The Supreme Court Says, "FIAT"

Back in the bad old days, back before the company owned a major U.S. car maker, Fabbrica Italiana Automobili di Torino had what could be charitably called "quality control issues." The sardonic joke about the automobili manufactured by the company was the acronym "FIAT" actually stood for what one had to say to one's mechanic Anthony when one brought the automobili in:

"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.

The Only Popularly Elected National Leader

It's that time of year again, when the fan election for the "president" (sosai) of girls megagroup AKB48 (Link) and its affiliates confuses the algorithms of Google News, causing the AKB story to be displayed in the #1 position in the Japanese-language Google News / Politics feed.



Given that the next electoral test of the nation's actual political parties are the unified local elections of next spring -- which, contrary to their name, are not unified, the terms of local offices having been spread all over the calendar by deaths and resignations (WIGFTL*) -- and that the next Diet elections do not have to be held until 2016, the election of the 2014 leader of AKB48 leader election perhaps should be the top story on the politics page. After all AKB48's sosai is the only national leader chosen in a direct vote by the people -- and the only national election of any kind save the reaffirmation votes on the justices of the Supreme Court, which happen only together with the first House of Representatives election after the appointment of the justice in question, then every 10 years thereafter (Article 79, Constitution of Japan).

The story encircled above? The news that for the fifth year in a row the thick electoral guide to the AKB48 leadership election is the highests-selling book (All Categories) in mid-May.

----------------------

* "Which Is Good For The LDP"

The Banana Defense

Before long in his new post, the voluble Mr. Kahn, shunning "recession" as a euphemism, warned of a "very serious depression" if inflation were not tamed, prompting a private rebuke by the president’s chief domestic policy adviser, Stuart E. Eizenstat.

So instead, Mr. Kahn began referring in public to a possible economic downturn as a "banana," only to be chided by the president of the United Fruit Company and induced to shift once again to a different euphemism, "kumquat."

Source: "Alfred E. Kahn Dies at 93; Prime Mover of Airline Deregulation,", New York Times, 28 December 2010.

Abe Shinzo has a problem.

It is about how to protect Japan, its rights and its interests in the 21st Century.

Prime Minister Abe and many, many members of the Diet wish to vote for legislation enabling Japan to engage in collective self-defense (CSD) with other nations, a legal right it has under Article 51 of the United Nations Charter.

Unfortunately for Abe and his many allies, the Government of Japan declared many decades back that exercising the right of collective self-defense is unconstitutional. Furthermore, as they have discovered to their chagrin over the course of the current Diet session, once the executive branch of government uses the word "unconstitutional," it cannot take it back.

Ostensibly, Article 81 of Japan's U.S.-drafted Constitution grants the Supreme Court the power to undo CSD's unconstitutionality. However, it could only do so as the result of a lawsuit based upon some incident occurring where plaintiffs can complain of injury due to a government action classifiable as CSD, such as a government official (an SDF officer) being reprimanded for refusing an assignment based on his/her personal view that the assignment requires participation in CSD.

In other words, the Supremes cannot just come out tomorrow and say, "We think CSD is entirely cool so go for it, Prime Minister Abe!"

Perversely, even if a lawsuit made its way to the Supreme Court, the Court could toss the issue right back to the executive branch by declaring the issue political and thus outside its jurisdiction. This is what the Court did in its sweeping Sunagawa Decision (1959).

In the face of this constitutional impasse, the Liberal Democratic Party and its coalition partner the New Komeito are weaving webs of words verging on the surreal. The LDP seems to be arguing that while CSD is nominally unconstitutional, a very careful expansion of SDF activities into a limited number of areas that have heretofore been considered CSD might be constitutional. The New Komeito, for its part, has indicated a willingness to go along with many proposed loosenings of restrictions on the actions of the Self Defense Forces as long as these can be plausibly argued to not be CSD but instead a form of ISD.

The response to these manoeuvres from the nation's editorialists has been predictably unenthusiastic. At best the scribbling classes find the ruling coalition's arguments to be gibberish. (Link)

Hence the neat idea bubbling up today. According to the Mainichi Shimbun, some smart puppies in government and the LDP have come up with a new way around the constitutional ban on CSD:

Do CSD -- but don't call it CSD. Call it "self-defense" (jiei) instead -- with the feeble caveat of restricting this evasion to "situations where if we do nothing, Japan could be attacked as well." (Link - J)

Now before we guffaw too heartily at this "I will not say the word 'recession' and cannot say 'depression' so I will say 'banana' instead" subterfuge in order to get around a constitutional ban, should we not admit that this is precisely the way we came to have army, navy and air forces called the Ground Self Defense Forces, the Maritime Self Defense Forces and the Air Self Defense Forces?

Meanwhile, Two Incredibly Smart Persons Writing Brilliant Stuff On Difficult Subjects

MTC auto-portrait, inadvertent.

