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Top>Opinion>Granting Voting Rights to Foreign Residents Violates the Constitution


Kazuhiro Nagao

Kazuhiro Nagao [Profile]

Granting Voting Rights to Foreign Residents Violates the Constitution

Kazuhiro Nagao
Professor of the Constitutional Law, Faculty of Law, Chuo University

I readily accepted a request to contribute an article because I think a bill that the Democratic Party of Japan is attempting to submit to the Diet clearly violates the Constitution and poses a threat to Japan's national security.

Differentiation between national politics and local politics

There are two different theories as to the voting rights of foreign residents in local elections: some argue that granting voting rights to foreign residents is acceptable (the acceptance theory) and others think that it would violate the Constitution (the forbiddance theory). In writing an article on this topic, I recognized that the acceptance theory that I had previously advocated was in fact wrong and set out to clarify that the forbiddance theory is correct. First of all, I would like to describe what compelled me to change my view to the forbiddance theory. My transformation stems not from a personal change of heart, but rather from the change of Japan's position in the international environment as well as the recognition that Japan is lacking in terms of national awareness.

The acceptance theory originally recognized voting rights-in local elections but not in national elections-predicated on the premise that differentiation could be made between national and local politics. Clear differentiation between them, however, has become difficult in recent years.

Dual voting rights for foreign residents in Japan

Take the Japan-South Korea issue as an example. The South Korean electoral law was amended last February allowing for South Korean residents in Japan to vote in presidential elections and parliamentary proportional elections while they are living in Japan. Further, when they declare habitation in South Korea, they are granted the right to vote in parliamentary district elections as well as in local elections, and they are even granted the right to stand as a candidate. They may declare habitation while maintaining registration of residence in Japan. That is, a declaration of habitation in South Korea may be made without losing permanent resident status in Japan. Currently, more than 60,000 residents have declared habitation in this way. While this arrangement allowing for rights and participation in the South Korean electoral process is favorable-because they are South Korean people-it is another matter for them to have voting rights in Japanese elections. Foreign residents in Japan have dual voting rights, and thus an advantage over ordinary Japanese citizens. The issue of loyalty, however, is more important than these points.

Is Tsushima Island South Korean territory?

In South Korea, the Constitution requires every South Korean to pledge loyalty to the nation. The duty of national defense is imposed on South Korean citizens through a system of compulsory military service. If the national interests of Japan and South Korea conflict, South Koreans will act in accordance with their pledged loyalty. When South Korean residents in Japan exercise the right to vote in Japanese elections under such situations of conflicting interests, will they vote for South Korea's national interests or in betrayal of their own country? This has actually become a real current issue. For the last few years, the argument that Tsushima Island was originally a territory of South Korea which was illegally occupied by Japan has been propagated in South Korea. Since last year, fifty Parliament members have attempted to submit a Resolution to Reclaim Tsushima Island. This resolution is now committed to a subcommittee related to foreign affairs. The Masan city council even established Tsushima Island Day several years ago. According to an opinion poll about the Tsushima Island issue, half of the South Korean public regards Tsushima Island as a South Korean territory. Many South Korean people go to Tsushima Island almost daily to buy real estate there.

Too much of one thing is good for nothing

In light of electoral politics, the South Korean government is forced to exhibit strong behavior toward Japan. The Tsushima Island issue will become an important diplomatic dispute in the near future, and there will be blowback from the negative attitudes that successive Japanese governments have shown time and again regarding control of the Northern Territories, Takeshima, and Senkaku Islands, regardless of their evident status as Japanese territories. It is also worth noting that Okinawa might become the next issue after Tsushima Island. Returning to the Japan-South Korea issue, there are about 30,000 eligible voters in Tsushima city, and a candidate can win in the city council election with at least 685 votes. If foreign residents are granted voting rights, those candidates who regard Tsushima Island as a South Korean territory can win in the election.

International peace is broken when a crack appears. If you let your friend live with your family, attend a family meeting, and express his or her opinions, your friendship will be surely destroyed. Accepting his or her opinions unconditionally is not proof of friendship. It should be noted that giving foreign residents the right to vote is equal to giving your friends the right to attend your family meetings and to express their opinions.

