Blog of the International Journal of Constitutional Law

Constitutional implications of Japan’s upcoming election

Japan’s Lower House elections will occur in a few days time on August 30. The Liberal Democratic Party (LDP), which has run Japan more or less continuously since its formation since 1955, is widely expected to go down to defeat. The opposition Democratic Party of Japan (DPJ) is expected to take the lead role in a new government, probably in cooperation with coalition partners.

How much of a difference will this make? It is hard to tell. The DPJ is led by former members of the LDP and it is hard to see significant policy differences between the LDP and DPJ. On constitutional reform, for example, when the revisionist faction of the LDP called for amendments a few years ago, the DPJ followed suit with its own proposals for reform that were fairly similar to those pushed by the LDP. (The main symbolic issue there is changing Article Nine, which prohibits maintenance of an army, to reflect current “understandings” of the role of the Self-Defense Forces.) In the current election, there are minor differences between the parties, for example on the size of subsidy per child being offered to spur Japan’s low birthrate, but mostly the issue seems to be about competence rather than policy.

In other ways, however, the prospect of alternation in power is likely to significantly affect the operation of Japan’s political system, in many ways bringing it closer to the formal description of the processes in the Japanese Constitution of 1946. Consider two examples: the role of the Diet and the position of the courts. The Diet is formally the supreme organ of state power and the sole law-making body (Article 41). In reality, Japanese statutes are nearly always drafted by the bureaucracy in cooperation with the LDP, and so the formal legislative process is just that–a mere formality. The Diet has virtually no independent impact on the laws that it passes (and I’m told that legal publishers have been known to publish statutes even before passage, since they are confident the Diet won’t change them). Recently, however, the LDP’s loss of the Upper House has meant that the opposition can block legislation, and in a couple cases this has forced some modification of bills after introduction into the Diet. This trend may continue with the presence of a non-LDP government, perhaps involving a coalition. So the legislature may begin to “matter” in the sense of serving as a true forum for deliberation and policy-making.

Another structural feature concerns the courts. The Constitution (Article 76) provides that all judges shall be independent and bound only by the law. Yet, as Mark Ramseyer and co-authors have demonstrated, Japanese judges pay attention to their superiors in the bureaucratic hierarchy, who in turn are responsive to certain LDP policy interests. What will the fall of the LDP, should it materialize, do for judicial independence? One can imagine that the prospect of alternation in power will, eventually, produce a more independent judiciary, as no political party is in position to consistently discipline the courts.

These are just two ways in which we might see political practice shift more toward the apparent requirements of the constitutional text. On the more visible symbolic issue of Article Nine, however, there is little difference between the DPJ and LDP: both read the clause to allow for a fairly significant defense capability.

Stay tuned and we’ll see what happens August 30!


2 responses to “Constitutional implications of Japan’s upcoming election”

  1. Craig Martin Avatar

    An interesting and timely post – it will indeed be a very interesting time in Japan should the DPJ wrest power from the LDP. On the issue of Article 9, however, I would suggest that there may be a little more difference than is allowed for here.

    It is quite true, I think, that there is little difference between the two parties in terms of desiring amendments to Art. 9(2), so as to legitimize the maintenance of armed forces. But on the issue of Art. 9(1), and the prohibition on the use of force, there is greater difference. The LDP draft amendment proposals tabled in 2005 provided for an amendment that would permit a newly authorized “self-defense military” to participate in “international cooperation operations”, a term that has no meaning in international law. I would argue that it was made deliberately vague to permit the government to participate in both collective self-defense operations, and UN authorized collective security operations, and much else besides.

    The DPJ has yet to formally table its Constitution amendment proposals. But Ozawa Ichiro, until recently the leader of the DPJ, has been very vocal in criticizing the government operations in support of US forces in Iraq. He has a long-standing interpretation of the current Constitution as permitting Japanese participation in UN Security Council authorized collective security operations (which is not the accepted interpretation of Art.9), but not collective self-defense. While arguing that Japan should amend Article 9 to permit Japan to become a “normal” country, he has fairly consistently argued that it should nontheless continue to foreswear collective self-defense, but contribue more fully in collective security operations.

    It may be that once in office the DPJ will feel the full brunt of American pressure, and so fall into line with current government thinking. It will indeed be interesting to see.

  2. Tom Ginsburg Avatar
    Tom Ginsburg

    Thanks for the elaboration, Craig. Indeed, the difference between collective self-defense and UN-authorized collective security operations is an important one.

    One issue will be whether the DPJ, should it take power, actually pursues constitutional reform at all. If the government adopts an interpretation of Article Nine allowing for collective security, there may be little need to expend political capital on formal constitutional amendment, which would require cooperation with the LDP and for so long has been identified as an LDP issue.

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