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...

Collision Course On Elections

Yesterday the Supreme Court began hearing arguments in the amalgamated 16 cases brought against the nation's prefectural electoral commissions requesting the nullification of the December 2012 House of Representatives elections on the grounds that the degree of disparity in the electoral districts, which reached 2.43 to 1 in the case of Kochi District #3 versus Chiba District #4, violates the constitutional principle of equality under the law. The Supreme Court is expected to issue its ruling before the year is out. (Link - J)

The potential for constitutional chaos is not insignificant. If the court declares the election unconstitutional and invalid, the existing Diet is illegitimate. However, since the Constitution stipulates that only the Diet has authority over the drawing of electoral district boundaries, the country would be bereft of a legal body empowered to pull everyone from out of an electoral black hole.

As the Nihon Keizai Shimbun points out, twice before, in 1972 and in 1983, the Supreme Court has ruled that an election was unconstitutional. In both cases the court ruled that the elections results were nevertheless valid. (Link - J)

No, the concept "unconstitutional but valid" does not make any sense to me either.

The fillip in the cases currently before the court is that in '72 and '83, the Supreme Court was ruling on election districts found unconstitutionally unbalanced after the fact. In the current cases, the Supreme Court told the Diet three years ago that the electoral map was "in a state of unconstitutionality" and warned legislators to fix it before the next House of Representatives election.

The Diet failed to do so.

Given the Supreme Court's advance warning, narrow indeed is intellectual window open for the Court to issue a pass on the validity of the election that brought Abe Shinzo and his allies to power.

[See updated information here] In terms of personal stories, there the one involving the Court's most junior member, Justice Yamamoto Tsuneyuki. Yamamoto did not keep his peace when Prime Minister Abe Shinzo earlier this year kicked him upstairs from his post as Cabinet Legislative Bureau chief in favor of Komatsu Ichiro, a diplomat seen as a pushover on the changing the CLB's position on the constitutionality of collective security (Link). That Yamamoto will be caucusing his fellow justices and ruling on the constitutionality of the election that brought his nemeses Abe and Chief Cabinet Secretary Suga Yoshihide to power is the most delicious irony.

Suga does not make many mistakes. Counterattacking against Yamamoto, however, might turn out to have been a big one.

Very Kind Of Them #15

The East Asia Forum has published my essay examining the fallout from the high court decisions on the unconstitutionality of the December 2012 election. (Link)

Yesterday, the secretaries-general of the parties gathered in the Diet to discuss the ruling coalition's new district map and electoral reform plan, both of which flesh out the ingenious and craven +0/-5 solution. The ruling coalition plans to submit a reform bill for a Cabinet Decision on April 12. After that, the bill will be submitted to the Diet. Given the supermajority the ruling coalition holds in the House of Representatives, the bill will pass into law even if the House of Councillors rejects it.

The response of opposition attendees at yesterday's meeting to the ruling coalition's presentation: "Go jump in a lake." (Link - J)

This morning on the TBS morning show Asa Zuba! Liberal Democratic Party Secretary-General Ishiba Shigeru was in full damage control/take no prisoners mode.

Ishiba's intransigent defense of the +0/-5 plan and the Council on House of Representative Electoral Districts map in the face of persistent questioning came not only from his position as the day-to-day leader of LDP, though. He also has a personal stake in the passage of minimalist reforms.

Ishiba represents Tottori District #1. Tottori Prefecture is one of the five prefectures losing a seat under the +0/-5 solution. However, due to the prefecture's minuscule population, even the cutting back of one seat leaves Tottori voters overly represented in the Diet (under current law, all prefectures send at least two members to the House of Representatives). Tiny Tottori, under a more equitable system, would only have one.

Ishiba would probably be the top vote winner in his prefecture whether there were two races or only one. However, politics in prefectures with few inward migrants and small populations is very much person-to-person -- and the LDP Way is all about making voters feel special and in control.

Ishiba already has a reputation for being too free in displaying of disdain for needs of his nominal equals. He does not need to add to it.

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

Like, Whatever

Folks are excited that the Democratic Party of Japan has given hints it intends to submit a bill on the reformation of the electoral districts on Wednesday (Link) Folks are equally excited at the Prime Minister's lobbing of Japan's participation in the Trans Pacific Partnership into the discussions of policy promises the DPJ will be including in its election manifesto. (Link)

Both acts are portrayed as harbingers of an election.