If your are wondering what you must read on Japan, rather than what you should read, try:

- Any of Jo McBride's posts on Japanese economic and institutional investment policy at the dauntingly named Investing Japan's Institutional Capital blog. (Link)

- Professor Bryce Wakefield's lithe and readable exposé of the Abe Cabinet's contempt for constitutionalism and reasoned argument as regards collective self defense, with what has got to be the strangest URL of any academic paper on Japan ever. (Link)

World Order - "Last Dance"

The work of electronica dance group World Order is intensely political. The group's very name is a blackly ironic take on George H. W. Bush's New World Order, as was made crystal clear in their June video, "Imperialism."

"Imperialism" is an outlier in terms of its sledgehammer message. Much of the time the group is infuriatingly and charmingly oblique in its judgments, inscrutable as their blank facial expressions.

World Order's latest video "Last Dance" is clearly a commentary on where the country is under the Abe Administration and more broadly in the aftermath of the triple disaster of 3/11 -- but seems unfinished, probably intentionally so. The Ministry of Finance, METI, the anti-nuclear protestors outside METI, the Supreme Court all make cameo appearances. Mt. Fuji is one prominent backdrop, playing on the mountain's UNESCO World Heritage Site listing this year. Sequences shot in front of nuclear power plants and the archival footage of one of the Fukushima Daiichi plant buildings exploding are juxtaposed with footage shot in front of a hydroelectric dam, a solar farm and a wind farm fronting an oil tank farm. The group is saying something about Japan's energy policy but what, exactly? Are the members offering an idealized anti-high velocity, anti-mass production Arcadian vision a la Godfrey Reggio -- which may be the only place one can end up when one starts using cameras and slow motion to reveal the pace and patterns of contemporary human life?

The inclusion of seasonal references -- the famous drive of gingko trees in Jingu in their full golden exuberance, the susuki in the Mt. Fuji sequence -- seem to hammer two messages. First, that this is a Japanese video for designed for Japanese to interpret (which begs the question what the heck I think I am doing here). Second, that even though the video of this performance has been archived in the vast global library of the Internet, it remains no more than a bit of emphemera, with a hard chronological locus ("This is the autumn of 2013 - and no other time"). The nature scenes also offer a sharp alternative to the unnatural but not unpleasantly angular and clean human-crafted environments of Shiodome and Shinjuku Station.

And oh yes, the suits. They are not, as the Huffington Post has it, "classy." They are off-the-rack from low-cost mass formal wear retailer Yofuku no Aoyama (more irony here) which features the group in its ads. This is sarariman uncool and conformist ideology, stretched to the point where they become their opposites.

There is a sincere, unquiet core to the work...but with all the style and ambiguity, the conclusion is left up to viewer to draw. For whom is this a "Last Dance" -- the country, the iron triangle of Big Business-Bureacracy-Politicians, humanity? The identification of a last dance dovetails with the rhetoric of those portraying Abenomics being a "last chance" for economic and socio-political revival (just search "Japan" "last" "chance" to see what I mean).

As with World Order's last work -- the Olympics-inspired paen to the TMD "Welcome to Tokyo" -- the above video is best viewed in Full Screen mode.

Later - From the standpoint of a business model, World Order is in a class by itself. Not only only does the group produce highly political work -- it gets corporations to pay for it. Aoyama has funded their work; so has Sumitomo Corporation. Asiana Airlines probably asked for a gawky and sweet "All of Asia is One" message in the video it bankrolled. What Asiana Airlines got was "Permanent Revolution" -- with its extraordinary postscript questioning the role of the United States in East Asian affairs (with the secret message written in English).

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.

Erratum - Redistricting Cases

In a post yesterday I suggested that newly appointed Supreme Court Justice Yamamoto Tsuneyuki, the target of Chief Cabinet Secretary Suga Yoshihide's criticism a few months ago, will have a chance for revenge against the government in being able to rule on the constitutionality of the December 2012 House of Representatives elections.

This seems to be incorrect. Commenter Philippe has pointed out new reports saying Yamamoto has either been recused or has recused himself from the election cases because of his testimony in the Diet on the constitutionality of the map of electoral districts, done when he was the top official of the Cabinet Legislative Bureau. (Link)

My apologies to all for my mistaken assertion.

Yamamoto's recusal means that only 14 of the Supreme Court's 15 justices will be ruling on the constitutionality of the election, opening up the possibility for a 7-to-7 deadlocked state of indecision.

More complex grows our tale...

Roll Over, Doggy

When looking for mendacious fawning upon the Liberal Democratic Party, the Yomiuri Shimbun rarely disappoints:

Electoral reform: Making it count / Should electoral zones be absolutely proportional to populations?

This is the second installment of a series.

There is growing mistrust between judicial and legislative circles over the value of a single vote based on the population represented by each lawmaker.

On March 26, the Okayama branch of the Hiroshima High Court ruled that the House of Representatives election last year, in which there was a vote-value disparity of up to 2.43 times, was "unconstitutional," and that election results for Okayama Constituency No. 2, where the vote-value disparity stood at 1.41 times, were "invalid."

Two weeks later on April 11, Liberal Democratic Party lawmaker Gen Nakatani made the following remarks at the lower house Commission on the Constitution:

"The Constitution leaves matters concerning electoral systems to laws. I think judgments regarding whether electoral systems are unconstitutional or constitutional should primarily be left to the Diet."

