1. Is a general election possible?
People expect the House of Representatives to be dissolved and a general election to be held soon. As many experts have already pointed out, however, the dissolution and general election would be very problematic with respect to the Constitution if this were to be happen.
On March 23 of last year, the Grand Bench of the Supreme Court delivered a judgment that the disparity between constituencies was in a state of unconstitutionality due to the seat allocation by the one seat separation method, which is adopted in the single-member constituency system for the House of Representatives. While avoiding declaring the election result invalid, as ever, the Court demanded that the Diet correct this malapportionment. If a general election were held with this disparity intact, it would be another unconstitutional general election in which the Grand Bench of the Supreme Court is totally ignored, despite the recognition of the obvious state of unconstitutionality.
2. The Constitution and dissolution of the House of Representatives
Article 69 of the Constitution clearly defines a case of the dissolution of the House of Representatives. In this case, the Cabinet dissolves the House of Representatives as a countermeasure to a nonconfidence resolution passed by the Diet. The dissolution based on Article 69 is, however, very rare in the history of the Constitution of Japan. Most cases of dissolution were based on Article 7, the provision regarding affairs of the state carried out by the Emperor. There are various theories explaining why such dissolution is possible, all of which commonly emphasize the democratic factor that dissolution can consult the will of the people as sovereign. The right of dissolution belongs to the Cabinet—not to the Prime Minister—and the Cabinet decides dissolution in a Cabinet meeting session. Because a Cabinet decision must be unanimous, if any ministers are against the dissolution, the Prime Minister dismisses them before holding the Cabinet meeting session.
So, can the Cabinet dissolve the House of Representatives whenever they need to seek the will of the people? Is there any case where dissolution is prohibited by the Constitution? Regarding this point, the Supreme Court has once rejected a suit on the grounds that dissolution of the House of Representatives is solely of a political nature and the Court should not make a judgment on these sorts of matters, even if they could be regarded as legal issues. This is called the theory of political question (Grand Bench of the Supreme Court decision on June 8, 1960). From only this perspective, even if the House of Representatives were dissolved unconstitutionally, it would seem that no one would be able to judge it as such. It is, of course, another story to judge the validity of a general election held following the dissolution of the House of Representatives. If a general election were forced when people knew of its unconstitutionality but failed to remedy the situation, it would be reasonably possible for the Court to take a step further in judging the election result itself to be invalid.
3. Limitation on the right of dissolution
I believe that the right of dissolution itself may be limited under the Constitution in some cases. The right of dissolution has been widely accepted only because it is a means for the Diet to reflect the will of the people as sovereign. If a way of reflecting the people’s will had been judged unconstitutional, it would make no sense to dissolve the House for the purpose of confirming the will of the people. The 1960 Court decision mentioned above stated that the judicial ruling cannot be applied to the execution of the right of dissolution because “it should be regarded as being ultimately entrusted to the people’s political decision.” If the people’s political decision did not work properly and this situation were left untouched even though there was enough time to remedy it, then dissolution of the House of Representatives and a general election held following the dissolution would have to be considered as being outside the political question.
Indeed, there has been only one case where the House of Representatives was dissolved after the Court delivered a decision that the disparity in seat allocation was in an unconstitutional state (Grand Bench of the Supreme Court decision on November 7, 1983). This case is, however, fundamentally different from the current one, because the general election was held only 40 days after the Court decision (the election was held on December 18, 1983). More importantly, the Court currently judges the seat allocation method itself—the one seat separation method—to be unconstitutional, and declares malapportionment to be against the Constitution. In short, the Court stated that the election method itself is unconstitutional, beyond the judgment that the seat allocation is unfair.
4. Unconstitutional dissolution?
The right of dissolution is not subject to the constitutional limitation on the assumptions that a healthy method is adopted for reflecting the people’s will and that the result successfully reflects the will of the people in a democratic way. If the process of incorporating public opinion does not function in a sound manner, the will of the people expressed through such a process—the output—is not sound. When there is a vote-value disparity that cannot be overlooked from a constitutional perspective and this situation is left as it is, seeking the will of the people does not achieve its objective.
If this Court decision were to be ignored this time, it would be a significant violation of the Constitution, which might result in negation of the constitutional order. This would also be a breach of the obligation of Diet members to uphold the Constitution (Article 99). If another election were held by reusing the unconstitutional election system, it would be an expanded reproduction of the constitutional violation. The Constitution would not acknowledge the execution of the dissolution right to intentionally repeat the violation of the Constitution.
Professor, Faculty of Law, Chuo University
Area of Specialization: Public Law
Born in Tokushima Prefecture in 1959. Graduated from the Department of Law, Faculty of Law, Chuo University, in 1982.
Completed the required course work in the Doctoral Program, Public Law Course, Graduate School of Law, Chuo University in 1989. Received a Doctor of Law degree.
Became a Professor, Faculty of Law, Chuo University in 2004 after serving as Associate Professor and Professor at Kochi Women’s University, run by Kochi Prefecture.
Dean of the Faculty of Law since 2009.
Current areas of research and activity include positions of individuals and organizations in the Constitution, modern society and freedom of information, and issues around the right to enact ordinances.
Major publications include Organizations and Individuals in Modern Constitutions [Kindai kenpo ni okeru dantai to kojin] (Fuma Shobo and Shinzansha); Petit Seminar Constitution 1 (Human Rights) [Puchi zemi kenpo 1 (Jinken)] (Hogaku Shoin); Concise Local Autonomy Law [Yokuwakaru chiho jichiho] (co-authored, Minerva Shobo); Basics of the Constitution [Kenpo no kiso] (Hokuju Shuppan); and Explanation of the National Civil Servant Act [Kokka komuin ho no kaisetsu] (co-authored, Hitotsubashi Shuppan).