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Hidetoshi Masunaga: making revolution through the Constitution

by Tomoko Otake

On Dec. 14, 2012, two days before the Lower House election in which the Democratic Party of Japan headed by Prime Minister Yoshihiko Noda was eclipsed as the conservative Liberal Democratic Party swept back to power in a landslide, a one-page advert with a huge banner headline appeared in a vernacular newspaper.

In big kanji characters, it screamed: “An election in the state of unconstitutionality” — followed by a map of Japan showing how voters were discriminated against based on where they lived.

The map, for example, showed how on the island of Shikoku, a single vote in electoral district No. 3 in Kochi Prefecture carried the biggest “vote value,” since it would take only 204,930 votes to elect a candidate there — compared with 481,954 votes in the Tokyo No. 1 district straddling the city center’s Chiyoda, Minato and Shinjuku wards. In effect, the vote of a resident of Tokyo’s No. 1 district was worth less than half (only 0.425 times) that of the vote of a resident of the Kochi No. 3 district.

Furthermore, the advert urged the electorate, in scream-size letters, to exercise their “right to vote” in the kokuminshinsa (referendum) slated for Dec. 16. This referred to the system of people reviewing individual Supreme Court judges in the postwar Constitution enacted in 1947 — a system few have paid much heed to ever since.

Nonetheless, on the ballot, voters were shown a list of the names of Supreme Court judges up for review, and if a simple majority of the valid votes cast were to append an “X” to a name, that judge would have to be fired — though it’s never happened yet.

Campaigners for eradication of so-called vote-value disparity, made up mostly of lawyers and spearheaded by 70-year-old lawyer Hidetoshi Masunaga, have used this almost perfunctory and moribund process to step up pressure on the Supreme Court.

That’s because, although the court ruled in 2011 and 2012 in response to suits filed by Masunaga’s group and others that the 2009 Lower House election and the 2010 Upper House election were “unconstitutional,” it stopped short of declaring that “everyone should be entitled to an equal vote value” — the advert claimed.

Consequently, the group demanded that all of the 10 judges facing a kokuminshinsa on Dec. 16 “should be dismissed.”

In the event, on the day up to 8.6 percent of those voting appended a total of more than 40 million “X” marks spread over 10 judges, indicating their desire to get rid of them. Of course such numbers were far from sufficient to sack such bigwigs.

Masunaga’s group took another big step in its aggressive, 3½-year legal battle against vote-value disparity. On Dec. 17, the lawyers filed suits in 27 districts across the nation, calling on the high courts (the courts of first instance for deliberating lawsuits on the validity of a national election) to invalidate the Dec. 16 election.

What’s more, the lawyers’ group demanded that the courts rule on the cases “within 100 days” — citing a clause in the Public Offices Election Law stipulating that lawsuits related to public elections have priority over others and ought to be decided within that time frame.

Masunaga’s aggressiveness has worked so far. The high court judges on the 27 cases are moving forward at an unprecedentedly fast pace, and, despite the lawsuits being filed less than two months ago, at least nine of them have been concluded in just one session in recent weeks — with the rulings expected in as early as March. Indeed, the lawyer is even confident that the cases will eventually be decided in his favor by the Supreme Court as early as this September. Only then, he says, will Japan have a “true democracy.”

Masunaga, tucked away in a cubicle in the sprawling law office of TMI Associates in the Roppongi Hills complex of central Tokyo where he is a partner, recently shared his thoughts on this campaign, taking in his days as a young law student at the University of Tokyo and then in the United States, where he pondered deep and hard on democracy, the rule of law and the freedom of the press.

At times contemplative, at times relentlessly combative, the veteran lawyer recounted why, in 2009, he suddenly started a battle on vote-value disparity — which he said he had long considered “the most absurd thing that existed.”

He stressed, too, how dysfunctional the nation’s democracy is, and how it is being ridden roughshod over the 66-year-old Constitution, which enshrines the idea, among other things, that “sovereignty rests with the people.

