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No.1 ,Politics  Jun 02, 2010

RETHINKING THE HOUSE OF COUNCILLORS

At a meeting of the House of Representatives Committee on Financial Affairs on the morning of April 6, 2010, Liberal Democratic Party legislator Koizumi Shinjirō addressed Kamei Shizuka, minister of state for postal reform and head of the tiny People’s New Party, and he did not mince words. According to an opinion poll recently published by the daily Sankei Shimbun, public support for the PNP stood at 0.0%. It fared only marginally better–0.7%–in a Kyodo News survey. In effect, Koizumi said, a party with virtually no voter support was ramming through an overhaul of one of the nation’s key institutions. And the main ruling party, the Democratic Party of Japan, was allowing itself to be pushed around by this political nonentity. It was the DPJ, not the PNP, that the people had voted into power with a resounding 300-seat lower house majority.

The young Koizumi was reacting to a controversial decision the cabinet of Hatoyama Yukio had reached a week earlier. The government was drafting postal reform legislation designed to modify the privatization plan adopted under Prime Minister Koizumi Jun’ichirō (Shinjirō’s father) in 2005. Kamei, who as a veteran LDP politician had fought to defeat the privatization plan, wanted to double the per-person deposit ceiling for postal savings accounts from ¥10 million to ¥20 million. Despite considerable opposition from within the cabinet, he had managed to force the controversial provision down Prime Minister Hatoyama’s throat.

Koizumi was doubtless voicing a reaction shared by much of the Japanese public. In the general election of August 2009, the people had voted for a change of government, ousting the long-ruling LDP and giving the DPJ control of the government with a commanding 308 seats in the House of Representatives–as compared with 3 seats for the PNP. Yet the victorious DPJ had felt obliged to bring the leaders of the PNP and the Social Democratic Party–with a lower house strength of 7 seats–into the cabinet as part of a coalition government.

Why was it necessary for the DPJ to enter into a coalition despite its decisive majority in the House of Representatives? The answer lies in the makeup of the House of Councillors. The DPJ controlled only 108 seats in the 242-seat House of Councillors, well short of a majority. The PNP and the SDP each had 5 upper house seats. By forging a coalition with those two parties and a parliamentary alliance with New Party Nippon and a number of independents, the DPJ was able to secure a majority in the upper house.

Although technically the less powerful of the two chambers of the Diet, the House of Councillors has been influencing the makeup of the cabinet ever since the late 1990s. In January 1999 the ruling Liberal Democratic Party formed a coalition with the now-defunct Liberal Party and the following October the coalition expanded to include the New Kōmeitō in order to form a solid upper house majority. In one form or another, government by LDP-led coalitions continued right up until September 2009, when the DPJ took the reins. Then the power of the House of Councillors to influence the makeup of the government went on display again as DPJ leader Hatoyama formed a coalition cabinet for the sole purpose of securing a majority in that chamber.

In the following, I will first review the constitutional powers of the House of Councillors and the role it has played in Japanese politics since the end of World War II. With that background in mind, I will discuss some of the issues surrounding the upper house today and offer my proposals for reform.

The Upper House Flexes Its Muscles

The Constitution of Japan gives the House of Representatives the power to designate the prime minister, who in turn appoints the cabinet. How, then, can the House of Councillors have the power to influence the makeup of the cabinet? The answer lies in the legislative powers of the upper house. Under Japan’s constitutionally mandated bicameral system, the decision of the lower house takes precedence over that of the upper house in the designation of the prime minister, passage of the budget, and ratification of treaties. The lower house also has precedence when it comes to enacting legislation, but the situation here is slightly different. If a bill passed by the House of Representatives is rejected by the House of Councillors, it can still become law providing the House of Representatives passes it again with a two-thirds majority.

