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1 Freedom of Political Expression in Japan Shigenori Matsui University of British Columbia, Faculty of Law Canada.

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Presentation on theme: "1 Freedom of Political Expression in Japan Shigenori Matsui University of British Columbia, Faculty of Law Canada."— Presentation transcript:

1 1 Freedom of Political Expression in Japan Shigenori Matsui University of British Columbia, Faculty of Law Canada

2 2 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.

3 3  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.

4 4 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.

5 5  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.

6 6  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

7 7  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

8 8  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

9 9  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.

10 10  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

11 11 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

12 12  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.

13 13  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

14 14  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

15 15 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

16 16  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?

17 17  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?

18 18  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

19 19 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

20 20  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.

21 21  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.

22 22  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

23 23  4-3 Injunction against Defamation  The Hoppou Journal Case  Should the courts be allowed to issue injunction against defamatory speech?

24 24 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

25 25  The Niigata Prefecture Public Safety Ordinance Case  The Tokyo Metropolitan Public Safety Ordinance Case  The Tokushima City Public Safety Ordinance Case

26 26  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?

27 27  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

28 28  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.

29 29 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?

30 30  6-2 The Ban on Political Activities on Judges  The Judiciary Act  The Judge Teranish Case

31 31 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.

32 32  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.

33 33  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.

34 34  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.

35 35 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.”

36 36  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.


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