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.
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