Given the difficulty of securing a two-thirds majority in the House of Representatives, this means that the lower house’s preeminence over the upper house is less than decisive when it comes to legislation. Moreover, even if the bill’s sponsors have a two-thirds majority in the lower house, the upper house has the ability to delay or even block legislation by deferring final action. Under Article 59, paragraph 4, of the Constitution, the House of Representatives may interpret inaction by the House of Councillors as a rejection and vote on the bill again, but only after the upper house has had the bill for 60 days–the so-called 60-day rule. The Constitution also allows the House of Representatives to call a meeting of a joint committee of both houses to resolve differences, but enacting legislation through this process has proven difficult.

In short, when it comes to legislation, the upper house has powers nearly equal to those of the lower house. This means that if the opposition controls a majority of seats in the upper house, the cabinet may be hard-pressed to achieve its legislative agenda. This is the reason Hatoyama Yukio chose to form a coalition cabinet despite his party’s landslide victory in the general election for the House of Representatives.

A Wrench in the Works

Given these powers, what kind of role has the upper house played in Japan’s political process?

One need go back only to the period between August 2007 and August 2009 for a vivid example of its impact. In July 2007, the LDP was dealt a stunning defeat in the upper house election. When the Diet reconvened, the members of the ruling coalition–the LDP and the New Kōmeitō–had only 103 upper house seats between them, well short of the 121 needed for majority. Meanwhile, the DPJ, having won 60 seats in the same election, suddenly found itself the number one party in the House of Councillors with a total of 109. The Diet was divided and, effectively, hung.

This is the situation that confronted Fukuda Yasuo when he took office as prime minister the following September. Anxious to avoid gridlock, Fukuda held two “summit meetings” with then DPJ leader Ozawa Ichirō, on October 30 and November 2, in a bid to forge a “grand coalition,” but those efforts ended in failure.

The LDP and the New Kōmeitō together controlled 320 seats in the House of Representatives, more than the two-thirds majority needed to override an upper house rejection and pass cabinet-sponsored legislation. But in practice, the 60-day rule and other circumstances made it very difficult for the House of Representatives to pass a bill twice. For this reason both Fukuda and his successor Asō Tarō were largely hamstrung in their efforts to make and implement policy. Because the Fukuda cabinet failed to push through its tax legislation by the end of the fiscal year in March 2008, previously instituted gasoline tax increases were not renewed and expired for a period of one month. Fukuda’s nomination for governor of the Bank of Japan languished in the House of Councillors because of resistance from the DPJ, and the post remained vacant from the end of Governor Fukui Toshihiko’s term in mid-March 2008 until early April.

Prime Minister Asō, who succeeded Fukuda in September 2008, grappled with the same problem. Although his second supplementary budget for fiscal 2008, featuring cash handouts to stimulate the economy, passed in January 2009, legislation necessary to distribute the money ran into DPJ opposition and was not finally enacted until March.

Postwar History

These cases of the House of Councillors flexing its muscles in the Japanese political arena have thrust the chamber into the public consciousness over the past few years, but in reality the phenomenon is nothing new. An objective examination of postwar history reveals that the House of Councillors has exerted a profound impact on the political process from the beginning–particularly in cases where the ruling party was unable to secure a majority in that chamber.

The upper house has influenced the makeup of the cabinet on several occasions in addition to the recent instances already discussed. The party that controlled the lower house did not hold a majority in the upper house from May 1947, when the House of Councillors was first established, until December 1956. Yoshida Shigeru, who served as prime minister during much of this time, was at great pains to augment his party’s strength in the upper house. It is a little-known fact that the fourth Yoshida cabinet, inaugurated in October 1952, was a coalition between Yoshida’s Liberal Party and the Democratic Club, a small party within the House of Councillors.

The upper house has also had a major impact on the policy-making process in instances where the ruling party did not control the chamber. In the period between May 1947 and December 1956, the House of Councillors blocked or forced the revision of key legislation on many occasions. In July 1952, for example, the Yoshida cabinet was obliged to scrap a bill that would have eliminated the National Personnel Authority, largely because the upper house delayed action on it.

