The Latest Decision on Malapportionment in Japan

–Tokujin MATSUDAIRA, Teikyo University

On October 17, 2012, the Japanese Supreme Court released a judgment from the grand bench regarding the constitutionality of the 2010 election of Sangiin (House of Councillors). In that election, the ruling DPP failed to keep its majority in the upper house, launching a period of political chaos. Plaintiffs had argued that the current election law, which allows up to a 5:1 ratio of vote disparity of votes between rural and metropolitan districts, violates Article 14 of the Constitution (guaranteeing equality in the right to vote) and thus should be declared invalid. In the decision the Court found the current election system for Sangiin constitutional, while indicating that the fivefold disparity in the weight of votes in the 2010 upper house election was in a state of unconstitutionality.[i]

This is the latest in a long series of decisions by the Court on malapportionment, which has consistently favored rural voters.  To be sure, the Court did not declare the 2010 poll itself unconstitutional; what the opinion of the court really said is that the disparity “constituted an inequality significant enough to doubt its constitutionality”. The wording is different from the Court’s 2011 decision on the disparity in the 2009 Shugiin (House of Representatives) election, which stated definitively that the 2009 general election, to the extent it applied the rule of “preserving one seat per prefecture”, was held in a state “contrary to the constitutional requirement of equality in the value of votes”.[ii] However, both constitutional scholars and the media have viewed the Court’s rhetoric as political gesture to the upper house, which has been given more deference to its apportionment power than the lower house. The Court has been relatively tolerant of disparities in the value of votes in upper house polls, on grounds of the supremacy of the lower house under the bicameral system; the constitutional limit in weighting of votes in lower houseelections has been less than a threefold disparity.

Last week’s decision indicates that the judicial deference is not without limits. The majority opinion makes it clear that the difference between the upper and lower houses should not be overestimated–both houses “shall consist of elected members, representative of all the people” (Art. 43 of the Constitution). Indeed, the majority found it difficult to ignore plaintiffs’ simple and powerful yes-or-no argument. The plaintiffs in the case represent the voice of the emerging civic society in Japan. Among them are lawyers, such as MASUNAGA Hidetoshi, a successful patent law attorney, and ITOH Makoto, the charismatic lecturer and owner of Itojuku, one of dominant prep schools for national bar exam. They are trying to persuade the judiciary to accept their purposive reading of the Japanese constitution, with regard to such principles as “one person, one vote” and freedom of speech. Most of them lack knowledge about real politics and some might be called liberal. But they generally share a tendency to look on the Japanese society from lawyers’ viewpoint and conviction that the rule of law can and should reconstruct the society. The Court gave them a win not only because it had no way to ignore their claims, but also because the younger generation of professional judges share the similar mentality with plaintiffs. That is why this time the Court even went further to suggest that the inequality stems from current electoral districting based on prefectures, and signalled the national legislature to adopt a new electoral system making both houses’ electorates similar. In a supplementary opinion, Justice KANETSUKI Seishi pointed out that “the rationality of allocating electoral districts by prefectures must concede to the constitutional requirements to eradicate considerable inequality in the value of voting rights…In effect, there is only one solution left which is to expand the constituency units.” Considering that it will be difficult for the partisan legislators to do so by themselves, some constitutional scholars propose setting up a panel of outside experts to consider how to reform the electoral system. [iii]