6/25/2020 Details of 2001 (Gyo-Tsu) 82 | Judgments of the Supreme Court 4. The court of the second instance dismissed all the suits to seek declarations on the grounds that none of them could be deemed to be a legal controversy and therefore they were illegal, and also dismissed the claim for state compensation on the merits. The jokoku appellants argue that the provision of the Public Offices Election Law that restricts Japanese citizens residing abroad from exercising the right to vote in national elections is in violation of, among others, Articles 14, 15(1) and (3), 22(2), 43, and 44 of the Constitution, and also argue the illegality of the judgment of the second instance that regarded the suits for declaration as being not allowed and dismissed the claim for state compensation. II. Constitutionality of the restriction of the exercise of the right to vote of Japanese citizens residing abroad 1. Citizens' right to choose members of the National Diet as their representatives through elections, which is a fundamental right that guarantees citizens the opportunity to take part in national administration, serves as the core of parliamentary democracy, and a democratic nation should give this right equally to all citizens who have reached a certain age. The Constitution of Japan, in its preamble and Article 1, proclaims that sovereign power resides with the people, and provides that the people shall act through their duly elected representatives in the National Diet. Article 43(1) provides that both Houses of the Diet shall consist of elected members, representative of all the people. Article 15(1) further provides that the people have the inalienable right to choose their public officials and to dismiss them. Thus, the Constitution guarantees the people, as the sovereign, the right to take part in national administration by voting in elections of members of the Houses of the Diet. Article 15(3) of the Constitution also guarantees universal adult suffrage with regard to the election of public officials, and the proviso of Article 44 prohibits discrimination as to the qualification of electors of members of both Houses because of race, creed, sex, social status, family origin, education, property or income. In light of the provisions mentioned above, it is reasonable to construe that the Constitution, under the principle of popular sovereignty, guarantees the people the right to take part in national administration by voting in elections of members of the Houses of the Diet as their inalienable right, and in order to achieve this goal, guarantees the people equal opportunity to vote. In light of the purport of the Constitution mentioned above, it is unallowable in principle to restrict the people's right to vote or their exercise of the right to vote, aside from imposing certain restrictions on the right to vote of those who have acted against fair elections, and it should be considered that in order to restrict the people's right to vote or their exercise of the right to vote, there must be grounds that make such restriction unavoidable. Such unavoidable grounds cannot be found unless it is deemed to be practically impossible or extremely difficult to allow the exercise of the right to vote while maintaining fairness in elections without such restrictions. Therefore, it must be said that it is in violation of Article 15(1) and (3), Article 43(1), and the proviso of Article 44 to restrict the people from exercising the right to vote without such unavoidable grounds. This also applies where the people are unable to exercise the right to vote due to the State's failure to take necessary measures to enable them to exercise the right to vote. Japanese citizens residing abroad, unlike those residing in Japan, are generally unable to exercise the right to vote due to lack of eligibility to be listed on the electoral register. However, they still have the constitutional right to vote, and the State is responsible for taking necessary measures to practically enable them to exercise the right to vote while giving consideration to maintenance of fairness in elections. The State may argue unavoidable grounds to take no such measures only when it is deemed to be practically impossible or extremely difficult to take such measures while maintaining fairness in elections. 2. Constitutionality of the Public Offices Election Law before the Amendment As mentioned in I. 2(2) above, under the Public Offices Election Law https://www.courts.go.jp/app/hanrei_en/detail?id=1264 11/21