"Fix It Again, Tony!"Yesterday, the Supreme Court of Japan did largely the same thing. The automobile in this instance was the nation's electoral map. Anthony's Garage is the Diet and Anthony (Tony) is the Liberal Democratic Party.
In a split decision the Supreme Court ruled that the 2014 electoral district map, where the greatest vote disparity was 2.13 (meaning that 2.13 times as many voters lived in the largest district as lived in the smallest, reducing the value of each individual's vote in the largest district to only 47% of a vote in the smallest one) violated the principle of the legal equality of citizens under Article 14 of the Constitution. Three of the justices ruled the electoral map unconstitutional, one declaring the election invalid. Two dissenting justices ruled the electoral map constitutional. An outright majority (9 of the 14 offering opinions) ruled the electoral maps and the election results "in a state of unconstitutionality" (iken jotai - 違憲状態 - Link).
Ruling a distorting electoral map "in a state of unconstitutionality" is a sophistic fiddle. Some might see it a pusillanimous fiddle, with the justices running away from a confrontation with the Diet despite an Article 81 "power to determine the constitutionality of any law, order, regulation or official act." The Diet and the Government, for their parts, could choose reject a Supreme Court unconstitutionality decision, arguing that under Article 41 the Diet is "the highest organ of state power" which cannot be unseated by a lesser power. (Link)
Labeling the electoral map "in a state of unconstitutionality" does sidestep a clash of the branches of the government over who is supreme based upon the two conflicting Constitution articles. However, rather than a flight from responsibility this twisted non-ruling ruling (similar to the option in Scottish jurisprudence of a verdict of "Not Proven" where guilt cannot be established but everybody still thinks the defendant guilty as hell) should perhaps be more properly seen as a necessary and paradoxical step toward preserving the constitutional order.
Suppose the justices were to ever to lose their collective minds and rule a House of Representatives election unconstitutional and invalid. From such a ruling the sitting Diet would instantaneously become illegitimate and without constitutional standing. The Diet, however, is under Article 41 "the sole, law-making organ of the State" and under Article 47 the sole organ vested with power to determine electoral districts. The justices would thus be ordering a repair of the electoral map whilst simultaneously wiping out the only body able to fix it.
What Masunaga Hidetoshi, one of the leaders of the lawyers who filed the complaint, thinks the Supremes did yesterday. (Link - J)
By ruling the electoral map in a "state of unconstitutionality" for the third time, the Supremes are scolding the LDP for its shenanigans without tearing the entire edifice down in the process. With the closest the Supremes can come to fury they are pushing the electoral map back into the Diet building and telling the LDP that the ruling coalition's sneaky +0/-5 solution of 2013 did not fix the disproportionality problem in the House of Representatives.
"So FIAT!" is what the Supremes are saying.
The government has promised to take the Court ruling seriously - coded language for "we will fiddle with the map again until we find a way to limit the difference between the largest and the smallest districts to 1.994" -- the level of proximity to the Supreme Court-determined no-go level of 2.0 the LDP's crafty map makers achieved in their last version of the electoral map -- in a whatever the ruling coalition thinks a reasonable amount of time may be. (Link)
Yesterdays decision and the ruling coalition's promise to be serious is all that anyone could have and can hope for in terms of the Supreme Court's making Japanese elections more fair and thus better, in theory, at delivering good governance.
Meanwhile, in another challenge to a widely disliked Abe Era law, the Tokyo District Court passed on ruling on the constitutionality of the new and extremely controversial Designated Secrets Act (Link - J). The refusal to accept the case was to be expected, the Tokyo Court following the precedent set down by the Supreme Court's Suzuki Decision of 8 October 1952, which found that unless a plaintiff can demonstrate an actual injury from a statute, the judicial branch will abstain from all involvement in a case. Groups representing the news media argued that the Act injures journalists by preventing them from doing their jobs. The judges of the Tokyo District Court asked, "Who is the specific plaintiff and what specific hurt was caused by the Act?" -- questions to which there were, of course, no answers.
So Case Dismissed.