Whoa. Try to keep stuff in perspective, folks.

The submission of a bill reforming the electoral districts, if it is the one the Liberal Democratic Party and the New Komeito let die in the last Diet session or if it is the LDP's minimal +0/-5 draft bill, is only the first step of a lengthy bargaining process between the ruling and opposition camps. Once a bill erasing the unconstitutional disparities in between the highest and lowest population districts passes both Houses of the Diet, the Noda government can still delay the calling of an election -- on the grounds that if the government and the opposition wish to avoid any taint on the election, the process of redistricting will have to run the course described in the public elections law.

The country's main political parties could, of course, collude and hold an early election in contempt of the law. However, the hold of the winner upon the tiller of government would be unsteady, subject to court challenge. Under the circumstance who, aside from LDP president and man-in-a-desperate-hurry-and-none-too-fond-of-the-Constitution-anyway Abe Shinzo, would want to press for an early dissolution of the Diet?

As for the inclusion of Japan's participation in the TPP in the Democratic Party of Japan's manifesto, hold the horses.

As the prime minister stated, Japan's participation in TPP would be part of a broader strategy, running in parallel with negotiations on a trilateral China-South Korea-Japan trade pact. By making this linkage, the prime minister makes clear Japan will essentially be trying to play both sets of negotiating partners against each other, as well as against other inter-regional negotiations in which Japan has shown an interest.

Let us see how Japan's negotiating partners respond to that ploy, shall we?

That the PM cannot count on the vote of his own party – that indeed just talking about including the language of TPP participation in the party manifesto could drive enough legislators out of the party as to trigger the collapse of the government -- should be a cold shower for those getting all excited at the Noda announcement.

The Liberal Democratic Party and the New Komeito have to fold on the bond issuance bill before we start talking about elections. So let us wait for that inevitability to happen before we get hopped up about a Diet dissolution, OK?

Later - The inimitable Corey Wallace has checked in with his own, more expansive examination of the TPP as strategy, tactic, diversion and lead balloon. (Link)

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.

Just What The Heck Did They Think They Were Doing?

Yesterday, a leak of huge proportions sailed through the halls of Nagata-cho, the home of Japan's national legislature and the various offices attached to the prime minister: PM Noda Yoshihiko and head of the opposition, Liberal Democratic Party President Tanigaki Sadakazu, had had a secret one-on-one meeting in a Tokyo hotel on February 25. (E)

Both men inexplicably denied that the meeting had taken place. While certainly both of them face very difficult reelection campaigns in the fall -- ones where they will be challenged by forces within their parties extremely unhappy with the way each has been handling party and Diet affairs -- and the news of a secret meeting would only inflame the passions of those opposed to their respective party leaderships --denying what everyone knew to be true seems, at this point, the height of folly.

Just what the two could have been discussing in secret is the subject of wild speculation. The most common supposition is that the two were discussing a quid pro quo: passage of the bill raising the consumption tax in return for an early dissolution of the Diet. This "discussion dissolution" (hanashiai kaisan) has been a favorite proposal of LDP party elders and conservative members of the commentariat in recent weeks. That the LDP had been chattering about it so much was unsurprising, given that the period of time during which the prime minister could dissolve the Diet and call and election without provoking a constitutional crisis was rapidly closing.

Unfortunately for this theory, the timing of the meeting does not neatly match up with the schedule of the constitutional problem with a House of Representatives election. The meeting was held in the evening on February 25. This was also the last day that the House of Representatives could be dissolved without an unchallengeable unconstitutionality of the current electoral map. Basically, the two would have to agree with a three-step process: the passage of a bill fixing the unconstitutionality of the electoral map, then bring together elements of each of their two parties together to vote for the tax increase, followed by a Noda's exercising his right to unilaterally dissolve the Diet. Seeing as neither Noda nor Tanigaki has enough support within his party to drag their colleagues into this scheme -- the DPJ's proposed reform of the House of Representatives cutting far too many of the House of Representatives' proportional seats for the LDP's ally the New Komeito to swallow -- made the entire subject moot.

