It's past midnight but child-abduction treaty promise is not yet a pumpkin

by Colin P.A. Jones

Despite much promise and a flurry of activity, it didn’t happen: Japan failed to ratify the Hague Convention on international child abduction and pass the extensive piece of accompanying domestic legislation the government felt was necessary in order for it to do so. Both items on the Diet agenda were left up in the air when it closed for business on Sept. 8, with an election for the House of Representatives expected to be held before the end of the year.

This is a most unfortunate result, particularly for the children of feuding international marriages who will continue to face the risk of being spirited to abduction-friendly Japan by one of their parents. For those who have already lost children to Japan this way and the foreign diplomats and others who have been calling on Japan to ratify the treaty for years, the Diet’s failure may seem like more of the same: yet another excuse to be thrown up by a government that has no intention of signing a widely adopted international convention.

Readers familiar with my past writings on the subject will doubtless characterize me as a major-league cynic when it comes to the government’s stance on child abduction. Furthermore, I continue to have my doubts about whether ratification would have made any difference given the proposed legislation that would have gone with it. Yet, I do not believe there is any great conspiracy involved in this particular development.

In my view, the Hague Convention, not to mention various other bits of legislative business that have been left undone, are probably better seen as innocent bystanders caught up in the clogged machinery of government — collateral damage from a constitutional issue hampering Japan’s legislative process in general.

Bear with me as we take an explanatory detour around Japan’s legal landscape and we will return to the Hague’s fate shortly.

Article 52 of the Constitution mandates that an ordinary session of the Diet be convoked once a year. Members of the House of Representatives sit for a four-year term, subject to dissolution The House of Councillors is not subject to dissolution (and can act alone in the event of a crisis before an election reconstitutes the other house), and its members have six-year terms, staggered so that half of the chamber is up for election every three years. In theory, therefore, the composition of the Diet may remain the same for up to three ordinary annual sessions.

Nonetheless, Diet sessions operate in accordance with two basic principles: that each session is independent of the other and that there is no continuity between sessions. As a result, any legislative business that is left unfinished when one session ends effectively turns into a pumpkin, and the process has to be commenced anew once the next session begins. This is true even when no election has intervened and it is the same bunch of politicos trying to accomplish the same thing as they had been doing a few months previously.

This way of doing thing has archaic roots that hark back to an earlier day when parliamentary practice in numerous countries still reflected the fact that many legislative bodies had their beginnings as a bothersome necessity for autocratic monarchs — a way to get something (i.e., money) from a fairly small constituency (i.e., people with enough money that you couldn’t just snatch it away from them). Constitutional rules like those in Article 52 (and a similar provision in the U.S. Constitution) that require a legislative session each year thus represent a step forward in the history of democracy, because they ensure that people’s representatives meet and participate in the nation’s business whether the king (or the executive branch) like it or not.

In contrast, while rules limiting the length of parliamentary sessions have the merit of encouraging the efficient conduct of business, they may also have historical roots as the means by which kings or unelected governments could at least limit their exposure to democratic whining. Under Japan’s first modern charter, the Meiji Constitution, sessions of the Imperial Diet were to be held every year, but sessions could not run for longer than three months without the permission of the Emperor.

Under the current system, ordinary Diet sessions start in January and run for 150 days, subject to a single extension permitted under the Diet Act. The session that just ended ran for 229 days, making it one of the longest in the history of the current constitutional system. Yet even that did not prevent the Hague and other matters (including a proposed issuance of government bonds) from being left by the wayside.

Some commentators argue that the current system is anachronistic, is not actually mandated by the Constitution, and may be one of the factors that has driven a great deal of the actual legislative process outside of the Diet, where the most important details can be completed by bureaucrats outside of the public glare and free of hard deadlines. Others might counter that the ability to use (or threaten to use) procedural tactics to run out the clock on a Diet session was one of the few weapons left for minority parties seeking to stand against the Liberal Democratic Party during the decades in which that party commanded a majority in both houses.

The problems with this manner of conducting Diet business appear to have come to the forefront since 2007. Except for a brief period from 2009 (when the Democratic Party of Japan took control of the more powerful House of Representatives) to 2010 (when the LDP regained a majority in the House of Councillors), the political environment has been dominated by a nejirekokkai, a term that can be almost literally translated as “screwed-up Diet,” with each of the two houses controlled by a different party.

Through its command of the House of Representatives, the DPJ is able to choose the prime minister and pass budgets, but without a two-thirds majority in that house it is unable to pass legislation over the objections of the other. (In fact, under the Constitution, the House of Representatives could ratify the Hague Convention without the consent of the other chamber, but without the implementing legislation — some of which is anticipated by the convention — it would probably be of questionable value to do so.) Furthermore, other important government functions are predicated on the assumption of cooperation between both houses. For example, the appointment of the Bank of Japan’s governor, deputy governor and policy board members all require the consent of both houses, turning the LDP’s control of the House of Councillors into another weapon for frustrating the DPJ.

While the DPJ may get very low marks for keeping the cornucopia of promises contained in the manifesto it used to win the historic 2009 elections (not to mention its promise to sign the Hague), the “screwed up” situation left it with few options other than compromise, gridlock or calling another election. That being the case, the fact that the Diet was able to pass any legislation at all — including the consumption tax increase upon which Prime Minister Yoshihiko Noda staked his political future — is something of an accomplishment in itself (although the cynical view would be that the LDP has used its leverage to set the DPJ up as being responsible for a tax hike that most people in both parties regard as necessary, while retaining the ability to use the issue to bash the DPJ in the upcoming election).

On a brighter note, the Diet Act provides an exception that allows certain matters that have been referred to a standing committee for continued deliberations to be carried on into the next Diet session, even if an election intervenes. Japan’s accession to the Hague Convention is one such matter, meaning that all of the work that went into preparing the accompanying legislation did not just turn into a pumpkin when the Diet’s ordinary session ended this month.

If the powers that be are looking for an excuse not to sign the convention, carrying the matter forward to the next Diet session rather than letting it expire would seem an odd approach to take. My own view is that at the very least the bureaucrats involved want this issue to go away and probably know that the only way to ensure this is for Japan to sign. Since it is bureaucrats that would have done much of the heavy lifting in preparing the baroque legislation proposed for implementing the treaty, they probably have as much interest as anyone in not having to start all over again.

Thus, although the results of the next election may impact what ultimately happens to the Hague, at least part of the government appears to still be trying to guide the process towards Japan finally joining the treaty regime forward. Whether doing so actually makes any difference for parents and children is an issue where a whole new set of excuses may be required.

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