Dissolution of the House of Representatives of Japan and amendment of the Public Offices Election Act

Two years ago, I discussed the question of the dissolution of the House of Representatives in this column. The main point of my argument was that there were constitutional problems with dissolving the House of Representatives in a way that ignored the ruling of the Supreme Court that the then current state of malapportionment was unconstitutional. The general election held at that time returned the Liberal Democratic Party to power with a landslide victory. The system for electing members of the House of Representatives was later revised, and the largest difference in voting weight was reduced to a ratio of 1 to 1.77.

The recent election was held using the new boundaries, and at the very least it could be described as having avoided a situation of replicating unconstitutionality. However, were there really no constitutional problems with the recent dissolution?

The constitutional debate on House of Representatives elections

Only one reason is permitted under the Constitution for dissolving the House of Representatives. This is when a non-confidence resolution has been passed (or a confidence resolution has been rejected), as set out under Article 69. When a conflict arises between the Cabinet and the Diet, the resolution of such conflict is thereby left to the will of the people as the sovereign right-holders. However, if we look at actual examples of dissolutions carried out under the Constitution of Japan, only four out of a total of 24 dissolutions were carried out under the provisions of Article 69. The reality is that a dissolution will not be carried out under Article 69 unless a split in the ruling party or other extreme unlikely situations arise. In most cases, Article 7 is used as the direct justification for dissolution (without calling on Article 69).

Constitutional theories have come up with a variety of arguments to explain this gap between the text of the Constitution and actual practice, but none have succeeded. The least problematic of these theories is that under the long history of implementing the Constitution of Japan, dissolution under Article 7 has become established as a precedent in case law. It has also been justified using the argument that asking the nation for its opinion is a good thing. If you are unsure about something, the thing to do is to ask the sovereign right-holders. This is a basic assumption of democracy. The recent dissolution of the House of Representatives was carried out under the premise that there is nothing wrong with asking for the nation’s opinion on the policy of postponing the consumption tax increase as the planned date for implementation draws near.

Are there no limitations on the right to dissolve the House of Representatives?

Dissolving the House of Representatives is not the exclusive prerogative of the Prime Minister. The right of dissolution belongs to the Cabinet and requires a unanimous decision of the Cabinet. If even one Cabinet minister opposes the decision there is no choice but to dismiss the minister in question and then obtain a unanimous decision. In fact, there is an example of a dissolution being abandoned because the approval of the Cabinet could not be obtained (under the Takeo Miki Cabinet). Under the Constitution of Japan, dissolution has been planned as a Cabinet countermeasure to a vote of no-confidence passed by the Diet. It is designed as a way of allowing the Cabinet, as the highest executive decision-making body, to ask for the judgment of the nation in cases when a conflict arises between the Cabinet and the Diet.

Accordingly, even if dissolution were to be permitted under Article 7 of the Constitution alone in accordance with case law, there are strong arguments in favor of strictly limiting the conditions under which the right of dissolution may be executed. There is a need for evidence to justify use of Article 7 in this way, including case law and logical arguments, so that an interpretation of the law that differs from the literal text of the Constitution can be accepted. A liberal interpretation of the Constitution cannot be accepted at all times and in all circumstances. It is essential that there are natural limitations to the scope of interpretation. It is inconceivable that the Constitution of Japan allows unlimited dissolution based solely on Article 7.

One politician tried to tackle this question head on. Shigeru Hori graduated from Chuo University’s Faculty of Economics to become a newspaper journalist and then a politician who came to personify mainstream conservatism. During Hori’s time serving as Speaker of the House of Representatives, he gave his opinion on the limits to the right of dissolution. His belief was that there should be limitations on the right of dissolution carried out solely under Article 7. He argued that the situations under which dissolution could occur assumed under the Constitution are limited to those set out under Article 69. However, he also believed that in a situation where dissolution under Article 7 has become common practice it would not be appropriate to adhere to rigidly to the theory that dissolution can only be permitted under Article 69. Hori believed that, nevertheless, there were limits to the execution of the right of dissolution and that there is a need for circumstances to be such that dissolution is both necessary and rational in a way that is equivalent to the situation described under Article 69. This could include such situations as when a budget proposed by the Cabinet fails to gain approval; when legislation has been blocked for a long period of time; when the work of the Diet and national politics has stagnated and a vote of no-confidence has not been submitted for party politics or other reasons; or when an issue has arisen that was not discussed at the previous election and there is a need to refer such question to the judgment of the nation (Isao Sato, “A Warning Against Abuse of the Right of Dissolution: Posthumous Writings of Shigeru Hori [Kaisanken ranyo no imashime: Hori Shigeru no iko]” Hogaku Seminar, June, 1979, p.33).

The necessity and rationality of dissolving the House of Representatives over the issue of consumption tax increase

A parliamentary democracy is a political system that removes itself temporarily from the individual opinions of citizens and sets about creating the national will using methods such as careful deliberation, compromise and adjustment. If the Diet was dissolved every time an important question and national policy arose, the responsibilities of the Cabinet and the Diet under parliamentary democracy could always be avoided and this responsibility would be forced upon the people. Dissolution is one false move away from allowing representatives to abandon their responsibilities to the state and to the people. Perhaps this was what Hori, as a loyal party politician, feared. Behind unrestricted use of the right of dissolution lies the collapse of parliamentary democracy.

Would Shigeru Hori have considered the recent dissolution of the House of Representatives to have been correct? The answer is likely to be no. The recent dissolution of the House of Representatives and resulting general election can only be described as an a way of forcing upon the people a question that the Cabinet and the Diet needed to face up to and abdicating this responsibility. As a result, voter turnout was a record low of 52.66% (Nikkei online version, December 15, 2014).

This implies that 47.34% of the nation felt a certain amount of doubt or uneasiness about the general election. The Liberal Democratic Party only collected 25% of the votes of the electorate as a whole. It is extremely difficult to argue that they have obtained the trust of the nation.

Japanese democracy and parliamentary systems have changed greatly under the electoral system of single-seat constituencies combined with proportional representation. As the authority of party leaders is strengthened and we witness the collapse of the system of two major parties, the execution of an unlimited right of dissolution leaves us with the possibility of a new “one-party system.” If this is what is meant by a “politics that allows decision-making” (kimerareru seiji), I believe the future of Japan is bleak.