If the two were not talking about a hanashiai kaisan over the consumption tax, what could they have been talking about? Another line of speculation is that Noda was testing Tanigaki's willingness to fashion a broad, even if only a loose, coalition government of fiscal conservatives to oppose the internal challenge Noda faces from Ozawa Ichiro. With the tossing out of the most damning piece of evidence in Ozawa's accounting irregularities trial on February 17, Ozawa has been on a tear to reestablish himself as the most important power broker within the DPJ. In his most stunning step outside the boundaries of his comfort zone, he agreed to a long interview with The Asahi Shimbun, outlining his opposition to nearly everything the Noda government is trying to achieve. Since Ozawa agrees to mainstream media interviews less frequently than Japan changes prime ministers, this was a sign that he feels himself now nearly bulletproof in intra-party infighting, even as his membership in the DPJ remains formally under suspension. Given his propensity to take his followers out of a party when he feels slighted, and that so many of the DPJ's first-termers and even middle-ranking members are terrified that a rise in the consumption tax condemns them to electoral annihilation, the number of folks Ozawa could take with him has swelled from the estimates of 50 or so prevalent a few months ago. He could conceivably take half the DPJ with him, given the results of the September 2010 leadership election between Ozawa and Kan Naoto. (J)

Whatever the two may have been discussing, that they should meet should not be such a big deal. Leaders meet in secret all the time, feeling out where the other really wants go out, away from the extremism that the camera lights bring out in every politician. This is particularly the case for Tanigaki, who has been forced to cling to a hopeless strategy of saying "No" to everything the DPJ has proposed, a stance which has exasperated certain of the clearer thinking members of the LDP. True, meeting in secret just four days before the two were heading into a clash of the titans Question Time session looks like match-fixing. However, given the way that Prime Minister Noda pummeled Tanigaki in the February 29 session, it seems hardly likely the pair had agreed to treat each other with kid gloves.

So why the denials regarding the meeting? Credibility is a far more precious currency than consistency. So you went behind your colleagues' back to find out what the other side is willing to give up -- so what? Lying in public -- that is fatal.

There was in a time when if the Chief Cabinet Secretary, the government's main spokesman, would say something is true or not true, that was the end of the discussion. Secret agreements on the return of Okinawa to Japanese sovereignty? They do not exist. But there are copies in the U.S. National Archives! That is irrelevant, they do not exist.

We do not live in such a time anymore. Indeed, under the DPJ-led coalition government, the heretofore non-existent Okinawa agreements were shown to have existed. That something was secret cannot be denied when the secret gets out.

So for the increasingly pathetic and irrelevant Fujimura Osamu to insist that the meeting never took place is the pretty much same as a confimation that it did.

Where You Stand Is Where You Sit?

In parsing out the internal dynamics of the domestic fight over the Trans-Pacific Partnership, it is perhaps worthwhile to look at how the sides in the battle line up against the nation's electoral map.

On the 26th of last month, the Ministry of General Affairs and Telecommunications released its revised preliminary population figures from the 2010 national census. As usual, the boys and girls of the news media immediate set to work with their spreadsheets, comparing populations within the nation's 300 electoral districts, looking for the greatest levels of disparity within the country.

The highest level of disparity found was 2.52, meaning that a person voting in the least populous district had 2.52 votes for a legislator as compared to a voter in the most populous district.

The winner in this contest? Kochi District #3, a rural outpost whose largest urban center is the city of Shimon (pop. 40,000 and shrinking). It is represented by Yamamoto Yuji of the Liberal Democratic Party. Liberal Democrats also represent Kochi District #1 and #2, for those who are keeping score.

Who gets stiffed the worst? It is Chiba District #4, comprised entirely of the core of the city of Funabashi (pop. 600,000 and growing). Chiba District #4 is represented by a member of the Democratic Party of Japan, namely (drumroll please) Prime Minister Noda Yoshihiko.

There are 97 districts with populations greater than double Kochi's District #3, which are thus unconstitutional under the ruling handed down by the Supreme Court in March of this year. This is whopping jump in the number of unconstitutional districts, as there were only 48 such districts based on the 2005 census figures.

Now what about Yamada Masahiko, the leader of the fight against Japan's participation in the TPP within the DPJ? He represents Nagasaki District #3, the second smallest district in terms of population after Kochi District #3.

Need I say more.

Just for completeness' sake, in the House of Councillors the greatest disparity can be found in between Tottori and Kanagawa Prefectures. A vote in Tottori is worth 5.124 times a vote in Kanagawa. Tottori is primarily rural prefecture, with the city of Tottori (pop. 197,000) as its largest urban center. Kanagawa is almost entirely urban and suburban (pax the Hakone Area and the Tanzawa Range) with the city of Yokohama (3.7 million) as its largest urban center.