*Translated by google translate

We started crowdfunding on July 31st, 2024, and received many donations in about a month, and reached our initial goal of 500,000 yen on September 4th, 2024!

We are truly grateful. Thank you very much. We will continue to take our #referendumtotherighttothecourt!

Our next goal is to raise an additional 1 million yen, so we appreciate your continued support.

Introduction

The government has also deployed new troops to Ishigaki Island in 2023 as part of a "southwest shift" to increase the Self-Defense Forces' presence on the Okinawa islands.

In fact, leading up to this deployment, in 2018, the citizens of Ishigaki had called on the city to hold a referendum to ask whether they supported or opposed the planned site for the garrison, based on the Ishigaki City Basic Ordinance on Autonomy.

Despite this, Ishigaki City continued to refuse, so citizens launched a legal battle, starting with the "mandatory referendum lawsuit" in 2019. However, without receiving any judicial relief, the garrison was opened in 2023.

In Ishigaki City, citizens' rights are being stripped away as a result of national policy, and local autonomy and democracy are facing a crisis.

Background

The Ground Self-Defense Force Ishigakijima Garrison was built in the Hedo Omata area of Ishigakijima. In response to a military conflict between China and Taiwan, a so-called "Taiwan emergency," the Japanese government has been building new GSDF garrisons one after another on the islands of Okinawa, and discussions on evacuation plans for island residents off the islands and the construction of shelters have also intensified in recent years.

Meanwhile, what is not widely known is that before construction began on Ishigaki Island, the Ishigaki City Residents' Association was formed in October 2018 with the aim of holding a local referendum on the proposed site for the garrison. The site for the garrison is located in the center of Ishigaki Island at the foot of Mount Omoto, a precious water source, which sparked strong opposition from the residents. The Ministry of Defense provided almost no explanation about the plan, and some landowners only found out about it in the newspaper.

A 28-year-old man who ran a mango farm next to the garrison became the head of the group, and the signature campaign was carried out mainly by people in their late teens and twenties. Citizens of a wide range of generations and occupations, regardless of age or gender, participated in this campaign.

However, despite collecting far more signatures than required, the city continues to refuse to hold a referendum. In September 2019, the Association for the Referendum filed a lawsuit to make a referendum mandatory in the Naha District Court, but was not granted relief, and is currently appealing the decision as a party to the lawsuit. In addition to the request to the Supreme Court on September 6th, we are planning online study sessions and online signature campaigns for legal professionals and citizens across the country regarding the Ishigaki City Referendum Lawsuit.

Overview of the case 　

In other words, the Ishigaki City Basic Ordinance on Autonomy clearly states that if a request for a referendum is made with the signatures of more than a quarter of the voters in Ishigaki City, the mayor of Ishigaki City must hold a referendum on the topic for which the request has been made, and is obligated to hold a referendum.

Regarding the referendum to ask whether or not to support the plan to deploy the Japan Ground Self-Defense Forces in the Hedo Omata area of Ishigaki City (this referendum), signatures from one-third of the voters in Ishigaki City, more than one-quarter of the voters in Ishigaki City, were collected, and on December 20, 2018, a request to hold a referendum was made to Ishigaki City pursuant to Article 28, Paragraph 1 of the Ishigaki City Basic Autonomy Ordinance.

The procedure for requesting the holding of a referendum under Article 28, Paragraph 1 of the Ishigaki City Basic Autonomy Ordinance was to be submitted to the Ishigaki City Council for deliberation, using the procedure for requesting the enactment of an ordinance under Article 74, Paragraph 1 of the Local Autonomy Law. A request for the enactment of an ordinance to implement this referendum was also made for this referendum. However, the City Council rejected the enactment of this implementing ordinance. In response to this, the mayor of Ishigaki City has continued to refuse his obligation to implement this referendum.

