Concerning the Japanese public's evaluation of Supreme Court justices.

• Author: Izumi, Tokuji
• Position: Symposium: Decision Making on the Japanese Supreme Court

I

The Japanese Election Law fixes the size of the House of Representatives (Lower House) at 480 members, with the further requirement that 300 of its members shall be elected through single-member constituencies, and the remaining 180 seats shall be filled through multidistrict elections (1) on the basis of proportional representation. For the single-constituency elections, the population effectively represented by a congressman (i.e., the population-per-constituency ratio) varies widely between districts and heavily favors rural areas and small towns over major cities. For instance, in large cities like Tokyo and Osaka, a congressman represents a group of electorates that is twice that of small towns. This amounts to dilution of voting power, effectively rendering the vote of a large-city resident worth only half a vote.

Similarly, the election law fixes the size of the House of Councilors (Upper House) at 242 members: 146 of its members are to be elected through prefectural-district elections, while the remaining 96 seats are to be filled through nationwide elections on the basis of proportional representation. For the prefectural-district elections, the population effectively represented by a councilor (i.e., the population-per-constituency ratio) varies widely between districts and favors less densely populated areas. For instance, in large cities like Tokyo and Osaka, a councilor represents constituencies that are five times the population size of those found in small towns. This, likewise, amounts to dilution of voting power, effectively making the vote of a large-city resident worth only one-fifth of a vote.

Such disparities in voting power clearly violate the equality guarantee of the Japanese Constitution. (2)

However, like the legislatures of many other nations, the Japanese Diet fails to reform the election laws on an ongoing basis in order to ensure that voting power remains evenly distributed across citizens regardless of where they live. In fact, for such reform to take place, the voters' sole recourse is to bring suit in the Supreme Court challenging the electoral malapportionment as unconstitutional.

Article 81 of the Japanese Constitution provides that "[t]he Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act." (3) Every time elections for the Lower House and the Upper House have taken place, residents of large cities have brought suit challenging the dilution of their voting power.

With respect to the apportionment of seats in the Diet, the Supreme Court has thus far deferred to the Diet's discretion in electoral matters. Specifically, the Supreme Court has ruled as follows:

Our Constitution entrusts, in principle, the actual determination of the design of the system of election of members of both houses to the discretion of Parliament. Since Parliament is empowered to determine an appropriate structure for the electoral system in order to achieve the goal of electing fair and effective representatives to both the House of Representatives and the House of Councilors, an electoral system adopted by Parliament is unconstitutional only if its specific features violate the requirement of equal treatment under the law even after Parliament's power of discretion has been properly taken into account. (4) The Supreme Court has further determined that, as long as vote dilution remains within certain limits, the Diet is properly exercising its discretionary powers as they relate to voting equality. (5) In fact, the Court's precedents indicate that vote dilution is constitutional, provided that disparities in the value of a vote do not exceed a ratio of 3:1 in elections for the Lower House (6) or 6:1 in elections for the Upper House. (7)

In my opinion, voting equality forms the foundation of democratic societies; therefore, I feel that questions of electoral apportionment that determine the value of people's votes should not be left to the broad discretion of the Diet. Moreover, in circumstances where malapportionment becomes apparent, I feel that it is the responsibility of the judiciary to correct such problems. Thus, in all three of the cases involving electoral malapportionment that I encountered during my tenure as a Supreme Court Justice, (8) I wrote a dissent that concluded there had been a constitutional violation.

II

Currently, I work at the TMI General Law office. Within the same office, I have a sixty-eight-year-old colleague by the name of Hidetoshi Masunaga. (9) Mr. Masunaga studied abroad and performed research at Columbia Law School, and he has also studied the malapportionment jurisprudence of the United States Supreme Court. Aiming to realize a society where voters each enjoy a full vote (instead of just one-half or one-fifth of a vote), Masunaga has decided to dedicate his remaining life to bringing about a true form of democracy to Japan. Thinking in ways similar to my own, Masunaga also does not expect the Diet to voluntarily revise the election law and feels that, unless the Supreme Court finds that the current apportionment scheme is unconstitutional, the elections will continue to be administered in much the same manner. However, as previously described, the Supreme Court has been reluctant to limit the Diet's broad discretion over matters of electoral apportionment system. In response, Mr. Masunaga has sought to attract public attention to a practice known as the People's Evaluation of the Supreme Court Justices (10) ("Evaluation").

Article 79 of the Japanese Constitution states as follows:

The appointment of the judges of the Supreme Court shall be reviewed by the people at the first general election of members of the House of Representatives following their appointment, and shall be reviewed again at the first general election of members of the House of Representatives after a lapse of ten (10) years, and in the same manner thereafter. In cases mentioned in the foregoing paragraph, when the majority of the voters favors the dismissal of a judge, he shall be dismissed. (11) Not only is Evaluation one of the basic suffrage rights guaranteed to the people, but it also offers the people an indirect way to correct the vote dilution that they experience when voting for members of the Diet. (12) in these Evaluations, unlike elections for the Diet, the people enjoy truly equal voting power. Thus, in theory, if the people are informed about which Justices have approved vote dilution when they evaluate the...