Nationality → Elements of citizenship → Aliens and the Constitution

Higgs v. State, 1993 and 1995

Constitution does not give aliens suffrage, nationally or locally

By William Wetherall

First posted 23 April 2007
Last updated 15 August 2009

Summary  Is it unconstitutional do deny aliens, particularly those with permanent residence permits, the right to vote in national or local elections? Alan Higgs contended it was, in two lawsuits, the first concerning national elections, the second local elections. Both cases went through the entire gaunlet of district, high, and supreme courts, and Higgs lost in all six courts. The many Koreans who also filed alien suffrage suits, claiming the right not only to vote but stand for office, nationally and locally, all lost in all courts.

Higgs cases

Alan Higgs, a British national, married a woman with Japanese national in 1981 and came to Japan in 1982. The couple has two children with Japanese nationality. In 1987 Higgs obtained a permanent residence permit. In 1989, and again in 1991, he filed lawsuits claiming that, though not a Japanese national, he had the right to vote in national elections.

First Higgs case (1989-1993)

In order to vote in the 23 July 1989 House of Councilors elections, Higgs attempted to register as a voter in Ikeda city, Osaka prefecture, where he was residing. However, the Ikeda city election board refused to register him on the city's voter rolls, citing Articles 9 and 21 of the Public Office Election Law, which limited the right to vote to Japanese nationals. If Higgs wanted to vote, he would have to naturalize.

Unable to vote in the election, Higgs sued the state and Ikeda city, claiming that the election law violated the 1947 Constitution. He also demanded 1,000,000 yen in compensation for the considerable mental pain he suffered on account of being refused his constitutional right to vote.

Osaka District Court (1st instance)

Case 1989 (U) No. 9401
Filed 17 November 1989
Decision 29 March 1991

Plaintiff Alan Higgs
Defendant State

Ruling Dismissed plaintiff's claim and required him to bear litigation costs.

Osaka High Court (2nd instance)

Case
Decision 31 July 1992

Apellant Alan Higgs
Apellee State

Ruling Dismissed appellant's claim and required him to bear litigation costs.

Supreme Court (Final instance)

Case 1992 (O) No. 1928
Decision 26 February 1993

Appellant in final appeal Alan Higgs
  Representatives: [three attorneys]
Appellee in final appeal State
  Representatives: [Minister of Justice, one attorney]

Ruling Dismissed appellant's appeal and required him to pay litigation costs.

Second Higgs case (1991-1995)

The second Higgs case sought to confirm his right to vote in local elections. In November 1990, while pursuing the 1989 suit, Higgs failed to get his name on Ikeda city's voter registration rolls in order to vote in a local election. In April the next year he filed a second suit which the Osaka District Court dismissed in January 1994. The Osaka High Court in January 1995, and the Third Petit Bench of the Supreme Court in April 1995, dismissed his appeals.

Osaka District Court

Filed 22 April 1991
Decision 28 January 1994

Osaka High Court

Decision 31 January 1995

Supreme Court

Decision 25 April 1995

In what was clearly a somewhat anti-climatic case, the Supreme Court ruling did not refer to the Kim et al v Osaka, 1995 ruling handed down by the same Third Petit Bench earlier the same year.

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Other cases

Koreans in Osaka, not to be outshadowed by Higgs, mounted their own law suits. The most important of the Korean cases has been Kim et al v Osaka, 1995, which originated in November 1990. The Korean case to get the most media attention, however, was the lawsuit filed in February 1993 by Lee Young-Hwa and the Zainichito, a political party that sought to put Koreans in the Diet.

Lee Jin Chol et al v Fukui

In 1991, Lee Chin Choi (李鎮哲 イジンチョル) and three other Koreans sued the state, and the four municipal election boards that had refused to register the plaintiffs on municipal voter rolls. On 5 October 1994, the Fukui District Court dismissed their claim that the 1947 Constitution gave them the right to vote in local elections, and their demand for 1,000,000 yen compensation each.

Fukui District Court

Filed 2 May 1991
Decision 5 October 1994

Fukui High Court

Decision 26 June 1996

Supreme Court

Decision 25 April 2000

Zainichito and Lee Yong Hwa

The Zainichito (在日党) -- short for 在日外国人参政権党 or "Party for Political Participation Rights of Foreigners in Japan" -- or was denied status as a national party because its members were not Japanese. Several of its members, including Lee Yong Hwa (李英和 リヨンファ), were not allowed to run in the 1992 House of Councilors election because they did not have family registers in Japan, which would have meant they were Japanese.

Lee made numerous attempts between 1992 and 1998 to run for offices in constituencies from Hokkaido to Okinawa. They were mostly intended to publicize the fact that Koreans and other resident aliens in Japan were unable to vote in even local elections, despite their obligation to pay taxes, and despite the fact many of them were permanenty domiciled or had even been born in the country.

In the first lawsuit to involve Lee, he and other Zainichito members demanded 4.5 compensation, claiming their constitutional rights had been violated when the state refused to allow them to run for office in the House of Councilors election. The plaintiffs lost the original suit and an appeal.

Osaka District Court

Filed 18 February 1993
Decision 9 December 1994

Osaka High Court

Decision 27 March 1996

On 19 July 1995, Lee and seventy-four others sued the state, charging that the Political Party Subsidy Law (政党助成金法), passed in 1994, was unconstitutional because the subsidy was drawn from taxes, paid by both Japanese and aliens, though aliens could not vote. The Osaka District Court dismissed the case on 20 February 1997.

Human Rights Association for Koreans in Japan

Shortly after the Supreme Court ruling in Kim et al v Osaka, 1995, one-hundred-eighteen (118) members of a group called 在日コリアン人権協会 (Zainichi Korian Jinken Kyokai) or "The Human Rights Association for Koreans in Japan" sued Osaka for the right to vote.

The group had formerly called itself Mintoren (民闘連) -- short for 民族差別と闘う連絡協議会 (Minzoku sabetsu to tatakau renketsu kyogi kai) or "Liaison council for fighting ethnoracial discrimination". Still, on its website today, the group claims to be "a movement organization of concerned persons who propose systems and policies, and positively take part in Japanese society, to eliminate ethnocracial discrimination against Koreans in Japan (在日コリアンに対する民族差別撤廃のための制度、政策を提案し、日本社会に積極的に参画する当事者の運動団体です。).

The plaintiffs, represented by Hong In Song (洪仁成 ホンインソン), sought to confirm that they had the right of local suffrage, not only to vote but also to be elected, and asked for 100,000 yen each compensation for their unconstitutional treatment. Their claims were rejected, but the court held that "suffrage" would include the right to run for office.

Osaka District Court

Filed 7 April 1995
Decision 28 May 1997

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裁判長裁判官 藤島昭
  裁判官 中島敏次郎
  裁判官 木崎良平
  裁判官 大西勝也

Presiding Judge, Justice
              Fujishima Akira
  Justice   Nakajima Toshijiro
  Justice   Kizaki Ryohei
  Justice   Oonishi Katsuya

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