

Zenichiro Kono, Lawyer

1. Japan's election regulations: toughest in the world

Japan's regulations in election campaigns are much stricter than international standards: door-to-door canvassing have been banned since 1925, and document deliveries are severely restricted. More than 90,000 eligible voters have been punished for "illegal canvassing" or "illegal document delivery" since 1946, according to the National Police Agency. No other country in the world controls election campaigns of candidates and voters to this level.
In European and American countries, where the parliamentary system was born, people are basically free to deliver speeches and documents for election campaigns, if they observe some rules such as to clarify the publishers of documents, and to keep budgets within the legal limits. International human right convention embraces such rights of the citizens. The article 25 of International Covenant on Civil and Political Rights which was adopted in the UN in 1966, states "To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors." Japan ratified it in 1979, which means that it has been effective as domestic law since then.

2. Freedom to campaign in elections is a citizens' right

The article 15 of the Constitution of Japan says that the people have the right to choose their public officials and to dismiss them, and guarantees universal suffrage and secrecy of the ballot. The above-mentioned article 25 of the International Covenant specifies that the elections must guarantee free expression of the will of the electors. Freedom of election campaigns is supported by the articles 19 and 25 of the Covenant, as the General Comment 25 of the Human Rights Committee clarifies that "It requires the full enjoyment and respect for the rights -, including freedom to engage in political activity individually or through political parties and other organizations, freedom to debate public affairs,- to publish political material, to campaign for election and to advertise political ideas." Thus, the Human Rights Committee's official guideline clearly supports freedom to campaign for elections as a citizens' right.
Japan should have revised the Election Law and liberalized restrictions on door-to-door canvassing and document delivery, in order to observe the International Covenant which it had ratified. The Diet doesn't work that way. Door-to-door visits were once legalized during the daytime from 8 a.m. to 8 p.m. in the revision of the Election Law to introduce single-seat constituency system. That bill was approved by the Diet in 1994 when Prime Minister Hosokawa was in office. However, the liberalization was not enforced and the ban revived after a negotiation among major parties.

3. Courts turn away from International Covenant on Civil and Political Rights

The International Covenant has been quoted by those who are accused for door-to-door canvassing or illegal document deliveries, to plead innocence in Election Law infringement cases. The courts, however, have not recognized freedom of election campaign as citizens' right.
I discussed a case in my report from Wakayama Prefecture, in another page of this web-site (in Japanese language), Fukuoka High Court rejected the appeal by the accused on September 7, 2007, a little after my report was uploaded on this web-site. However, Fukuoka High Court quashed the accuser's demand for suspension of civil rights of the accused. The defense counsel, reinforced with a testimony by Ms. E. Evatt, a former Human Rights Committee member, argued that the International Covenant guarantees citizens' rights to canvass door-to-door and to freely deliver documents. The Court, however, ruled that each nation has legislative discretion to design its own election system by taking account of its circumstances and conditions, and that Japan's election system does not violate the International Covenant. It is an unacceptable ruling, because an international human right covenant can not be adopted effectively as long as each nation is allowed to lower the standard of human right protection. How can we allow the Court to declare that the Japanese are politically unperceptive and that we deserve present system?
The defense counsel appealed. The Supreme Court's Second Petty Bench delivered its judgment, at a remarkable speed, on January 28, 2008, that the appeal is rejected. The ruling discussed the relationship between Japan's Election Law and the International Covenant that "It is understood that the rules in the Election Law do not violate articles 19 and 25 of the Covenant. Therefore, the appeal does not have any ground or sound reasons." The Supreme Court virtually refused to study this case. Its ruling does not say anything about the reason why the Court believes that the Election Law is consistent with the International Covenant.
We may have to wait for a long time until we hear the Supreme Court explain. Legal theories do not develop unless they are tested through social practices. Courts are authorized to judge on important cases which involves interpretation of laws. And some courts have ruled on such controversial issues. The Supreme Court must deal more seriously with how to interpret the International Covenant whose guarantee of freedom of election campaigns clearly contradicts Japan's Election Law.

4. People have sovereignty

It may take some time until freedom of election campaigns is established legislatively or through a judgment. We must remember that the voters are major players. Can we tolerate today's elections in which many voters just enjoy spectacle reports on TV and recklessly vote famous TV characters? We need to design an election system in which we can fully exercise our rights as decision makers.