Issues | LAW OF THE LAND

Examining a year in the life of the country's Diet

by Colin P.A. Jones

Special To The Japan Times

When not trying to get elected, Japan’s 700-plus Diet members (475 in the House of Representatives, 242 in the House of Councilors) conduct the weighty business of the nation. With the 193rd session of the national legislature under the current Constitution scheduled to commence on Jan. 20, let’s look back on what this august body accomplished in 2016.

Japan’s parliament has an impressive history. From its start in 1890 as the Imperial Diet, it has convened regularly as required by law ever since, notwithstanding war, deprivation, foreign occupation and American-imposed constitutional changes. One of these saw the aristocratic House of Peers replaced with the elected House of Councilors.

Of the Diet’s two houses, the House of Representatives is dominant. It has the power to choose a prime minister, approve budgets and ratify treaties over the objections of the House of Councilors. A two-thirds majority of the Upper House can also pass legislation alone, though since the Liberal Democratic Party has controlled both chambers for most of the postwar period, recourse to this expedient has rarely been necessary.

Upper House members serve a four-year term subject to dissolution, while Lower House parliamentarians serve fixed six-year terms, staggered so 50 percent of its membership is up for election ever three years (as happened last summer).

Despite these different cycles, the chambers open and close in sync. Each period when they are open for business is a “session,” each numbered. In 2016, there were three sessions.

Constitutionally an “ordinary” session must be held every year. This usually commences in January and lasts for 150 days, unless extended. The 2016 ordinary session (the 190th Diet) began unusually early — Jan. 4. It was also noteworthy in seeing the Communist Party officially attending the opening ceremonies for the first time, despite ideological reservations about continuation of the prewar practice of having the Emperor preside over the formalities from on high.

Ordinary sessions typically first focus on the routine, recurring business of government: passing a budget for the new fiscal year (which begins on April 1) and laws having an impact on national finances. The first laws passed in January 2016 related to the salaries of various categories of public servants. These were followed by various tax laws duly promulgated on March 31 and taking effect the next day.

Unlike the 2015 ordinary session (the 189th Diet), which lasted a marathon 245 days, the 2016 session was not extended. Instead, there was a three-day extraordinary session (the 191st Diet) at which the Lower House reconstituted itself following elections in July. This was followed by a second extraordinary session (the 192nd Diet), which ran from Sept. 26 to Dec. 17 (including extensions). The 192nd Diet was devoted in part to deepening the Abenomics fiscal abyss through tera-yen supplemental budgets and deferral of a scheduled consumption tax increase.

At a May 16, 2016, Upper House Budget Committee meeting, Prime Minister Shinzo Abe referred to himself as “the head of the legislative branch,” causing apoplexy among constitutional pedants who accused him of lacking a basic understanding of separation of powers. I don’t think any went so far as to identify who actually is head of the Diet if not the prime minister. Each chamber elects its own speaker, but nobody is in charge of the political body as a whole — except possibly the president of the political party controlling a majority in the Upper House (or both houses), i.e., the prime minister. Although in the official minutes of the meeting his statement was magically changed to “head of the executive branch,” he may have been voicing a political truth rather than misspeaking.

Many of the laws proposed to — and, more importantly, the majority of those actually passed by — the Diet are drafted and submitted by executive branch institutions through the Cabinet (of which the prime minister is head). In fact, the Japanese term — giin rippō, literally “legislation by legislators” — is not a tautology because it describes the exception to the “legislation by bureaucrats” rule: bills initiating from within the Diet, only a fraction of which become law. According to the Cabinet Legislation Bureau home page, 198 new bills were initiated from within the Diet in 2016, as compared to 75 proposed by the Cabinet. However, of the 115 bills that the Diet actually passed into law that year (which includes some carried over from prior sessions), 78 originated from the Cabinet. Historically, laws proposed by the Cabinet have generally enjoyed a success rate of around 90 percent compared to around 30 percent for offerings from the Diet.

Of course, executive branch involvement in legislation is the norm in many countries; the people who administer the law are most likely to be familiar with what is wrong with it (in fact, most of the legislation passed in 2016 consisted of amendments to existing statutes rather than new ones). Another factor at work is that much of the “real” legislative process is already over before anything gets submitted to the Diet, particularly if it is submitted by the Cabinet or the LDP. The prolonged constancy of LDP control over both chambers and the Cabinet has meant that most of the necessary political negotiations with internal factions and the relevant bureaucracies can take place behind closed doors rather in the Diet chambers. Once submitted by the government, a bill is generally certain of passing; the rules of the LDP (and most other parties) impose harsh discipline on members who do not vote as instructed.

