Thursday, October 24, 2013

Collision Course On Elections

Yesterday the Supreme Court began hearing arguments in the amalgamated 16 cases brought against the nation's prefectural electoral commissions requesting the nullification of the December 2012 House of Representatives elections on the grounds that the degree of disparity in the electoral districts, which reached 2.43 to 1 in the case of Kochi District #3 versus Chiba District #4, violates the constitutional principle of equality under the law. The Supreme Court is expected to issue its ruling before the year is out. (Link - J)

The potential for constitutional chaos is not insignificant. If the court declares the election unconstitutional and invalid, the existing Diet is illegitimate. However, since the Constitution stipulates that only the Diet has authority over the drawing of electoral district boundaries, the country would be bereft of a legal body empowered to pull everyone from out of an electoral black hole.

As the Nihon Keizai Shimbun points out, twice before, in 1972 and in 1983, the Supreme Court has ruled that an election was unconstitutional. In both cases the court ruled that the elections results were nevertheless valid. (Link - J)

No, the concept "unconstitutional but valid" does not make any sense to me either.

The fillip in the cases currently before the court is that in '72 and '83, the Supreme Court was ruling on election districts found unconstitutionally unbalanced after the fact. In the current cases, the Supreme Court told the Diet three years ago that the electoral map was "in a state of unconstitutionality" and warned legislators to fix it before the next House of Representatives election.

The Diet failed to do so.

Given the Supreme Court's advance warning, narrow indeed is intellectual window open for the Court to issue a pass on the validity of the election that brought Abe Shinzo and his allies to power.

[See updated information here] In terms of personal stories, there the one involving the Court's most junior member, Justice Yamamoto Tsuneyuki. Yamamoto did not keep his peace when Prime Minister Abe Shinzo earlier this year kicked him upstairs from his post as Cabinet Legislative Bureau chief in favor of Komatsu Ichiro, a diplomat seen as a pushover on the changing the CLB's position on the constitutionality of collective security (Link). That Yamamoto will be caucusing his fellow justices and ruling on the constitutionality of the election that brought his nemeses Abe and Chief Cabinet Secretary Suga Yoshihide to power is the most delicious irony.

Suga does not make many mistakes. Counterattacking against Yamamoto, however, might turn out to have been a big one.


Philippe said...

Hmm, hold on a moment. Did the current diet pass a law ever-so-slightly reforming the electoral districts (the LDP 5+- with-some-sugar-on-top to hide the bad taste)? If yes, Abe could easily convene new elections while he still has some momentum, and get an extra year on the job (or for his successor). Interestingly, that stop-gap election would come before the sales tax raise kicks in…

MTC said...

Philippe -

1) The -5/+0 solution was not applied to the elections under consideration.

2) The opposition parties voted against the boundary revisions under the -5/+0 solution, arguing that they are a scam. This makes them a political, not a legal, change to the boundaries.

3) The plaintiffs in the current case point out that the district boundary revisions are not only a contemptuous, metricious following of the letter, not the spirit, of the March 2010 Supreme Court ruling but, due to population shifts since the October 2010 decennial census, are already in a state of unconstitutional disproportionality in 9 districts.

Philippe said...


1/ yes I know that.
What I was wondering about is this: assuming that the -5+sugarcoating is voted trough the Diet, and implemented (that is, ready to be used - one of the reason Noda didn’t even try to push for a more meaningful change was the lack of time to actually implement the law…), what is to stop Abe to immediately call a snap election under that new ‘regime’ in case the Supreme Court returns a negative verdict (unconstitutional, invalid).

2 + 3/ right, as I alluded, I consider the -5+sugarcoating just a scam.

PS - according to this Mainichi (en) article, Yamamoto-san would not be involved in the Supreme Court proceedings (last parag at time of writing). I had missed that when I read a Japanese article on the subject. I'll quote it below, in case the Mainichi article is rewritten:

Supreme Court justice Tsuneyuki Yamamoto, who was involved in Diet deliberations on the electoral system reform bill as director general of the Cabinet Legislative Bureau, has been excluded from the top court's trial of the cases.

Anonymous said...

This is wildly incorrect, even by your standards.
The Supreme Court ruled in 1983 that the 1980 Elections were unconstitutionally unbalanced, but the Nakasone cabinet went ahead with elections a month later anyways. So, in 1985 SCOJ said that the 1983 elections were unconstitutional, with a strong warning that if elections were held with the same districts again, they would be null and void.
So the situation is pretty similar to what happened in 1985, with the difference being the amount of time between the verdict and the elections.

MTC said...

Anonymous -

Could you in future leave a handle, so I can acknowledge your version? Or better yet, can you become an email contact, so I can consult with you prior to publishing a questionable assertion?