Issues | LAW OF THE LAND

And now for something completely unconstitutional

Having managed to pass his controversial national security legislation in a highly fractious Diet session that ended Sept. 27, can you blame Prime Minister Shinzo Abe for wanting to kick back and focus on other things? The many people who gathered outside the national legislature day after day to protest a law they feared would ensnare the country in foreign wars probably have other things to do as well.

The vast majority of constitutional scholars surveyed declared the legislation constitutionally suspect, but so what? They are just a bunch of academics, and with the Supreme Court having long ago decided not to get involved in the noisome business of interpreting the famous “no war” provisions of the charter’s Article 9, the only constitutional bodies left to do so are the Diet and the Cabinet. The latter having submitted the legislation and the latter having also approved it, The Government Has Spoken, it seems.

Anyway, everyone may be tired of hearing “Constitution this” and “unconstitutional that.” That might be why nobody seems to be paying much attention to the fact that the Cabinet is about do something blatantly unconstitutional. That is, not just “reinterpreting” a tricky provision like Article 9 in the absence of the judiciary stepping up to the job, but by actually ignoring a procedural requirement clearly mandated by the Constitution. Moreover, the reason given for being able to do so is “because we’ve done it before.” As they say in Anthony Burgess’ “A Clockwork Orange”: Horrorshow.

On Oct. 21, no less than 125 members of the House of Representatives and 84 members of the House of Councilors (all independent or opposition party members) submitted a formal request to the Cabinet that an extraordinary session of the Diet be convened. Under Article 53 of the Constitution, the Cabinet has the authority to call an extraordinary session, but if more than a quarter of the members of either house make a request, “the Cabinet must determine on such a convocation.” Pedants might point out that this suggests the Cabinet could decide not to call an extraordinary session and still be in compliance, but the Japanese version is much clearer: a convocation is required.

Before an official request was even been made, however, Chief Cabinet Secretary and Liberal Democratic Party cadre Yoshihide Suga dismissed the idea of an extraordinary session. The prime minister had places to go, people to see — important diplomatic stuff. Anyway, “such requests have been ignored in the past, so no big deal” was the general view. Suga formally confirmed rejection of the request on Thursday.

The House of Representatives has 475 members, the House of Councillors 242. Clearly the one-quarter of total membership requirement for a valid Article 53 request has been met for both. How can a Cabinet whose members have a legal duty to “respect and uphold” the Constitution be so dismissive of a request made under it? And when did the Abe-verse become an alternate reality where past violations of the nation’s basic law can, with a straight face, be used to justify further violations of the same type? (“It’s OK, officer, this isn’t the first time I’ve killed somebody.”)


To be fair, part of the problem lies in the Constitution’s failure to set a deadline by which the Cabinet must comply. Article 52 mandates that an ordinary session of the Diet be convoked every year. This is usually done in January, with sessions lasting 150 days unless extended or if the House of Representatives is disbanded for an election. The Cabinet can and often does also call extraordinary sessions for its own convenience. A special session must also be held within 30 days of a House of Representatives election.

This means that by the time the Diet is finished with all its business for the year it is usually well into fall. Since past demands for an extraordinary session have usually been received in November, the Cabinet has been able to get away with just ignoring them until the next ordinary session starts in January. “No harm, no foul” thus seems to be the main reason why the Cabinet has gotten away with ignoring a constitutional request from elected members of what under Article 41 of the Constitution is supposedly the “highest organ of state power.”

Decades ago, the director-general of the Cabinet Legislation Bureau opined on behalf of another LDP government (that of Abe’s grandpa, Nobusuke Kishi) that if an ordinary session is expected to be held “within a reasonable period,” an extraordinary session does not have to be held, notwithstanding an Article 53 request. He obligingly refrained fromdefining a “reasonable period,” and the conservative Sankei Shimbun seized on this opinion as justification for the government preemptively ignoring the request. Of course, both the Sankei and Suga might have looked for guidance to the LDP’s own proposed constitutional amendments, which would clearly require convocation within 20 days of a request.

Granted, this year’s ordinary session was the longest in postwar history, having been extended to a whopping 245 days. So the government may be a bit knackered.

Yet as has been pointed out by Kyushu University law professor Mori Minamino in several insightful online op-eds on the subject, this would be the first time in postwar history in which there has been only a single Diet session. The last times an LDP prime minister ignored a demand for an ordinary convocation — Junichiro Koizumi, in 2003 and 2005 — at the time the demands were made there had already been at least two sessions in both years, as well as elections. Furthermore, in both instances the Diet had been in session until November.

