Thursday, November 21, 2013

The Supreme Court's Decision On The December 2012 Elections

Shisaku is on hiatus while the author is conducting a fish survey. However the Supreme Court decision on the December 2012 House of Representatives election (Link) deserves some kind of comment.

One should probably be checking in with Andrea Ortolani for fine- grained analysis. However, it seems that in the aggregate the Supremes, in declaring the district elections "in a state of unconstitutionality" (iken jotai) with three justices ruling the elections "unconstitutional but not invalid", have worked out a least worst outcome. While a preservation of the dignity of the Court would seemingly have demanded a ruling that the December 2012 elections, carried out as they were in defiance of a Supreme Court order to change the electoral map, be slapped down at least as unconstitutional, if not unconstitutional and invalid (what the logical difference would be between those two possible rulings, I would not wish to ponder).

Ruling the 2012 elections unconstitutional would have created a juridical/legislative black hole, though. If the elections that elected the current crop of Diet members were unconstitutional, then the only legitimate Diet capable of reforming the districts would be the one that was turned out of office a year ago. Reassembling those members now, to vote on reform legislation, would itself be unconstitutional as the terms in office of those members, had they been served out in full, ended in August.

So the Supremes simply repeated themselves -- "this is wrong and you should fix it before you hold another election" -- a flash of a sword but not a real stab the contradictions inherent in the description of the relative powers of the judiciary and the legislature found in Articles 41 and 81 of the Constitution). The contradiction -- the Diet is the supreme organ but the Court is the ultimate decider of constitutionality versus unconstitutionality -- is not something the Supremes would necessarily want to resolve given that the 2012 elections did result in a transfer of power in between parties.

In a seemingly pointless but still significant snit of protest, the Court did pre-emptively strike down the current reformation of the electoral map, the so-called +0/-5 solution passed in the final days of the last Diet, as insufficient to fix the state of unconstitutionality. Fiddling at the margins -- dropping the five smallest districts and moving a few communities in and out of a few districts so that the maximum measured level of disparity is 1.99 -- is NOT what the Supremes want in terms of rectifying the disparities in between the districts. Since the population shifts since 2010, the time of the last census, have resulted the new, "reformed" districts again creeping past the 2.0 disparity standard, the Court had the opportunity to blast the +0/-5 fiddle -- and to the Court's credit, it did.

This aside leaves the door open for the Court to take action at a later date, if the Diet continues to shirk its obligation to renew the nation through more equal electoral district maps. By declaring the +0/-5 solution insufficient, the Supremes have put the Diet on the hook to fix the districts before the next election -- or else the Supremes could chose to really put their feet down.

The Supremes' ruling against the plaintiffs in this round of cases is a blow against those fighting for a rectification of the value of the votes of urban dwellers and the residents of rural constituencies. The Abe government and the current Liberal Democratic Party majority in the House of Representatives can also breathe easier -- their elections to power being, if not exactly validated, at least insulated against major challenge.

The Asahi Shimbun is bummed at the setback (Link - J) but it should not be -- the legislative fight against electoral district disparity must continue.

Later - The Yomiuri Shimbun offers a government-supportive English-language edit (Link) and the Mainichi Shimbun a more neutral English-language edit (Link) of the story.


Anonymous said...

Because everyone must realize that the supreme court has no choice but to avoid the "black hole" problem you describe by refusing to invalidate election results, I worry that the Diet has absolutely no incentive to actually try to fix the disparity.

I suppose that unlike the previous case that was decided prior to the election, the court could choose to preemptively invalidate the results next time and make the Diet fix the problem while it still can, but what if the Diet still chooses to ignore the court's ruling or make a superficial change to try to get around the ruling without substantially reducing the disparity?

A.J. Sutter said...

One might differ as to whether this is a least worst outcome. First of all, the notion of a "state of unconstitutionality" without being unconstitutional is a nuance recognized neither in Japan's constitution nor in the jurisprudence of other democracies. Nor is "unconstitutional but not invalid" permitted under the explicit wording of the constitution: Under Art. 98, first paragraph, "no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions [of the constitution] shall have legal force or validity." The Public Offices Election Law in effect at the time of the 2012 election was contrary to the constitution -- and indeed was known to be so when the election was held, unlike some previous elections. It shouldn't be given any legal force. Indeed, one can argue that the plain wording of the constitution denies the Japan Supreme Court any discretion to pull a law or government act back from the brink of invalidity, once it is found to be contrary to the provisions of the constitution: Art. 98 first para. can be read as self-executing.

