Japanese high courts trip up the Abe government

The Australian National University's East Asian Bureau of Economic Research published on April 4th the following analysis of Japan constitutional issues by MIT's Michael Cucek (APP member) in its online publication, the East Asian Forum.

On 14 November 2012, Japanese prime minister Yoshihiko Noda issued a challenge to his rival, Liberal Democratic Party (LDP) president Shinzo Abe.

In return for voting with the ruling Democratic Party of Japan (DPJ) on a pair of pending bills and promising to cut the number of seats in the House of Representatives, Noda would call a national election. With the LDP nearly certain to win a big majority if an election were held, Abe agreed. The two problematic bills were passed, Noda dissolved the Diet and, one month later, the LDP won an overwhelming victory. Surprising many observers, the new Abe government went from strength to strength over its first months in office, with the public approval for both Abe and his party presaging a long run in power. Victory in a second election in July 2013, giving the ruling coalition control of both houses of the Diet, would eliminate an already marginalised opposition from the governing process.

There was, however, a catch.

In March 2011, the Supreme Court ruled that the House of Representatives electoral map was in violation of Article 14 of the Constitution, which guarantees equality under the law. A vote in the nation’s smallest district was worth 2.3 times a vote in the nation’s most populous one, a degree of difference the Supreme Court found intolerable. In order to avoid chaos the Supreme Court declared the map to be in ‘a state of unconstitutionality’ rather than strictly unconstitutional, giving the Diet a chance to rectify the imbalance before the next general election. As a goal, the Supreme Court demanded that the difference in voting strengths be reduced to below 2.0.

Despite the warning from the Supreme Court, the government and the LDP-led opposition dawdled. At the time Prime Minister Noda made his offer to dissolve the Diet, no map had been approved. The commission charged with redrawing the map had not even had a single meeting.

The impossibility of conducting an election that met constitutional requirements was not unknown to Abe and the LDP — the difference had risen in the interim to 2.43. Nevertheless, Abe took the possibly poisoned chalice of an immediate election when Noda offered it. His choice was not a particularly risky one. The 2.0 standard was entirely arbitrary, the Supreme Court having ratcheted down the disparity standard from 5.0 in 1976 to 4.0 in 1980 to 3.0 in 1990. Never once over that time had a court invalidated an election for violating the operative limit on vote disparity.

Furthermore, on 16 November, the last day of the Diet session, the ruling DPJ coalition and the LDP-led opposition joined forces to pass a sly LDP-authored workaround for the disparity problem. The so-called +0/-5 solution eliminated the problem surrounding the difference between the smallest and largest districts by eliminating the smallest districts altogether. The difference between the largest and smallest remaining districts would thus fall below the 2.0 standard. This plan, however, was not implemented in time for the December election.

Abe and the LDP calculated that the judiciary, which has historically shown great deference to the legislative branch, would back down, refuse to consider invalidating the election and, on the strength of the +0/-5 solution, throw the whole question back to the Diet.

Abe and the LDP’s calculations turn out to have been wrong.

In a series of stunning decisions starting on 7 March 2013, Japanese High Courts have turned the tables on the Abe government. Out of 16 cases filed, the courts have ruled the expected way only twice. Fourteen cases ended with the justices determining the election to have been unconstitutional, without question or qualification. In a post-war first, two courts ruled the election districts unconstitutional and invalidated the results.

Even more surprising were the justices’ arguments. The key point was not a violation of the ‘2.0’ standard; indeed, the decisions invalidating election results came in areas where this was not a problem. The key consideration for the justices was the contempt shown by the legislative branch for the judicial branch. Justice Junko Ikadatsu, who handed down the first of the historic decisions to invalidate an election result, said that by taking more than 18 months to even consider redrawing electoral boundaries, the legislature could not be said to have fulfilled its constitutional role. Justices of the Tokyo and Sapporo High Courts condemned the +0/-5 solution as being not at all what the Supreme Court had demanded.

The Supreme Court, which will take all the cases on appeal, is not expected to hand down its decision before the upcoming House of Councillors election. This means that in strict legal terms the Abe government can claim legitimacy from its victory in the tainted 2012 election and its projected landslide in the 2013 election. However, a penumbra of illegitimacy will descend over the Abe government once the Supreme Court finds the 2012 election unconstitutional. While previously unthinkable, such an outcome seems almost guaranteed given the preponderance of High Court decisions finding the election results unconstitutional (14 out of 16) and the Supreme Court’s own warnings in 2011.

Every action the Abe government takes from now on will face push back from an emboldened opposition. If the government tries to use the supermajority it holds in the House of Representatives to pass legislation rejected by the opposition-dominated House of Councillors, it will face a hailstorm of criticism from all quarters. As for the long-held dream of Abe and many other Diet members to amend the Constitution — in particular Article 9 — that is now out of reach. Yoshimi Watanabe of the Your Party has proposed that the Diet should now come together, draw a map that the Supreme Court can support, finish out the Diet session and then allow itself to be dissolved, setting up a double election in July.

Rather than backing off from a collision with the Supreme Court, the Abe government and the LDP seem to be doubling down. On 28 March, the day after the last of the unconstitutional rulings from the high courts, Prime Minister Abe accepted from the Council on House of Representatives Electoral Districts a new electoral districts map, one that the conservative newspaper Sankei Shimbun finds already in violation of the Supreme Court’s 2.0 standard. On 30 March, Ishiba Shigeru, the #2 official in the LDP, gave advance notice that if the House of Councillors rejects the new electoral map and other electoral reforms, the ruling coalition is ready to use its supermajority in the House of Representatives to override the decision of the upper house.

Japan has never seen a conflict between a popular government and a judiciary determined to protect its constitutional prerogatives. While it is nearly certain there will be no obvious signs of struggle like street protests, the ability of the Abe government to deliver on commitments, domestic and international, is now in question.

Michael Cucek is a Research Associate at the MIT Center for International Studiesand the author of the Shisaku blog on Japanese politics and society.