Article 47 of the Constitution stipulates, "Electoral districts, voting method and other matters pertaining to the method of election of members of both houses shall be fixed by law."

Nakatani's reference to the article indicated his hostility toward the judicial bodies over their infringement of the Diet's discretionary power.

Takashi Yamashita, an LDP lawmaker elected from Okayama Constituency No. 2, also cast doubt on the ruling, which if abided by would cause him to lose his seat.

"The idea of 'one vote for each person' is important. But if the principle were strictly applied, lawmakers would be concentrated in urban areas," Yamashita said...

(Link)

First, nice use of the demeaning question marks around the judgments of the high courts. Very respectful.

Second, I guess Representative Yamashita understands the constitutional requirement that the members of the Diet be representatives of all the people (Ryogiin wa, zenkokumin no daihyo to suru) to mean "people as they have been or might be, but not as they are."

For having lawmakers representing the urban areas, where the people are, is unfair to the rural areas, where the people are not, right?

Third, Article 47 of the Constitution? That your winning hand, Yomiuri? Really?

Pull up a chair. Let us play a little round of jurisdiction poker.

Ok, let us lay down your card one more time.

Article 47. Electoral districts, method of voting and other matters pertaining to the method of election of members of both Houses shall be fixed by law.

I am feeling generous today. I will give you a wild card.

Article 41. The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State.

The highest organ of state power? Whew. That is good.

Now, what do I have in my hand?

Article 81. The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act.

Oh, too bad. When the Supreme Court delivers its judgment, as it will later this year on the constitutionality of the December 2012 House of Representatives election, that judgment will be final. Whether the Supreme Court has the means of enforcing an unconstitutionality ruling, in the face of resistance from a House of Representatives determined to cling to power -- that I grant you is a question.

Does not the above article make you long to read the rest of the series? Well you can, at the Yomiuri's spiffy new English language site. (Link)

Smooth (Alleged) Criminals

Yesterday, convicted felon Ishikawa Tomohiro, member of the House of Representatives for the Hokkaido-based New Great Land Party (Shinto Daichi - Link - J) tendered his resignation from the Diet. His explanation for why he had to give up his seat less than half-a-year after the December 2012 general election: the Tokyo High Court's having upheld in March his convictions on charges stemming from the filing false political fund records during his stint as personal political secretary to House of Representatives member and Life Party leader Ozawa Ichiro, who himself is no stranger to the justice system.

According to Ishikawa, he needs to quit politics temporarily in order to concentrate on the final, Supreme Court appeal of his conviction and by so doing avoid prison time (an impossible dream -- ask any lawyer).

To replace the scandal-tainted Ishikawa, New Great Land is elevating the #2 on the party proportional list for Hokkaido – a 27 year old (the minimum age is 25) woman, a former NHK director with a clean record.

All to the good, right?

Errr, not exactly.

The young woman in question in Suzuki Takako, eldest daughter of Great Land party leader Suzuki Muneo (Link – video J) – the Diet's former poster boy of corruption who himself has been twice convicted -- and held in a cell for a year and a half -- on corruption and embezzlement charges.

With all apologies to Ms. Suzuki, winning a seat in the House of Representatives through a private deal cut by two cons, with nepotism the big winner, does a great disservice to the image of Japan's democracy, such as it may be.

That Ishikawa's sentence was way too severe, and his arrest and conviction politically motivated, does not make the transaction any less dispiriting, unfortunately.

The Ruling Coalition Double Dares The Supreme Court

Holding over his head a piece of paper with the words "+0/-5" written on it, Prime Minister Abe Shinzo runs out into a rainstorm saying, "I'll be fine with this!" A flash of light marked "Unconstitutional" zigzags down. In the distance, figures holding umbrellas cry out to the PM, imploring him, "Wait!"

The punning caption: "More than the opinions (iken - 意見) of the opposition, he fears unconstitutionality (iken - 違憲)."]

Yesterday, with a vote that went along party lines, Abe Shinzo and the ruling coalition threw down the gauntlet:

Constituency reform bill gets green light

The Yomiuri Shimbun

The House of Representatives on Tuesday passed a bill to rezone single-seat constituencies that would reduce the number of lower house seats by five to address vote-value disparities.

The bill is expected to be enacted before the current Diet session ends June 26.

The bill to revise the Public Offices Election Law was passed at a plenary session with a majority support mainly from the Liberal Democratic Party and New Komeito. Five opposition parties--the Democratic Party of Japan, Your Party, the Japanese Communist Party, the People's Life Party and the Social Democratic Party--voted against it. Nippon Ishin no Kai (Japan Restoration Party) lawmakers were absent. The bill was then sent to the House of Councillors...

(Link)

The Yomiuri Shimbun is being fastidious with its "(t)he bill is expected to be enacted" phrasing. The LDP and the New Komeito hold a 2/3rds majority in the House of Representatives. The Diet is in session until June 26. If the House of Councillors does not take action on the bill over the next 60 days, the House of Representatives will override the upper house's inaction.

There is, of course, an infinitesimally small chance of the ruling coalition allowing the passage of a rival bill through the House of Councillors, setting up a joint conference of both Houses to craft a compromise bill.

For all intents and purposes, yesterday's bill is the law, unrepentant and unmodified.