After you acquired a license as a lawyer in Japan, you went to Columbia Law School in New York and became a licensed attorney in the state of New York and in Washington, D.C. Why did you go to America?

(A long pause) … I’ve always wanted to do what nobody else does. Back then there was no Japanese lawyer who was also licensed in the United States. I wanted to be the very first.

Were you like that even before you became a lawyer?

Yes. I read an article somewhere that, some 50 years ago, an assistant professor in the law faculty at the University of Tokyo — and you have to be a top student to get an assistant professorship there — quit his job, went to the U.S. and got a lawyer’s license there after 30 years. It was the first case ever for a Japanese to be licensed in the U.S.

I was amazed, learning that it took 30 years for such a smart person to be licensed in America. But the person was a faculty member, not a licensed lawyer in Japan. So I wanted to become a licensed attorney in both Japan and the U.S.

I see.

I could not be the first, after all, though. It turns that there were other Japanese lawyers who sought to be accredited in the U.S. as well. I came in around 20th.

How long did you live in the U.S.?

Six years in total, of which I studied for the first three years and practiced for the rest.

How did your experience in the U.S. affect your outlook on life?

For one thing, before I went I had thought that they championed the idea of democracy over there; that the five most important values in the U.S. were democracy, democracy, democracy, democracy and democracy. But that wasn’t the case, I found.

One thing that surprised me was the voter turnout. The turnout for federal-level elections, including the presidential elections, was a mere 50 percent-plus. It was worse than in Japan! That shocked me.

I couldn’t believe that the U.S. called itself a democratic nation with such a low turnout. But then I found out why: I realized that people there with entrenched interests were trying to block newcomers from voting. Do you know why?

I’m afraid not.

Unlike in Japan, where every voter is mailed a ballot a month before an election, based on the residence-registration records, voters there must turn up at the local government office and prove that they are U.S. citizens. That’s not easy. You must go all the way to the office and you must have proof like a driver’s license or a passport.

There are a lot of people, especially lower-class citizens, who don’t have photo-IDs. So there is a sizeable portion of the population who don’t vote. America can be very cruel and cunning.

I see.

I realized that the truth is not rosy, and that there is a dark side to everything. President Barack Obama, for example, appears to have won the support of many due to having campaigned hard for re-election for two years. But he won the votes of only 60 million people. The population of the U.S. is 310 million. How can you elect a president with just 60 million people? The voter turnout is low, especially among the poor and uneducated segment of the population and racial minorities.

Is there anything else that shocked you while you were in the U.S., and had a long-lasting impact on your life?

Well, I realized that there are five guiding principles in America. Democracy — which uses the principle of majority rule — is only one of them. The second one is the rule of law. It has nothing to do with democracy. The judicial system is run by legal experts who interpret the Constitution and other laws to pursue justice.

The third principle comprises the rights of man, or the basic human rights. A lawyer there named John Romary, a patent specialist I got to know through my business and whom I greatly respect, once said to me that human rights are the most important American value. I was impressed. The fourth is leadership — which is decided by a majority vote. You elect a president every four years, and once you decide on the president you stick with that person for four years, delegating the power to run the country for four years.

And you know what comes in fifth? The fifth most important principle in the U.S., in my opinion, is journalism — or the freedom of the press. So the U.S. is built on the premise that it chooses people to exercise the power of the state through majority rule. But for that, voters must be given the truth so they can exercise their rights to justice. So the freedom of the press must be upheld.

That’s interesting.

Yes. Now, let’s talk about our campaign to give every voter an equal vote-value, which has a lot to do with the discussion we’ve just had.

In Japan, majority rule is not functioning. In the Upper House elections, for example, some members are chosen through the proportional representation system, under which there is no disparity in the weight of votes. But there are some others who are chosen through electoral districts, and this system is flawed. In my case, as a voter from a Tokyo district, my vote is only worth 0.2 times (the value of a vote in the district with the biggest vote value). Where do you live?

