Tuesday, May 22, 2012

Catching Up On The News - Unconstitutional Elections

Something huge happened yesterday.

In a footnote to my post of yesterday, I noted that NHK announcer Okoshi Kensuke last Thursday confronted Prime Minister Noda Yoshihiko with the bald fact that the current map of the House of Representatives districts is unconstitutional, rendering an election impossible on technical grounds. While the Prime Minister had no alternative but to concede that the current map is unconstitutional, he dodged the thrust of Okoshi's question, saying that the Diet had too many important and difficult issues before it for anyone to be discussing a dissolution and an election at this time.

Noda had been, until the live NHK interview, careful to not get cornered on the question of the constitutionality of holding an election. He had left it up to Koshi'ishi Azuma, the Democratic Party of Japan's secretary-general, to tell the seemingly bone-headed members of the political press over and over again that since the issue of the disproportionality of a single vote (ippyo no kakusa) had not been resolved in accordance with the standards set down by the Supreme Court judgment of March 2011, no House of Representatives elections could take place.

While any position aside from the one Koshi'ishi has taken is ludicrous -- unconstitutional meaning “contrary to the basic law of the land, the law upon which all other laws are based” -- Noda has been careful to preserve the notion that the holding of an election is a matter of opinion -- his opinion -- rather than a matter of law.

The reason Noda has needed to maintain this fallacy is simple: his power to call an election is the whip he needs to keep the followers of former DPJ party leader Ozawa Ichiro in line. Nothing terrifies the Ozawa-vetted first termers like the possibility being plunged into an election. With the disdain the public has at present for the DPJ and perhaps permanently for Ozawa, each and every one of these Ozawa acolytes would be wiped out.

Perversely, the opposition Liberal Democratic Party and the New Komeito have aided Noda in the maintenance of this illusion. The leaders of both the LDP and the New Komeito know just as well as anyone else that elections are impossible if the districts are unconstitutional. Nevertheless they have been calling for elections for two years straight. And why not? It is the biggest free lunch in history. The public opininon polls on the level of public support for the LDP and the New Komeito could find that both have 0% support and it would not matter: the two parties would still call for elections.

Noda, for his part, tacitly used opposition demands for elections as a means of bolstering the illusion he has wished to preserve. If the opposition is demanding elections, it stands to reason that the opposition at least believes elections can be held.

Hence the sound of breaking glass yesterday when LDP Secretary-General Ishihara Nobuteru asked Prime Minister Noda, in special Diet Committee session, whether in fact the failure to correct the disproportionality of votes in the electoral districts put a shackle on the right to dissolve the Diet. Noda replied that no, failure to act did not shackle the right and that elections would be held when they he thought they were needed. (J)

Technically, both men are correct. Following through on Ishihara's thought, a dissolution of the Diet would trigger the implementation of Article 54 of the Constitution, which states that following a dissolution of the Diet, an election must be held within 40 days. Since the current electoral districts have been ruled unconstitutional, and the Diet would no longer be in existence to fix them, the election would a priori be void.

As for Noda's insistence that the right to dissolve the Diet is not compromised, his position is true only via the most painstaking of hairsplitting. The right to dissolve the Diet, held by the Emperor but exercised upon the advice of the Prime Minister, is not compromised until the moment the right is exercised, at which point the country would be blasted out into extraconstitutional space.

While the constitutional implications of this conundrum are fascinating*, what was of immense political importance in Ishihara's question was that unless the LDP tries to pull off the same trick that the DPJ has been pulling -- i.e., having the party secretary-general insisting that holding a House of Representatives election is impossible while the party president maintains that it is not -- the delicate minuet Noda and the opposition have been dancing together has come to a sudden stop. If a gaggle of reporters corner LDP president Tanigaki Sadakazu and press him on whether or not Ishihara's question means the LDP now believes holding elections is unconstitutional, chances are the not terribly swift-thinking Tanigaki will not have an intelligible response.

If and when Tanigaki flubs his moment in the spotlight, the political game board will become completely scrambled, just when Ozawa Ichiro, the master of Go (Part 1 and Part 2) is set to meet with the prime minister. (J)

* The current emperor, being the conscientious, cautious but independent-thinking man that he is, would likely, on the most perfect of legal grounds, toss post-1945 precedent into the dustbin by refusing the prime minister's request for a dissolution.


Anonymous said...

So going to term is another game of chicken?


MTC said...

YY -

Yes -- and not just for the House of Representatives, the House of Councillors too. If the disparities in the House of Councillors are not rectified, the country can limp along as a unicameral state until the necessary changes are made to the law. However, if the disparities in the House of Representatives have not been rectified by the time the term limit kicks in, the 1946 Constitution implodes. The borders of the districts must be set down in law (Article 47). However, post-August 2013, there would be no legitimate, sitting legislature in place to pass the laws.

Joe said...

A year and three months to re-district the entire country? With a basket case government and a basket case opposition?

Snowball meet Hell. Don't worry, you'll get along fine.

MTC said...

Joe -

If only the redistricting of the entire country were one of the alternatives offered by one of the parties. Perhaps the Your Party is proposing such a fundamental reform...but it is always a gesture party rather than a pragmatic force.

All the plans offered by the various parties are fiddles, the most ingenious being the LDP's workaround proposal to cut the 5 worst offending districts, reducing the total number of districts to 295. The result of dropping the five smallest districts is a fall in the level of disparity between Chiba District #4, the most populous district (incidentally, the one represented by the PM) and the least populous district to 1.78, well within the Supreme Court's mandate maximum of 1.99.

As for other parties, they offer ideas such as a revival of the middle-sized, multi-candidate districts -- the system the LDP turned its back upon in order to kill the Socialists and establish a center-right/center-left two party system -- not that the LDP has ever figured out which one of the two parties it wants to be.

The DPJ as a party has a vested interested in a mass redistricting, as it would multiply the number of urban and suburban districts where the tradional DPJ message of fiscal austerity and elimination of subsidies plays well with the electorate. However, since many of the Ozawa children hail from what were LDP stronghold rural districts, what is good for the DPJ as a party is disastrous Ozawa's acolytes.

A huge mess, as you can see.