When Shinzo Abe dissolved the Lower House last month for the Oct. 22 snap election, doubts were cast over the prime minister’s so-called prerogative to dissolve the Diet’s lower chamber, which has long been taken for granted in Nagatacho. Critics and opposition parties charged that Abe was abusing his power to his and his Liberal Democratic Party’s greatest advantage — to call a snap election while his opponents were still unprepared and to forestall further Diet grilling of his administration over scandals that had damaged its popular support. The government insists that the Constitution does not impose any restrictions on the Cabinet — and the prime minister as its head — dissolving the Lower House, and that the decision on when to do so rests with the Cabinet at its political responsibility. But if there is room for abuse, discussions are needed on whether that power should be restricted in some ways.
Prime ministers have dissolved the Lower House at their will to call snap elections at the time of their choice. It enables them to hold elections at the best possible timing for their own party. But since doing so deprives the elected members of the Lower House of their status midway through their four-year terms, it has been deemed that the prime minister needs a justifiable cause. Abe said he was seeking a fresh voter mandate for his plan to divert the use of revenue from the next consumption tax hike and for him to address the security threat from North Korea on a solid political footing. Given the solid majority that his ruling coalition commanded in the Diet, that sounded like a lame excuse against the criticism that he was using the power for his partisan interests.
In fact, the Constitution does not have any provision explicitly giving the prime minister “exclusive” power to freely dissolve the Lower House. Article 7 lists “dissolution of the House of Representatives” among the “acts in matters of state” that the Emperor shall perform on behalf of the people “with the advice and approval of the Cabinet.” Article 69 says, “If the House of Representatives passes a non-confidence resolution, or rejects a confidence resolution, the Cabinet shall resign en masse, unless the House of Representative is dissolved within 10 days.”
Under the postwar Constitution, the Lower House has been dissolved 24 times, and in all but one case the government cited Article 7 as the grounds for the prime minister resorting to the act. That the prime minister has this power is based on an interpretation that since the Emperor dissolves the Lower House “with the advice and approval of the Cabinet,” the decision to dissolve the chamber effectively rests with the Cabinet and, ultimately, the prime minister, who has the power to remove members of the Cabinet as he chooses. It’s not clear whether this allows the prime minister to freely dissolve the Lower House at will.
The practice of prime ministers dissolving the house based on Article 7 was once challenged in court. A Lower House member who lost his seat when Prime Minister Shigeru Yoshida dissolved the chamber in 1952 filed a lawsuit seeking a court decision to annul the dissolution, arguing it is unconstitutional for a prime minister to dissolve the house except on the basis of Article 69 — in response to a no-confidence vote. The Supreme Court dismissed the suit, but one of the justices noted in a supplementary opinion to the top court decision that the prime minister being able to dissolve the Diet — which comprises representatives of the people and is meant to supervise the Cabinet — at his will could shake the foundation of parliamentary democracy, thus challenging the constitutionality of such an act because it could concentrate too much power in the prime minister. Ultimately, however, the Supreme Court avoided handing down a judgment of constitutionality on the practice, ruling in 1960 that “highly political” acts of the state are beyond the jurisdiction of the judiciary.
The practice has since been repeated by prime ministers, as the government’s interpretation of the matter has been established in practicality. But if there indeed is room for the power to be abused by the prime minister — to use the power to his party’s advantage even to the inconvenience of the electorate, whose choices in the election could be restricted as a result of the opposition caught off guard and unprepared — then ways to place restrictions on the power should be considered. In Britain, the power of the prime minister to dissolve parliament came under restrictions with the 2011 Fixed-term Parliaments Act, which stipulates that general elections must be held every five years and that the prime minister can only dissolve parliament either when confronted with a no-confidence vote or with support of a two-thirds majority in the House of Commons. That might be one example to consider.