Freedom of Political
Expression in Japan
Shigenori Matsui
University of British Columbia,
Faculty of Law
Canada
1
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.
2
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.
3
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.
4
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.
5
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
6
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
7
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
8
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.
9
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
10
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
11
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.
12
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
13
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
14
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
15
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?
16
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?
17
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
18
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
19
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.
20
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.
21
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
22
4-3 Injunction against Defamation
The Hoppou Journal Case
Should the courts be allowed to issue
injunction against defamatory speech?
23
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
24
The Niigata Prefecture Public Safety
Ordinance Case
The Tokyo Metropolitan Public Safety
Ordinance Case
The Tokushima City Public Safety
Ordinance Case
25
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?
26
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
27
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.
28
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?
29
6-2 The Ban on Political Activities on
Judges
The Judiciary Act
The Judge Teranish Case
30
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.
31
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.
32
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.
33
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.
34
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.”
35
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.
36
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