Fifty Years of Folly: The Self-Restraining Supreme Court and the Elusive Equality of the Vote

Fifty Years of Folly:

The Self-Restraining Supreme Court

and the Elusive Equality of the Vote

Lee Xian Jie

Waseda University

School of Political Science & Economics

Fifty Years of Folly

Law and Politics in Contemporary Japan

Professor Norikazu Kawagishi

Autumn Semester 2013-14

While 5 February 2014 will mark exactly 50 years since

the first malapportionment case1 was brought before the

Supreme Court of Japan, it will also mark 50 years of the

judiciary’s reluctance to invalidate government action

that flouts the Constitution. This essay analyses the

Court’s rulings in the 19992 and 20113 cases, and

evaluates the options that it and the public have if they

want to bring an end to the inequality of the value of

the vote.

It matters greatly to the functioning of a democracy

how electoral districts are drawn because the equality of

the value of the vote ensures equal representation

between citizens in the highest legislative body in the

1 18 Minshū 2 at 270 (Sup. Ct., G.B., 5 February 1964), translated byHiroshi Ito and Lawrence Ward Beer in The Constitutional Case Law of Japan: Selected Supreme Court Decisions, 1961-70 (Seattle & London: University of Washington Press, 1978).2 53 Minshū 8 at 1441 (Sup. Ct., G.B., 10 November 1999), translation.3 65 Minshū 207 (Sup. Ct., G.B., 23 March 2010), provisional translation.

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land. The 1994 electoral reform has been shown to have a

significant and positive effect on the distribution of

public funds4, and therefore it is not implausible that

apportionment can seriously affect how national policies

are decided. Nonetheless, the reform created a problem of

its own when as a political compromise5, it adopted the

“plus one” system6 instead of the “maximum remainder”

system7. The “plus one” system was supposedly a buffer to

the effects of the “sudden decrease of the number of

seats to be apportioned to less populated prefectures”,

4 Using municipal level data, which goes beyond prefectural level data, researchers used found that the 1994 electoral reforms smoothened out budget allocation compared to previous years. They also found that where malapportionment remained, disparity in subsidies and transfers per capita remained too. See Yusaku Horiuchi and Jun Saito, “Reapportionment and Redistribution: Consequences of Electoral Reform in Japan” (2003) 47 AJPS 4, 669, 669-682.5 Expressed as part of Miyakawa Koji J’s dissenting opinion (n3) [2].6 Act for Establishment of the Council of the Demarcation of Constituencies for Members of the House of Representatives, art 3(2) provides: “…the number of constituencies for members of the House of Representatives… shall be determined as the number of the members in the House… deducted by the total number of prefectures and allocated to each prefecture in proportion to the numbers of population plus one”.

7 Dissenting Opinion of Shinichi Kawai J, Mitsuo Endo J, Toshifumi Motohara J, and Gen Kajitani J (n2) provides a definition of the maximum remainder system [3] (2): “a system in which the population of a (constituency) is divided by the result of the total numbers of population nation-wide being divided by the total number of seats, and the same number of seats as the integer part of the result are allocated to each (constituency), while remaining seats are allocatedin the order of the size of the decimal part of the result”.

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or otherwise depopulating prefectures8. It raises three

questions: One, if the Diet has the prerogative to

determine what factors are acceptable in the drawing of

boundaries (ie. historical electoral boundaries,

geographical features, etc.), is combating the effects of

depopulation one of these factors? Two, what is an

acceptable ratio of the value of the vote; is it 1:29 as

the law on electoral demarcation10 stipulates, or is it

unwise to establish absolute maximums? Three, if the

ideal ratio of 1:1 is the best expression of the equality

of the value of the vote, should prefectural boundaries

be ignored so as to achieve maximum equality? While the

majority opinion itself does not display a clear stance

over all three questions, the dissenting justices express

even more variation. I shall state my position on all

8 According to the government, “it (is) necessary to secure equality in the value of votes, but it (is) important as well t give consideration to depopulated areas, or more specifically, consideration to the sudden decrease in the number of seats to be apportioned to less populated regions, … for the purpose of ensuring that the opinions of people living in less populated prefectures would be reflected fully in national politics”. See (n3) Reasons for the judgment [3].9 A ratio expressed, as Horiuchi and Saito (n4) puts it, as “…the maximum over the minimum number of seats per capital”, 671. In this essay the ratio will refer to the maximin of constituencies, not prefectures.10 (n6).

