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Government reveals contempt for constitution by ignoring it

by Philip Brasor

Actor-emcee Kinya Aikawa has his own TV station on the Net, and because the only ads are for projects involving Aikawa and his equally famous wife, Midori Utsumi, he doesn’t worry about making sponsors uncomfortable. The regulars on his talk show, “Pack-in News,” can say whatever they want. Attorney Saeko Masumi made a startling admission during a recent discussion of the voting disparity controversy, wondering how qualified her colleagues are to talk about the issue since the constitution isn’t really taught in Japanese law schools.

If lawyers are insufficiently educated about Japan’s charter, how knowledgeable are politicians? More to the point, what exactly does the constitution mean to elected officials? Last week, an opposition party member questioned Prime Minister Shinzo Abe on his familiarity with the constitution during a Diet debate and Abe bristled, saying he didn’t like being made to answer a “quiz.” What was significant about the exchange, which received a lot of attention on the Internet but was passed over by major media, wasn’t Abe’s ignorance but rather his arrogance. A recent discussion in the weekly magazine Aera addressed the determination of Abe and like-minded public officials to rewrite the constitution to reflect their own conservative sensibilities, which boils down to a belief that the populace serves the state, so rather than focus on the rights of citizens it should stress their responsibilities.

These would-be revisionists scorn the present constitution because they believe it was foisted on Japan by the Americans during the postwar occupation, an attitude that is plainly revealed in the government’s reluctance to change the Public Offices Election Law. Several weeks ago the Tokyo District Court ruled in favor of a woman with Down’s Syndrome who sued the state for denying her the right to vote. The woman is 50 and her father acts as her legal guardian for financial reasons. According to the law, a ward with a developmental disability cannot vote, presumably because they lack the necessary intellectual faculty to make an informed decision. The court found in favor of the woman since the constitution guarantees “universal adult suffrage.” The government didn’t refute the judge’s finding but has decided to appeal the verdict because it would need to revise the relevant rules before the Upper House election this summer and doesn’t think it has enough time.

The plaintiff’s father slammed the government’s cynicism, and the insult was compounded by a remark that LDP Secretary General Shigeru Ishiba made to NHK. He said the government will change the law to safeguard the rights of people like the plaintiff, but it should do so in a way that prevents them from “abusing that right.” Ishiba’s understanding of civil rights is as shallow as his tactfulness. Degrees of intellectual capacity are irrelevant, especially when you consider how uninformed most people are when they vote. In any event, politicians have been resourceful in manipulating shades of intellectual competence to their advantage. A common election-day practice in rural areas is for candidates to transport nursing-home residents to polling places with full expectation of their support.

The LDP hopes the Supreme Court overturns two other decisions that not only found the last Lower House election unconstitutional because voting disparities violated the precept of one-person-one-vote, but also voided the results for certain constituencies. In 14 other cases related to the December poll, judges decided that disparities were unconstitutional but did not void the results, adding that holding elections again might damage public order. According to the Asahi Shimbun, if the Supreme Court upholds the two annulment decisions, which the government has appealed to buy time, it would affect more than just the 31 constituencies covered by the suits, since you can’t rezone 31 districts without affecting surrounding districts. If the entire election has to be redone, all the bills proposed or passed since the December poll would, in theory, be retroactively canceled, and the Supreme Court isn’t expected to rule until November.

This is what the LDP means when it argues that voiding results would lead to “turmoil,” and it is counting on the Supreme Court to be sufficiently intimidated by that possibility to overturn the decisions. At worst the party thinks the court might uphold the lower-court rulings “but with a time period” that could be extended indefinitely. As almost every media pundit has pointed out, the LDP is governing in a state of illegitimacy regardless of its “intentions” to reduce disparities, most of which have been criticized as insufficient. Political analyst Atsuo Ito has said in various media that it makes no sense for the government to carry out election reform since it can’t be expected to contradict its own interests. If the election is invalid owing to an unconstitutional election system, then any decision made by politicians elected through that system is also invalid. The only solution is to bring in a third party to carry out reform.

As pointed out in a letter published in last week’s Tokyo Shimbun, a group of lawyers tried to stop the general election last November before it happened, claiming that the Lower House had been dissolved illegally, but the petty bench of the Supreme Court dismissed the suit on the grounds that “there is no regulation stipulating that anyone can sue to stop an election.” The letter writer concluded that the court had betrayed its mission, since the unconstitutionality of the election system has already been established judicially. Japanese courts operate under the assumption that political issues should be solved politically, but they have a responsibility to check lawmakers when the latter stray from the constitution. The fact that the courts almost never do just proves that the constitution doesn’t mean anything in the first place.

  • http://www.sheldonthinks.com/ andrew Sheldon

    Oh, but what have we come to expect of government. Strategic game-play; but then the world we inevitably realise that constitutions are little more than dogmatic legal prescriptions; divorced from context. They are not a source of protection, but a confession of moral suspension and vulnerability.

  • phu

    Once it became obvious to me that the LDP has absolutely no compunction about legislating that which it desires — at the expense of Japan’s legal underpinnings, whether the Constitution, the BOJ charter, or presumably anything else — my view of Japan changed. It’s a place that has problems, yes (everyone does), and a culture that’s not conducive to change… but now it’s also being helmed by people who don’t just ignore the problems or address them superficially in ways that are likely to improve re-election chances. These people have no respect for the nation’s founding principles, to the point where the legislative bodies are creating a sandbox out of the government: Here now we have a government that’s become sand castle surrounded by flippant and selfish toddlers whose only concern is making sure they have more sand than everyone else. That they’re destroying the castle in the process bothers them not one bit.