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.

The 21 July 2013 Elections - In Case You Haven't

In case you haven't seen or had a chance to look at the numbers from Sunday's election, a random trio of tables:

Vote totals, nationwide, in district and proportional voting



Look at the shift of vote totals in the district and proportional columns for the LDP and the New Komeito. In past national elections, the ratios of the shifts has been one-to-one, with the increase in the numbers for New Komeito in the move from district to proportional equal to the decrease in the numbers for the LDP between the two columns. This year, the numbers for LDP district candidates is 600,000 voters short.

So who did those 600,000 New Komeito voters cast their ballots for in the district elections?

Later - I am open to the possibility that 600,000 non-regular New Komeito voters gave up their proportional votes to the New Komeito

a) out of disgust with the opposition parties and/or

b) to give the New Komeito some extra leverage in its coalition negotiations with the LDP.


% of the District Vote Versus % of Seats



a) Is the system geared? You bet it is. The LDP gets 42.7% of district votes and walks away with 64.4% of the seats.

b) Imagine how many more ballots would be spoilt if not for the proportional voting!

c) Look at the near perfect efficiency of New Komeito district voting. Wow, wow, wow.


Japan Restoration Party: Loved in the Kansai but Not Hated in the Kanto



Predictably, the Japan Restoration Party did exceptionally well in the Kansai region. Some 30% of its national totals came from the 6 Kansai prefectures, where the party captured from 14%-29% of the proportional vote in each.

However, the party did OK in Tokyo, winning 10% of its total vote there, pretty much in line with Tokyo's slice of the national voting age population.

The July 21, 2013 Elections - By the Numbers

Total number of candidates: 433

Total number of seats up for election 121

Number of district seat candidates: 271

Number of district seats up for election: 73

Number of proportional seat candidates: 162

Number of proportional seats up for election: 48

Total number of candidates, by party:

LDP 78
JCP 63
DPJ 55
JRP 44
Your Party 34
New Komeito 21
Life 11
SDP 9
Green Breeze 8
Other 83

Support for the parties (NHK poll of 7-9 June 2013)

LDP 41.7%
JCP 2.2%
DPJ 5.8%
JRP 1.5%
Your Party 1.5%
New Komeito 5.1%
Life 0.1%
SDP 0.4%
Green Breeze 0.0%
Other 0.2%
None of the above 34.6%
Don't know/can't say: 7.0%

The number of seats "X would have to win in order to do Y"

- parties nominally in support of constitutional revision to have the 2/3rds majority of seats in the House of Councillors necessary to revise the Constitution: 100

- the LDP to have all by itself majorities in both Houses of the Diet: 72

- the LDP and the New Komeito to have majorities in both Houses of the Diet: 63


Voter turnout - the last time

- last time these seats were up for election (29 July 2007): 58.64%

- last House of Councillors election (11 July 2010): 57.92%

- last national election (House of Representatives, 16 December 2012):　59.32% (historical low)

- latest major election (Tokyo Metropolitan Assembly, 23 June 2013): 43.50% (second lowest ever)


Voter Turnout - Lowest

House of Councillors: 44.50% (23 July 1995)

House of Representatives: 59.32% (16 December 2012)

Tokyo Metropolitan Assembly: 40.80% (6 July 1995)

[Complete revival of the (Lack of) Spirit of '95 will guarantee Abe a historic victory on the 21st. It will also put a permanent asterisk mark next to the victory, with the explanation "Earned But Not Merited"]


Demographics

% of candidates who are women: 24% (second highest % in last 30 years)

% of candidates who are younger than 50 years of age: 43%

% of candidates who are 60 years of age or older: 26%

Where The Abe Cabinet Will Lead Us - A Preview

Two worthies well worth listening to -- Columbia University professor Gerald Curtis and Sophia University professor Nakano Koichi -- will be speaking this noontime at the Foreign Correspondents’ Club of Japan. (Link)

I must admit a curious relationship with both men. Professor Curtis gave a very kind public plug for Shisaku last month, with the caveat (an unnecessary one, really) that "Michael is not always right." Professor Nakano does not know quite what to make of me, even after we have served on discussion panels together. I am guessing, though, that I am not his favorite person.

