"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.
Yet.
So Case Dismissed.
“Suppose the justices were to ever to lose their collective minds and rule a House of Representatives election unconstitutional and invalid…. The justices would thus be ordering a repair of the electoral map whilst simultaneously wiping out the only body able to fix it. … Yesterday’s 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.” Actually, no, there is an alternative.
ReplyDeleteSuppose that the Court were to declare the election invalid, the sitting parliament illegitimate, but not invalidate the Public Offices Election Law entirely, leaving intact, for example, the part specifying the number of members of the Diet (cf. Art. 43(2)). Suppose moreover, the Court were to require a new election to be held within, say, 15 days of the ruling on the basis of a single proportional district covering the entire country (cf. Art. 43(1), that the members of each house are the representatives of all the people). The number of members would be the same as specified in the law. (While it’s at it, the court could also specify a proportionality algorithm, such as Sainte-Leguë, which is much more proportional than the D’Hondt rule in the current POEL.)
There shouldn’t be any crisis here, since the country is anyhow without a sitting Lower House during the campaign period following the Prime Minister’s call to dissolve. (BTW it’s worth noting in passing that the Constitution does not expressly give the PM this authority, and the Supreme Court has in the past refused to rule on the validity of the one argument offered to support his action, namely, that he acts on behalf of the Emperor under Art. 7(3).)
Some might raise the objection that the Supreme Court would be acting as a law-making body and would be determining election districts (actually, one nation-wide district) in violation of Arts. 41 and 47. But it is up to the Supreme Court to make that determination of whether it is violating the Constitution, and it is unlikely to invalidate its own action.
Note moreover that there is precedent for the Supreme Court to take such a pragmatic view in contradiction to the express words of the Constitution. It is illustrated by precisely the decision you praise. See Art. 98(1): “The Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the previsions hereof, shall have legal force or validity.”
In other words, once the justices rule that an election is unconstitutional, the election is *automatically* invalid. The Constitution does not give the justices discretion to act as they have done so often during the past five decades, including in the present case (what some scholars call “soft” judicial review).
So, it boils down to choosing HOW the Supreme Court should ignore the Constitution. The style to date, which you praise, has been to allow bad-faith actors to cling to power illegitimately and indefinitely. Reasonable people could prefer that the court instead act to allow something closer to democratic legitimacy.
A. J. Sutter -
ReplyDeleteI fail to see how Article 98 provides a way around the road block of Article 41.
Two possible arguments. One argument, in my comment above, is that they are both roadblocks. In the current ruling, and for many elections in Japan's postwar history, the Court has ridden roughshod over Art. 98 -- it has approached the question of invalidity of unconstitutional acts as if the Court had discretion to rule them invalid. But a reading of the express wording of the Constitution shows it does not: the election *is* invalid, while the Court has chosen to ignore this. It has acted unconstitutionally, and without fear of anyone having authority to call it to account for that.
ReplyDeleteMy comment above assumes that the remedial election scheme I outlined would in effect be enacting a law, and says that if the Court were going to choose to ignore Constitutional provisions, they could just as easily have chosen to ignore Art. 41 and respect Art. 98. I.e., it's a choice of which roadblock to ride over -- since the Court is already driving that way.
A second and better argument is that the Court could declare that the proportional-based election is not a law but a one-off remedy. This would eliminate the Art. 41 problem. It's not contemplated that the Court would replace the POEL. It would only be taking action to make sure that whoever does fix that statute has been elected in a manner that respects the Constitution's one person, one vote rule.
There could still be an objection that the method of voting and the electoral district of the whole are being specified by the Court in this instance, which seems contrary to Art. 47. But again, the Court could (i) declare that this is a one-off remedy, and (ii) reason from the Constitutional preamble about how popular sovereignty must take precedence over the powers of the Diet, which are derivative of the powers of the people of Japan. (Constitutional preambles are given legal effect in many countries of the world -- they are not empty words.)
The point about any "violation" of the Constitution by the Court being that the Court is the only organ of the State who can say whether it has violated the Constitution or not. That fact is already the only thread of argument that supports the current order we have today, i.e. the Court's ignoring of Art. 98 in order to keep an illegally elected House in office.
PS: Taking a leaf from the Obamacare reasoning (when is a tax not a tax, etc.) the Court could also say that (1) it's not drawing a district when it makes the whole country one undivided district, and (2) the choice of proportionality is not a choice of "method," since the choice is dictated by the number of seats specified in the POEL (which already calls for proportional election of some seats). That reasoning could neutralize the Art. 47 problem, too, though it might mean that the election would need to be conducted using the D'Hondt algorithm, as under the current POEL.
ReplyDeleteThank you both, first one for a very entertaining article and the second for thought-provoking ideas. Although, I do not see this happening, your arguments about Art. 98, the comparative example of Obamacare, and the convention concerning the dissolution of the House of Representatives are really interesting Prof. Sutter. I subscribe to this blog!
ReplyDeleteThank you both, first one for a very entertaining article and the second for thought-provoking ideas. Although, I do not see this happening, your arguments about Art. 98, the comparative example of Obamacare, and the convention concerning the dissolution of the House of Representatives are really interesting Prof. Sutter. I subscribe to this blog!
ReplyDelete