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three questions and rebut – as completely as I am able to

– unpersuasive arguments made by both the majority and

the dissenting justices.

ONE

The first question, on whether the Diet’s discretionary

powers include designing the electoral system to

accommodate policies against depopulation, is quickly

answered with an unequivocal yes in 1999. In 2010

however, the judgment is more nuanced because it denied

the Diet powers to enforce the “plus one” system beyond a

“limited period of time”11, deeming the system “contrary

to the constitutional requirement of equality in the

value of the votes”12. Still it declined to call the “plus

one” system unconstitutional because it had held in 2007

that the system was constitutional. While Justice Sudo

Masahiko’s opinion was filed as a concurring opinion and

he terms them “supplementary comments”, his argument sits

diametrically opposite of the position held by the

majority. I find it the most convincing rebuttal because

11 (n8), [3] (3).12 (n8), [4] (4).

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it deems the inclusion of depopulation policies as ultra

vires13. Justice Sudo’s argument is two pronged. He first

argues that giving special consideration to depopulated

areas contravenes Article 43(1) of the Constitution,

which provides that Diet members should be

“representative of all of the people”. Then he adds that

there are “large numbers of policy issues that are

important or high in priority… and that are related to

the minority or the vulnerable”, and reasons that if each

of these issues are to be considered in electoral

apportionment, there would be no end to the number of

reserved seats required for each issue. I will first

explain why I disagree with his interpretation of Article

43(1), before explaining why I agree with the second part

of his argument.

In supporting the appellants’ view that the “plus

one” system contravenes Article 43(1) of the

Constitution, Justice Sudo appears to echo the 1999

ruling by applying an extremely narrow interpretation of

13 Or in Sudo J’s (n3) words, “cannot be justified as being reasonable”, [1].

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the Constitution14. I argue that it is impossible for

Article 43(1) to intend that individual members of the

Diet cannot represent their own constituencies, because

the purpose of a parliament is to allow the constituents

of a constituency to be represented. In the pursuit of

their own constituencies’ interest, it is inadvertent

that the representatives will collectively act in the

national interest15. Besides it being impossible to expect

a Member from Sapporo to understand the interests of

Okinawans in Naha for example, this narrow interpretation

of Article 43(1) is unenforceable because there would be

no way to censure Members for speaking up for minority

interests. The Members ultimately are “bound by the

instructions of particular voters” – in other words their

Constituents – because they can only retain their seats

if they retain support within their constituencies.

14 The 1999 ruling (n2) defines Art 43(1) as meaning that “inherently, members of both houses, regardless of the method of election, are representatives of all the people and not representatives of a specific class, party, or local inhabitants, andis mandated to act for all people in an independent way without beingbound by instructions of the voters.” 15 Therefore, I also regard the counterargument raised by Takeuchi Yukio J (n3) in his concurring opinion as moot, because my interpretation of “the principle of national representation” does notallow for Members to individually represent all of the people “without being bound by instructions of particular voters” [1].

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Furthermore, in reality political parties greatly

influence the extent to which representatives can

accurately represent their own constituents. As these

party or factional preferences may override even the

national interest, it is unrealistic to expect Members to

properly represent “all of the people”. Hence I do not

agree with Justice Sudo in his use of Article 43(1) as a

reason for the rejection of the inclusion of depopulation

as a factor in the design of the electoral system.

However, the second part of his argument remains

persuasive. Consider two other “highly political”16 and

geographically influenced major policy issues Japan faces

besides depopulation of rural prefectures: opposition to

nuclear power plants, and opposition to U.S. bases. If

the majority argument that the Diet may consider as part

of the apportionment process any factor it deems

reasonable is consistent, then the majority would agree 16 Furuta Yuki J (n3) agrees in the 2010 judgment with the 1976 ruling, which stated “the issue of how to assess (depopulation) and how to reflect (it) in the demarcation of constituencies and the apportionment of seats, while taking into consideration the necessityof maintaining political stability, is one of the highly political factors that the Diet is authorized to take into consideration”, [2].The mention of “highly political factors” hints at the belief that the judiciary should not interfere with any political matters. This belief is erroneous because the fundamental rights of the people enshrined in the Constitution, rights the Supreme Court is bound to safeguard, are in themselves political.