Which is odd, because of the two, I more inclined to agree with Dr. Nakano than Dr. Curtis, specifically on the outlook for the governing style of the Abe Cabinet after the July 21 election. Professor Curtis is largely sanguine, expecting that the postwar habis of political parties and governments holding back from the full use of their powers will carry on past July 21. I believe, and I suspect Dr. Nakano believes that once clear of the House of Councillors election the Liberal Democratic Party's worst elements will run amok, bulldozing long-desired revisionist and remilitarization claptrap through the Diet, constrained by only by the occasional mild protest from a cowering New Komeito and/or their own sloth.

Dr. Curtis has assured me that fear public criticism will keep Abe and Company from making use of the near dictatorial powers they will enjoy after July 21. The good doctor may have a point: the Abe government has heretofore not made much use of its supermajority in the House of Representatives...if by "not made much use" one means, "if one ignores the use of the supermajority to pass the redistricting based upon the egregious +0/-5 electoral reform legislation perpetuating the inequalities in the electoral system critical to LDP dominance." (Link - J)

I am not sure that today's LDP, composed of folks who could not stop attacking Prime Minister Kan Naoto even as the country was plunged in its worst crisis since World War II, is so genteel as to be reined in by admonitions from the nation's editors and television personalities.

If I were at the press conference I would also like to hear what both professors make of the recent drops in voter participation...and not just for the knife to the back such opting out from voting has been for the Democratic Party of Japan. I would like to know how the two professors will incorporate the terrible voter turnout numbers for the last two big elections (last December's House of Representatives election and the Tokyo Metropolitan Assembly election of June 23) and the projected poor turnout for the July 21 election into their theories on how Japanese democracy works, or, if they wish to categorize it so, how Japanese democracy does not work.

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)

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.

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.

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)

The Magnificent 30s

From Professore Andrea Ortolani, in comments, a note of commonality in between Justice Ikadatsu Junko, who on Monday ruled unconstitutional and invalid the elections held in the Hiroshima #1 and #2 House of Representatives districts last year -- and Justice Katano Noriyoshi, who ruled yesterday that the Okayama #2 district election was unconstitutional and invalid (Link): both Ikadatsu and Katano are from the 30th lawyers' examination class.

So what?

Members of the 30th graduating class are on the cusp of retirement. Justice Ikadatsu is 65, mandatory retirement age for a justice. Katano, if he is not also in his final year, is probably close to it.

Nothing like approaching retirement to ease fears of retaliation and exclusion. Nothing stands in the way of your getting a full pension; no one can threaten you with exile to the sticks (Justice Ikadatsu served in Gifu, Tsu, Tokyo, Nagoya, and Okinawa before her present posting). No sempai can pressure you to not rock the boat. Having no hope of higher appointment, you are liberated from the need to be popular with your peers.

Revolution -- t'is a priviledge of the old.

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!

The LDP's Latest Electoral Reform Chimera

Cognizant of some voters remembering that in November representatives of the Liberal Democratic Party promised then Prime Minister Noda Yoshihiko that they would cooperate in cutting the number of seats in the House of Representatives if Noda would dissolve the Diet -- and cognizant that some kind of action looking like electoral reform is in order -- the LDP is now proposing to scramble the electoral system worse than ever.

In 2009, the Democratic Party of Japan promised to cut the number of House of Representatives proportional vote seats from 180 to 100. Nominally this proposal sought to reduce Diet expenditure. However this explanation was facetious: the House was to be left with a still extraordinary 400 seats. The actual goal of the proposal was the further cementing of a two-party system, this by starving the mini- and micro-parties of opportunities to win seats. As a such, the proposal never had a chance of being enacted after the losses of the 2010 House of Councillors election, as the DPJ by itself no longer had the votes necessary to prevail in both Houses of the Diet. Had the LDP, the other party desirous of a two-party system, been willing to accept a short term sacrifice for a long-term gain, the proposal could have been passed at any time. However, the LDP had no interest in cooperating with anything the DPJ offered.

