The Sloppy and Unconstitutional Revision of the Public Offices Election LawPolitics Society
Rushed Through the Diet in Four Days
On July 28 this year, a bill revising the Public Offices Election Law was approved by the House of Representatives and became law. The revision was originally submitted to the House of Councillors on July 23; excluding Saturday and Sunday, the two houses of the National Diet thus took a mere four days to enact the legislation.
Up to now, each of Japan’s 47 prefectures has been a regional electoral constituency for the House of Councillors. But under the revised law, two pairs of prefectures were merged: Shimane and Tottori in western Honshū became a single regional district, and so did Kōchi and Tokushima on the island of Shikoku. (These are the four least populous prefectures; the mergers were part of a reapportionment plan to reduce the vote disparity among the upper house constituencies.)
The House of Councillors is one of the two chambers of the Diet, which the Constitution defines as “the highest organ of state power” (Article 41). Its members represent not merely their particular districts but the people of the nation as a whole. Legislation revising the electoral system for these representatives of the people was enacted in great haste without serious deliberation. The handling of this revision was altogether too rough and heavy-handed.
Local Concerns Ignored
Article 51 of the Diet Law includes this provision: “A Committee may hold open hearings on important matters of popular concern and for general purposes, and may hear views from the interested parties or people of learning and experience.” And it has been customary to hold such hearings when considering matters of weight concerning national government. I believe that the deliberations on the revision of the upper house electoral system under the Public Elections Law ought to have been accompanied by hearings not just within the Diet but also in the prefectures affected by the change. But no such effort was made to listen to the opinions of local citizens.
Naturally, many people in the affected prefectures are uneasy about the change. The loss of a representative elected from their own prefecture may mean that their earnest appeals will go unheard, and they could end up being ignored by the national government. I asked a legislator I know in the ruling Liberal Democratic Party about these concerns. He reported that the party had listened to opinions from the prefectures in question; initially there was some strong dissatisfaction, but the party was able to gain general approval for the change by explaining the matter carefully and presenting the outlook for relief measures. So it was all right, he said.
LDP: Eager Only to Protect Its Own Members’ Jobs
But the “careful explanation” to which my acquaintance referred was delivered mainly to local assembly members belonging to the LDP, not to ordinary voters. And the relief measures that the party presented apparently were no more than provisions for the sake of current Diet members. The details have not been revealed, but they are said to involve consideration for national legislators who will lose their present seats as a result of the mergers, probably by switching them to the LDP’s list of proportional-representation candidates (in addition to 146 members elected from regional [prefectural] districts, the upper house has 96 members elected nationwide by proportional representation). So the “relief” is no more than protection of the Diet members’ jobs. This may satisfy the legislators from the affected prefectures, but it can hardly clear away the concerns of local residents.
According to media reports, the LDP is going to consider an arrangement that will guarantee seats for the legislators shifted to the proportional-representation list. Simply adding them to the list of candidates is not enough to assure they will get seats. Under the current electoral system for the upper house, the proportional-representation seats are filled using an “open list” system, under which the parties cannot set the order of the candidates on the list in advance. Voters can cast their ballots for individual candidates, and seats are assigned to those who win the most votes. This system reportedly could be modified to allow each party to specify the top five candidates in its list. It is apparent that the political establishment cares little about the concerns of local residents and is devoting its attention to the protection of its own members’ jobs.
The Unprincipled Expediency of the Revision
The rough and heavy-handed revision of the Public Offices Election Law has set the stage for serious problems in the future. One problem is that it provides no principled basis for dealing with future changes in the relative sizes of prefectural populations.
This time the regional districts targeted for district mergers because of their low populations happened to be neighboring pairs of prefectures—Shimane-Tottori and Kōchi-Tokushima—so it was possible to create new districts simply by sticking them together. But what if the districts targeted because of low populations were, say, Saga Prefecture (on Kyūshū in the west) and Yamanashi Prefecture (in central Honshū)? Surely it would be impossible to combine such a pair into a single electoral district. So what will be done? Will it be a matter of waiting patiently until one of their neighbors also falls into the merger-target category? Or will their district be merged with that of a neighboring prefecture regardless of the latter’s size?