A similar situation existed from July 1989 to August 1993, and again between June 1998 and October 1999. In June 1992, for example, the cabinet of Prime Minister Miyazawa Kiichi accepted the upper house’s revisions to a bill drafted to pave the way for participation in UN peacekeeping operations by Japan’s defense forces. In July 1998, during lower house deliberations on the government’s financial revitalization bills, Prime Minister Obuchi Keizō essentially accepted an alternative drafted by the DPJ-led opposition in order to ensure passage by the upper house.

In fact, the House of Councillors has profoundly influenced the political process even at times when it was controlled by the ruling party–most often in cases where the ruling party’s upper house members refused to cooperate in passing government-sponsored legislation. An example from the heyday of LDP rule concerns a bill to suppress political violence, introduced in 1961. The legislation was a top priority of Prime Minister Ikeda Hayato, but LDP politician and House of Councillors President Matsuno Tsuruhei was among those opposed to its passage, and in June 1961 the upper house was able to block the bill by extending deliberations and delaying action.

From the 1990s on, the House of Councillors twice rejected key cabinet-sponsored legislation. In January 1994, under the anti-LDP coalition government of Hosokawa Morihiro, a group of upper house Socialist politicians joined with the LDP to defeat the political reform legislation that headed the new government’s agenda. And in August 2005, a group of mutinous LDP politicians teamed with the opposition to defeat Prime Minister Koizumi’s top legislative priority, postal privatization.

Perception Gap

Notwithstanding these examples, the standard criticism of the House of Councillors over the years has been that it is little more than a carbon copy of the House of Representatives. According to the dominant school of thought, the House of Councillors is essentially powerless and does little more than rubber-stamp legislation passed by the House of Representatives. The reason this view has prevailed is that the majority of scholars have focused on deliberations in the upper house and evaluated the chamber’s impact on the basis of whether the results of those deliberation differed from the results of the deliberations in the lower house. The conclusion was that differing conclusions were the exception to the rule, that in the vast majority of instances the results of deliberation were the same.

It is true that deliberation has yielded different results in only a small percentage of cases. But no analysis of the role of the House of Councillors is complete without a consideration of its impact on the political process before a bill reaches the upper house for deliberation. The House of Councillors’ influence on the process occurs primarily during the selection of cabinet members, the drafting of legislation, and deliberation of legislation in the lower house. The House of Councillors has often made the same decision as the House of Representatives because its views have been incorporated in the substance of the bill before it even reached the upper house.

Who Needs the House of Councillors?

Next, let us assess the contribution of the House of Councillors to Japanese government. To do this, it may be helpful first to review the traditional arguments in defense of the bicameral system. Two reasons are generally given to justify bicameralism. The first is that the two chambers check and balance one another to ensure that legislative activity proceeds in a cautious, deliberate manner. The second is that two chambers make it possible to use more than one mirror to reflect the public will.

However, in addition to a bicameral legislature, Japan has a parliamentary system of government. For this reason we must also consider how the House of Councillors affects the relationship between the cabinet and the Diet.

The parliamentary system rests on two essential premises: that the cabinet depends on the support (or confidence) of the parliament, and that the parliament can be dissolved by the cabinet. In making the continued existence of each dependent on the will of the other, the system ensures that over the long run the will of the cabinet and the legislature will coincide. In short, under a parliamentary system, the cabinet and the legislature are as one.

Under the Constitution of Japan, this sort of relationship exists between the cabinet and the House of Representatives, but not between the cabinet and the House of Councillors. The relationship between the cabinet and the House of Councillors is closer to that between the US president and Congress, in that the cabinet does not depend on the support of the House of Councillors, nor can the House of Councillors be dissolved by the cabinet. Moreover, as noted previously, while the House of Representatives is more powerful than the upper house, its preeminence is not absolute.

