Tokyo High Court: 2012 Japan election unconstitutional

Professor Kuniaki Nemoto of Waseda University sends along this note, which he kindly agreed to let me post:

The Tokyo High Courts ruled the House of Representatives elections in 2012 as unconstitutional, though the results as non-unconstitutional.

…meaning that the HoR needs to fix the malapportionment, but the MPs elected in 2012 can maintain seats.

If the group appeals to the Supreme Court and the SC would rule both the elections and the results unconstitutional, then I don’t know what will happen, but here are some options:

1. The HoR will be dissolved. It could be argued the entire chamber is unconstitutional.

2. The HoR will have by-elections but only in under- and over-represented districts. Or probably only in SMDs. At least MPs elected on PR should be constitutionally OK.

3. The HoR will fix the rule but won’t have the by-elections, because it could be argued overturning voters’ decisions, however malapportioned they were, should be undemocratic and unconstitutional.

The link to the story Kuni is referring to (in Japanese):

4 thoughts on “Tokyo High Court: 2012 Japan election unconstitutional

  1. An English article by Japan Times is here:

    Basically what makes this matter more complicated is the fact that they need to revise the Public Offices Election Act. Small parties, including the LDP’s partner, the Komeito, always want to use the opportunity to increase proportionality when it comes to revising the Act. The major parties don’t want it, but without the small parties they can’t survive. Thus you always have a deadlock, but it’s an intracoalition deadlock.

    And you can add the conservative nature of the Japanese judiciary, which always tries to let politicians decide political matters.

    [BTW…Don’t call me professor please!!]

  2. This approach seems to be the norm for supreme courts having to rule on whether a legislature was validly-dissolved or validly-elected. The German Constitutional Court did this in 1982-83 when Kohl took a dive in the Bundestag to get an early election; the CC hinted it would shut this door in future, now that notice had been given, but Schroeder got away with the same manoeuvre (deliberately losing a vote of no confidence) in 2005, so it looks like finger-wagging is as far as Karlsruhe will go.

    In Australia, the High Court has indicated that it problem won’t enjoin in advance (and certainly won’t invalidate after the fact) a double dissolution that doesn’t comply with the Const s 57 timetable, but it will annul any Acts that purport to be passed at the subsequent joint sitting.

    There are not that many tools in the judicial toolbox for dealing with unconstitutional electoral laws, especially when the problem is unequal numbers of voters per seat. The perils of judges (or their special masters) re-drawing electoral boundaries have been abundantly seen in the US since 1962. Wiping all the boundaries and ordering elections at large (or at least State/ province-wide, if not nation-wide) might work, at least if PR is used and there are at most a few dozen (rather than hundreds of) seats to fill. If multi-seat districts are already in use, the court could order seats moved from the over- to the under-represented regions (and if any district is below half a quota, order it merged with a neighbouring district so that it warrants at least 1 seat). I believe Alaska already uses a variation of this rule.

  3. It’s not half a quota, it’s within 10% of ideal population for everything but Congress, and as close to equal as possible (meaning within a single person) for Congress.

    In lieu of an independent civil service lead boundary commission, judges are infinitely better than politicians for drawing maps.

  4. This is a perennial problem for Japan. One of the major reasons for the continued dis-proportionality is that every prefecture must be allocated a seat before the remaining seats are then allocated according to population. This ensures malapportionality. In the brief about the unconstitutionality of the election results, the Japan Federation of Bar Associations stated:

    “Though the Act for Establishment of the Council on the House of Representatives Electoral Districts includes a similar provision to our proposal, its Paragraph 2, Article 3 allows a first allocation of one seat to all prefectures regardless of population and this hampers the realization of equality in the value of a vote.

    Today’s ruling pointed out that this one-seat allocation system was introduced to ensure stability and continuity in national politics, and without taking account of this point, it was difficult to reform the election system.”
    See the whole article/brief at

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