Thus, while the legislative procedure mandated by the Constitution and the Diet Act must be followed, they may be perceived by some in the ruling party as nothing more than an opportunity for the opposition to score political points and cause delays. With some exceptions, bills not passed during a particular Diet session expire, meaning opposition parties’ only hopes of defeating a repugnant bill may be to run out the clock through procedural obstruction. All the more reason, then, for the ruling faction to ram politically controversial laws through with little or no debate, as was the case with the now possibly embarrassing November ratification of Trans-Pacific Partnership pact, a pension reform bill later the same month and the much-reported law that will make casino gambling a reality in Japan. Little wonder that some critics lament how little meaningful legislative debate actually takes place in the nation’s parliament.

There is also an element of amateurs vs. professionals. Japan’s ministries are the pros, staffed as they are with graduates of top law faculties who spend much of their careers focused on laws of interest to their institutions. Moreover, the Cabinet has its own agency — the Cabinet Legislation Bureau — devoted to ensuring any legislative proposal submitted to the Cabinet is rigorously vetted by some of the top legal minds in the country to ensure it complies with drafting protocols, is inherently consistent, and that any conflicts or points of intersection with other existing laws are identified.

While some individual Diet members may have legal training or government experience, as the group they are amateurs when it comes to drafting legislation. Each chamber has a bureau to help them do so, but notwithstanding such assistance even the most eager parliamentarian may discover that what seems like a good idea is hard to put into statutory form, or would require changes to various other laws.

Even if these hurdles are cleared, Diet rules and practice require a member’s bill to be seconded by a minimum number of other legislators and approved by his or her political party before it can be formally submitted for deliberation. While that may seem anti-democratic, these restrictions reflect a reaction to a period early in the postwar Diet’s history when it was flooded with omiyage (gift) bills from members trying to curry favor with their constituents.

There is also a “territorial” aspect to lawmaking. Legislation submitted by the Cabinet tends to be in areas bureaucrats care about: laws under their jurisdiction, industry regulation, Cabinet policies and the organization of administrative agencies.

By contrast, certain types of laws are typically initiated by the Diet, including those about its composition and how its members are elected. Then there are “basic laws” that tend to consist of broad statements of policy rather than concrete substance. For example, 2016 saw the passage of a new “Basic law on the fostering of the appropriate use of public and private sector data.” The Diet is also supposed to pass laws that keep the bureaucracy under control (cue the sound of crickets) and is more likely to be the source of laws having voter appeal.

Diet-initiated laws passed in 2016 included various amendments to the electoral laws and to the Basic Act on Suicide Countermeasures, a new law prohibiting flying drones over the Diet and other public buildings, several laws relating to protection of the infirm and developmentally challenged, as well as an act for reinvigorating the domestic pearl industry. And, in my humble opinion, the most significant law of the year in this category might be the one intended to get rid of the absurd web of utility poles and overhead wires that blight so many views in Japan.

For the most part, laws originating from the Cabinet were less exciting. In 2016, bureaucrats got a new law on satellites, amendments to various industry acts and laws constituting special government entities such as national universities. The Ministry of Justice managed to get through its amendments to the Code of Criminal Procedure that, among other things, will introduce a new system of plea bargaining and make it easier for law enforcement to conduct surveillance of communications in certain types of investigations. The Justice Ministry also put through an amendment to the Civil Code, relaxing outdated restrictions on women remarrying immediately after the termination of a prior marriage; in 2015, the Supreme Court found these partially unconstitutional.

Although one chamber may propose amendments to a legislative draft proposed by the other, sometimes it will just pass an interpretive resolution. This does not become part of the law but is expected to be respected by the government for interpretive purposes. In 2016, for example, the Lower House issued an interpretive resolution clarifying the meaning of Japan’s odd new anti-hate speech legislation.

Another type of law-making involves ratifying treaties with other nations. In addition to ratifying the TPP in 2016, the Diet approved tax treaties with Germany and Chile, an extradition treaty with Iran and changes to the Status of Forces Agreement with the United States.

The Diet did other things besides legislate. It confirmed various reports from the Board of Audit (see last month’s column).

Finally, numerous statutes establishing governmental bodies such as the Bank of Japan, the National Public Safety Commission and the Fair Trade Commission require that the appointment of the leaders of such bodies be approved by both Diet chambers. Dozens of such appointments were ratified in 2016, all referring to the appointees using the traditionally male suffix “-kun,” even for women. This reflects a long tradition that one theory traces back to the early days of the Imperial Diet when its members sought to emulate the United States Congress and the practice of its membership at the time in referring to each other as “Mister.” Somewhat anachronistic now, the usage reflects the Diet’s traditions and long history as a democratic institution.

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