Waning Supreme Court

Most people were surprised with the decision of the Supreme Court of Japan yesterday, in which majority of fourteen judges acknowledged broad discretion of legislative branch on correcting inequality of “vote value.” Among three options, “unconstitutional and the election was invalid,” “unconstitutional,” and “state of unconstitutional,” the court chose the lightest one, “state of unconstitutional,” about the general election of the House of Representative last December, in which the largest number of constituency for one legislative seat marked 2.43 times larger than the smallest. Some specialists on legal issues indicated defeat of the court to politics.

There are two points for deciding unconstitutionality: unbearable inequality and failure in correction in a rational time period. A common recognition is that the situation is unconstitutional, if both conditions are fulfilled, and it should be determined as a state of unconstitutional, if there is simply an unbearable inequality. After the Supreme Court decided in March 2011 that the election in 2009 had been in “state of unconstitutional,” the legislators kept on failing in finding a solution. Although Prime Minister, Yoshihiko Noda, passed the bill for reforming election districts last November, new constituency was not reflected the election in December. The Supreme Court, however, admitted the effort of legislators for having solution and avoided deciding the election to be unconstitutional.

In the decisions of sixteen high courts in March, fourteen found the election “unconstitutional” and two of them decided it as “invalid.” The rest of two called “state of unconstitutional.” From the tendency showed by high courts, the decision of the Supreme Court had been expected to at least be “unconstitutional,” and possibly the election would be determined invalid. Plaintiffs, most of them lawyers, are frustrated with the decision, saying “The Supreme Court went backward.”

The most negative point shown in the decision was the admission that the Supreme Court had no actual power to amend constituency. It was definitely a renunciation of judicial power on deciding right or wrong about illegal activities. Would the Supreme Court admit an aggressive war exercised by the Government of Japan, because of no actual power for use of force? Examining unconstitutional legislation is the biggest deterrence against excessive exercise of legislative power.

Asahi Shimbun indicated a possible effect of political power in nominating Judges of the Supreme Court. It quoted a comment of a former Judge, which said “There can be a deep consideration of not stimulating politics by excessively strict decisions, because judicial power is always inferior to politics in serious struggles.” Some reports indicated Prime Minister Abe’s ambition to submit the Supreme Court by his arbitrary appointment of Judges.