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Mishmash jumble of systems is recipe for a do-little Diet

How past fudges forged Japan's legislature

by Colin P.A. Jones

Given the momentous fiscal and social problems Japan was facing even before Fukushima, even foreign residents — who can’t vote — may be wondering what on Earth Japan’s elected officials are doing to solve the nation’s many ills.

“Not very much” is the most likely perception, though this may be less an informed view, and more a cynical assumption colored by decades of watching the Diet — Japan’s national legislature — appear to do little more than rubber-stamp legislation prepared behind closed doors by anonymous bureaucrats and party hacks.

When the doings of the Diet do make the news, it has all too often been for tragicomic reasons, whether it is legislators brawling on the Diet floor (the 1950s and ’60s), “walking like cows” (the ’80s and ’90s) or, most recently, simply refusing to perform the basic task most voters expect of them: debating legislation.

As is so often conveniently the case with the problems of the world today, it turns out that America is at least partly to blame.

When Japan drafted its first modern constitution in 1889, it had a variety of Western models to choose from. At the time, the British “Westminster model” was widely regarded as the epitome of democratic government, though this may be one of the reasons why Japan’s leaders ultimately chose a more authoritarian, Prussian-modeled system in which the Emperor and his ministers were isolated from the legislature and the grubbiness of elections and party politics.

Nonetheless, the Westminster model remained popular among Japanese intellectuals and, despite the constitutional effort to isolate the Emperor and his Cabinet from partisanship, political parties quickly became an important force in government until militant fascism took over in the 1930s.

After Japan’s defeat in World War II, the prime directive for the American occupiers was the promotion of democracy and freedom to ensure that Japan never threatened world peace again. Reforming the Diet so that it represented the Japanese people was high on the agenda.

Perhaps due to the already-existing affinity many Japanese leaders (those who were not purged, at least) felt toward British models, or perhaps due to the Americans’ own muddled understanding of the U.S. Constitution’s British heritage, the result was a mutant Westminster-style parliamentary system with U.S.-style separation of powers.

The problem (and it is a fundamental one) is that while separation of powers is a basic tenet of American government, the British parliamentary system traditionally has had no such thing. Under a Westminster system (and the current Japanese system), the head of the executive branch — the prime minister — is chosen from the head of the party that controls the legislature. This being the case, separation of powers — particularly the legislative and executive powers — is a vaguely nonsensical concept from the get-go.

This did not stop the Americans from trying, however, and the resulting constitutional mashup has left Japan with a prime minister who, despite effectively being in control of two of the three branches of government, is actually very weak, and a lawmaking, deliberative body — the Diet — that doesn’t actually do very much of either.

Constitutionally, the Diet is the “sole lawmaking” institution and the “highest organ of state.” The Constitution also vests in the Diet powerful investigative powers similar to those exercised by the U.S. Congress. The Diet Act (also drafted under American auspices during the Occupation) established the National Diet Library — modeled after the Library of Congress — to assist this investigative function, and also created in each house of the Diet a litter of congressional-style standing legislative committees.

In a parliamentary system, however, most legislation is initiated by the Cabinet rather than the legislature. This is true in Japan, where in any given year up to 90 percent of the laws that are passed are proposed by the Cabinet rather than Diet members. In fact, the Diet Act imposes a fairly high hurdle for members of either house seeking to propose legislation, particularly if it involves fiscal expenditures.

Here, the fact that the Constitution does not actually unequivocally provide for a Cabinet role in lawmaking has only proved a minor hurdle (the English version of the Constitution states that the Cabinet can submit “bills” to the Diet, but in Japanese the term used is gian rather than the term hōritsuan (proposed law), which is used elsewhere in constitutional provisions describing the legislative process).

The bigger problem is that American efforts to separate the legislative from the executive branch left the prime minister with no formal powers over the legislative process once a bill has been submitted to the Diet for deliberation; he has no control over the vetting schedule, cannot prevent undesirable amendments from being made — nor veto legislation if the Diet churns out something daft.

The Japanese solution to this problem has been to minimize the role of the Diet in both creating and debating legislation, thereby reducing the likelihood of the prime minister (and the ruling party) suffering embarrassing political setbacks due to failed legislative initiatives. During the roughly five decades of Liberal Democratic Party rule, much meaningful legislative debate and political horse-trading took place between bureaucrats and LDP members behind closed doors outside of the Diet. This ensured that when a draft law was formally submitted to the Diet it was essentially finished, but for the august body’s rubber stamp. Party discipline and the opportunity to debate bills before they were even bills meant that LDP legislators could all be relied upon to follow the party line when it came to formal votes.

This dynamic having prevailed for decades, much of the actual legislative process became entrenched in party apparatus and bureaucratic systems. Formal structures such as Diet legislative committees atrophied, and the assembly’s investigative power has remained largely unused, most of the laws being drafted by bureaucrats who are readily able to obtain the information they need through other means.