Opposition parties tried to get the LDP and the New Komeito to see reason. The opposition boycotted both the House of Representatives and the House of Councillors committee sessions examining the new electoral district map, the +0/-5 solution having been declared insufficient by more than one high court judge in March. The opposition parties hoped their show of unity would demonstrate to the ruling coalition parties that whatever may have transpired in the past, the +0/-5 solution was no longer viable.

The boycott ended up being futile and what was worse mystifying, none of the leaders of the opposition managing to make clear what it was that they were trying to do.

After boycotting the committee meetings, almost all the opposition parties returned for the full plenary vote. Only the Japan Restoration Association failed to show up for the defeat.

The Democratic Party of Japan had a decent enough reason for showing up at the massacre. DPJ leaders wanted to demonstrate that the DPJ was not disinterested in the legislation but indeed actively opposed to it. Unfortunately this admirable attempt to clarify the party's stance on electoral district reform got drowned in a cacophony of catcalls. It is just too easy to point out that yesterday the DPJ voted against the bill fleshing out the +0/-5 plan despite having voted for the +0/-5 plan in December (Yes Secretary Kerry, they were for it before they were against it).

By boycotting both the committee and the plenary votes the JRA walks away from the fight with a clean record. When and if the JRA wants to join hands with the LDP, it can excuse itself, saying, "Look, we may not have voted for your odious little electoral district reform bill...but we did not vote against it either."

The new map is unconstitutional, de facto if not de jure. Using the results of the October 2010 national census, districts in the new map have been drafted so that the maximum disproportionality ratio is 1.998. This number is so ridiculously close to the unconstitutional ratio of 2.0 that one suspects the compilers were just trying to finish up and go home. Analyses by various news organizations have found that when one plugs 2013 population figures into the new map there are districts already above the 2.0 limit.

Had the ruling coalition taken the March decisions of the high courts to heart, showing contrition for disproportionality in the 2012 election, and making concerted effort at real reform in 2013, the Supreme Court could tut-tut about the 2012 results but exonerate all with a "Go forth and sin no more" decision later this year. By staying stubborn and selfish, by insisting upon the +0/-5 framework despite its non-resolution of the disproportionality the Supreme Court finds objectionable, the ruling coalition is daring the Supremes to find the 2012 House of Representatives election unconstitutional and invalid.

The justices of the Supreme Court would love to step away from this fight. They may find they cannot if they want to protect the Court's constitutional stature.

A storm is indeed coming...

Source of image: Sankei Shimbun, 19 April 2013
Artist: Yamada Shin
Click on the image for a larger version in a new window.

Care To Try Governing For A Little While, Mr. Abe?

The Yomiuri Shimbun scored an interview with the prime minister. According to the PM, a revision of Article 96 of the Constitution is his number one priority going into the House of Councillors election. (Link)

What? Revision of Article 96, lowering the threshold for constitutional amendment below the current 2/3rds of both houses of the Diet standard? Opening the door for a gusher of revisions, including ones with the sole purpose of extending LDP rule non erit finis?

Abe enjoys a supermajority in the House of Representatives, meaning that right now he and his party can pass any legislation that the New Komeito can be stiff-armed into accepting. Come August, even this restraint will be removed, as barring an unimaginable catastrophe, the LDP will have robust majorities in both the House of Representatives and House of Councillors. Abe can look Yamaguchi Natsuo in the eye and say, "If you do not like my policies, then vaya con Dios, mi amigo." The New Komeito for its part will likely not leave the ruling coalition, partly because breaking with the LDP would open up the possibility the government looking into the activities of NK's mother ship, the Soka Gakkai.

Whether or not the New Komeito stays or goes (and Abe & Company will be smart enough to make sure that a break up looks like the New Komeito jumping rather than getting pushed) Abe and the LDP will have no effective constitutional or coalition partner brakes upon their legislative agenda.

With essentially total control in his grasp and the only threat on the horizon the remote one of the Supreme Court invalidating the 2012 House of Representatives election (Link) Abe sees his primary duty to be…constitutional revision?

Why?

Well, of course we know “why” in the sense of a legacy or mission, as both the LDP and Abe have pledged since the beginnings of their respective existences to rid the country of this constitution drafted by New Deal idealism-inspired staff members of the Occupation.

However, what should be on everyone's lips – most importantly the lips of Democratic Party of Japan leader Kaieda Banri and Your Party president Watanabe Yoshimi – is:

"Why do you need to fiddle around with the Constitution, when you have tyrannical legislative and executive powers? Why not use your constitutional powers and your current popularity to govern the country, seeing as how you do not have to pay the least bit of attention to us at all? The Constitution is not blocking you from running the country as you see fit – only your own timidity and sloth are."

It is a mark of the intellectual and ethical vacuity of the LDP that when it possesses the ability to do anything except mess with the constitution, it wastes its energy on trying to mess with the constitution.

The reason for this pointless obsession with constitutional revision? Oh, Abe & Company (and the Hallelujah Choruses inside Japan’s news media universe and the Washington DC nomenklatura) will give you a list of reasons a kilometer long.

The actual reason, though? Governing a country is work…and who wants to do work when agitation and propaganda opportunities beckon?