I live in Tokyo.

Then your vote is also worth 0.2 times the value of some others. With the 146 seats chosen from electoral districts, a majority means 74 seats. Now, do you know how many people choose those 74 seats?

You suggest a minority, right?

The total number of eligible voters is 104 million. The answer is 34 million. And the rest — 70 million — can elect only 72 seats. Is that unjust or what?

It’s the Diet members who exercise majority rule, passing bills and choosing the prime minister. The nation’s power is exercised through majority votes cast by Diet members. And yet the majority of Diet members are chosen by a minority!

In Japan, sovereignty doesn’t rest with the people.

You mean it rests with Diet members.

Exactly. And that’s wrong, because the Constitution doesn’t say sovereignty resides with the Diet members. Japan is not run in the way spelled out by the Constitution. Democracy should not be exercised by Diet members. They are not entitled to such powers.

Nonetheless, it wasn’t until 2009 that you started campaigning to change the status quo. Did you have that sense of awareness all along — back in the days when you were in the U.S. — that the system was flawed?

Of course I did. I studied constitutional law at age 20, when I was a law student (at the University of Tokyo). I thought that the vote-value disparity was the most absurd thing that existed, and ever since then I have regarded this system as my enemy.

But it was the academic consensus of constitutional scholars back then — and the thrust of Supreme Court rulings — that the vote-value disparity should be lessened to 0.3 from 0.2. I found that unjust. There was nothing more absurd than that, I thought. But I had to work to live.

This is a campaign with no financial reward whatsoever. So why did I start, 3½ years ago? It’s because I had earned enough money to start the campaign.

Some people — including some court justices — have justified vote-value disparity by saying that people in depopulated areas of Japan should be given “special consideration.”

You assume that people in depopulated areas have been given more weight in their votes, but in reality, some of the most depopulated areas of Japan are in Hokkaido, where even brown bears are sighted. In Upper House elections, votes in Hokkaido are worth 0.2 times (the weight of votes in Tottori Prefecture). The vote disparity “for the welfare of the countryside” is complete nonsense!

Why, then, has such an unjust situation been left unattended for such a long time?

Japanese people, after they were defeated in World War II, falsely bought into the idea that there would be a democracy if they had freedom of the press and elections. And we have believed that we have pretty clean elections, cracking down on illegal campaign activities and all that.

Also, when you just look at the situation within a district, everyone is equal — having an equal value in their votes, whether they are senior citizens or whether they are men or women. This fooled people into thinking that our system is democratic. They just didn’t notice.

You mean the system has long been flawed — but not intentionally?

It’s not intentional! There is nobody in particular who should be blamed. We have all tolerated the system, including me, and so have the constitutional scholars and the judges.

So, where did this idea of jūsho sabetsu (discrimination based on the voter’s address) come from?

Well, nobody had been aware that there was indeed discrimination based on where you lived. I started using that phrase — but only three years ago. The term itself didn’t exist before.

A number of lawsuits have been filed on this issue over the years. But the situation hasn’t been rectified. Why not, do you think?

For one, Japan’s sovereignty rests with Diet members. They make laws, and they have deeply entrenched interests. They don’t want to change the system to give sovereignty to the people.

The Diet members have enjoyed their right to exercise the power of the state for 65 years. Why would they want to relinquish their power now?

So, to change the status quo, we have no option but to call upon the power of the judiciary. It was the same in the U.S. before the civil rights movement led by Martin Luther King Jr. There was a discrimination based on where you lived, where areas with a heavy concentration of blacks were far less politically represented (than in areas where whites lived). King fought that, and it was in response to his movement that, in 1963, the U.S. Supreme Court ruled that the voting system was “unconstitutional” — resulting in electoral reforms leading to eradication of vote-value disparity.