EU situations do not apply to our situation

The situations among EU member states do not apply to our situation at all. Take Germany as an example. When EU legislation decided to allow all EU citizens to vote in local elections in the member states in which they live, the German government was quite confused. In Germany at that time, it was generally assumed that granting voting rights to foreign residents was unconstitutional because it conflicted with democracy and popular sovereignty, which was also the standpoint of the German Federal Constitutional Court. Democracy requires self governance of the people and popular sovereignty postulates that the right to determine public policy resides in the people alone. Even after the German government was forced to amend the Constitution in response to EU legislation, granting voting rights to foreign residents other than EU citizens still remains unconstitutional. The French government was also required to amend the Constitution. Consequently in Japan, it should be thought unconstitutional to grant voting rights to foreign residents in local elections as long as the Constitution is not amended. (As for voting rights in national elections, constitutional amendment itself is prohibited.)

The foreign resident suffrage issue is a security issue

The focus of the foreign resident suffrage issue has shifted from South Korean residents to Chinese residents in Japan recently. There are about 140,000 Chinese permanent residents, and the number is increasing by 10,000 per year. By simple arithmetic, the number of Chinese residents will exceed that of South Korean residents in 17 years, and the actual number is expected to be much shorter. If voting rights are granted to foreign residents, issues just like the Tsushima Island issue and much more serious issues than that will arise in relations between Japan and China. In Yonakuni Island, the southernmost island in Japan, a town mayoral election was held with its attention focused on the attraction of the Self Defense Forces. In this election, the plurality was only 103. The Chinese government holds that Okinotorishima Island is just a ledge in international waters rather than in Japanese territory. This island belongs to the Ogasawara village, which polled just 713 votes in the recent village mayoral election that was held there. If foreign residents are given voting rights, we can easily imagine that some foreigners would immigrate to such local communities and affect local elections there. To maintain a friendly relationship between Japan and China, we should keep a minimum distance. Excessive courtesy can often result in the destruction of friendships. We should avoid stupid acts such as letting friends attend family meetings, which cause unnecessary conflict and tension. The bill granting voting rights to foreign residents not only threatens Japan's security, but also adversely affects international peace.

Local elections decide national politics

Now, the results of local elections directly affect national politics. In the mayoral election in Nago city, Okinawa, an anti-base candidate won. In response to this result, Prime Minister Hatoyama said he honored the decision of the Nago people. In principle, Japan's national security issues should not be affected by the results of local elections because it is the core of national politics. From the viewpoint of the original intent of the parliament cabinet system, a situation where the core issue of Japanese national politics is decided by 1,000 or so residents is dubious. This situation is caused by the Japanese character: a lack of national awareness and a lack of defense awareness. I think such Japanese character has become more conspicuous recently. Unlike other countries, there is no clear differentiation between issues associated with national politics (self defense, foreign affairs, territory, and other issues) and issues associated with local politics in Japan. Unless clear differentiation is made, granting voting rights to foreign residents in local elections should be regarded as being at odds with national sovereignty, popular sovereignty, and the principle of democracy because it leads to considerable impacts made by foreigners and foreign countries on national politics.

Commitment to foreign residents

It is not uncommon that foreign governments attempt to demonstrate their intentions through foreign residents. It is well known the Korean Residents Union in Japan (called Mindan), an organization for South Koreans living in Japan, is operated with 60 to 70 percent of its operating expenses subsidized by the South Korean government. Thus, Mindan's request for voting rights is by extension the request of the South Korean government. In other words, the commitment regarding the suffrage of foreign residents made by the Democratic Party of Japan to Mindan is a commitment to the South Korean government. Generally governments should make commitments to their people only. I must say that Japan is extraordinary lacking in national awareness. In fact, Mindan as a whole boosted the campaign of the Democratic Party of Japan in the previous election. For your information, if a foreigner is involved in campaign activities in South Korea, he or she is punished with up to three years of imprisonment.

Though there are many more points to be discussed regarding the suffrage of foreign residents, this article focuses mainly on South Korean residents in Japan and the Japan-China relationship due to limited space. Nevertheless, I believe these examples are enough to make you recognize that the planned bill is potentially dangerous.

Kazuhiro Nagao
Professor of the Constitutional Law, Faculty of Law, Chuo University
Born in 1942
Graduated with an undergraduate degree from the Department of Law in the Faculty of Law at Chuo University in March 1966
Graduated with a master's degree from the Graduate School of Law and Politics at the University of Tokyo in March 1968
Became an assistant on the Faculty of Law at Chuo University in April 1968
Became an associate professor on the Faculty of Law at Chuo University in April 1972
Became a professor on the Faculty of Law at Chuo University in April 1979
Primary works: The Constitution of Japan (Version 3) (Sekaishisosha Co., Ltd.), Foreigner Suffrage (Sekaishisosha Co., Ltd.)