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'
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
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
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.