Did you know that Japan's elections are unconstitutional?

And that the current Diet is considered illegally elected?

The Supreme Court and the state of unconstitutionality

By Andrew J. Sutter, a specially appointed professor at the College of Law and Politics, Rikkyo University.

Commentary for The Japan Times, December 4, 2015

For the third time this decade, a majority of the Supreme Court Grand Bench has ruled that a Lower House election was “in a state of unconstitutionality.” Districts drawn under the Public Offices Election Law for the 2014 election violated the constitutional principle of equality of votes — or at least, violated it by too wide a margin. A vote in the least densely populated district had the same impact as more than two votes in the most densely populated one.

What does this vague phrase mean? From 1976 to 2011, the court had found several Upper and Lower House elections to be “unconstitutional” (kenpo ihan). The euphemism “in a state of unconstitutionality” (iken jotai) was first used in 2011. It means that the districts were unconstitutional (really), but that a reasonable time for the Diet to fix the election law had not yet passed. Had the districts been unconstitutional and a reasonable time for remediation passed, the court would have called them “unconstitutional.” Indeed, the other day three of the 15 justices did that.

As in all previous cases of unconstitutional elections, though, the Supreme Court refused to invalidate the election results. It simply reminded the (illegally elected) Diet members to clean up the election law. To many commentators, this perverse result is the best we can reasonably expect. Respected scholar and blogger Michael Cucek [APP member], for example, calls the ruling “all that anyone could have and can reasonably hope for in terms of the Supreme Court’s making Japanese elections more fair.”

Here’s the rationale: The Constitution’s Article 41 says that the Diet is the sole lawmaking organ of the state (kuni no yuiitsu no rippou kikan). And Article 47 says that electoral districts, method of voting and other matters pertaining to the election of both houses of the Diet are to be determined by law (houritsu, which connotes statutes passed by the Diet). If the election results are set aside, the Diet dissolved and a new election held, who’s going to fix the election law in the meantime? And if the election is invalid, aren’t laws enacted since then invalid too?

It’s not clear how calling an election unconstitutional but valid fixes the last problem, but it’s easy to minimize in the future if courts expedite election-related lawsuits. To solve the other issues, though, the Supreme Court has to ignore (some might say violate) another article of the Constitution. Article 98 says that if any law or other act of the state is contrary to the provisions of the Constitution, it doesn’t have legal force or validity. The court can’t choose whether or not an unconstitutional election is invalid — it’s automatically so.

Would taking Article 98 seriously be a disaster? Suppose the court declared the election invalid and the sitting Lower House illegitimate but left some pieces of the election law intact, including the number of seats. (Article 43 requires that number to be fixed by statute, too.) And suppose the court ordered a new election to be held within 15 days of its ruling. One way to avoid the districting problem would be for the court to choose to base the election on a single, nationwide district, with seats awarded in proportion to the number of votes each party receives. To minimize changes to existing law, the court could choose to keep the election law’s algorithm for allocating proportional seats — though there are other methods that better represent the vote, such as the one used in Germany. The court can easily avoid the question of the validity of laws enacted after the invalidated election by waiting for challenges case by case.

This doesn’t result in a crisis, since we get along fine without a Diet for a couple of weeks before an election anyway. The Supreme Court can say that it’s not violating Article 41 because this election scheme isn’t a law — it’s a one-time remedy. Also, though less plausibly, it might claim it’s not violating Article 47 either: Rather than establishing districts or a method of selection, it’s crafting a one-time solution based on dividing the number of seats fixed by the election law among the parties, in the absence of any election districts.

Some objections could be raised. For example, by choosing proportionality instead of, say, awarding 100 percent of the Diet seats to the party who wins the most votes, the Supreme Court violates Article 47 by choosing a method of voting. In fact, if the court clears the hurdle of Article 41 by claiming the scheme isn’t a law, then some might argue it stumbles over Article 47, which requires a law. And then the trump card: Article 41, paragraph 1 claims that the Diet is the highest organ of state power — so it’s free to ignore the Supreme Court.

That last objection isn’t so politically viable within our constitutional order. Not only is it hard to reconcile with history, it would create a voter uproar. The ruling party who made such a claim would risk getting clobbered at the next election. And two other points should silence the more technical objections.

First, the Constitution’s preamble and Article 1 declare that all sovereignty is in the Japanese people. The Diet’s power is therefore lesser than the people’s. When constitutional provisions clash, priority ought to be given to the people’s sovereignty and their ability to choose their representatives, not to the powers those representatives claim to wield — especially when the representatives hold their office illegally.

The second is more pragmatic. Even if the Supreme Court itself “violates” the Constitution, according to Article 81 it’s the only party authorized to say so. In fact, that’s the precise explanation for why we’re in the mess we’re in today. The court doesn’t currently ignore Article 47, but instead it does ignore Article 98 — and no one can tell the justices they’re wrong.

The question is, do we want the Supreme Court to violate the Constitution by continually allowing illegally elected politicians to stay in office? Or would we prefer that the court act instead to allow something closer to real democracy? Maybe not a question we’ll ever be able to ask as a practical matter. But one that needs to be asked, in principle.