One result of this has been a system that seems to regard formal debate as positively unwelcome. This is not only because for decades it would have served as nothing more than a way for opposition party members to score political points, but also because despite the American efforts at reform, the Diet has continued a number of traditions institutionalized by its Meiji predecessor, including the absence of open debate or a U.K.-style “prime minister’s question time.” Thus, questions from Diet members to Cabinet members are only accepted in written form and, according to a recent book on the Diet by professor Reiko Oyama, the amount of time devoted to full deliberative sessions is exceptionally small, a reflection of the limited amount of deliberation actually taking place.

Having long been excluded from the substantive aspects of lawmaking, opposition parties were reduced to making their presence felt by interfering with the process itself — by physically trying to prevent votes on controversial legislation taking place, or walking to the ballot box extremely slowly (“cow-walking”), thereby wasting as much of the Diet’s time as possible.

Opposition parties have been helped by archaic rules that mean proposals still pending at the end of a particular Diet session generally expire, rather than being carried over to the next session. A great deal of Diet energy is thus devoted to scheduling rather than substance, since more often than not the substance has been fixed before the assembly is even formally involved.

The Diet is a bicameral legislature. The American draft of Japan’s Constitution envisioned simply chopping off the undemocratically constituted House of Peers that existed under the prewar Constitution, leaving a unicameral body comprised of just the elected House of Representatives. Japanese negotiators prevailed on the occupying authorities to retain a second assembly and the Americans agreed, so long as it was also democratically elected.

The result is an unusual bicameral system in which both houses effectively represent the same constituency of voters. The only real difference between the composition of the two houses is temporal — all 480 members of the House of Representatives are elected for a four-year term, but the body is subject to dissolution by the prime minister, while members of the House of Councilors sit for a fixed term of six years, staggered so that one half of its 242 members are up for re-election every three years.

For much of the postwar period the bicameral character of the Diet was a curiosity as much as it was a constitutional compromise. Some observers went so far as to disparage the House of Councilors (sometimes misleadingly called the “upper house”) by analogizing it to a largely unnecessary “appendix.”

In terms of political power, the House of Representatives is by far the ascendant body: Under the Constitution it chooses the prime minister, has the final say over the national budget and, if two-thirds of its members agree, can pass legislation over the objections of the other house. When the LDP either directly or through coalitions controlled both houses or at least had a supermajority in the House of Representatives, the House of Councilors often seemed superfluous — serving no other purpose than to rubber-stamp legislation once the other house was done rubber-stamping it.

This started to change in 2007 when the LDP coalition lost its majority in the House of Councilors. Certain key government appointments, such as to the Bank of Japan, require the approval of both houses of the Diet, meaning that the opposition now had leverage beyond just running out the clock. The LDP-led coalition still retaining a two-thirds-plus majority in the House of Representatives, however, meant that the government could still ram legislation through the Diet. This practice, however, was politically controversial, and may have contributed to the LDP’s famous loss of control of the House of Representatives as well in 2009.

The Democratic Party of Japan’s capture of the House of Representatives has been characterized as a revolutionary change in Japanese politics — but if it was, it was a short revolution: In 2010 the LDP regained control of the House of Councilors, and since the DPJ-led coalition controlling the House of Representatives lacks a two-thirds majority, the Diet has been particularly sclerotic ever since.

The most recent example of this has been the LDP-controlled House of Councilors’ refusal to debate any proposed legislation — including tax increases that Prime Minister Yoshihiko Noda has supposedly staked his administration on — until two of the more feckless members of his Cabinet resign because of censure motions passed by the LDP-controlled assembly. Noda’s recent Cabinet reshuffle indicates that the LDP strategy has been successful, though it is questionable whether this sort of political gamesmanship served the Japanese people especially well, the victims of the 3/11 disasters in particular.

As so often seems to be the case in Japan, prospects for meaningful change appear grim.

There is much theoretical debate about how the House of Councilors could be differentiated and vitalized, and about how the Diet as whole could be turned into a true deliberative body. However, one of the hurdles to change may be the Diet Act itself.

Providing for many of the rules and procedures used by one or both houses of parliament, the constitutionality of the Diet Act is actually questionable, as the Constitution clearly empowers each house to establish its own rules. By enshrining many of these rules in a law that requires the assent of both houses (or at least in theory a supermajority vote of the House of Representatives) to change — and subjects reform to the same panoply of partisan bickering as every other type of legislation — the Diet may have turned its back on one of the most basic constitutional principles of all: parliamentary autonomy.

This aspect of the Japan’s Constitution and system of governance bears more attention. As history — Japanese history — has shown, when parliament is paralyzed, other forces will step in to take its place, often with tragic results.

Colin P. A. Jones is a professor at Doshisha Law School in Kyoto. Send comments and story ideas to community@japantimes.co.jp