Mad court rush could brake or bless Abe’s vision

Vote disparity ruling will speak volumes about independence of the Supreme Court


As Prime Minister Shinzo Abe and his Cabinet rush to diminish the Bank of Japan’s bothersome independence, join the Trans-Pacific Partnership negotiations (sort of . . .), start pouring lovely, popular concrete before the summer House of Councilors elections and (sotto voce) maybe even amend the Constitution, something amazing is happening in courts around the country: They are making decisions with astonishing speed and potentially profound implications. The two things may not be unrelated.

After the December House of Representatives elections, which swept Abe into power with a massive majority, teams of lawyers filed suit in high courts around the country challenging their validity. By February, newspapers were able to report that every single one of these courts was planning to issue its decision in March — lightning speed for a judiciary anywhere, let alone Japan.

This litigation is not due to anything personal against Abe; teams of lawyers have been filing such suits after every recent election as part of an orchestrated campaign to challenge the malapportionment of Diet seats, a decades-old constitutional and political problem. Malapportionment is what happens when, due to population movements or other reasons, seats from some (usually rural) districts represent far fewer people than those in other (usually urban) ones. This imbalance results in some voters having far more influence in the Diet, skewing political priorities. Japan’s famously protective agricultural policies, for example, are attributed in part to the disproportionate weight of rural farming votes.

Since Article 14 of Japan’s Constitution mandates equality under the law, malapportionment has been a recurring theme in constitutional litigation for decades. Over the years the Supreme Court has issued about two dozen judgments regarding Diet elections in which voters were not treated equally.

The accumulated jurisprudence on this subject is stultifying in its impenetrability. As described by legal scholar Koji Sato in one of the leading texts on constitutional law, “What the Supreme Court is thinking is not necessarily very clear.”

Essentially, however, the court has recognized that in practice pure 1:1 voter parity would be an unachievable goal, which is probably true. It has also acknowledged that in coming up with a scheme for allocating seats, the government can take into account factors beyond just population (such as geographic representation, municipal and prefectural boundaries, etc.). This is particularly true in the case of the House of Councilors, where there has long been controversy over how to distinguish it from the House of Representatives in terms of representation (the two houses essentially represent the same constituency, which is unusual for a bicameral system).

Although the court has never set any clear numerical thresholds, its rulings in these cases indicate that it considers malapportionment ratios greater than 1:2 (i.e. a Diet seat for one electoral district representing more than twice as many voters as in another) in the House of Representatives and 1:5 in the House of Councilors to be constitutionally problematic. (Why the different treatment of the two houses when the whole issues is one of equality? To quote professor Sato again, “It must be said that this is extremely difficult to fathom.”) The government itself operates under legislative guidelines requiring it to try to allocate seats in the House of Representatives so that malapportionment ratios do not exceed 1:2.

While Supreme Court jurisprudence includes a couple of instances where it has declared an apportionment scheme to be unconstitutional, it has never gone so far as to declare an election void (think of the inconvenience that would cause!). For the most part, however, the court has stopped one step back from declaring an election “unconstitutional,” instead finding a particular level of discrepancy to be “an unconstitutional situation.”

The difference between these two states may seem like legalistic hair-splitting, but essentially it is a matter of timing. The court is highly deferential to the Diet and will usually only issue one of its rare findings of outright unconstitutionality if the legislative branch fails to remedy an identified constitutional problem after a suitable period of time. The “unconstitutional situation” rulings thus represent a signal from the judicial to the legislative branch that remedial action is needed. Usually the Diet complies. A ruling of unconstitutionality means the signaled deadline has passed.

The problem is that no remedial action was taken after a 2011 decision by the court declaring apportionment in the 2009 House of Representatives elections (which gave the Democratic Party of Japan their brief, chaotic turn at the helm of state) to be “an unconstitutional situation.” Despite this warning, the 2012 election that brought Abe’s Liberal Democratic Party back into power took place under the same apportionment scheme as the one in 2009.

There is thus a heightened likelihood that the Supreme Court could issue a rare ruling that the election itself was unconstitutional. Some commentators have speculated that it might even take the unprecedented step of declaring the election void, but to do so many months after it has constituted a Diet that will have already transacted myriad business by the time the judgment is issued would take everything into uncharted territory. Do all the acts of the unconstitutionally constituted Diet also become void? If so, who is constitutionally competent to fix things? These types of imponderables are probably why even when the Supreme Court has in the past declared malapportionment to have reached an unconstitutional threshold, it has always done so in a way that nonetheless clearly lets the election results stand.

