Proposed Election Reform Is Still Unconstitutional

Takenaka Harukata [Profile]

[2012.08.24] Read in: 日本語 | 简体字 | 繁體字 |

At a July 25 meeting of the Election System Council of the House of Councillors, the Liberal Democratic Party indicated that it will support the Democratic Party of Japan’s proposal to make several changes to the way members are elected to the upper house. The proposal calls for two seats to be added in Kanagawa and in Osaka Prefectures, bringing those prefectures’ total to eight seats each. This would be balanced by taking two Diet seats away from Fukushima and Gifu Prefectures, reducing them to two seats each.

The LDP’s support for the proposal means that the Public Offices Election Law will be revised to change the number of stipulated election districts, starting with the 2013 House of Councillors election. The change stems from a court decision that the July 2010 House of Councillors election was unconstitutional owing to the high discrepancy between the weighting of votes cast in different prefectures, which was as high as 5.12. Since November 2011, a number of high courts around the country have handed down rulings describing the current distribution of Diet seats as either “unconstitutional” or “potentially unconstitutional.”

The revision to the law aims to bring the discrepancy down to a level no higher than 4.75. The Supreme Court has ruled that the July 2007 House of Councillors election, in which the maximum discrepancy was 4.84, did not violate the Constitution. Based on this ruling, the DPJ and LDP are likely to have reasoned that future elections will be considered constitutional if the discrepancy can be reduced to a level of around 4.75.

Constitutional Problems Remain

Unfortunately, the change proposed by the DPJ violates the Constitution in two ways, making a more fundamental reform necessary.

First of all, any discrepancy in the weight of votes cast in different parts of the country already violates the principle of equality under the law, laid down in Article 14 of the Constitution. Many members of the House of Councillors do not regard this principle as one worth insisting on: As Diet members, they regard themselves as representatives of their prefectures. But the Constitution itself does not define the House of Councillors as an assembly that represents geographical districts.

The basic principle of the Constitution is democracy. And the basic means of making decisions under a democracy is by a majority vote. Diet members exercise the right to vote based on a mandate from the residents of their electoral districts. This means that if districts with smaller populations are over-represented, members representing a minority of the population might form a majority in the House of Councillors. This would be against the Constitution.

The Supreme Court has also ruled that “great inequality existed” among the value of votes cast in the 2007 House of Councillors election and has underlined the need for comprehensive electoral reforms.

Mobilizing the House of Representatives

In order to make each vote count the same there is no alternative but to revise the current system in which election districts are determined according to prefecture. One possibility would be to introduce a new system of electoral districts by dividing the country into a number of regional blocs. This would have the additional advantage of further differentiating the system from that used to elect the House of Representatives.

No progress will be made with election reform, however, if responsibility for it is left in the hands of the House of Councillors. Thus, I expect the members of the House of Representatives to be involved in carrying out necessary reforms. Members will have to set aside partisan differences if they are to bash out a series of reforms to make sure that the upper house is elected in a way that accords fully with the principles of the Constitution. The House of Councillors may vote down an election reform bill, but the House of Representatives can override opposition from the upper house through a two-thirds majority vote. The House of Representatives has a responsibility to use all the means at its disposal to overcome opposition from the upper house and bring about this vital reform.

(Originally written in Japanese on July 30, 2012.)

  • [2012.08.24]

Professor at the National Graduate Institute for Policy Studies. Graduated from the University of Tokyo, where he majored in law. Joined the Ministry of Finance. Subsequently received his PhD in political science from Stanford University. Author of Sangiin to wa nani ka (What Is the House of Councillors?) and other works. Member of the editorial committee.

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