Abe’s Japan—Another Case of Abusive Constitutionalism

–Tokujin Matsudaira, Kanagawa University, Japan

Prime Minister Shinzo Abe is reportedly going to dissolve the House of Representatives (Shugiin), the lower house of the Japanese Diet, for a snap general election. [1] The ruling coalition closed the Diet this June amid an outburst of scandals surrounding Mr. Abe that dragged down his popularity. The opposition parties demanded an extraordinary session to investigate government officials involved in the scandals, including the PM. After a long delay, the ruling coalition finally agreed to reconvene the Diet on September 28. But according to media reports, the PM wants to dissolve the lower house on the same day and thus there will be no parliamentary session at all. Mr. Abe is expecting to take advantage of a divided opposition and the threat from North Korean missiles—both give him a boost in support and provide distractions from scandals.

Many constitutional law scholars have raised concerns over the Abe administration’s use of the dissolution power.

Under the prewar authoritarian regime, the lower house had no power to vote no confidence against the ministerial government, while the government could, in the name of the Emperor, dissolve the Diet arbitrarily. The postwar 1947 constitution tries to address the problem in two ways. Article 69 of the constitution grants the lower house explicit power to issue votes of non-confidence against the cabinet, requiring the cabinet to resign unless the lower house “is dissolved within ten days”. On the other hand, Article 7 enables the cabinet to dissolve the lower house through its advice-and-approval power regarding the Emperor’s “acts in matters of state”. It should be noted that the dissolution power is vested in the cabinet as a collegial body, not in the office of the prime minister.

If the related constitutional provisions are taken literally, the cabinet can dissolve the lower house only when the latter “passes a non-confidence resolution, or rejects a confidence resolution”. In fact, this was the original understanding endorsed by SCAP, the U.S. occupation authority that drafted the constitution. But as soon as Japan regained independence in 1952, conservative Prime Minister Shigeru Yoshida defied the new originalism and rushed back to the prewar rule, by citing only Article 7 to justify his “surprise dissolution” (Nukiuchi Kaisan) of the lower house. The dissolution triggered a lawsuit by a member of the lower house, who argued that it violated Article 69, thus depriving him of his rights to a four-year term and payment guaranteed by the constitution. Referring to the political-question doctrine, the Japanese Supreme Court declined to intervene.[2] Since then, successive administrations have maintained that 1) within the cabinet’s authority under Article 7, it can dissolve the lower house for good cause other than Article 69, and 2) the decision to embark on Article 7 dissolution is left exclusively to the PM.

The majority of constitutional scholars take both 1) and 2) as matters of constitutional culture rather than established constitutional law. To be sure, they do not deny that the cabinet’s discretionary use of dissolution power may serve not only partisan self-interest, but also important democratic ends. It functions as a part of competition between the cabinet and the parliament, or the ruling and opposition parties, to reclaim their democratic legitimacy by asking the voters to side with them. However, discretion does not mean arbitrariness, especially when, as in Abe’s case, a PM uses the dissolution power for his own benefit.

A dissolution suddenly and unilaterally imposed by the administration deprives elected representatives of their constitutionally guaranteed term and rights to oversee the government. Hence Abe is able to use dissolution as a tool to gain loyalty from his LDP colleagues and weaken the opposition. His dissolution of the lower house in 2014, for example, met with nearly universal criticism that he had failed to make a case that the dissolution served more than his own political advantage at the moment.

Constitutional lawyers also point out that it is unconstitutional for the administration not to convoke extraordinary sessions of the Diet as demanded by the opposition MPs. Article 53 of the constitution states that the cabinet must determine on such convocation when “a quarter or more of the total members of either House makes the demand”. Though the constitution does not specify a deadline for the cabinet to react, a long established parliamentary consensus requires that the cabinet convene extraordinary sessions within a reasonable period. A constitutional amendment proposed by Abe’s LDP in 2012 stipulates that when the demand is made, the cabinet must convene the Diet within 20 days[3]. Under the Abe administration, the opposition demanded such a convocation first in September 2015, right after the ruling coalition railroaded a package of bills on state security, and in June 2017 amid calls for investigation of PM’s scandals[4]. However, the administration simply ignored the first one, and delayed the second one for three months. This time, the PM’s apparent decision to dissolve the Diet on the day the extra session convenes suggests that he does not want to be held responsible to parliamentary politics.

What terrifies constitutional lawyers is Abe’s authoritarian inclination, expressed in distain at parliamentary politics. Even in 1935-45, in the years of military fascism that suppressed Japan’s limited constitutionalism, prime ministers were not exempt from accountability to the Diet. Abe, a nationalist politician obsessed with unfinished fascism[5], is going far beyond his authoritarian predecessors. Since he returned to power in 2012, Abe has acted as if he is a strongman, a modern Tudor monarch who convenes the parliament only to pass the bills and budgets he needs.

All these actions support the accusation that Abe is intentionally damaging both the institution and culture of Japan’s constitutional democracy.

Suggested Citation: Tokujin Matsudaira, Abe’s Japan—Another Case of Abusive Constitutionalism, Int’l J. Const. L. Blog, Sept. 23, 2017, at: http://www.iconnectblog.com/2017/09/abes-japan-another-case-of-abusive-constitutionalism

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[1] Reiji Yoshida, Abe Poises to Dissolve Lower House for Snap General Election, Japan Times, Sept. 17, 2017, https://www.japantimes.co.jp/news/2017/09/17/national/politics-diplomacy/abe-likely-dissolve-lower-house-soon-snap-general-election/#.Wb74w0kUk2w.

[2] The Tomabechi case, Saiko Saibansho [Sup. Ct.], Grand Bench, June 8, 1960, 14 Minshu 1206 (Japan), available at http://www.courts.go.jp/app/hanrei_en/detail?id=14.

[3] See the English translation of the draft: https://www.voyce-jpn.com/ldp-draft-constitution.

[4] Editorial, Abe Must Heed Demand for Extra Diet Session under Article 53, Asahi Shimbun, June 23, 2017, http://www.asahi.com/ajw/articles/AJ201706230020.html.

[5] The idea of “unfinished fascism”, which takes Japanese fascism as a “cheap gimmick” for nationalist ends, is developed by Morihide Katayama, a professor of political science at Keio University. See Mari Yamaguchi, In Nationalist Move, Japan marks Sovereignty Day, San Diego Union Trib., Apr. 28, 2013, http://www.sandiegouniontribune.com/sdut-in-nationalist-move-japan-marks-sovereignty-day-2013apr28-story.html.