6/25/2020 Details of 2001 (Gyo-Tsu) 82 | Judgments of the Supreme Court fact that the Diet did not establish an overseas electoral register system until 1998, the choices that has been made by the Diet are not in violation of the provisions of the Constitution or the treaty as alleged by the jokoku appellants, and therefore they are not unconstitutional. 4. Although we are in agreement with the majority opinion that the suits to seek declaration of illegality of the Public Offices Election Law before and after the Amendment as the principal claims are illegal due to a deficiency in procedural requisites and the suit for the alternative claim is a legal, because we deny the unconstitutionality of the part of the provision of Article 8 of the Supplementary Provisions of the Public Offices Election Law that limits, for the time being, the applicability of the overseas voting system to elections of members of the Houses of the Diet under the proportional representation system, we consider that the alternative claim for declaration is groundless and therefore should be dismissed on the merits. Consequently, the judgment of the second instance that dismissed the alternative claim for declaration on the grounds of a deficiency of procedural requisites contains an apparent violation of laws that has affected the judgment. In this case in which the jokoku appellants make the alternative claim for declaration, the jokoku appeal should be dismissed on the merit with respect to the part concerning the alternative claim for declaration in accordance with the principle of prohibition of changes against appellants. The claim for state compensation for unconstitutional legislative omission or failure to establish an overseas voting system, in our opinion, is groundless and therefore should be dismissed on the merits because such omission is not in violation of the Constitution. The judgment of the second instance drew the same conclusion, so the jokoku appeal should be dismissed on the merits with respect to the part concerning the claim for state compensation. The following is the concurring opinion of Justice IZUMI Tokuji regarding the majority opinion mentioned in VI above. I disagree with the majority opinion with respect to the part that upholds the claim for state compensation, and agree with it with respect to the other parts. The majority opinion says that in order to compensate mental distress suffered by the jokoku appellants from being unable to exercise the right to vote in the Election because of the Public Offices Election Law that precluded Japanese citizens residing abroad from voting at the time of the Election, the State shall pay each jokoku appellant 5,000 yen as compensation for non-pecuniary damage under the Law Concerning State Liability for Compensation. However, in my opinion, monetary compensation is not suitable for such mental distress suffered by the jokoku appellant, so without needing to examine unconstitutionality of the Public Offices Election Law at the time of the Election, the jokoku appellants' claim for state compensation should be dismissed on the merits. When citizens suffer discriminatory treatment without justifiable reason in terms of the exercise of the right to vote, which is a fundamental right guaranteed by the Constitution, the courts must strive to find a way to eliminate such discrimination and restore their right and to give appropriate remedies, while performing the duty to play an active role in maintaining the normal operation of democratic political procedures. The claim for state compensation in this case is not principally intended to obtain monetary compensation but intended to obtain a virtual declaration, in the reasons for judgment, of the unconstitutionality of the Public Offices Election Law for precluding Japanese citizens residing abroad from exercising the right to vote, thereby indirectly encouraging the Diet to take legislative measures to restore the right to vote. It would appear that the jokoku appellants dared to add the claim for state compensation, which may be a circuitous way to restore the right to vote, considering that suits other than a suit to seek state compensation might be denied legality. In general, where legislation prevents the exercise of a fundamental right under the Constitution, it is better to allow a claim for state compensation as the last resort when there is no other appropriate https://www.courts.go.jp/app/hanrei_en/detail?id=1264 19/21