Freedom of Political Expression in Japan

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Freedom of Political Expression in Japan

• Shigenori Matsui
• University of British Columbia, Faculty of Law
• Canada

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Introduction

• The Japanese Constitution enacted in 1946
  provides in its Article 21
• Freedom of assembly and association as well as
  speech, press, and all other forms of expression
  are guaranteed.
• No censorship shall be maintained...
• Freedom of expression is essential not only for
  personal development but also for democracy.
  Freedom of political expression lies at the core
  of freedom of expression.

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• The Japanese Supreme Court entrusted with the
  power of judicial review has admitted the
  importance of protecting freedom of political
  expression.
• Yet, there are many restrictions on freedom of
  political expression in Japan and the Japanese
  Supreme Court has been reluctant to overturn
  these restrictions.

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1. Freedom of Political Expression

• 1-1 Freedom of Political Expression under the
  Meiji Constitution
• The Meiji Constitution of 1889, the first modern
  constitution in Japan, protected freedom of
  speech.
• Japanese subjects shall, within the limits of
  law, enjoy the liberty of speech, writing,
  publication, public meetings and associations.
• Yet, under the Meiji Constitution, the Emperor
  was sovereign and sacred and inviolable.

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• Protection of individual rights was extremely
  limited.
• Only benevolent grant
• People were regarded as subjects
• Only protected within the limits of law
• There were many statutes which restricted freedom
  of political expression.
• The People did not have any freedom during the
  War.

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• 1-2 Freedom of Political Expression under the
  Japanese Constitution
• After the war, Japan was placed under the
  occupation by the Allied Nations
• Abolished many statutes restricting freedom of
  political expression
• Abolished the special high police force
• Ordered the immediate release of political
  prisoners

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• The Japanese Constitution protected freedom of
  expression against this background.
• The sovereign power resides in the people
• The Emperor is merely a symbol of the state
• Individual rights are guaranteed as fundamental
  human rights
• The courts is vested with the power of judicial
  review

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• The Japanese Supreme Court has developed the
  freedom of expression jurisprudence, which admits
  the significance of giving protection to freedom
  of expression, especially freedom of political
  expression.
• The Hoppou Journal Case

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• Yet, freedom of expression is subject to
  restrictions for the purpose of protecting public
  welfare.
• There are many statutes restricting freedom of
  political expression in Japan.
• Yet, the Japanese Supreme Court has been
  unwilling to overturn these restrictions.

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• This paper will examine the following examples to
  show the stance of the Japanese Supreme Court.
• Advocacy of Illegal Action
• Election Campaigning
• Political Defamation
• Freedom of Public Demonstration, Distribution of
  Document, or Posting of Posters
• Political Activities of Public Employees

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2. Advocacy of Illegal Actions

• 2-1 Advocacy of Illegal Actions
• The most typical political expression is an
  advocacy of illegal actions, including advocacy
  for revolution or overthrow of the Government.
• The Criminal Code
• The Subversive Activities Control Act
• The ban on sedition and solicitation
• The ban on publication of documents advocating
  the legitimacy and necessity

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• 2-2 The Japanese Supreme Court
• The Emergency Measure Order to Secure Food Supply
  Case
• The Japanese Supreme Court upheld the
  constitutionality of punishing advocacy of
  illegal actions.
• The Japanese Supreme Court did not much care what
  was exactly said and whether the speech had a
  present and danger of causing illegal actions.

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• The Riot against the Return of Okinawa Case
• The Japanese Supreme Court followed the stance
  adopted in the Emergency Measure Order to Secure
  Food Supply Case.
• Academics are critical of the stance of the
  Japanese Supreme Court.
• The comparison with the United States Supreme
  Court in Brandenburg v. Ohio

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• 2-3 Regulation of Subversive Groups
• The Subversive Activities Control Act
• The ban on demonstration, public gathering,
  publication of documents.
• The dissolution order
• The Aum Shinrikyo Case

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3. Election Campaigning

• 3-1 Election Campaigning
• The Public Offices Election Act
• Very short election campaigning period
• The ban on election campaigning prior to that
  period
• The ban on door-to-door canvassing
• The strict regulation of distribution of
  documents
• The applicability to the Internet

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• 3-2 The Japanese Supreme Court
• The total ban on door-to-door canvassing was
  upheld by the Japanese Supreme Court
• Prevention of fixing
• Protection of privacy
• Securing equality
• Preventing personal influence
• Is the total ban justified?

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• The strict regulation on distribution of
  documents was also upheld by the Japanese Supreme
  Court.
• Prevention of malicious documents and protection
  of fairness and integrity of election
• Is such a strict regulation justified?
• Is its application to the Internet justified?

