Tuesday, March 26, 2013

The constitutionality of Japan's December 2012 elections

Carl F. Goodman, Adjunct Professor of Japanese Law at Georgetown University Law Center and at George Washington University School of Law and author of The Rule of Law in Japan : A Comparative Analysis (3rd Revised Edition, Kluwer Law International, 2012) writes: 

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Three cheers for the Judges on the High Court in Hiroshima. On March 25th, they held that the December 2012 Lower House election was unconstitutional and invalid. They ruled that the malapportionment of votes among the electoral districts was unconstitutional—a result that appears to follow from the fact that the election was held under the same system that the Supreme Court had in 2011 characterized as being in a “State of Unconstitutionality.” The Court also provided plaintiffs with relief by setting aside the elections in two Hiroshima electoral districts. This was unprecedented.

Other High Courts have found that the election results in some of their districts were held under either an unconstitutional system or a system that was in a “state of unconstitutionality.” The Hiroshima High Court is the first to actually provided relief for the unconstitutional action of the Diet in failing to correct the disproportion that denied rights to voters in some electoral districts. Although the decision is welcome, it is too early to celebrate the triumph of the rule of law.

The history of constitutional litigation in Japan shows that District and High Court Judges are far more likely to find laws unconstitutional or to provide relief for unconstitutional action than is the Supreme Court. If appealed, as is likely, the Supreme Court has numerous avenues for denying the plaintiffs the minimal relief that the High Court would grant. This is “minimal” because the Court set aside elections in only two districts. It was possible for the Court to set aside the entire Lower House election or at least stipulate that a new election be held under a constitutional system within a limited time period.

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The Supreme Court likely will find that setting aside the election in these two districts deprived the voters in those districts of their right to vote and be represented in the Diet. It is, thus, not in the public interest to set aside the election in these districts and leave the voters therein without representation. The Court can also say that it is the function of the Diet to set electoral districts, not the Court.

This later argument would reignite the debate among the Justices that came to the fore in the case finding a portion of the Nationality Law unconstitutional. Here the majority simply excised the unconstitutional provision of the law while leaving the rest of the Nationality law intact. Even this approach brought forth a spirited dissent that the Court went beyond its power to decide legal questions and entered the realm of writing a new Nationality Law provision.

In the election field, it is far more difficult to excise a part of the law and leave the remainder as a whole—especially as in an unified country leaving the rest of the law as is would leave electoral districts with malapportionment. Far more likely, that if any relief is granted by the Supreme Court, it would be monetary relief such as was provided in the Overseas Election Law case where the Court ordered the Diet to pay damages to the successful plaintiffs because of the Diet’s failure to amend the law to provide for a Constitutional approach to voting rights by overseas Japanese citizens.

What the Court’s decision may reflect is a growing impatience by some Judges with the failure of the Judiciary to take effective action in the apportionment arena. If the Supreme Court feels the same frustration, it might just provide some relief that would cause the Diet to actually amend the law to conform to the Constitution.

Perhaps most intriguing is how the world community and the Japanese people would view any law or any Constitutional amendment approved by a two-thirds vote of a Lower House that was elected under a state of unconstitutionality. Will this matter?

In addition to the issue of rule of law in Japan, this question is urgent as Prime Minister Shinzo Abe working on a number of amendments to the Constitution. He has said that his first goal is to change the two-thirds vote to one of a simple majority. Can a legislative body in a "state of unconstitutionality" rule on its own constitution?

Of immediate concern is how the Court decisions will affect or not the current Government of Japan. Already, some politicians are talking about holding a double House election in July. But this and the Diet's legal standing are the subject for greater debate later when we know what the other High Courts have to say on the election issue and what the Supreme Court may have to say.

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