Earlier this year I visited a judge on the Second Senate of Germany's Federal Constitutional Court. That court has occasionally found elections to violate the Grundgesetz, without invalidating them. The GG, however, doesn't have a provision homologous to Art. 98, first paragraph, explicitly entailing the invalidation of unconstitutional laws. (Neither does the US Constitution.) Nonetheless, I described the factual background of the 2012 election and prior decisions of the JSC, and asked, if the same case were to come up before the Second Senate, would he and his colleagues hesitate to invalidate the election and force new elections to be held? His immediate reply was "No hesitation whatsoever."

Moreover, what would have happened if the 2012 election were invalidated? New elections would be held and Jimintou would win again, this time legitimately. Would that have been so cataclysmic, from a constitutional perspective?

The Japan Supreme Court's decision was an abdication of its responsibility under the constitution. It indicates that there isn't a true rule of law in Japan. The moves to concentrate more power in the Prime Minister will bring us even closer to the rule of man. That is about as close as you can get to a worst outcome without an actual putsch. If the organs of Japan's government continue on their present course, the Japanese people are in for some very dark years.

Anonymous said...

Glad to hear you haven't falled into the river (or sea) - you see, I'm taking this "fish survey" story seriously...

MTC said...

A.J. Sutter -

Your commentary and warnings are apt and much appreciated.

I have two caveats. The first is that the courts and judges of Japan only with great difficulty accept the roles of fundamental identifiers of right versus wrong. The second is that all decisions must take into account in some way the sheer bloody-mindedness of the LDP. I can understand the Supremes never ever wanting to deliver ultimatums to it.

Len Schoppa said...

If the Diet fails to pass a law that draws new boundaries and seat allocations across prefectures well below the 2.0 threshold, the Supremes should take the next step of doing it themselves. This is what US Courts have done when state legislatures failed to produce reapportionment plans that pass constitutional muster.

A.J. Sutter said...


Thanks, and I agree with your observations, only it's probably even worse than that. The politics and sociology of the Supreme Court guarantee that only bland mediocrities are chosen. One justice interviewed for a recent book by Hiroshi Itoh, a professor at SUNY, said that the court has never had anyone whose biography would be worth writing. A couple of justices whom Itoh interviewed even said that felt that they ought to follow the Chief Justice's lead instead of thinking for themselves. The current system of selecting justices is like a highly efficient manju factory, pumping out streams of faceless inert buns, all made of the same socio-economic dough and the same conservative filling (with an occasional token to whom a faint flavor has been added). They won't deliver ultimatums not just because of power issues, but because the vast majority share the same world-view as the LDP.

MTC said...

Len Schoppa -

The courts might find it difficult to get around Articles 41 and 47 of the Constitution.

Anonymous said...

Is it also worth considering the fact that it took a very casual 11 months for the decision to be made?
I don't like comparing the systems of other countries too simply, but in Australia, there would have been a series of injunctions and urgent hearings before the parliament was convened. Stopping the election from occurring may even be an option.

Yet here it seems business as usual for an 'unconstitutional' legislature to govern for a year before it is confirmed they are in fact 'unconstitutional' (but ok to carry on for the time being)

It creates quite a beautiful juxtaposition against the chest-beating by the LDP that followed the 'unconstitutional' action of handing the emperor a letter.

If Yamamoto is called to resign for his unconstitutional actions, then every single Diet member should follow him out the door.

MTC said...

Anonymous -

Professor Ortolani would be the authority to call on this but my understanding is that Japanese courts do not give themselves injuctive powers. Everything continues until a) a lower court says stop and the defendant gives up the right to appeal or b) the Supremes are brought in. Even then, as we saw with the original case, a Supreme Court declaration of "state of unconstitutionality exists so you had damn well fix the districts before you have another election" does not work.

The problem lies in the courts, who have no forces at their command allowing them to override the actions or inactions of the Diet.