Image courtesy: The Yomiuri Shimbun

We Will Defy Reality

On Sunday's premier talk show, NHK's Nichiyo Toron, Liberal Democratic Party Secretary-General Ishiba Shigeru defended his party's two plans for reforming the House of Representatives: the first being a new electoral map subtracting five district seats from the House membership (Link) and the second a cut of 30 proportional seats in tandem with a bewildering new system of handing out proportional seats to be bolted on atop the existing system.

As for the attack, it came from an Democratic Party of Japan Secretary-General Hosono Goshi, joining the conversation via video link. Eyes strangely bloodshot, Hosono did little more than read from the decisions of the various high courts around the country finding the December 2012 elections unconstitutional. His message was simple: the bills the LDP and its ally the New Komeito are proposing do not answer the requests the courts have made as regards reform of the way the House of Representatives is selected.

[And what are we to make of a Nichiyo Toron debate between only the secretary-generals of the LDP and the DPJ? Should not the Japan Renewal Party's secretary-general been there too, via video-link, at the very least? The JRP was, after all, the #2 vote winner in the 2012 House of Representatives election. What prompted NHK to abandon its practice of inviting speakers from every party, no matter how small that party's Diet membership?]

Ishiba's response to Hosono's gentle hammering was stunning: the LDP and the New Komeito would pass the electoral reform bills, even if the House of Councillors voted against them. The ruling coalition would use its supermajority to override the upper house’s rejection . (Link – J)

There is defiance – and there is nuts. Ishiba's threat edges into the latter territory.

The ruling coalition's first problem would be the use of a House of Representatives supermajority to overturn a decision of the House of Councillors. Over the last three weeks of March, 14 of 16 high courts ruled that the December 2012 House of Representatives elections were unconstitutional. The two remaining courts found that the elections were conducted in "a state of unconstitutionality." The authority and legitimacy of the House of Representatives are thus suspect.

Second, when the Council on House of Representatives Electoral Districts handed its new electoral map to the government, not even national broadcaster NHK could restrain itself from pronouncing the plan dead on arrival. After a segment on the ceremony handing over the new map to the government (Link), including a dutiful explanation of the way the Council reduced the difference between the number of voters in the largest district and the smallest district to 1.998 -- a hair under the Supreme Court mandated constitutional limit of 2.0 -- announcer Inoue Asahi, in a devastating hand-off, sighed to her co-announcer Ogoshi Kensuke, "With a continuing shifts of population, the difference will rise above 2.0 in very little time, sending us right back into a state of unconstitutionality."

Inoue, it turns out, was being more than prophetic. The Sankei Shimbun, not by any means an enemy of the LDP, has checked the population numbers of the districts against the new council map, using the municipal population figures from January 2013. The Sankei's findings: of the ten largest population districts on the new map, eight are already above the 2.0 limit. (Link – J)

While it is true that the law only requires the council on electoral districts to have its map conform to population distributions as reflected in the decennial census (the last of which was conducted in October 2010) -- that the map is already in a de facto state of unconstitutionality means the council performed its duties in only the most perfunctory way.

If the LDP and the New Komeito want the Supreme Court to defer to the elected branch of government on matters of the constitutionality of the districts, then swearing to pass the pseudo-reform bills over the expressed objection of the properly elected House of Councillors is a hell of a way of displaying the magnanimity, graciousness and humility the Supreme Court will be looking for in return for its own surrender of its unquestionable authority over these matters (Article 81, Constitution of Japan).


Later - The Mainichi checks in with an English language account of Ishiba's stunning threat to pass the bill through a House of Representatives override. (Link)

Horie Is Set Free And We Are Not

Internet entrepreneur turned target of prosecutors Horie Takafumi was released from prison yesterday after serving nearly three quarters of his sentence.

Fallen tycoon Horie freed from jail
The Japan Times
by Reiji Yoshida and Kazuaki Nagata, Staff Writers

Takafumi Horie, former president of the Internet firm Livedoor Co. and an entrepreneurial hero for young generations, was paroled Wednesday after spending 21 months behind bars.

In a news conference Wednesday night, an apologetic Horie, who lost 30 kg while incarcerated, expressed his intention to contribute to society by helping ex-prisoners get back on their feet. He also said he wants to reunite with his space rocket project and launch a website to critique how news is reported.

Horie walked out of a prison in Nagano Prefecture at around 7:40 a.m. He soon appeared live in video streamed by Nico Nico Douga, Japan’s leading online video service operator, while he was in a car headed for Tokyo to hold a news conference.

"I thank everybody who took care of me while in prison. Thank you very much. I received parole after serving 74 percent of my prison term," Horie said on Twitter.

In his later press conference, he said, "I caused trouble to many people in society and (Livedoor) shareholders over the Livedoor case and am deeply sorry."

(Link)

That Horie is now apologetic should not be read as his being accepting of his guilt. He is out on parole. He will, for as long as he is out on parole, keep quiet about the case brought against him.

We should not be surprised if Horie remains quiet about the actions of the judicial system even after his parole period ends. Horie fought hard against the law -- refusing to confess, even after his subordinates agreed to testify against him; asserting his innocence on all charges: appealing his guilty verdicts all the way to the Supreme Court.