Most prefectures have multiple neighbors, but the revision does not provide any sort of rules for determining which neighbor a low-population district would be merged with for upper house electoral purposes. In Saga’s case, for example, would its district be merged with Nagasaki’s to the west or Fukuoka’s to the east? There is no telling what would be done in such cases. I guess the idea is to let matters ride for now and come up with additional ad hoc decisions when it becomes necessary to do so.
Even this time, surely it would have been possible to consider options other than simply sticking the two pairs of neighboring prefectures together. For example, the Shimane district might have been combined with Hiroshima and the Tottori district with Okayama, their respective neighbors to the south. Such mergers could have served just as well to reduce the disparity in vote values. The Diet ought to have listened to local residents’ opinions about such alternatives before reaching its decision.
Just for reference I would like to share a bit of local history from Tottori, where I formerly served as governor. This prefecture was incorporated into Shimane Prefecture for a period of five years starting in 1876. But the combined prefecture was long and narrow, stretching far from east to west, and travel was inconvenient. A strong independence movement arose in the eastern part of what had been Tottori Prefecture, and this led to the reestablishment of the prefecture on September 12, 1881. September 12 is now Tottori’s “prefectural citizens’ day” with observances of various sorts around the prefecture. I wonder how many Diet members know about this delicate historical background.
The Mergers’ Dubious Constitutionality
I believe that the recent merger of upper house electoral districts is actually unconstitutional. This is related to the ad hoc nature of the revision that was enacted. Article 95 of the Constitution stipulates, “A special law, applicable only to one local public entity, cannot be enacted by the Diet without the consent of the majority of the voters of the local public entity concerned, obtained in accordance with law.” Here “one local public entity” means “a particular local public entity” (such as a prefecture or municipality), and the provision applies even if there are plural entities involved. The intent of this article is to prevent a Diet majority from enacting laws that impose unequal or disadvantageous treatment only on some particular local public entity or entities.
The revised Public Offices Election Law treats the 43 prefectures other than Shimane-Tottori and Kōchi-Tokushima as single districts for the upper house; these four prefectures alone have been merged into two-prefecture districts. So the upper house will no longer have members elected separately from each of these four prefectures. This can certainly be labeled unequal and disadvantageous treatment of particular local public entities. So the revision needed to be approved by referendum in each of the affected prefectures before its enactment by the Diet. But this was not done. And that is why I consider the measure unconstitutional.
It would have been a different story if the revision had stipulated a clear set of rules for the merger of upper house districts, rules that would automatically merge two electoral districts whenever some prefecture’s population fell below a set level. Under that sort of legislation, any prefecture would become the target of a district merger if at some point its population fell below the legally set standard, and so it could not be said that the four prefectures whose districts were merged this time had been singled out for unequal or disadvantageous treatment.
But as we have seen above, the sloppy, hastily enacted revision contains no such set of rules. Instead, the law treats the four affected prefectures as special cases. It is as if they had been singled out for unfavorable treatment. I might also point out that an annex to the revised law calls for ongoing consideration of a comprehensive revision of the electoral system in advance of the 2019 House of Councillors election. With this, the Diet has effectively admitted that the recent revision is not based on rules and principles.
The revision may avert lawsuits challenging the constitutionality of next summer’s upper house election on the grounds of excessive disparities in the value of votes. But we could see constitutionality suits based on new grounds. The Diet’s sloppy handling of this extremely important piece of legislation is liable to have serious consequences.(Originally written in Japanese and published on October 2, 2015. Banner photo: LDP upper house leader Mizote Kensei [third from left] and Japan Innovation Party upper house leader Katayama Toranosuku [third from right], hand their parties’ joint proposal for revision of the Public Offices Election Law to House of Councillors Secretary General Nakamura Takeshi [center] on July 23, 2015. © Jiji.)