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to the temporary boosting of Diet seats for

constituencies with nuclear power plants and U.S. bases,

just as it had done for depopulating prefectures. Thus

there is no basis for the arbitrary selection17 of

depopulation as the only non-demographic factor in the

design of the electoral system. In the first place, these

policy issues should be discussed in the Diet only on the

basis of the equality of the vote, because allowing

policy to affect the design of the electoral system

prevent the issues themselves from receiving a fair

debate18.

TWO

The second question is whether absolute ratios ought to

be criteria for unconstitutionality. As maximin ratio

focuses on outlying data and ignores the overall level of

malapportionment, the Loosemore-Hanby index may be a

better measure. With this index, Japan’s case seems less

alarming: in 1995, the lower house scored 0.0462 (meaning

that 4.62% of the total number of seats were 17 A view held by Miyakawa J (n5) [3].

18 The dissenting opinion in 1999 (n2) also expresses this opinion [3] (4) (iii).

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malapportioned)19; in comparison, the United Kingdom

scored 0.045620, and advanced industrial democracies

scored a mean of 0.0421. In 2000, the lower house scored

just 0.024722. Though these scores place Japan safely in

the average range, it does not mean that the Japanese

people do not deserve more equality where the vote is

concerned. On the contrary, attention should still be

paid as to what factors caused the disparity.

Yet by 1995, the Court had implicitly settled on 1:3

as the upper boundary of constitutionality23. In 1999 it

found neither the ratios of 1:2137 nor 1:2.30 to be

unreasonable though it acknowledged that a maximum of 1:2

had been provided for in the law24. It is therefore clear

that the Court recognises that the only acceptable range

lies between 1:1 and 1:3, accepting that even 1:2 is

19 David Samuels and Richard Snyder, ‘The Value of a Vote: Malapportionment in Comparative Perspective’ (2011) 31 BJPS 4, 660.

20 (n19) 661.

21 (n19) 659.

22 (n4) 671.

23 William Somers Bailey, ‘Reducing Malapportionment in Japan’s Electoral Districts: The Supreme Court Must Act’ (1997) 6 Pac.Rim L.&Pol'y J 169, 181.

24 (n6) art 3(1).

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reasonable merely because the legislature had deemed it

so. This conception of equality of the vote is erroneous

because a maximum ratio should not even be implicitly

considered; any unjustified inequality in the value of

the vote is unacceptable, and the acceptance of a maximum

ratio gives credence to the Diet’s arbitrary 1:2 ratio.

The danger of accepting a maximum ratio is clearly

demonstrated by the Council of the Demarcation of

Constituencies for Members of the House of

Representatives’s disingenuous proposal in March 2013 to

keep the maximin ratio just below 1:2. Its proposal will

create a maximin ratio of 1.99825, while retaining the

“plus one” system that the Court had ruled “contrary to

the constitutional requirement”26.

THREE

The third question is if prefectural boundaries ought to

be ignored so as to achieve maximum equality. Although I

share Justice Hiroshi Fukuda’s view that 1:1 is the only 25 Editorial, ‘A makeshift reapportionment plan’ The Japan Times (Tokyo:1 April 2013), <http://www.japantimes.co.jp/opinion/2013/04/01/editorials/a-makeshift-reapportionment-plan/#.UsL0CHmgfwI>.

26 (n12).

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ratio that should be a criteria for constitutionality

because it signifies the perfect equality of the vote27,

and I also agree that “prefectures are basically

administrative divisions”, I cannot completely agree with

his view that only “purely technical grounds” are

acceptable exceptions28. His dissenting opinion does not

make it clear if he regards even the smallest

administrative units like townships and villages as

ignorable administrative divisions, or if he only meant

ignoring prefectural divisions in the demarcation of

electoral constituencies. The argument would be

consistent if even the smallest administrative units were

to be disregarded, because then almost absolute equality

of the vote would be realised. Of course even then

discrepancies between actual voters and census

predictions will continue to exist, but it would be

recognition that no arbitrary administrative divisions

should affect electoral boundaries. However, this would

cause some townships and villages to be split into

different constituencies. Besides creating logistical

27 (n2) [1].

28 ibid.

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problems for election candidates who wish to canvass for

votes, it also creates confusion and a feeling of a

different kind of arbitrariness: if all administrative

divisions are ignored, how would an individual voter know

if boundaries had been demarcated fairly or if the

boundaries had changed due to gerrymandering? Hence, it

stands to reason that a demarcation process that takes

into account administrative divisions, short of

prefectural divisions, should be considered an acceptable

factor.