Incarceration, however, brings a change in values. The primary one -- and it is particularly forgivable in those who never actually did anything wrong -- is the desire to never be incarcerated again. That Horie would never again want to be seen as challenging the status quo powers is understandable.

Rather than dwelling upon the injustice of his incarceration, Horie seems to have found a private liberty in serving as a caregiver to his fellow inmates. Whilst no substitute for real freedom, the right to care for others liberates the spirit, no matter the condition of the body. That Horie has expressed the desire that other inmates might enjoy the privilege of freedom he is enjoying indicates he has understood that behind the bars and the funny clothes, the imprisoned are human beings -- something he would have never known had himself not become one of them.

That Horie may no longer have the fire to fight for a more just judicial system does not let any of us off the hook. With recent reversals of false convictions and the of challenging of the Diet over the constitutionality of elections, it may seem that judges are waking up to their latent power to mete out justice, rather just impose penalties for supposed violations of the law. Unfortunately, none of the blatantly political cases of the 2000s -- the false accounting cases against Horie and his Livedoor subordinates, Murakami Yoshiaki's insider trading conviction (Link) and the cases against Ozawa Ichiro and his secretaries -- has been reversed on appeal (Ozawa managed to avoid all convictions in the cases brought against him by the controversial Committees for the Inquest of the Prosecution)

For all who dwell in this blessed land, doing anything, we must assume we are still at the mercy of the prosecutors, who need only to suddenly be told not to like us any more to go all Lavrenti Beria ("You bring me the man, I'll find you the crime.") on us.

The fight is not over.


Later - For a less morose take on events, see the Wall Street Journal's coverage of Horie's release. (Link)

Hiroshima Unconstitutionality Ruling - Links

Jiji Press

Court rules lower house poll invalid / Vote disparity in Hiroshima 'too wide'

HIROSHIMA --The Hiroshima High Court ruled Monday that the results in the No. 1 and No. 2 single-seat constituencies in Hiroshima Prefecture in the December 2012 House of Representatives election were invalid due to wide vote-value disparities.

This is the first ruling in the postwar period that has invalidated the result in an election for the lower house or the House of Councillors.

Presiding Judge Junko Ikadatsu also ruled that the wide vote-value disparities in the Dec. 16 lower house election were unconstitutional. If the ruling becomes final, elections will have to be held again in the two electoral districts.

Ikadatsu said the ruling will come into force on Nov. 27, 2013, depending on developments...

(Link)

Kyodo News

Hiroshima court rules Dec. election invalid over vote disparity

HIROSHIMA -- The Hiroshima High Court ruled Monday that the results of last December's general election in Hiroshima's No. 1 and 2 districts were invalid due to significant disparities in the weight of votes.

The court is the first in Japan to declare an election result void among a series of lawsuits over vote disparities.

The election results, however, will not be invalidated immediately if the local election board appeals against the latest decision.

Earlier this month, six other high courts and a high court branch in Japan found that disparities in the value of votes of up to 2.43 to 1 in the election were either unconstitutional or close to a state of unconstitutionality...

(Link)

Wall Street Journal

Hiroshima Court Rules Election Invalid

By Toko Sekiguchi -- In a landmark ruling Monday, a Hiroshima court ruled the results of the December lower-house election invalid in two districts due to the disproportionate weighting of votes in those districts.

It was the first time a Japanese court ruled election results invalid on such grounds. It is seen as a victory for constitutional rights activists, who have long argued disparities in the weighting of votes in different districts violates the constitution. The ruling ups the ante on lawmakers to fix the system.

A string of past court rulings has found that the current electoral system doesn't uphold the principle of “one person, one vote,” as prescribed in the constitution. Still, the rulings acknowledged the validity of the results — until now.

Yet neither of the winning candidates in the two districts — including Foreign Minister Fumio Kishida — will need to immediately worry about their jobs.

According to local media reports, the ruling stipulates that the nullification of the election results takes effect only from Nov. 26. That gives Hiroshima's board of elections time to appeal to the Supreme Court. The Internal Affairs Ministry says even if the Supreme Court upholds the ruling, it won’t necessarily mean new polls...

(Link)

Me, myself, I...

For Al-Jazeera six months ago, back in the days when I believed former prime minister Noda Yoshihiko had a backbone:

Will Japan's government disappear?
A Supreme Court ruling in Japan could shake up the political landscape of the country.

A pop quiz: Name the country in East Asia where national elections are illegal. In fact, holding a national election would be unconstitutional.

The answer: Japan.

Not the answer one would expect. However, on October 17, the Supreme Court of Japan ruled unconstitutional the current electoral districts used to assign seats in the House of Councillors. This complements the Supreme Court ruling of March 2010 [sic], which found the district boundaries of the House of Representatives to be also unconstitutional.

In both instances, the Court ruled that the elections selecting the current membership of the Diet were unconstitutional. This means that every single member of Japan's current parliament is occupying his or her seat illegally. In both cases, however, the Court wisely decided that what's done is done, and that having no Diet was worse than having an illegal one.

