Tuesday, March 12, 2013

A Look At il diritto c'è, ma non si vede

Blogging in Italian about Japanese jurisprudence, reader Andrea Ortolani. (Link)

Professore Ortolani writes a straightforward style, allowing Google Translate to do a decent job (Pace, il Dottor P. S.) of rendering the original into English.

In a recent post Ortolani examines the two high court decisions handed down this month on the unconstitutionality of the House of Representatives electoral map, and by extension, the illegitimacy of the Abe Government and the sitting Diet:
A che servono queste due pronunce, se tanto in pratica non cambia nulla? Sono anni che i tribunali giapponesi lanciano avvertimenti, nella forma di pronunce di incostituzionalità dei collegi elettorali, ma finora nulla è cambiato. Ci sarà prima o poi un giudice che avrà un po’ più di coraggio degli altri?

Which, according to Google Translate, is:

What are these two decisions, both in practice if nothing changes? For years, the Japanese courts speak warnings in the form of rulings of unconstitutionality of the constituencies, but so far nothing has changed. There will be sooner or later a judge who will show a little more courage than others?
It is perhaps unfair to dump upon the Tokyo High Court and Sapporo High court justices. They did rule without equivocation that the December 2013 election was unconstitutional and not "carried out in a state of unconstitutionality" or some other responsibility-shirking locution.

The pair also at least cast doubt upon the constitutionality of the egregious +0\-5 fudge on rectifying the unconstitutionality of the districts passed by the last Diet in the last week of its existence (Link - J). This opens the door for the Supreme Court to rule in favor of a more meaningful reform of the House of Representatives district boundaries -- not that the Supremes will take advantage of this opening, at least as regards the current round of cases.

[The ruling also casts into doubt upon the +4/-4 rectification done to the House of Councillors district seat apportionments, a question which will come to the fore the closer we approach to the end of the current Diet session.]

As for showing more coraggio, declaring an election invalid is really up to the Supreme Court. After all, the frame for the fight over who has final say on what is or what is not constitutional is Article 81 of the Constitution, where the named actor is the Supreme Court, not the national judiciary. (Link)

The decisions to declare the December 16, 2012 election unconstitutional but not invalid is a headscratcher, to be sure. As a senryu by Tanaka Jiro of Koshigaya City put it:

Iken demo
senkyo yuko?
aho kai na

Even though it's unconstitutional
The election's valid?
Do you think I'm a moron?/Are you morons?
Source: Tokyo Shimbun of 9 March 2013

In my heart I know that when the Supreme Court takes on the issue of whether or not the December 16 election should be invalidated, it will kick the ball to the sidelines, no matter that Japanese government is in a corrosive (and likely, given the contempt the revisionists have for the 1947 Constitution, an entirely willful) state of unconstitutionality.

1 comment:

Space said...

Michael, thank you very much for your comments on my post. I was very surprised when my blog popped up in my GReader's feed!
I am also glad to see that we agree on the fact that it will be eventually the Supreme Court that will decide the issue. I don't see much "coraggio" around.
I'll post a brief thank-you note on my blog. Also, the senryu is quite funny.
Best, Andrea