All the representatives who requested the referendum in this case filed a lawsuit against Ishigaki City as the defendant, and the Mayor of Ishigaki City as the administrative authority to impose the decision, to require the holding of a referendum. However, the lawsuit was dismissed by the Naha District Court, as the decision to hold a referendum was not a disposition. The case was then fought all the way to the Supreme Court, but the appeal was dismissed (appeal not accepted).

In parallel with the mandatory lawsuit, three volunteer voters in Ishigaki City have filed a substantial party lawsuit, which is a lawsuit to confirm their status under public law, seeking confirmation of their ability to vote in the referendum and confirmation that the mayor of Ishigaki City's failure to hold the referendum in question is illegal. This substantial party lawsuit is currently pending in the First Petty Bench of the Supreme Court.

Plaintiff’s thoughts  

I had a lot of conflicts when I started the local referendum group. On an isolated, small island, having young people take the lead in a political movement carries great risks for each individual. Many of the young people other than the core members kept their faces and names secret out of consideration for their work and family relationships.

We were also worried that we, who had never been involved in citizen movements or elections, would really be able to collect a quarter of the signatures. However, in the end, we managed to collect 14,263 signatures in just one month. This was the result of the initiative of not only our members, but also many citizens. Some high school students even came by bicycle to sign the petition after school.

Mount Omoto is widely known on the island as one of the island's precious water sources that provides water for agricultural and domestic use, and as a sacred place that has been revered as a sacred mountain since ancient times. Four community centers in the area surrounding the garrison expressed their opposition to the plan, and recommended to the city that an environmental assessment was necessary for construction after an on-site investigation by environmental and geological experts was concluded. However, the Minister of Defense rushed to take advantage of the transitional measures of the Okinawa Prefecture Environmental Assessment, which was to be revised in 2019, and started some of the construction work in advance in March of the same year. This overly aggressive approach caused strong opposition from the citizens.

▲September 2, 2018 Yaeyama Mainichi Shimbun

The issues in this lawsuit 　

In the appeal court ruling on the current lawsuit, the court based its argument on Article 93, paragraph 1 of the Constitution, which requires that local governments have assemblies, and then ruled that (1) ordinary local governments are based on indirect democracy, and (2) that in order to hold a referendum under Article 28, paragraph 4 of the Ishigaki City Basic Autonomy Ordinance, a separate referendum ordinance passed by the assembly is necessary. The appeal court is contesting the following four points regarding the judgment of the appellate court ruling.

First issue

• 1) The argument in the appellate court decision that ordinary local public entities are based on indirect democracy is in direct contradiction to the normative structure of the Constitution regarding local autonomy.

Second point of contention

• ②Is it interpreted that in order to hold a referendum under Article 28, Paragraph 4 of the Ishigaki City Basic Autonomy Ordinance, a separate referendum ordinance passed by the city council is necessary?

If we take this interpretation, then Article 28, Paragraph 1 of the Ishigaki City Basic Autonomy Ordinance, which stipulates that requests must be made with the signatures of "one-fourth or more," ends up having the same intent and purpose as Article 74, Paragraph 1 of the Local Autonomy Law, which stipulates that requests for ordinance enactment must be made with the signatures of "one-fiftieth or more." If so, then Article 28, Paragraph 1 of the Ishigaki City Basic Autonomy Ordinance as determined by the appellate court decision ② stipulates stricter requirements than Article 74, Paragraph 1 of the Local Autonomy Law, raising the question of whether this interpretation violates Article 94 of the Constitution and Article 14, Paragraph 1 of the Local Autonomy Law, which stipulate the right to enact ordinances "within the scope of the law."

The third issue

• ① Based on the premise that ordinary local public entities are based on indirect democracy,

  ② If it were to be assumed that in order to hold a referendum under a referendum system established by laws and regulations including the Ishigaki City Basic Ordinance on Autonomy, a separate referendum ordinance passed by the city council is necessary (or that the city council is required to decide whether or not to hold a referendum), this would have a significant adverse impact on the interpretation of referendum systems established by laws and regulations other than the Ishigaki City Basic Ordinance on Autonomy, and therefore such an interpretation cannot be adopted.