In explaining the reasons for establishing a bicameral legislature, scholars most often stress the idea of checks and balances. Because Japan’s Constitution and Cabinet Law recognize the right of the cabinet to submit bills to the Diet, the cabinet is deeply involved in legislative affairs. The cabinet is also fundamentally in tune with the House of Representatives. For this reason, the House of Councillors was established as a check on the legislative activity of the cabinet and the House of Representatives, to ensure that it proceeds cautiously and deliberately.

While the historical examples discussed above might have conveyed the impression that the upper house was bent on throwing a wrench in the political process, in reality its behavior has been completely consistent with the purposes for which it was established. The impact it has had on the political process is exactly what the drafters of the Constitution anticipated when they established a bicameral parliamentary system: By making sure its views are incorporated in legislation during the preparatory stages, it has served to check and balance the lower house and cabinet and ensure that legislative activity proceeds cautiously and deliberately .

In fact, the House of Councillors can do more than slow down or modify legislation. Asked how the LDP’s failure to secure a majority in the 1989 upper house election had changed the political landscape, former House of Councillors President Saitō Jūrō responded, “In a word, bills that all the opposition parties were bound to oppose were never submitted to the Diet in the first place.” We can infer from this that there were numerous occasions on which the cabinet abandoned a bill in the realization that it had no chance in the upper house. Thus, another way the House of Councillors has checked the cabinet is by forcing it to give up certain legislative efforts.

Japan’s House of Councillors has also performed the function of permitting a broader, more multifaceted sampling of popular opinion to find its way into national policy. Since the approval of the upper house is needed to enact legislation, this means that laws have been enacted in a process that incorporates a more multifaceted sampling of popular opinion than would have been possible under a unicameral system.

Scholars and analysts have tended to speak negatively of the coalitions that were cobbled together for the purpose of securing a majority in the House of Councillors. But such coalitions have given many more parties the opportunity to play a role in the government than would otherwise have been possible. This is one way in which the House of Councillors has incorporated a broader cross-section of opinion into national policy. To some degree, cabinet appointments of upper house politicians from the ruling party have had the same effect.

Electoral Reform Is the Key

This is not to suggest that there is no room for improvement in the current system. Because there is insufficient space here for an examination of all the options for reform, I will focus on the area I consider most important–namely, the system by which we select members of the House of Councillors.

The current electoral system for the House of Councillors is a composite system. Of the 242 seats in the chamber, 96 are allocated by proportional representation and 146 are selected by direct vote from prefectural constituencies. Every three years half of the seats are up for election.

There are two reasons for reforming this system. The first is a constitutional issue, namely, the pronounced disparity in voting power from one prefectural constituency to another. At present, the number of constituents represented by a member of the upper house varies widely, with politicians elected from Osaka representing 4.84 times as many citizens as those from Tottori Prefecture. There have been attempts to have the results of House of Councillors elections nullified on the grounds that such malapportionment constitutes a violation of the constitutional right to equal treatment, but in every case the Supreme Court has refused to rule the existing apportionment unconstitutional. The toughest stance the high court took was in a 1996 decision regarding the July 1992 election, when the maximum disparity between districts was 6.84 to 1. Although the court let the results stand, it warned that it was “a situation of such marked inequity as to raise constitutional issues.”

The Constitution states, “All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin” (Article 14). How can we say that all the people are being treated equally when the weight of a person’s vote varies according to where he or she lives? The current apportionment of seats among upper house electoral districts is clearly unconstitutional. This discrepancy occurs because the 121 seats up for election every three years are divided into proportional-representation and electoral-district seats, with the latter allocated among 47 prefectures.

