The Lower House election Sunday fell about a year and nine months after the Supreme Court ruled that the preceding campaign, in August 2009, was held “in a state of unconstitutionality” because of the wide disparity in the weight of votes between electoral districts.
On Monday, two groups of lawyers filed lawsuits arguing that this year’s race was unconstitutional because numerous districts with big populations are represented by too few Diet seats, while several districts with relatively small populations have too many representatives.
These lawsuits could be the last straw and the Supreme Court could finally move to void the existing single-district system by issuing a categorical “unconstitutional” decision — a ruling the top court has issued twice in the past on the multiconstituency system in the 1970s and ’80s, even though it still fell short of invalidating the election results.
“Lawmakers have been born out of the state of unconstitutionality,” said Hidetoshi Masunaga, a leading attorney in one of the two groups of lawyers that filed the lawsuits.
“They will be making laws and choosing a prime minister when they actually don’t have legitimacy to exercise the power of state. Such absurdity should be rectified as soon as possible,” Masunaga said at a news conference Monday in Tokyo.
Seeking to void the elections in the Tokyo No. 1 as well as 26 other districts across the country, Masunaga’s group has filed lawsuits in all 14 high courts and their branches across Japan. High courts are the court of first instance for deliberating lawsuits on the validity of a national election under the Public Offices Election Law.
The other group, led by lawyer Kuniaki Yamaguchi, has lodged two suits with the Hiroshima High Court and is planning to file a suit with the Tokyo High Court.
Nine previous lawsuits concerning the 2009 Lower House election filed by the two groups drew rulings of “state of unconstitutionality” or “unconstitutional” by high courts. The Supreme Court eventually issued a ruling in March 2011 using the phrase “state of unconstitutionality.”
While it may appear as though the top court has made similar rulings in the 1970s, 1980s and 2011, judicial experts say they are different.
The Supreme Court issued rulings of “unconstitutional” in 1976 and 1985, but those dealt with multiseat districts, the system that was in place before the 1994 switch to the current single-seat system, which is coupled with proportional representation.
No unconstitutional rulings have been issued regarding the current system.
The key criteria for rulings of “unconstitutional” appear to be substantial inequality in the value of a vote and that the state of inequality has been left unattended without any corrective measures. The “state of unconstitutionality” phrase has been used when the substantial inequality alone was acknowledged.
The worst disparities were 4.99 to 1 in the 1976 ruling for the 1972 election, and 4.40 to 1 in the 1985 decision for the 1983 election. For the 1972 race, this meant that in the most grievous situation, a vote in one district was worth 4.99 times more than in another district.
But since the 1994 introduction of the single-seat system, courts have been showing less tolerance in the range of disparity.
The Supreme Court’s March 2011 ruling declared the 2009 election “in a state of unconstitutionality” with a vote-value disparity of 2.30.
In last Sunday’s election, the ballot count was the lowest in the Kochi No. 3 district, with 204,196 voters going to the polls, while the Chiba No. 4 district had 495,212, meaning a vote in the Kochi constituency was worth 2.43 times a vote in the Chiba district, according to the Internal Affairs and Communications Ministry.
“The will of a majority of the nation will not be reflected in the Diet,” said Makoto Ito, another lawyer in Masunaga’s group.
On the 2009 Lower House election, the Supreme Court said the disproportion stems from giving one single-district seat to all 47 prefectures before distributing another 253 seats to districts delineated by population.
This accounts for 300 of the 480 seats in the Lower House. The remaining 180 seats are filled through the proportional representation segment of the electoral system.
The Supreme Court called for ending the practice of allocating one seat to each prefecture. But discussions among lawmakers did not proceed smoothly as every political party had its own agenda.
Prior to Sunday’s election, Prime Minister Yoshihiko Noda proposed to opposition lawmakers an electoral reform plan that would take five seats away from the Lower House. These seats would be removed from rural districts and thereby help reduce the vote disparity. Noda put forward the proposal as a condition for calling the general election that the opposition forces had long been demanding.
While the law was quickly prepared and passed Nov. 16, the day the election was called, there wasn’t enough time to implement any changes by Sunday, leaving the state of unconstitutionality intact.
But Tokuji Izumi, a former Supreme Court justice who now practices law at a private firm, said, “If action was taken right after the (Supreme Court) ruling (in March 2011), it should have been done in time.
“Observing the developments leading up to now, I cannot say that the Diet has made positive efforts,” Izumi said. “The revision to the law that was made for the next election actually leaves most of the reasons for the unequal situation intact. The courts should issue decisions that clearly say the status quo is unconstitutional.”
The lawyer groups are also calling for speedy court decisions, aiming to have the Supreme Court hand down a decision within 100 days.
Masunaga wants Sunday’s election invalidated and held again.
“It’s a serious situation where (players) are running around the pitch even after a referee issued a red card,” he said.