Yet any opinion about the three questions discussed above

is of no consequence if the Court does not regard itself

as a check and balance on the legislature and the

executive. There are numerous examples of the Supreme

Court’s reluctance to hear constitutional cases29, and

multiple instances where it has been completely ignored

by the Diet. A striking example is the March 2013

apportionment proposal, which disregarded the 2011 ruling

29 Shigenori Matsui attributes this to “demanding case and controversy requirement” and an aversion to “highly political questions”, both of which point to the self-restraining nature of theCourt. See Matsui, ‘Why is the Japanese Supreme Court So Conservative?’ (2011) 88 Wash. U. L. Rev. 6, 1375, 1380-1388.

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that the “plus one” system is “contrary to constitutional

requirements”30. Separately, the Court has also used the

reasonable time doctrine as a means to refrain from

declaring the unconstitutionality of laws. As with its

acceptance of depopulation as one of the factors that

should affect electoral apportionment, it has accepted

that the Diet’s discretionary powers include a relaxed

time frame for the correction of unconstitutional laws.

The reasonable time doctrine creates a paradox where laws

can be deemed “contrary to the constitutional

requirement” – in other words: unconstitutional – yet at

the same time remain constitutional just because a

generous time frame should be considered where the Diet

is concerned. As a result, the Diet has been shown to

revise electoral rules in an extremely delayed fashion31.

50 years of debate on the equality of the vote

demonstrate something more worrying: that the Supreme

30 (n25).

31 On the other hand, Bailey (n23) regards these revisions as a clearindicator of the Diet’s role in electoral design, because the Diet’s revisions have always resulted in the maximin ratio of less than 1:3.As this ratio was recogised even before its own laws designated 1:2 as the legal maximum, it is indication that the court’s implicit ratio of 1:3 set in the years preceding the 1994 reforms were an effect on the Diet’s decisions. See Bailey, ‘Reducing Malapportionment in Japan’s Electoral Districts’, 193.

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Court does not believe it should have any supremacy over

Diet decisions, merely because it should distance itself

away from politics32. The Supreme Court has to recognise

that it is the ultimate protector of the Constitution;

apart from administering justice according to the law, it

is obligated to ensure that the laws in themselves are

just, in that they respect the fundamental rights of the

person as enshrined in the supreme law of the land.

Though Article 41 of the Constitution, which states that

“The Diet shall be the highest organ of state power, and

shall be the sole law-making body of the land” appears to

declare the supremacy of the Diet, Article 81, which

provides that “The Supreme Court is the court of last

resort with power to determine the constitutionality of

any law, order, regulation or official act” demonstrates

that the Supreme Court has room to maneuver where

unconstitutional laws are concerned. The Constitution may

be said to recognise then the supremacy of both the Diet

and the Supreme Court. At first glance, this appears to

be contradictory, but this contradiction is intended,

because a constant struggle between powers embodies human32 (n29).

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frailties in a bid to escape the forces of tyranny. By

allowing the legislature to reign supreme, Japan risks

ignoring the lessons of history, that “constitutional

systems centered on legislatures failed as democracies

and fell into dictatorial government”33.

As the reluctance of the justices to overturn laws

and government action may be attributed to systemic

issues, some have suggested using the mechanism mandated

by Article 79 of the Constitution34 to dismiss ineffective

judges via the popular vote35. However, any supporter of

this move cannot at the same time acknowledge the

independence of the courts from tyrannical majority rule.

Here I fundamentally disagree with Justice Hiroshi, who

asserted in his 1999 dissenting opinion that “the

principle of rule by majority… is the basis of modern

33 Ōnishi Kunitoshi's assertion in the investigation of the 1956 Commission on the Constitution. See John M Maki, Japan’s Commission on theConstitution: The Final Report (University of Washington Press, 1980), 293.34 Art 79: “The appointment of the judges of the Supreme Court shall be reviewed by the people (and) again… after a lapse of ten (10) years, and in the same manner thereafter. In cases… when the majorityof the voters favors the dismissal of a judge, he shall be dismissed.”

35 A leading campaigner for the popular review of justices is Hidetoshi Masunaga. See Tokuji Izumi, ‘Concerning the Japanese Public's Evaluation of Supreme Court Justices’ (2011) 88 Wash. U. L. Rev.6, 1769, 1771-1775.

