A Snap Election Is Certainly Doable in the Very Near Term

Philippe wonders in his comment to my previous post:

“Can a snap election actually be held that fast, given the constitutionality issues raised by the Supreme Court ? As far as I know, the relevant laws are still being held up (by the LDP and ... ?) in the lower house committees or intra party negotiations. Or will the LDP suddenly agree to the current proposals and help passing the laws at high speed through both chambers?”

That is a good question; a question which the media, apparently in their desire to sell an election, have mostly elided over. I believe that once the main political parties—the DPJ, LDP, Komeito and the Ozawa defectors—see that a snap election is inevitable, they will quickly pass a law that complies with the Supreme Court ruling on the unconstitutionality of lower house elections by eliminating five single-member districts—resulting in 475 seats consisting of 295 single-member-district and 180 proportional regional-district seats— while leaving the more drastic reforms for further negotiations after the snap election.

Could the Noda cabinet call a snap election without such legislation? Yes. No reputable constitutional scholar is likely to argue that the Emperor could place his legal judgment ahead of the cabinet and refuse to dissolve the lower house under Article 7 of the Constitution of Japan, a legal and political intervention that even a constitutional monarch would blanche at. More importantly, the Supreme Court will not vacate a general election that would leave us with a lower house devoid of members and an unconstitutional prime minister and cabinet and no constitutional means to repair this state of affairs. The Supreme Court will not endorse the election after the event, but it will declare it valid though unconstitutional. Now it is possible that citizen groups may sue to secure a provisional disposition postponing the election. I won’t say that there is zero possibility that the Supreme Court will grant such relief, but I do believe that it is extremely unlikely since the courts are not equipped to intervene with a constructive remedy that overwrites existing law in the case the Diet cannot come forward with its own resolution. (Imagine what the situation would be like if the issue remains unresolved until the current term is up.) The Noda cabinet will, however, be very reluctant to go this route. The wrath of the media and the public will fall largely on the Diet, but the Noda cabinet will also have to shoulder a significant part of the blame. Noda, moreover, will not want to go down in history for knowingly calling an unconstitutional election and undermining the legitimacy of the Japanese political system.

The Diet members are strong incented to table the other two elements, perhaps indefinitely. First, eliminating 40/80 lower house seats from the proportional regional districts may be a politically appealing act when advocating belt-tightening. But that means cracking a lot of eggs, and the eggs are not amused. Second, there is a strong institutional bias for consensus on parliamentary matters, but it is proving difficult to come up with a formula that satisfies/dissatisfies all the political parties. The DPJ has made a proposal that goes halfway in meeting the concerns of the smaller parties—the DPJ and LDP will be the ones giving up all the seats and perhaps more—and is believed to be aimed in particular at Komeito as a potential coalition partner. The post-election prospects for the two elements depend on the outcome of the election. It is easy to see that a grand coalition between the DPJ and LDP renders that an arrangement that favors large parties more likely, while a more fragmented political scene where the two compete for the support of the smaller parties to form a government favors the opposite arrangement. And of course, continued stalemate is always possible, which would mean that we would be due for another round of debates resulting in a minor patch after the next census in 2020.