Friday, March 29, 2013

The High Courts Have Spoken on the 2012 Lower House election; So What Does This Hold for the Future?

Almost completely ignored by the international media, judicial panels in the Japanese high courts, the courts of first instance for disputes regarding the legality of elections and their outcome, have now ruled on all sixteen cases challenging the validity of a total of 31 single member seat elections in the December lower house election on constitutional grounds. Fourteen judicial panels have ruled that the elections in their respective disputes were unconstitutional while two maintained that they were merely in a state of unconstitutionality. However, only two of the “unconstitutional” rulings actually annulled the elections (one of the two giving the Diet until November 26, essentially a one-year grace period, to work out a five-seat reduction under to the November 2012 amendment that would bring the maximum population disparity between single member districts based on the 2010 National Census under the two-to-one threshold that appears to be the judiciary’s red line. The Supreme Court is expected to provide a final ruling on appeal, most certainly by the calendar year’s end. It is highly likely to go with the flow and rule the elections unconstitutional but decline to vacate the seats in question. The Supreme Court is typically more conservative than the most radical lower courts and, with all the 15 justices convening for the ruling on these appeals, there is less room for surprise. Think of this as the judicial version of the law of large numbers.

However, the five-seat reduction will not eliminate the one-seat set-aside for each of the 47 prefectures, which the Supreme Court rightly points to as the fundamental cause of the disparities. Thus, if the Diet fails to act by the time the next Census is taken in 2015, causing the judiciary’s red line to be crossed again—the maximum disparity under the current recommendation is 1.998-to-one according the 2010 Census—in a subsequent election, the Supreme Court is likely to be less forgiving and to rule the election itself unconstitutional, possibly even vacating the offending seats. In the meantime, the set-aside is in play as part of the broader overhaul that the Diet has been working on since the DPJ administration. What is the likely outcome of that?

The most likely outcome in my view is that the Diet will pass the five-seat reduction amendment under the redistricting recommendation from an advisory council to the prime minister that affects 42 districts in 17 prefectures but will fail to agree to a formula that satisfies the judiciary’s concerns. The Supreme Court will then grudgingly decline to put the “state of unconstitutionality” stigma on any election held under the new arrangement.

The DPJ, JRP, and Your Party are in favor of eliminating the single member seat set-aside, but the LDP-Komeito coalition has agreed to push the LDP overhaul formula that reduces the number of proportional seats from 180 to 150 but does not touch the single member seat arrangement beyond the five-seat reduction. But that does necessarily mean a standoff. At this point, I believe that the LDP-Komeito coalition is likely to use its lower house supermajority to pass the LDP-Komeito formula. This will be poorly received by the media, mainstream or otherwise, since it not only fails to meet the judiciary’s concern but also entails concerns over the constitutionality of a complicated formula that in principle sets aside 60 of the 150 proportional seats for the parties other than the party that won the most seats. However, last November, the LDP and Komeito, in an agreement with the DPJ, committed to significantly reduce the number of lower house seats by the end of the ongoing Diet session as the political pound of flesh for raising the consumption tax rate. Even if the LDP is too tilted in favor of the low-population prefectures to come to an agreement on a formula that satisfies the judiciary’s concern, it can at least use the supermajority to avoid the visceral reaction from the electorate come July that would be forthcoming if it misses out on the on the November promise.

Of course the LDP-Komeito could decide to pass only the five-seat reduction and revisit the overhaul issue after the July election. However, I believe that this is less likely since the LDP will bear the brunt of the criticism on both the constitutional question and the tax hike pound of flesh against the backdrop of an imminent national election. Better, then, to take a half measure and weather the backlash while the Abe administration and the LDP are riding high in the polls, and worry about the implications of the next National Census when it arrives. Or so I think.

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