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democracy”, because majoritarian democracy is not

constitutional democracy. The aim of majoritarianism is

power for the people, but constitutional democracy exists

to protect the fundamental rights of all of the people,

and does not require direct elections for each of its

institutions36.

Hence the the only remaining strategy of the

principled citizen is to protest and educate their fellow

citizens of the dangers of a self-restraining court in

the hope that the justices themselves will gain

confidence to protect the fundamental rights of the

36 This view is held by Mikihisa Takano, who quoting Am. Fed. of Labor v. Am. Sash & Door Co., 335 U.S. 538, 555 (1948), wrote: “If we understand that the core of democracy exists in majoritarianism and that the organ which determines public policy should always be an organ which bears direct responsibility to the electorate, “(the) Court is not saved from being oligarchic because it professes to act in the service of humane ends.” However, if… the object of democracy existedin the protection of freedom and existence of people, especially of minorities by limiting arbitrariness of the present majority… we can view that judicial review is a rather democratic institution. See Mikihisa Takano, The Theory of Avoiding Decision of Constitutional Issues: A Comparative Study of Judicial Self-Restraint in American Courts and Japanese Courts (Shizansha Publishing Co., 1992), 83.

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people through judicial review37, 38, and for politicians

to realize that any effort on their part to enact pure

legislative supremacy will be rejected by their

constituents. In other words, the onus is now on the

Japanese people to end 50 years of self-restraint and

halt the erosion of their fundamental rights.

37 Because the legislature, being elected through a majoritarian process, will neglect “areas of the law where political processes prove inadequate”, and since legislation that ignores the equality ofthe vote already exists, “the base and processes of democratic government are itself impeded and placed under functional disorder, and accordingly the amendment or removal of that unwise law will havebecome no longer capable.” See (n36) 84.

38 Merely comparing the Japanese Supreme Court to its U.S. counterparts is inadequate. A better inspiration to Japanese justiceswould be the British judiciary, who without a written constitution, came to garner support from the British people after the First World War and establish a tradition of judicial supremacy. See Yasuhiro Okudaira, ‘Forty Years of the Constitution and Its Various Influences: Japanese, American, and European’ (1990) 53 LCP, 17, 42.

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Bibliography

Legislation

The Constitution of Japan, 1946

Act for Establishment of the Council of the Demarcation of Constituencies for

Members of the House of Representatives, 1994 Rev Ed

Cases

18 Minshū 2 at 270 (Sup. Ct., G.B., 5 February 1964),

translated by Ito H and Beer LW in The Constitutional Case Law of

Japan: Selected Supreme Court Decisions, 1961-70 (University of

Washington Press 1978)

53 Minshū 8 at 1441 (Sup. Ct., G.B., 10 November 1999),

translation

65 Minshū 207 (Sup. Ct., G.B., 23 March 2010), provisional

translation

Books

Maki JM, Japan’s Commission on the Constitution: The Final Report

(University of Washington Press 1980)

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Takano M, The Theory of Avoiding Decision of Constitutional Issues: A

Comparative Study of Judicial Self-Restraint in American Courts and Japanese

Courts (Shizansha Publishing 1992)

Journal Articles

Bailey WS, ‘Reducing Malapportionment in Japan’s

Electoral Districts: The Supreme Court Must Act’ (1997) 6

Pac.Rim L.& Pol'y J, 169

Horiuchi Y and Saito J, ‘Reapportionment and

Redistribution: Consequences of Electoral Reform in

Japan’ (2003) 47 AJPS 4, 669

Izumi T, ‘Concerning the Japanese Public's Evaluation of

Supreme Court Justices’ (2011) 88 Wash. U. L. Rev. 6,

1769

Matsui S, ‘Why is the Japanese Supreme Court So

Conservative?’ (2011) 88 Wash. U. L. Rev. 6, 1375

Okudaira Y, ‘Forty Years of the Constitution and Its

Various Influences: Japanese, American, and European’

(1990) 53 LCP, 17

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Samuels D and Snyder R, ‘The Value of a Vote:

Malapportionment in Comparative Perspective’ (2011) 31

B.J.Pol.S. 4, 651

Newspaper Articles

Editorial, ‘A makeshift reapportionment plan’ The Japan

Times (Tokyo, 1 April 2013)

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Documents

Fifty Years of Folly: The Self-Restraining Supreme Court and the Elusive Equality of the Vote