The other reason to reform the upper house electoral system is that the current system is driving a shift toward a two-party structure in the House of Councillors. In the House of Representatives, the alignment into two major parties, already far advanced, has intensified electoral competition to the point where there is little room for compromise in the chamber. To the extent that the upper house is similarly divided into two parties, the polarization and political gamesmanship that occur when two parties vie for power spills over from the lower house into the upper house. This means that, in situations where the ruling party is short of a majority in the upper house, the major opposition party is disposed to act from strategic, partisan motives with the aim of tying the ruling party’s hands and seizing power in the next election. This increases the danger that lawmaking activity in the Diet will grind to a halt.

One major reason a shift toward a two-party system is progressing in the House of Councillors is that it has progressed so far in the House of Representatives. But the upper house electoral system is a contributing factor as well. This is because a large portion of the upper house prefectural districts are one- or two-seat constituencies, and it is very difficult for a candidate from any of the smaller parties to win election in such districts.

Another negative consequence of the trend toward a two-party system is that when the winning party must form a coalition, its choices are increasingly limited. This was the main factor behind the inclusion of the SDP and PNP in the Hatoyama cabinet.[1. This article was written before the SDP left the three-party ruling coalition on May 30, 2010.–Ed.]

Since the shift toward a two-party system in the House of Representatives is virtually a fait accompli, we would do well to promote pluralism in the House of Councillors to moderate partisan power struggles and facilitate compromise.

The proportional-representation component of the upper house electoral system also has problems that need to be addressed. The most serious of these is that no one who does not belong to a political party can run for election. If the aim is to keep partisan power struggles and tactics from spilling over into the House of Councillors, the system should naturally leave room for the election of independents.

Moving Forward

The current electoral system for the House of Councillors should be overhauled with the above points in mind. One possibility would be to replace the combination of proportional representation and prefectural districts with large multiseat districts corresponding to regional blocks. Keeping the total number unchanged, we could divide the chamber’s 242 seats among the blocks in a manner proportional to their population. One option would be to divide the country into 10 geographical blocks (Hokkaidō, Tōhoku, northern Kantō, Tokyo, southern Kantō, Chūbu, Kinki, Chūgoku, Shikoku, and Kyūshū-Okinawa). This would contribute to party pluralism in the House of Councillors while honoring the constitutional principle of equality under the law. By differentiating the electoral system of the House of Councillors from that of the House of Representatives, we can preserve the raison d’être of the upper house, namely, its role in incorporating a more diverse sampling of popular opinion into the political process.

It is true that a large multiseat district system was previously abandoned. Under the upper house electoral system in effect through 1980, representatives were selected from a multiseat nationwide constituency by direct single-entry ballot. This system was said to put an unreasonable burden on candidates obliged to campaign all across the country. However, block districts would not impose such a heavy burden.

It might be argued that, since block districts are used for the proportional-representation component of House of Representatives elections, the proposed reform would make the electoral system for the upper house closer to that for the lower house. In fact, however, the adoption of large multiseat constituencies for the House of Councillors would differentiate the manner in which representatives are chosen in the two chambers, making it easier for independents and candidates from small parties to win seats in the upper house. This would facilitate compromise in chamber.

The House of Councillors has been subject to criticisms of various kinds. Some have even advocated switching to a unicameral system on the grounds that the upper house has impeded legislative activity by preventing a united cabinet and House of Representatives from enacting legislation unhindered. In nations with unicameral legislatures, the process of deciding and implementing national policy moves more quickly. Under bicameral systems, the process is slower but more considered. Which is preferable? In the final analysis the decision hinges on how we, as citizens, believe democracy should function. But because the legislative process ultimately involves the exercise of state power vis-à-vis the citizens, I believe that the bicameral system is preferable in that it encourages the state to move cautiously and deliberately in the exercise of that power. By implementing reforms designed to support the democratic principle of equal representation, we can preserve and enhance the vital role of the House of Councillors in Japanese government.

Translated from “Sangiin tatōka to teisū zesei ga ‘nejire’ o kokufuku suru,” Chūō Kōron, June 2010, pp. 106-13. (Courtesy of Chūō Kōron Shinsha) [June 2010]

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