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Written by Joel Rheuben (LLM candidate UTokyo, LLB/BA (Hons) Syd, Solicitor (NSW))

The 21 July 2013 election for the House of Councillors, the upper house of Japan’s Diet, has reversed the status quo of the past several years by providing the governing parties with a majority in both houses. As Tobias Harris rightly points out, possibly pre-prepared descriptions of the victory as a “landslide” fall wide of the mark. Prime Minister Shinzo Abe’s Liberal Democratic Party (LDP) did not achieve a majority in its own right, and will continue to be dependent on the support of its coalition partner, Komeito. The majority also falls well short of the two-thirds that would have allowed Mr Abe to more easily realise his cherished goal of initiating a referendum for constitutional amendment. Nevertheless, this election result does have some constitutional and practical significance.

Following the 2007 House of Councillors election, Japan suffered from an almost perpetual “twisted Diet” (nejire kokkai), whereby the parties that enjoy a majority in the House of Representatives do not have control of the House of Councillors. At that election, which took place during Mr Abe’s first term as prime minister, the then-opposition Democratic Party of Japan (DPJ) became the largest party in the House of Councillors, and fashioned a loose alliance with other opposition parties to deny the LDP-Komeito coalition a majority. The DPJ then won the 2009 House of Representatives election, but its brief dominance of both houses was soon reversed in 2010, when conservative parties once again took the upper house. The LDP’s victory in the December 2012 House of Representatives election put it in much the same position as the DPJ after 2009.

As this short summary reveals, there have been Diet elections in five of the past seven years. This staggering of upper and lower house elections means that opposition-controlled upper houses are not only practically able to block legislation, but can also regard election results as a mandate to do so. Certainly after 2010 the LDP took every opportunity to frustrate the DPJ’s legislative agenda, creating a two-year paralysis.

The Japanese Constitution makes provision for such outcomes. On certain matters – namely, the designation of the prime minister, the passing of the budget and the conclusion of treaties – resolutions of the House of Representatives prevail where both houses cannot reach agreement within a certain number of days. At a bare minimum, this prevents the House of Councillors from crippling the executive. Article 59 of the Constitution also allows the House of Representatives to force through bills that have been rejected by the House of Councillors by passing them for a second time with a two-thirds vote.

In the 2012 election the LDP took 294 of the 480 seats in the lower house – just shy of a two-thirds majority in its own right. Komeito’s 31 additional seats bring the coalition just over the line. This means that, even without a victory in Sunday’s election, Mr Abe could have overcome the “twisted Diet” to push through vital legislation. Following the LDP’s loss in the 2007 House of Councillors election, the Fukuda and Aso governments passed a total of 18 controversial bills by relying on Article 59. However, both governments were strongly criticized for this tactic, which was seen as a repudiation of the popular will in gifting the upper house to the opposition, as well as unduly aggressive. Popular outrage at the over-use of Article 59 was one factor that led to the LDP’s drubbing in 2009. The electoral victory on 21 July 2013 therefore allows the Abe Government to pass legislation without this risk.

Article 59 does not, however, apply to resolutions to initiate constitutional amendment. For this, Article 96 of the Constitution requires approval by two-thirds of both houses. It is therefore this provision that Mr Abe announced his intention to seek amendment of first, so as to potentially clear the way for later amendments of other provisions.

Only three of the major parties openly supported amendment of Article 96 prior to the election – the LDP, the right-wing Japan Restoration Party, and the centrist Your Party – while Komeito expressed a more cautious stance. Even without Komeito, the three parties have between them more than two-thirds of the seats in the lower house. However, the Japan Restoration Party in particular was punished for a series of gaffes by its co-leaders Toru Hashimoto and Shintaro Ishihara, leaving the pro-amendment parties with only 142, or 59%, of the 242 House of Councillors seats.

Due to a rare break in the electoral cycle, the LDP will now not face the voters for another three years. If Mr Abe still hopes to push for constitutional amendment, as his victory speech implied, his best hope may be to wait for the slow disintegration of the DPJ without the disciplining effects of a looming election, and to convince enough of its 59 remaining councilors to join his cause.

BONUS TRIVIA: Amidst the somewhat anti-climatic outcome of this year's election were two interesting changes of the guard. The first was the departure of Finnish-born Marutei Tsurunen (née Martti Turunen), the first Diet member of European origin. Mr Tsurunen had entered the House of Councillors after the 2001 and 2007 elections on the DPJ’s proportional ticket, but was ranked too far down the ticket to survive on Sunday. On the other side of the ledger, colorful former pro-wrestler Antonio Inoki was elected to the House of Councillors for a second time, representing the Japan Restoration Party (Mr Inoki was previously elected in 1989 as a member of the “Sports and Peace Party”). In 2012 Mr Inoki announced that he had converted to Islam, making him the first Muslim Diet member, as well as (almost certainly) the first wrestler to have fought Muhammed Ali.

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Japanese Law in Asia-Pacific Socio-Economic Context
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