Moreover, Abe restructured his Cabinet immediately after the Diet went out of session. This new administration will not be subject to any democratic scrutiny of its policies or new members for almost four months until the next ordinary session begins in January. This may also be unprecedented.


Of course, with an election due next summer, the ruling party may well wish to ignore the convocation demand for political reasons as well as diplomatic ones: Opposition parties would surely use the session as an opportunity to criticize policies, dig up scandals on Cabinet members and generally embarrass Abe and his government. The PM thus has little to gain from organizing a whine-fest for the opposition.

This is understandable, but it should never be forgotten that parliamentary whingeing is the font of democracy, and seeking to avoid it is the coping strategy of autocrats everywhere. The kings and queens of England generally avoided summoning parliaments unless they needed money; once summoned, the lords, bishops, burghers and knights of the realm would use the opportunity to grouse about how the country was being governed, and even subject the demand for taxes to conditions that limited the sovereign’s powers — often forever.

Some monarchs would go to extraordinary lengths to avoid summoning parliaments. For example, modern patent law has its roots in innovation — specifically, Queen Elizabeth I and her successors using the innovative practice of selling royal monopolies (“patents”) on goods, services and other things. Such exclusive rights could then be used by the purchaser to extract exorbitant profits from the populace at large. But even practices such as these never generated enough money for the crown, and when parliaments were inevitably summoned, they simply had more things to complain about — like monopolies. Eventually the balance of power shifted from crown to Parliament to the extent that the latter could abolish the monopolies, leaving only those granted for “novel inventions” — what we think of as “patents” today.

One of the other things that developed out of this give and take was Parliament developing the power to meet regularly without awaiting a summons and becoming immune to arbitrary dissolution (dissolution of colonial assemblies also being one of the complaints directed at King George III in the U.S. Declaration of Independence). No longer could kings and their autocratic councils rule as long as possible without hearing the bothersome questions and complaints of their subjects.


Ironically, the prewar Imperial Diet may have been closer to these democratic roots than the current one. The Meiji Constitution of 1889 kept the national legislature carefully in check. One house was stacked with aristocrats and government appointees. Annual sessions were for only three months unless extended by imperial decree. Petitions from the chambers had to be “respectful” and the Emperor could rule by decree in emergencies. Even the power of the purse was limited, since the government could automatically use last year’s budget if the Diet failed to approve a new one. Nor was there any requirement (as there is in the current Constitution) that at least some Cabinet members be drawn from the legislature; many Cabinets had none.

Yet it was these very features that may have made the Imperial Diet more “parliamentary” (at least until fascism reduced it to a booster club for militarism). First and foremost, since there might be little if any overlap between Diet and Cabinet, there was little reason for the former to be restrained. Scholars have noted that there may have been more actual “deliberation” in the Imperial Diet, including features such as a U.K.-style regular Question Time, something that only exists in the current Diet in the form of occasional short, carefully structured “debates” between the prime minister and opposition party heads.

Now the Cabinet is appointed by and from the Diet. Both houses in turn have been controlled for most of the postwar period by the LDP, which may have little need for the deliberative, forum-for-whining-about-the-government features of other parliamentary systems.

The Diet has thus evolved into a forum that provides few formal opportunities for unscripted challenges to government policies. In such a system opposition parties seem reduced to the status of perpetual whiners, using procedural tools to obfuscate and delay, their members appealing to voters on the basis of the difficult written questions they have submitted to the government rather than whatever limited substantive impact they may have been able to have on the substance of legislation that has been drafted by bureaucrats and the LDP behind closed doors, safe in the knowledge that once formally submitted to the Diet, it will almost certainly be passed.

In an odd way, therefore, the Diet has taken a form that kings of yore might have found surprisingly amenable, in that once convened, it can be relied upon to dutifully pass budgets and legislation desired by the executive. Yes, it involves some complaining from the opposition, but this can be marginalized by control of process and information. The preemptive rejection of an extraordinary Diet session is thus one more indicator of the state of parliamentary democracy — and constitutionalism — in Japan today, not to mention the autocratic bearing of its leaders.

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. The views expressed are those of the author alone. Your comments and story ideas: community@japantimes.co.jp

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