Thursday, February 09, 2012

On Electoral Reform and the Possibility of Constitutional Crisis

Members of the ruling Democratic Party of Japan and the opposition alliance of the Liberal Democratic Party and the New Komeito met inside the Diet building yesterday to discuss the New Komeito's proposal for a brand new way to distribute the proportional seats in the House of Representatives. The New Komeito, with the backing of the mini- and micro-parties, has proposed the adoption of the hirei daihyo renyosei, which Wikipedia translates as the "Additional Member System."

The new system would strongly favor medium-sized parties while penalizing large parties. In a bid to drive a wedge between the members of the alliance, the DPJ has been inviting the New Komeito to make its case on the application of the new system. With a comfortable majority in the House of Representatives and a mandate running out in August of next year, the DPJ has the luxury of sitting back and watching the two erstwhile allies slug it out over the new system. (J)

The onus on passing electoral reform quickly is upon the LDP. Both parties are in the dumps in terms of public popularity, with party support numbers in the teens. Both would rather not hold an election at this time, given the uncertainty over which direction the non-aligned voters will break. The LDP, however, feels far more threatened by the rise of regional parties such as Osaka City mayor Hashimoto Toru's Ishin no Kai and the nascent force Aichi governor Omura Takeaki hopes to raise through the establishment of his political training school (J). The new forces, should they be able to field candidates in a sufficient number of constituencies, will represent the non-LDP alternative to the DPJ -- i.e., the party to vote for when you want to vote against the DPJ but just cannot stomach a return to power by the LDP.

The longer the time it takes to reform the electoral system, the longer the amount of time the new regionalist politicians have to build their political machines, the worse look the odds for the LDP.

Hence, when you hear about the Noda government cutting a deal with the LDP and the New Komeito over passage of the consumption tax bill in return for early elections, reach for the salt shaker. The party that has the incentive to sacrifice is the LDP, not the DPJ.

Now as to the other strange thought -- that Prime Minister Noda can call a House of Representatives election -- a warning. Last March, the Supreme Court declared unconstitutional any apportionment system where there are electoral districts with populations 1.99 times greater than the population in the smallest district. According to the official population census of 2010, 97 of the current 300 House of Representatives districts have populations 2 times those of Kochi District #3, the current smallest district by population. The 97 districts are thus unconstitutional.

"So what?" some say, "The courts have declared House of Representatives elections unconstitutional before but have never nulified an electoral outcome. The March ruling invalidated the 2009 results and the Supreme Court did nothing." True, but all previous rulings have been ex post facto. The Supreme Court had no incentive to try to reverse what had already taken place.

In this instance, however, the constitutional standard is already in place. The current system has already been declared invalid. Holding an election may be physically possible but the Supreme Court would trigger a constitutional crisis if it were to not invalidate the results.

As to those who speculate on a constitutional fiddle, such as the one devised to allow the existence of the Self Defense Forces in seeming defiance of Article 9 of the Constitution, based largely on the playing around with the names ("It's not an army; it's a Ground Self Defense Force. They are not soldiers and sailors; they are Self Defense Forces personnel!), another warning -- there is really no constitutional fiddle possible.

Article 81 of the Constitution reads:
The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.
and Article 47 reads:
Electoral districts, method of voting and other matters pertaining to the method of election of members of both Houses shall be fixed by law.
(Source: Prime Minister's Residence website)

These two Articles put up a solid wall. There is no crack to squeeze a snap election through. If there were, the parties would not be meeting right now and fighting so fiercely over the eventual bill.

The DPJ has set a date of February 25 for the final draft of a compromise bill. Frankly, given the incentives on all sides to hang on for dear life to their own plans, it will take a miracle for the parties to meet this deadline. (J)

But under duress, miracles sometimes occur. Necessity is, as they say, the mother of invention.


Jan Moren said...

I've mentioned this before, but I wonder what will happen if election law amendment fails and the deadline for lower house elections passes. You hold an election but you can't.

Is the supreme court able to impose a change of the election law of its own devising perhaps? They could argue that with the election deadline passed no legitimate lower house actually exist at that moment and so they need to step in where the Diet no longer can.

MTC said...

Herr Morén -

A theoretical possibility but one no party wishes to face.

Discussions over the Supreme Court-ordered reform of the House of Councillors have pretty much shelved for this Diet session. The parties believe, they have until the end of next year's regular Diet session to fix the problems with the House of Councillors apportionment -- and that a legislated reform of the House of Representatives is vital and more pressing.

sigma1 said...

Excellent analysis. Good point too about the previous rulings being after the fact. Ultimately it falls on the opposition if any deal fails to be implemented. It should be pretty easy for the DPJ to put the blame on the LDP as an enabler of unconstitutional government practice.

A thought though based on some not guaranteed assumptions- is it not likely the new system will also advantage any regional party alliance (with YP chucked in)? I would assume that without too many well known faces they would struggle in constituency seats, but might do decently well on the PR vote - the renyosei is designed exactly for these kinds of parties. For example if they got 20% of the PR vote but only managed to win 30 constituency seats out of 300, in Nagoya/Kansai etc perhaps. Under the current 480 seat system they would get 65 seats. Under the new system they would get a bit more than that, but only out of 400. Same would apply to New Komeito but In both cases the regional party would be the casting vote, but I suspect it is only in the former current case that the New Komeito could be the casting vote (assuming one of the major parties won 30% of the PR vote and 150 constituency seats). Maybe 20% is unrealistic, but then again YP got 13% in the HOC for doing nothing. They might all just agree to go with the LDP solution of 5 seats "down" to address the ippyo kakusa.

sigma1 said...

To follow up MTC's comment to Jan - I think the government in the broadest snese would want to avoid putting the Supreme Court in such a situation - it might spur people to demand that the government takes the Supreme Court's rulings seriously and demand constitutional reform, and that would probably strengthen the judiciaries strength vis-a-vis the executive and legislative branches. Right now the Japanese Supreme Court seems to be happy to provide "guidance" to the other two branches. I don't necessarily think that would be a bad thing, personally, but I am sure the bureaucrats and MPs would rather not tempt fate.

Jan Moren said...

I'm sure nobody wants the process to break down. But it's all too easy for it to do so by accident - through brinkmanship, misread intentions, personal animosities and so on. Precisely because they know nobody wants the process to fail, people may try to push that bit extra for their own pet feature and end up with without any timely reform at all.

I think it is worth spending a bit of time thinking about what would happen.

Anonymous said...

Good point, but not completely theoretical. Not all rulings have been ex post facto, the 1983 elections were held after the SC had ruled the electoral districts unconstitutional, but went ahead anyways.

Not only that, the Diet still didn't do anything so in 1985 the SC ruled it 「違憲」, which is a different ruling from 83 or 2003 for that matter, since that was 「違憲状態」. In a concurring opinion for the 1985 verdict, 5 justices pointed out that the SC had the power to invalidate elections if necessary.
The actual language is
"it is not impossible for the Court to rule that the effect of the decision declaring the election invalid will come about after a certain period of time, if it is not appropriate to make the election invalid at once"
The Judgement can be read here.

you can compare it to the language of the 2011 judgement.