If, as the Tokyo High Court found yesterday (Link) and as the Sapporo High Court found today (Link - J) the December 16, 2012 House of Representatives election was unconstitutional, can the representatives seated by said unconstitutional election vote on an amendment to the Constitution?
The two court rulings so far have kept the House of Representatives in place, foreswearing a nullification of the election results. The argument is that that even though the current House of Representatives was elected in an unconstitutional election, the previous legitimate House of Representatives had, before its dissolution, voted on a plan (the so-called +0/-5 plan submitted by the Liberal Democratic Party) that will after the election commission submits a new electoral map and that map is ratified by the present unconsitutinally elected Diet, make the next House of Representatives election constitutional.
So, in theory, Japan may have a four year interregnum, featuring a fully empowered government without a constitutional basis for its existence. Or, depending on one's views of what constitutes unconstitutionality, may never have a constitutional government again.
Making the struggle over whether or not to amend the Constitution moot, it would seem.
For those who may be despairing of Japanese court decisions ever making any sense, both the Tokyo High Court and the Sapporo High Court have ruled that now that the December 2012 elections have been held, the said elections have moved from "the state of being unconstitutional" (iken jotai) that they were in in March 2011 to being unconstitutional (iken) today.
Whew! At least that is settled.
At least 16 more lower courts decisions to be handed down by March 27. After that, the Supremes will get their shot at making sense of this mess.
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