Creating a new Diet

Having ruled that the electoral districts of both Houses of the Diet are unconstitutional, the Supreme Court has set the stage for a titanic contest of wills in between Prime Minister Noda Yoshihiko and his Democratic Party of Japan and the main opposition alliance of the Liberal Democratic Party and the New Komeito...

In the East Asia Forum, published on the day of the problematic election.

Japan’s ‘nothing’ election
December 16th, 2012

[snip]

To make matters worse, the failure to implement a redrawing of the electoral district map based upon the +0/-5 solution means the election has been carried out using an electoral district map the Supreme Court finds unconstitutional. The Supreme Court on 28 November showed its traditional deference to the decisions of the legislative branch, a panel of the justices refusing, on procedural grounds, to halt the 16 December election. However, the Court has no qualms with lawsuits filed after the election. A crusading group of lawyers is ready to file lawsuits in 60 jurisdictions on 17 December, seeking to invalidate the election’s results.

(Link)

And here, ad nauseum:

http://shisaku.blogspot.jp/search/label/electoral%20system%20reform


As to the issue of when the Hiroshima decision goes into effect...Justice Ikadatsu has given the Diet up to one calendar year from the first convening of the meetings of the commission on electoral boundaries (a commission under the umbrella of the Ministry of Internal Affairs and Telecommunications) to come up with a plan meeting constitutional muster.

The commission met for the first time on November 26, 2012.

As to what "constitutional muster" means, both the Tokyo High Court and the Sapporo High Court found the egregious +0/-5 reform passed on the last day of the previous Diet's existence a risible solution contrary to the Supreme Court's intent.

Expect more trouble on this issue.

Hiroshima Court Strikes Down December 2012 Elections

This just in...The Hiroshima High Court has ruled the House of Representatives elections of December 16, 2012 to be not just unconstitutional but invalid:

１票の格差:昨年衆院選は「無効」　初司法判断　広島高裁

毎日新聞　2013年03月25日　16時17分（最終更新　03月25日　16時17分）

「１票の格差」が最大で２・４３倍だった昨年１２月の衆院選を巡り、弁護士グループが選挙の無効を求めた訴訟で、広島高裁は２５日、違憲としたうえで、選挙を無効とする判決を言い渡した。１票の格差を理由に、選挙のやり直しを求める司法判断は初めて。被告の広島県選管は上告するとみられる

(Link - J)

If the above Mainichi account holds up we are looking at the first ever voiding of an election.

Holy coraggio, Professore Ortolani!

No Country For Gentlefolk

Harold Abrahams - "You know, gentlemen, you yearn for victory just as I do. But achieved with the apparent effortlessness of Gods. Yours are the archaic values of the prep school playground..."

- Chariots of Fire (1981)

According to Yuko Nakano, research associate at the Center of Strategic and International Studies:

The LDP, with its coalition partner Komeito, controls 325 seats in the Lower House which is more than the two-thirds majority that is needed to overrule the Upper House. However, the ruling parties cannot fall back on this "super majority" every time they try to pass important legislation. Such a legislative practice can be seen as a sign of "arrogance" by the public and the LDP and Komeito do not want to create a public backlash against them, especially before the Upper House election next year. It is precisely for this reason that the LDP and the Komeito may seek some form of partnership with others in the parliament.

(Link)

According to Okumura Jun of Global Talk 21:

The LDP will maintain its position as a dominant mainstream party by virtue of its 1/4 bedrock share of the voting electorate plus an enduring coalition with Komeito (and its 1/10 bedrock support base) that includes intimate coordination at the SMD level (making Komeito the virtual pacifist-wing of the LDP). Moreover, the coalition has a House of Representatives supermajority that must be used sparingly from a media-management perspective but will enable it to pass annual tax legislation, which, coupled with the ~FY2012, blanket deficit-bond authorization, will enable it to keep the government running without regard to the configuration of the House of Councilors. This means that if the LDP does badly in the 2013 HoC regular election, it can jettison Abe in favor of a baby face and continue in power without calling a HoR election until December 2016, when its current term ends. The outcome of the 2013 HoC election is crucial for Abe's long-term survival as prime minister, but is only a speed bump for the LDP.

(Link)

Were it that it were so. Were that there were a body of unwritten rules recognized by all; a compulsion to obey those rules out of a desire to be seen responsible and just; and an eagle-eyed news complex to keep one in line if one transgresses.

However, the above highlighted portions have nothing to do with Japanese politics of December 2012 and beyond. History tells a different tale as to the mores of this blessed land:

- On July 30, 2006, the last business day of the regular session of the Diet, when the one Abe Shinzo was basking in the sunlight of a majority in the House of Councillors and a supermajority in the House of Representatives, bill after bill was rushed through in the morning House of Councillors session on identical votes of 123 to 96, 123 to 96, 123 to 96 During lunch, the powerless opposition decided to give up, with only the Communists returning for the afternoon session. (Link - J)

- On March 19, 2011, eight days after the disaster of the Tohoku earthquake and tsunami and seven days since the meltdowns of the Fukushima Dai'ichi nuclear plants began, Prime Minister Naoto Kan called his Liberal Democratic Party counterpart Tanigaki Sadakazu. Kan proposed the establishment of a government of national unity with Tanigaki as the vice premier.