That something may be in the works this time seems clear from the unparalleled speed and coordination with which all eight of Japan’s high courts and their six branches have issued their decisions. Although the law calls on courts to act promptly in election cases, that all of these courts were able to issue their judgments in March is said to be unprecedented.

The order of judgments may also be significant, with the Tokyo High Court (generally regarded as a stepping stone to a seat on the Supreme Court, the Tokyo High Court is one of the most reliably conservative courts in the country) going first, perhaps to show the way. By the end of March, over two dozen decisions had been rendered, with most courts declaring the election to be either “in a state of unconstitutionality” or outright “unconstitutional.”

Most of the attention, however, was garnered by the decisions of the Hiroshima High Court and its Okayama branch on March 25 and 26. They went beyond established jurisprudence and held the elections in the districts at issue to be outright void, though only if the electoral commission failed to remedy malapportionment within a designated period of time. These judgments mark the first time a Japanese court has held an election to be void since, well, the closing days of World War II, when a panel of the Supreme Court of Judicature, the predecessor of the Supreme Court, declared an election void due to excessive interference from fascist authorities. (Really! That the judges who issued that decision in 1945 did so despite secret police surveillance, fear of assassination, pressure from fellow judges and direct threats from Hideki Tojo himself helps put the timidity of postwar electoral jurisprudence in perspective).

The courageousness of an individual judge may also have been a factor in the Hiroshima High Court ruling. The panel of judges issuing the decision was led by Junko Ikadazu, one of only six women to join the judiciary in 1978. According to a recent article in the Mainichi Shimbun, this was a time when sexism within the judiciary was at its peak, with instructors at the Supreme Court’s legal research and training institute (which all lawyers and prosecutors must attend after passing the bar exam) badgering the small number of women trainees about how they should find the greatest happiness not in the legal profession, but in getting married and perpetuating the Japanese race. Japan and its courts have come a long way since that time, but the ruling may still be something of an outlier in terms of the judicial culture that led to its issuance.

Of course, even this most courageous of the high court judgments was probably issued safe in the knowledge that it would never amount to anything more than a procedural sideshow before their consolidation for the main event at the Supreme Court, whose decision will likely supersede that of any individual high court. Awareness of this reality may well be driving the concentrated effort to enable the top court to issue a final resolution as soon as possible.

For reasons already explained, it seems unlikely that the Supreme Court will go so far as to follow Hiroshima in declaring the entire 2012 election void. Furthermore, if it wants to avoid doing anything controversial (as often seems to be the case), it can probably use 3/11 as an excuse for giving the Diet more time to come up with a fix.

Nonetheless, whatever it does is likely to have tremendous political significance. This is because the degree to which the election that brought Abe to power is found to be constitutionally defective should be a correspondingly large hurdle to the PM’s efforts to amend the Constitution, efforts which seem likely to proceed if the LDP does well in the coming summer elections. Whether the top court finds the 2012 elections to be void, unconstitutional or an unconstitutional situation, Abe should arguably focus on fixing the malapportionment issue first, and allow constitutional amendments to be pondered by a Diet that is more representative of the Japanese people.

By contrast, trying to ram constitutional change through a Diet that the nation’s highest court has declared “unconstitutional” would seem a reckless tactic, one that would seem to harm the legitimacy of any amendments actually passed in this way. Unfortunately, Abe may not care about such things; in fact, in the course of questioning at a recent Diet budget committee meeting, the prime minister is reported to have demonstrated a lack of basic knowledge about the Constitution he wants to amend. This comprehension gap might explain why he seems to have had no problems bad-mouthing and seeking to change a Constitution that, as a minister of state, he has a constitutional duty to respect and uphold. Recent reports of LDP lawmakers publicly expressing dissatisfaction with the apparently pesky rulings of unconstitutionality do not bode well either.

In any case, whatever the court decides, it will probably not be just a decision about the constitutionality of an election, but about the future of the Constitution itself. Whether it issues a clear (OK, not totally opaque) decision upholding the principle of equality among voters, or fudges the issue in a way that Abe and his LDP minders can read (or easily misinterpret) as a signal to proceed as planned, will demonstrate what sort of institution — independent and judicial or inherently political — Japan’s Supreme Court really is.

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