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.