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• 3-3 The Regulation of Campaign Financing
• The regulation of contribution and spending
• The Public Offices Election Act
• The Political Contribution Regulation Act
• The Political Party Aid Act
• It is likely to be upheld by the Japanese Supreme
  Court.
• Many loopholes and ineffective enforcement

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4. Political Defamation

• 4-1 Defamation in Japan
• Defamation is subject to criminal punishment and
  civil liability
• Criminal Code, article 230
• Civil Code, article 709
• The amendment to the Criminal Code (Article
  230-2)
• Matter of public interest
• Public interest purpose
• The proof of truth

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• The Evening Wakayama Case
• Expanded the protection to defendant who could
  not prove that the statement was true
• If there was a reasonable ground to believe that
  the statement was true, the defendant should not
  be punished
• The Japanese Supreme Court applied the same
  protection to defamatory speech in civil
  litigation as well.

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• In political defamation cases, the defendant mass
  media must prove
• 1. matters of public interest
• 2. public interest purpose
• 3 the statement was true or there was a
  reasonable ground to believe that the statement
  was true
• The defendant is required to prove only third
  requirement in regards to defamation on public
  officials or candidates.

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• 4-2 The Constitutionality of Restricting
  Defamatory Speech
• The Japanese Supreme Court upheld the
  constitutionality of restricting defamatory
  speech.
• The comparison with the United States Supreme
  Court in New York Times Co. v. Sullivan

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• 4-3 Injunction against Defamation
• The Hoppou Journal Case
• Should the courts be allowed to issue injunction
  against defamatory speech?

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5. Freedom of Public Demonstration, Distribution
of Documents, and Posting of Posters

• 5-1 Public Demonstration on the Public Street
• The Public Safety Ordinances
• Permit requirement
• The ban on public demonstration which causes
  disturbance of public safety
• Conditions

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• The Niigata Prefecture Public Safety Ordinance
  Case
• The Tokyo Metropolitan Public Safety Ordinance
  Case
• The Tokushima City Public Safety Ordinance Case

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• 5-2 Public Gathering in the Public Park
• The May Day Parade in the Out-side Garden of the
  Imperial Palace Case
• Rejecting the suit for mootness
• Added its opinion upholding the constitutionality
  of permit refusal
• Damage to parks?

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• 5-3 Distribution of Documents on the Public
  Street
• No statutes
• Railroad Act
• Possibility of punishment as a trespass if
  distributor enters into a private property of an
  apartment complex

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• 5-4 Posting of Posters
• The Outdoor Advertisement Act and Outdoor
  Advertisement Ordinance
• The Misdemeanor Act
• The Japanese Supreme Court upheld the
  constitutionality of these restrictions.

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6. Political Activities of Public Employees

• 6-1 The Ban on Political Activities of Public
  Employees
• The National Public Workers Act
• The Sarufutsu Case
• The Japanese Supreme Court upheld the ban in
  order to secure the political neutrality of
  public employees and to secure the appearance of
  political neutrality.
• Is almost total ban on political activities of
  public employees justified?

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• 6-2 The Ban on Political Activities on Judges
• The Judiciary Act
• The Judge Teranish Case

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7. Freedom of Political Expression in Japan
Reconsidered

• The Japanese Supreme Court upheld all
  restrictions on freedom of political expression.
• Although the Japanese Supreme Court has adopted
  the philosophy of judicial restraint, it has
  invalidated several statutes restricting economic
  freedoms. In contrast, it has never struck down
  statutes which restricted freedom of expression.

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• Almost all the Supreme Court Justices have been
  appointed by the conservative Governments.
• The Japanese Supreme Court received political
  pressure during 1960s and it came to refrain from
  interfering with political decisions of the
  Government. That may be the main reason why the
  Japanese Supreme Court is so reluctant to
  overturn statutes restricting freedom of
  political expression.

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• Moreover, the Japanese society is well know for
  its group-oriented nature, preferring the harmony
  of the society.
• Political dissenters are likely to be viewed as
  disrupters of the harmony and many people do not
  feel the necessity of protecting their
  expression.

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• It is all the more important, therefore, that the
  judiciary gives strong protection to political
  dissenters.
• The political situation surrounding the Japanese
  Supreme Court has changed. There is no need for
  the Japanese Supreme Court to refrain from
  protecting political freedom.

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Conclusion

• As the United States Supreme Court remarked in
  the Sullivan case, a profound national
  commitment to the principle that debate on public
  issues should be uninhibited, robust, and
  wide-open, and that it may include vehement,
  caustic, and sometimes unpleasantly sharp attacks
  on government and public officials.

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• Strong protection of freedom of political
  expression is vital in democracy.
• It is necessary for the Japanese Supreme Court to
  reconsider the scant protection it has accorded
  to freedom of political expression.