Source: http://www.nhk.or.jp/ kaisetsu-blog/ This week I wanted to return to an issue that was raised in the lead-up to the House of Representatives election in the Japanese Diet in December last year, and which might, if judged to be valid, bring into question the entire legitimacy of the current Abe government. As may be recalled, before the election, the DPJ, LDP and New Komeito reached an agreement in November to reduce the number of single-seat electoral districts by five with no subsequent increase in districts (J). This agreement was based on a ruling by the Supreme Court in 2009 which declared that the difference in the value of votes between districts was unconstitutional and that the Diet had to resolve this problem.
Again, on three separate occasions during 2011, the Supreme Court ruled that the Diet take action on the issue, yet nothing was done to resolve the disparity before former Prime Minister Noda announced the election date. With no time for consultations with regional party affiliates, all three major parties attempted to rectify the imbalance in vote value (using proposed legislation that was questionable in intent) yet were unsuccessful (as time ran out for the legislation to pass through the Diet and be signed into law before the House of Representatives was dissolved). Hence the election of December 2012 took place while there was a (maximum) 2.52% difference in vote value in 97 single-seat electoral districts across Japan (as noted here – J).
Various legal groups, aware that the election was taking place in violation of the precepts of the constitution which declares that each voter district shall have equal weight in vote value, attempted to have the election declared invalid. Yet they were thwarted by a ruling of the Supreme Court which stated that even though the election was unconstitutional, it had to proceed has there was no legal mechanism in place to outline what the Supreme Court should do should an election be declared null and void. This was not an unprecedented situation, as the general Diet election of 1983 was also unconstitutional, yet the fact that the Diet had more than a year’s notice before the December election to actually do something about the disparity yet failed to act until the last minute did not sit well with constitutional scholars or lawyers (or the Supreme Court, for that matter) (J).
Hence at the beginning of this month, lawyers across Japan launched legal actions in regional courts seeking to have the election declared unconstitutional and (more importantly) the result declared invalid. So far, six courts located in Tokyo, Sapporo, Sendai, Nagoya (J), Fukuoka, and Kanazawa have all made rulings on the election, with four declaring the election to have been “unconstitutional”, while two have ruled that the election was “unconstitutional in nature”. Another ten courts are scheduled to making rulings on the election before the 27th, after which it is expected to be once again presented as an issue to the Supreme Court.
This is where things get interesting. Expectations are that the Supreme Court will again rule that the election was “unconstitutional” (given the precedents set and the rulings of regional courts), but what will really set tongues wagging is if any of the regional courts, followed by the Supreme Court, declares the election invalid. If it does, it will be the first time this has occurred under the post-war electoral system. However there is no time frame for when the Supreme Court must reach a ruling on the matter, and it may choose to postpone indefinitely making a ruling that could potentially destabilise the state.
Hence what is likely to happen is that each court will rule the election unconstitutional, but will refrain from upping the ante by declaring the result invalid. Then at least each court can go on record as stating its objections to the legal ambiguity that Japan’s politicians seem so reluctant to fix. As long as the current disparity is allowed to continue, questions will be raised about the commitment of Japan’s politicians to the rule of law, specifically the highest law in the land from which all others are derived. My cynicism prevents me from being more hopeful for a definite resolution to the problem, but if the issue draws enough media coverage both in Japan and abroad it might bring enough pressure to force the adoption of a more equal voting system.
Again, on three separate occasions during 2011, the Supreme Court ruled that the Diet take action on the issue, yet nothing was done to resolve the disparity before former Prime Minister Noda announced the election date. With no time for consultations with regional party affiliates, all three major parties attempted to rectify the imbalance in vote value (using proposed legislation that was questionable in intent) yet were unsuccessful (as time ran out for the legislation to pass through the Diet and be signed into law before the House of Representatives was dissolved). Hence the election of December 2012 took place while there was a (maximum) 2.52% difference in vote value in 97 single-seat electoral districts across Japan (as noted here – J).
Various legal groups, aware that the election was taking place in violation of the precepts of the constitution which declares that each voter district shall have equal weight in vote value, attempted to have the election declared invalid. Yet they were thwarted by a ruling of the Supreme Court which stated that even though the election was unconstitutional, it had to proceed has there was no legal mechanism in place to outline what the Supreme Court should do should an election be declared null and void. This was not an unprecedented situation, as the general Diet election of 1983 was also unconstitutional, yet the fact that the Diet had more than a year’s notice before the December election to actually do something about the disparity yet failed to act until the last minute did not sit well with constitutional scholars or lawyers (or the Supreme Court, for that matter) (J).
Hence at the beginning of this month, lawyers across Japan launched legal actions in regional courts seeking to have the election declared unconstitutional and (more importantly) the result declared invalid. So far, six courts located in Tokyo, Sapporo, Sendai, Nagoya (J), Fukuoka, and Kanazawa have all made rulings on the election, with four declaring the election to have been “unconstitutional”, while two have ruled that the election was “unconstitutional in nature”. Another ten courts are scheduled to making rulings on the election before the 27th, after which it is expected to be once again presented as an issue to the Supreme Court.
This is where things get interesting. Expectations are that the Supreme Court will again rule that the election was “unconstitutional” (given the precedents set and the rulings of regional courts), but what will really set tongues wagging is if any of the regional courts, followed by the Supreme Court, declares the election invalid. If it does, it will be the first time this has occurred under the post-war electoral system. However there is no time frame for when the Supreme Court must reach a ruling on the matter, and it may choose to postpone indefinitely making a ruling that could potentially destabilise the state.
Hence what is likely to happen is that each court will rule the election unconstitutional, but will refrain from upping the ante by declaring the result invalid. Then at least each court can go on record as stating its objections to the legal ambiguity that Japan’s politicians seem so reluctant to fix. As long as the current disparity is allowed to continue, questions will be raised about the commitment of Japan’s politicians to the rule of law, specifically the highest law in the land from which all others are derived. My cynicism prevents me from being more hopeful for a definite resolution to the problem, but if the issue draws enough media coverage both in Japan and abroad it might bring enough pressure to force the adoption of a more equal voting system.
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