America could not rectify the injustice through elections, which had been held for 200 years. So in Japan, too, for the people to take sovereignty back from the Diet members you have to take the matter to the Supreme Court.

Another reason I started doing this campaign some 3½ years ago was that I realized that we can use the existing kokuminshinsa held at the time of elections, through which we can dismiss Supreme Court judges through a majority vote. Unlike in elections, referendums guarantee that everyone’s vote value is equal — regardless of where they live. I thought I could use that.

In what ways, in particular?

I thought I could share information with the public on which of the Supreme Court justices were against eradicating vote-value disparity, and then have voters dismiss such justices. Before, nobody had thought we could use this system for the campaign; nobody had thought we could really fire judges. So I thought I should identify and name judges who were against vote-value equality. And I thought I would use my own money to spread that information. I myself could pay for advertising to spread the word.

So when you started this campaign, did you have enough money for that?

Yes. I and others have run one-page newspaper ads 100 times, or maybe even more than that. You can’t change things without money — no matter how great your idea is.

This must have cost you a fortune.

Well, I started this alone at first, but there are three others, besides me, who each have spent more than ¥100 million out of their own pockets on this campaign. I can’t say more than that. Our battle is far from over.

Indeed so. Now, high courts are likely to come out with rulings, as early as March, on the cases you filed the day after the Dec. 16 Lower House election, which asked the judiciary to rule the election “invalid.” The Supreme Court could follow suit with a landmark ruling later this year. Then what would happen next?

Well, many people, including journalists, say it’s impossible for the courts to invalidate the election results, because it would cause chaos. To be honest, I worried it would be too chaotic myself, but after a lot of thinking, I realized it would pose no problems at all. We already have a voting system that treats everyone’s vote equally; it’s the proportional representation system (under which the number of seats awarded to a party/group is proportional to the number of votes cast for them). We should use that.

So you mean we should ditch the single-seat constituency system and elect all our politicians through proportional representation?

Yes. We have used that system for more than 10 years and we are familiar with it. And we should institute proportional representation through legislation that expires in six months.

How so?

We would use the law just once. Hence a new Cabinet would be formed just to correct the disparity. And if we decide to stick to the single-seat constituency system, we should realign the districts so everyone’s vote would carry an equal value. We should have big debates on the demarcation of electoral districts to create an ideal system.

You have filed suits in 27 districts across the nation. That doesn’t cover all single-seat constituencies, but do you still believe that Lower House members elected from all single-seat districts should quit?

Yes. But if only 27 leave and all the other 273 members elected from the single-seat constituencies remained in office, here is another idea: We would sue the central government for damages.

How?

All the Supreme Court needs to do is to declare that the Constitution stipulates one vote for one person, issuing a jijō hanketsu (literally, a “circumstantial ruling”; one in which the top court acknowledges the illegality of the voting system but falls short of invalidating the results of elections already held, for fear of causing turmoil to society and people’s lives). It would be enough to have the Supreme Court declare that the current system is unconstitutional and/or invalid.

Is that so?

Yes. The Supreme Court will only have to say that, and that everyone should be entitled to an equal vote value. Diet members are public officials. All public officials, according to Article 99 of the Constitution, “have the obligation to respect and uphold the Constitution.” Now the Supreme Court’s declaration of the illegality of the system means the Diet members currently in office lack the justification for their status, and so they would be obliged to uphold the Constitution and change the voting system.

I would wait for three weeks, and if no measures were taken in that time I would file another batch of lawsuits — this time damages suits against the central government.

What would be your chances of winning?

There are five conditions plaintiffs must fulfill to win a damages suit against the national government. First, you must hold public officials responsible. Diet members are public officials, so this condition is met. Second, your suit must be about their official duty. For Diet members not to legislate measures to correct vote-value disparity amounts to neglecting their duty to uphold the Constitution, so it’s fine there, too. Third, their failure to legislate must be either intentional or negligent. That’s also met. Fourth, their act must be illegal. As long as the Supreme Court rules the election was illegal, it’s okay.

