Freedom of Passage and the Passport Act
Today, the world is disturbed by the Islamic State, otherwise known as ISIL. Recently, a Japanese man planning to travel to Syria was ordered to surrender his passport by the Ministry of Foreign Affairs pursuant to the Passport Act. According to news reports, the man received the order from the Ministry and subsequently surrendered his passport. Under the Passport Act, an order of surrender has a deadline imposed, and failure to surrender the passport by the deadline will see the passport become invalid, and the holder subject to a maximum penalty of 5 years imprisonment and/or a 3 million yen fine. In light of this, a person receiving such an order has no option other than to surrender their passport.
One basis for a surrender order is defined in Article 19 (1)(4) of the Passport Act, which says that an order to surrender may be made when it is deemed necessary to stop the holder from traveling in order to protect the holder’s life, health or property. It would appear that the order made on this occasion is based upon this provision.
In light of ISIL’s recent activity, if the passport holder was to enter Syria, the possibility of him being captured by ISIL and his life being put in danger is very high, which clearly satisfies the requirement for issuing a surrender order, namely that it is “necessary to stop the holder from traveling in order to protect the holder’s life”. Further, if the passport holder did not change his intention to travel even after the Ministry advised him not to travel, then the only way the Ministry could stop him from traveling would be by forcing him to surrender his passport; therefore, the requirement that the surrender order be necessary is also satisfied.
However, a passport holder will also lose the ability to travel to safe countries other than Syria if the passport is surrendered pursuant to an order, if the person later wishes to travel to another country, I think it would be necessary for the person to pledge that they definitely will not travel to Syria and prove that the reason for issuing the initial order has been resolved, which would allow for a new passport to be issued.
The provision of the Passport Act that defines passport surrender orders raises the issue of its relationship with the freedom to travel to a foreign country that is guaranteed by Article 22 (2) of the Constitution. But even if a traveler says “I want to go to Syria even if I die there”, if a person is caputred by ISIL, it is not a problem that can be resolved by saying that the citizen is responsible for their own actions, so it seems unavoidable that the Passport Act should define the ability to completely restrict a person’s freedom to travel to a foreign country.
Although the provisions of the Passport Act are not normally the subject of debate, during the Cold War Kei Hoashi, a politician from Japan’s Socialist Party, planned to travel to the Soviet Union to attend an international conference but was denied the issue of a passport (the “Kei Hoashi Case”, Supreme Court judgment dated 10th September 1958). To say that the provisions of the Passport Act must be invoked as Japanese people will become the target of terrorists, I think implies the beginning of a disturbing era which is likely to arrive in the future.
(Translated from the original Japanese article)