Tanigaki spurned the offer. The LDP's attack dogs went into action on the talk shows, rubbishing Kan's offer to share power in a time of national emergency.

- On March 21, 2011, two days after the LDP's spurning of Kan's offer, the news media began spreading the vile rumors that Kan had halted a last ditch injection of salt water into the reactor cores and interrupted plant worker efforts in an emergency visit to the plant on March 12. On March 28, Kan had to withstand withering Diet questioning of his judgment and calls for his resignation for contributing to or even causing the nuclear disaster...

...except of course that Kan during his emergency visit to the plant had given the order to enter the #1 reactor building that the plant managers had been awaiting from the management of Tokyo Electric Power...and the interruption of the injection of salt water had never taken place, the heroic onsite plant director having overruled a direct TEPCO order to stop the injection.

- On August 29, 2012 the LDP, angered by Prime Minister Noda's letting slip an LDP deadline for a Diet dissolution, voted for a motion of censure against the Noda government. However, due to a procedural rule, the LDP could not vote for its own motion of censure. It had to vote for a motion submitted by seven other opposition parties in the House of Councillors, including People First, the party of LDP's arch-enemy Ozawa Ichiro. The language of that censure motion condemned the raising of the consumption tax and the Triparty Agreement of the Democratic Party of Japan, the LDP and the New Komeito which had ensure the passage of the consumption tax bill. The New Komeito, seeing it impossible to vote for a censure motion that condemned its actions, walked out before the vote. The LDP contingent remained, voting against itself.

- On December 15, 2012, all the major newspapers published editorials on Prime Minister Noda Yoshihiko's dissolution of the Diet. The Yomiuri Shimbun, the enemy of the DPJ, declared unwavering support for the dissolution whilst outlining in detail how the election would be illegal. The Nihon Keizai Shimbun somehow found the illegality of the election less important than Prime Minister Noda's having missed the LDP's August 8 deadline for a dissolution. The Sankei Shimbun endorsed the dissolution without a mention of the legal and constitutional issues at all.

The most crushing, however, was the The Asahi Shimbun editorial. In what can only be seen as a concerted effort to complete an alignment with the most famous lines of William Butler Yeats' "The Second Coming" – "The best lack all conviction, while the worst. Are full of passionate intensity. "— The Asahi Shimbun acknowledged the illegality of the upcoming election only to endorse the dissolution as "something one just had to live with" (yamu o enai suru mono). (Link)

Adhere to an unwritten rule? The news media was unwilling to demand that the Prime Minister and the House of Representatives obey the law!

If there decency is to survive the incoming administration, hope must be placed in the influence of the New Komeito.

However, hope, they say, is not a plan. Rather than relying on heretofore unseen gentility in the LDP and a sudden growth of a spine in a crusade-leery news media complex, we need a new set of rules befitting the challenges ahead:

Jim Malone - "He pulls a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. That's the Chicago way!"

- The Untouchables (1987)

The Assault Begins

The promised legal assault on the constitutionality of the December 16 election has begun. Lawyers have filed lawsuits asking for an invalidation of the election in all of this blessed land's 14 high court districts. (Link)

You have to love lead lawyer Masunaga Hidetoshi's metaphor framing the question of the legitimacy of the current crop of Representatives-elect:

"It's a serious situation where (players) are running around the pitch even after a referee issued a red card."

Now there is an explanation of disdain for the rule of law that everyone can understand.

Rectifying The Electoral Districts: No Injunction For You

You don't know until you try...or until a panel of Supreme Court justices turns you down.

A team of lawyers from the Citizens Rally for the Realization of One Person/One Vote (Hitori ippyo jitsugen kokumin kaigi) filed a request with the Supreme Court for a preliminary injunction against the holding of the House of Representatives election. On Friday (November 30) a panel of five Supreme Court justices ruled against the issuance of such an injunction.

The lawyers group had argued that since the Court recognized the ability of plaintiffs to file a people's suit (minshu sosho) and recognized suits requesting the invalidation of elections after the fact, it should have the capacity to issue an injunction against public officials holding an election potentially injurious to members of the public.

The court panel disagreed, finding that no regulations existed for the Court's issuing a preliminary injunction against the holding of an election.

The request was a stretch for One Person/One Vote, which suffered a rare loss in its campaign to rectify the electoral district maps. The request was merely a foretaste of the blizzard of lawsuits the group intends to file post-election.

While the lawyers' group is disappointed in the Court's throwing the issue to the Diet to solve, at least the Court did not rule on standing. If regulations on issuing injunctions against elections existed (not that there is much chance that the Diet will pass legislation opening that door) then plaintiffs ostensibly still have the right to file suit without first proving specific injury.

Sources:

Nihon Keizai Shimbun
http://www.nikkei.com/article/DGXNASDG3004M_Q2A131C1CC1000/

Sankei Shimbun
http://sankei.jp.msn.com/affairs/news/121130/trl12113018100006-n1.htm

Heat Maps of One Person/One Vote showing intensity of under-representation by municipality:

http://www.bengo4.com/feature/ippyo/heatmap