So the matter sat, fermenting, until revived to provide camouflage for Noda's reprehensible surrender on every front.

However, with the courts beating upon the doors of Diet demanding reform (Link), the LDP has taken up the promise to reduce House of Representatives seat numbers.

Cutting the number of proportional House of Representative seats has nothing to do with the sort of reforms the courts are demanding. However, better to be seen doing something, no matter how perverse and pointless, than be hounded for doing nothing.

Hence, the latest cockamamie proposal. That, and the desire the LDP has to retain the New Komeito as an ally until the July House of Councillors elections are over.

Here is the LDP's proposed reform of the House of Representatives:

- Retention of the +0/-5 plan for rectifying the disproportionality of districts, a solution which the courts have derided as "nothing but the barest minimal reform meeting the mandatory standards." (Link – J)

- Cutting the number of proportional seats by 30

- Dividing the remaining 150 seats (180-30=150) into two, with 90 seats being apportioned by the current d’Hondt distribution from regional blocs and 60 seats apportioned among the parties other than the top finisher in the proportional bloc vote, with the proviso that greatest number of seats a party other than the top vote getter can win inside a bloc is equal to the number won by the top finisher (Got that?)

- Reducing the number of blocs from the current 11 to 8 (Link – J)

The DPJ has already come out against the LDP proposal, iterating the obvious point that "voters would find this reform hard to understand." (Link – J)

A reform which accomplishes none of the things the public and the courts have asked for, while adding at three new layers of complexity to the existing process is "hard to understand?" Really?

The great thing about having the LDP back in power with Abe Shinzo at the helm? One never needs to knit together tenuous webs of inference and intrigue in order to make plain the time-wasting self-interest at the heart of every ruling party initiative.

A Look At il diritto c'è, ma non si vede

Blogging in Italian about Japanese jurisprudence, reader Andrea Ortolani. (Link)

Professore Ortolani writes a straightforward style, allowing Google Translate to do a decent job (Pace, il Dottor P. S.) of rendering the original into English.

In a recent post Ortolani examines the two high court decisions handed down this month on the unconstitutionality of the House of Representatives electoral map, and by extension, the illegitimacy of the Abe Government and the sitting Diet:

A che servono queste due pronunce, se tanto in pratica non cambia nulla? Sono anni che i tribunali giapponesi lanciano avvertimenti, nella forma di pronunce di incostituzionalità dei collegi elettorali, ma finora nulla è cambiato. Ci sarà prima o poi un giudice che avrà un po’ più di coraggio degli altri?

Which, according to Google Translate, is:

What are these two decisions, both in practice if nothing changes? For years, the Japanese courts speak warnings in the form of rulings of unconstitutionality of the constituencies, but so far nothing has changed. There will be sooner or later a judge who will show a little more courage than others?

It is perhaps unfair to dump upon the Tokyo High Court and Sapporo High court justices. They did rule without equivocation that the December 2013 election was unconstitutional and not "carried out in a state of unconstitutionality" or some other responsibility-shirking locution.

The pair also at least cast doubt upon the constitutionality of the egregious +0\-5 fudge on rectifying the unconstitutionality of the districts passed by the last Diet in the last week of its existence (Link - J). This opens the door for the Supreme Court to rule in favor of a more meaningful reform of the House of Representatives district boundaries -- not that the Supremes will take advantage of this opening, at least as regards the current round of cases.

[The ruling also casts into doubt upon the +4/-4 rectification done to the House of Councillors district seat apportionments, a question which will come to the fore the closer we approach to the end of the current Diet session.]