Fourth point of contention

• Doesn't the interpretation of ② in the appellate court decision violate the Clear Statement Rule, which is intended to ensure predictability in legal interpretation by citizens?

The "clear statement principle" is an interpretation principle that, if a certain public law interpretation is disadvantageous or infringes on the rights of the relevant parties (citizens), it is necessary that the interpretation be explicitly prescribed by law, and the clear statement principle has also been adopted in Supreme Court precedents.

Q&A to deepen your understanding

Q1 Why did the first instance court dismiss the residents' lawsuit?

A1 The first instance judgment dismissed the residents' lawsuit (turned them away) for two reasons.

[Reason 1] Currently, the clauses regarding referendums, including Article 28, Paragraphs 1 and 4 of the Ishigaki City Basic Autonomy Ordinance, have been deleted, so the city is no longer in a position to vote in the referendum in question.

→This is based on the assumption that the effect of the amendment (deterioration) of the law, namely the deletion of the clause regarding referendums, is retroactive, but this is clearly incorrect and goes against the principle of non-retroactivity of laws and regulations, which is one of the fundamental principles of legal interpretation.

[Reason 2] Even if the status is confirmed through a lawsuit by the parties involved, there is no guarantee that a referendum will be held, so there is no benefit to confirmation.

→This reason is also clearly incorrect and contradicts the Supreme Court's Grand Bench ruling of May 25, 2022. Despite filing a mandatory lawsuit, the residents of Ishigaki City were not given any relief because the lawsuit was deemed ineffective. Given this, they have no choice but to seek relief through a party lawsuit. If the ruling in the party lawsuit confirms the status of the mayor of Ishigaki to vote in the referendum, the mayor of Ishigaki will have no choice but to respect this decision and hold the referendum (it is not permissible to ignore judicial decisions), so it is clear that there is an interest in confirmation through a party lawsuit. These points were also pointed out in the Supreme Court Grand Bench ruling of May 25, 2022, which ruled that the Referendum Act, which provides for a referendum on Supreme Court judges, is unconstitutional because it lacks the right of review for nationals residing overseas.

Q2 Why did the appellate court dismiss the appeal (uphold the original court's dismissal decision)?

A2 The appellate court ruled that the lawsuit filed by the residents should be dismissed, rather than dismissed as in the first instance judgment. However, because only the residents appealed, the principle of prohibiting adverse changes meant that the court found it appropriate to dismiss the appeal by upholding the first instance judgment's dismissal, rather than issuing a judgment that would be more detrimental to the residents who appealed.

However, as we have already seen, all of the reasons given for dismissing the residents' lawsuit are incorrect. Moreover, these reasons were never asserted by Ishigaki City, but were invented by the judge who wrote the appeal court's decision. Why did the appeal court come up with such reasons (sophistry)? Rather than providing relief to residents whose rights have been violated by the administration, which is the original purpose of the Administrative Relief Act, the judges on the appeal court were trying to provide relief to the judges of the first instance who made a clear error that should not be made in an administrative lawsuit decision.

Social significance

First Social Significance

By making it clear that direct democracy, including the referendum system, is consistent with the ideal of local self-governance, which is one of the contents of Article 92 of the Constitution's "essence of local autonomy," and that it embodies the ideal of local self-governance, this lawsuit will enable local governments to actively implement and utilize direct democracy, including the referendum system.

If the argument of the appellate court decision in the real party lawsuit that "indirect democracy is the basis of local government" were to prevail, it would have a huge negative impact on the interpretation of laws and regulations regarding direct democratic systems, including referendum systems, and the idea of local self-governance, which is one of the contents of Article 92 of the Constitution's "essence of local autonomy," would become meaningless.

The Local Autonomy Act and some ordinances include referendum systems established by law. For example, the Local Autonomy Act incorporates a referendum system into the direct petition system for requests to dissolve assemblies, etc. The local autonomy basic ordinances of Yamato City, Kanagawa Prefecture, and Toyonaka City, Osaka Prefecture also include referendum systems. The referendum system in Ishigaki City's Basic Autonomy Ordinance is also a referendum system established by law. These referendum systems are systems of direct democracy, and embody the idea of resident autonomy.

