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Abe Cabinet’s dissolution of parliament is abuse of power

Koji Tonami
Professor, Faculty of Law, Waseda University

In the run-up to the general election in December 2014, there were no clear issues and most people were uninterested, hence the post-war record low turnout of 52.67% and, predictably, a resounding win for the Liberal Democratic Party and Komeito. That result was just what the Abe administration wanted, having pressed for the dissolution of the House of Representatives and a snap general election with a view to stabilizing its position, in spite of having no good cause for dissolution. This time, however, there was a grave constitutional error in the parliamentary dissolution and general election, namely, the abuse of the right of dissolution. That is to say, the decision to dissolve the House of Representatives fell outside the permitted use of the right of dissolution according to the Constitution on two points: the dissolution was forced through without good reason other than the interest of the ruling party, and it was done without seeing to the pressing issue of the reapportionment of seats first.

1. Abe Cabinet’s actions were unjustified and an abuse of the right of dissolution

Although the Japanese Constitution provides for dissolving the House of Representatives and snap elections, there are clear-cut conditions for the justification, the agent, the timing, and so on. Apart from the House of Representatives passing a no-confidence motion against the government, the Cabinet can also in theory dissolve the House of Representatives at its own discretion, and this has become common. But such a decision should not be completely arbitrary, and there must be some limitation under the Constitution.

The purpose of dissolution is a system of checks and balances between a legislative assembly (in this case, the House of Representatives) and the government, but there must be a very good reason to dissolve a democratically elected body. Dissolution is certainly allowed at the discretion of the Cabinet, but only if it includes the democratic function of “eliciting the people’s opinion.” In other words, dissolution should be a means of confirming confidence of the people when a change in government leadership or some fundamental confrontation on policies occurs. This would be the case if escalating political confrontation occurred within the House of Representatives due to some key political problem, whereas the recent unjustified dissolution is intrinsically unacceptable and a challenge to the democratic legislature.

There was no good cause for dissolution before this election. The ruling LDP and Komeito parties simply decided suddenly in November to dissolve parliament with more than two years of a four-year term remaining, even though they were already in a stable position with more than 300 seats between them, and there was no fundamental political conflict requiring an election. No, to be precise, there were serious points of conflict regarding the right of collective self-defense, the Special Secrecy Law, and the resumption of nuclear power generation, but one-sided political decisions had already been made on these matters so they were not seen as election issues. Meanwhile, the consumption tax delay and Abenomics are not political issues that have captured the people’s interest and cannot be seen as a proper reason for dissolution. This decision to force an election was a purely self-serving move for the ruling parties. The public’s interest in an election without issues was low, resulting in the lowest turnout since World War Two. For this reason, many of the people who did get themselves to the polling places were those who are positive about the current Abe administration, so the situation after the LDP landslide was almost the same as before. I cannot find any possible reason why this election was held.

A parliament should only be dissolved in the case of a serious political confrontation. An unjustified, unnecessary dissolution is pointless, but more than that, it is an abuse of power. The Abe Cabinet bears grave responsibility for dissolving the House of Representatives and forcing an election for its own selfish purposes.

2. Rushing toward a general election without resolving the issue of apportionment

A basic premise of a fair election is ensuring equality of the votes of the people across electoral districts. As things stand now, however, the issue of unfair apportionment of seats in the Diet is being neglected, a situation clearly recognized even by the Supreme Court as unconstitutional. When single-member districts were introduced for the House of Representatives election in 1993, a so-called one-seat special allocation system was adopted, stipulating that a single seat shall be allocated first to each prefecture and then the remaining seats shall be distributed according to the relative populations of prefectures. However in March 2011 the Supreme Court charged this one-seat special allocation system itself to be lacking a rational basis and therefore unconstitutional. In November 2013 the Supreme Court ruled almost identically that the one-seat special allocation system was unconstitutional, but that in the Diet, where some corrective efforts had been made, it was constitutional.

Nevertheless, the recent dissolution of parliament was done very suddenly without reforming the electoral districts. The Cabinet thereby ignored the Supreme Court direction to quickly correct unfair apportionment, and so the rules that form the basis of the election must be judged as unconstitutional. I should also say that the Abe Cabinet’s decision to call a new election without correcting apportionment was a misuse of the right of dissolution and therefore unconstitutional. On this point, there is also a Tokyo High Court ruling (October 19, 1984) that if inequitable apportionment is not corrected, “the Cabinet’s right of dissolution shall be restricted in practice.”

3. Why dissolve parliament without good cause?

The LDP has in fact frequently dissolved parliament without good cause and for their own convenience during their long time in government since World War Two. This is further evidence of the immaturity of Japanese parliamentary politics. Dissolving parliament requires that there be some political confrontation or turmoil grave enough to warrant eliciting the will of the people, but this dissolution without good cause was based on the ruling party’s own interests, namely, extending and bolstering the administration. The Abe Cabinet’s dissolution this time was only conducted with the aim of strengthening Prime Minister Abe’s political footing while ignoring his obligation to correct apportionment, a major premise of fair elections. This is nothing short of the abuse of the right of dissolution by the Abe Cabinet.

Koji Tonami
Professor, Faculty of Law, Waseda University

Professor Tonami graduated from the University of Tokyo Faculty of Law and earned a doctorate from its Graduate School for Law and Politics. He held positions at Nihon University and the University of Tsukuba before joining Waseda University as a professor in 1996. He has served as President of the International Human Rights Law Association, visiting scholar at the University of Munich, visiting professor at the University of Augsburg, head of the Society for German Constitutional Case Studies, and expert panel member for the Examination for First Class Civil Servants. His specialty is constitutional law.
His many publications include:
Course: The Normative Power of Constitutional Law, Vol.1: The Concept and Conditions of Normative Power [Kouza: Kempou no kihanryoku, Daiikkan: Kihanryoku no kannen to jouken] (2013, Shinzan-sha, co-author); Waseda University 21st Century COE Series – The Transformation of Corporate Society and Law Creation 2. Constitutional Foundation of Corporations [Waseda daigaku 21 seiki COE sousho – Kigyoshakai no henyou to housouzou 2. Kigyou no kenpouteki kiso] (2010, Nippon Hyoron Sha, editor); A Simple Introduction to Constitutional Law, 4th Edition [Yasashii kenpou nyuumon, dai 4 han] (2008, Hougakushoin, editor).