As for showing more coraggio, declaring an election invalid is really up to the Supreme Court. After all, the frame for the fight over who has final say on what is or what is not constitutional is Article 81 of the Constitution, where the named actor is the Supreme Court, not the national judiciary. (Link)

The decisions to declare the December 16, 2012 election unconstitutional but not invalid is a headscratcher, to be sure. As a senryu by Tanaka Jiro of Koshigaya City put it:

違憲でも
選挙有効？
アホかいな

Iken demo
senkyo yuko?
aho kai na

Even though it's unconstitutional
The election's valid?
Do you think I'm a moron?/Are you morons?

Source: Tokyo Shimbun of 9 March 2013

In my heart I know that when the Supreme Court takes on the issue of whether or not the December 16 election should be invalidated, it will kick the ball to the sidelines, no matter that Japanese government is in a corrosive (and likely, given the contempt the revisionists have for the 1947 Constitution, an entirely willful) state of unconstitutionality.

Question Of The Day - On Unconstitutional Diets

If, as the Tokyo High Court found yesterday (Link) and as the Sapporo High Court found today (Link - J) the December 16, 2012 House of Representatives election was unconstitutional, can the representatives seated by said unconstitutional election vote on an amendment to the Constitution?　

The two court rulings so far have kept the House of Representatives in place, foreswearing a nullification of the election results. The argument is that that even though the current House of Representatives was elected in an unconstitutional election, the previous legitimate House of Representatives had, before its dissolution, voted on a plan (the so-called +0/-5 plan submitted by the Liberal Democratic Party) that will after the election commission submits a new electoral map and that map is ratified by the present unconsitutinally elected Diet, make the next House of Representatives election constitutional.

So, in theory, Japan may have a four year interregnum, featuring a fully empowered government without a constitutional basis for its existence. Or, depending on one's views of what constitutes unconstitutionality, may never have a constitutional government again.

Making the struggle over whether or not to amend the Constitution moot, it would seem.

For those who may be despairing of Japanese court decisions ever making any sense, both the Tokyo High Court and the Sapporo High Court have ruled that now that the December 2012 elections have been held, the said elections have moved from "the state of being unconstitutional" (iken jotai) that they were in in March 2011 to being unconstitutional (iken) today.

Whew! At least that is settled.

At least 16 more lower courts decisions to be handed down by March 27. After that, the Supremes will get their shot at making sense of this mess.

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)

And A Damn Shall Not Be Given

What are likely to be first victims of the Liberal Democratic Party's victory on December 16?

Japan-Australia relations, Japan-New Zealand relations and a few hundred minke whales.

Under pressure from pro-pelagic whaling members of the Diet, the government has had to abandon its plan to allow the industry to die from neglect. Rather than force the Nisshin Maru mothership to sit in port undergoing a much-needed retrofit throughout the length of the Antarctic summer, the government seems to have acceded to the ship's departing for the austral summer hunt having only undergone half-a-retrofit.

Why the government saw it necessary to lower safety standards and allow the whaling vessel set off to sail some of the world's most daunting seas is a mystery. Then again, the Democratic Party of Japan's bifurcated approach toward pelagic whaling has been baffling. The pelagic hunt was effectively nationalized through the government's paying off the Institute of Cetacean Research's debts – infamously, as we all recall, through the supplementary budget for Tohoku recovery. The Nisshin Maru was observed on the 13th having its engines tested at Innoshima in Hiroshima Prefecture (Link - J) which is in a swing district that until December 16 was represented by a DPJ member However, Nisshin Maru is homeported in Shimonoseki, represented in the Diet by a certain Mr. Abe Shinzo. (Link)

It is not like the DPJ was helping itself by bailing out the industry.

Abe could still stiff his constituents in a gesture of goodwill toward the Australian government. After all, his predecessor Noda Yoshihiko betrayed his constituents by selling out on electoral district reform, getting nothing in return.

I would not count on Abe making the strategic decision, however.

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.

And In The End

Let us remember that the electoral system is designed to deliver victory to the Liberal Democratic Party even if the LDP is massively unpopular.

We should not be surprised if it does.

So go out there and surprise us, people.