Then what’s left is that the plaintiffs must establish that damage has been incurred. This, in fact, is the most difficult one to establish. But then, I came up with a solution!

What is that?

Well, I came across this through another Supreme Court ruling. There are tens of hundreds of Japanese people who live overseas. These people used to have no voting rights for the single-seat constituency election (until the electoral system was changed in 1998 to allow them to vote).

The Supreme Court (in its ruling in 2005 on a suit filed by 13 overseas residents) acknowledged the damage suffered by the plaintiffs, awarding them ¥5,000 each. We can use this court precedent.

You and I, for example, would be entitled to ¥5,000 each in damages — and all the other 104 million voters in Japan could claim ¥5,000 each, too. The total damages claim over the government’s failure to act on vote-value disparity would therefore be ¥5,000 multiplied by 104 million (some ¥520 billion).

To draft a bill to scrap the single-seat constituency system and replace it simply with the existing proportional representation system is less than a day’s work. So waiting for three weeks (after the Supreme Court hands down its ruling) would be enough. (And after we win the damages suit) angry voters can mail copies of their residence-registration papers to the lawyers’ office to be awarded damages. A lot of people would file the claim, because we are angry for not being treated as equal voters.

What’s important here, though, is that the central government has the right to hold individual Diet members personally accountable, so it can also sue the individual Diet members for the ¥500 billion that it would be forced to pay, and the Diet members would end up having to pay.

Would the central government really sue Diet members?

If it doesn’t, we’d sue the government for not doing that.

Who would be the responsible government officials?

The justice minister, or even the prime minister. It’s simple. The amount each responsible lawmaker would have to pay might be ¥5 billion, but with the 5 percent interest the court charges per day, who wouldn’t go bankrupt? And whoever among government officials don’t ask the Diet members to pay the damages would pay the entire amount themselves.

The previous administration, of Prime Minister Noda, did show — albeit cosmetically — an attempt to rectify vote-value disparity by passing a bill to reduce the number of Diet seats from single-seat districts by five (though the change came too close to the Dec. 16 election for it to be implemented in time). At least they can make an excuse that they tried to change the system.

Your argument leads us nowhere, as you are not keen to change the status quo. As long as you are a bystander, you can’t change society!

I started this campaign 3½ years ago — and in only 3½ years, we have come this far — because I’m an optimist. I’m not worried, OK? The snowball has started rolling downhill and you can’t stop it anymore!

Very well — but what kind of society will Japan have when vote-value disparity is fixed?

It will be a society in which the people will be able to exercise the power of the nation through a majority vote. The people cannot now. Whether taxes will go up or the economy will improve or not, I don’t know. Such things are for others — economists, business leaders — to think about. The job of legal experts is to create a system based on the rule of law — nothing more, nothing less.

Lastly, what do you think about the dismal representation of women in the Diet? Following the last election, female members in the Lower House fell to a mere 7.9 percent — further lowering Japan’s standing internationally.

If you ask me what I think, I’d say that it’s a women’s problem. Think for yourself! Why aren’t women saying out loud that it’s wrong that they are not represented enough? Who would grant rights to those who don’t fight?

So you’re saying women must fight by themselves.

No question about it! Look at South Korea, where they have elected their first female president. Are women in Japan feeling ashamed of being outsmarted by women in South Korea? Are you? You aren’t, right? That’s the problem.

  • http://www.reginald-gruenenberg.de/ Reginald Grünenberg

    Good to see such a lusty and beefy fighter for civil rights in Japan! The vote-value disparity is an important issue in many democracies, and usually the older the democracy, the bigger the problem.

  • irairaneko

    I really hope this campaign works. Time for change.

  • Brian Fan

    The last paragraph in this article did it for me. Where ARE the women standing up for themselves?

  • Tim

    I like this guy’s way of thinking, who woulda thought a japanese lawyer would inspire me to chase a law degree even harder.