By making it clear that the argument made in the appellate court decision that "indirect democracy is the basis of local government" is in direct conflict with the normative structure of the Constitution and is erroneous, and by highlighting that the referendum system is a system of direct democracy that embodies the idea of local self-governance, we can encourage the active implementation and utilization of referendums.

Second Social Significance

Although more than one-third of the signatures were collected, exceeding the requirement of more than one-quarter as required by Article 24, Clause 1 of the Basic Ordinance on Autonomy of Ishigaki City, and a request was made to hold a referendum, the referendum has not yet been held. The feelings of the plaintiffs, the citizens of Ishigaki, who requested the referendum in this case, trusting in Article 28, Clauses 1 and 4 of the Basic Ordinance on Autonomy of Ishigaki City, continue to be trampled upon.

If this situation were to be tolerated and the appellate court ruling were to be upheld, it would have a huge negative impact. In other words, the predictability of citizens' interpretations of the law would no longer be guaranteed in administrative regulations in general, and the administration would be able to violate citizens' rights by interpreting the law in a way that is disadvantageous to citizens through retroactive sophistry. If the judiciary were to tolerate such administrative sophistry, the administrative relief law to provide relief for administrative infringements of rights would be nothing more than a pipe dream.

In order to prevent such situations and provide relief for rights infringements by the government, the Supreme Court has adopted the principle of clear statement. In this case, by applying the principle of clear statement to Article 24, Paragraphs 1 and 4 of the Basic Ordinance of Ishigaki City Autonomy, rights infringements by the government will be remedied and the predictability of legal interpretations by citizens will be guaranteed. At the same time, it will be possible to prevent the Administrative Relief Act, which aims to provide relief for rights infringements by the government, from remaining nothing more than a pipe dream.

Use of funds  

• Costs for the petition to the Supreme Court (accommodation and transportation costs, flyer printing costs, meeting venue costs, etc.) : We plan to hold a petition in the appeal hearing of the substantial party lawsuit. This petition will involve plaintiffs, supporters, and lawyers handing out flyers to judges and staff arriving in front of the Supreme Court, making a petition to the Supreme Court for about 30 minutes per case, and then holding a rally at a venue near the Supreme Court.

• Costs for preparation of expert opinions and reports from experts in various fields regarding the grounds for appeal or supplementary documents for the grounds for acceptance of appeal
  
  

*On September 4, 2024, we were able to reach our first goal of 500,000 yen.
We are currently aiming for our second goal of 1 million yen. We appreciate your continued support.

　Message from the Lawyers　

Why has a referendum, which should naturally be held, still not been carried out?

Why do the courts run away instead of playing their role of relief?

I feel angry and powerless when I see the reasons for the verdicts, which change like a cat's eye every time a judgment is handed down. However, I continue to stand up again and again with the plaintiffs and speak out against this unfairness and injustice.

What happened on the southern island of Ishigaki could happen anywhere in Japan.

I sincerely hope that citizens throughout Japan will take an interest in this lawsuit as if it were their own issue.

Introducing our lawyers

Taku Ooi, Attorney at Law (Leader of the Defense Team)
Attorney Masaki Nakamura Attorney Takeshi Kobayashi

Donations

The Referendum Association is able to function thanks to donations from people in Ishigaki City and all over Japan.

Because Ishigaki Island is an isolated island, the burden of travel and accommodation costs has been a heavy burden every time we have to appear in court or attend meetings at the Naha District Court or Fukuoka High Court. Even with the remote island discount, the airfare to go to the main island of Okinawa is about 20,000 yen per person.

While we are making good use of the donations we receive, we do not have sufficient operating funds, so we are working as hard as possible on a volunteer basis.

Although it is a humble request, we would be grateful if you could support us with a donation.