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No.5 ,Politics  Mar 28, 2011

JAPAN’S DIVIDED LEGISLATURE: THE VIEW FROM THE UPPER HOUSE

Ever since the Social Democratic Party withdrew from the ruling coalition in May 2010, Japan’s National Diet has been split, with the ruling Democratic Party of Japan and People’s New Party holding a majority in the House of Representatives but not in the upper house, the House of Councillors. And the July 2010 election for the upper house further reduced the DPJ’s strength in the chamber. So securing passage of legislation through the House of Councillors has become a major issue, and attention has come to focus on this house’s role.

Nishioka Takeo, who was elected president of the House of Councillors following the July 2010 election, has been commenting more openly than previous holders of this post about current political affairs. We asked him to be interviewed for Japan Echo Web, and he agreed.

In this interview, I asked President Nishioka for his views on three major topics. First was the conduct of upper house affairs. The president has the authority to decide what bills to bring before the chamber for a vote, and so his handling of upper house affairs has a major bearing on the process of legislative deliberations in the Diet.

The second topic was the censure resolutions that the House of Councillors passed late last November against two members of Prime Minister Kan Naoto’s cabinet. Under the Constitution of Japan, the House of Representatives has the power to pass a resolution of no confidence in the cabinet, upon which the cabinet must resign or the prime minister must call a general election, but the House of Councillors does not have this power. Therefore many experts are of the opinion that a censure resolution against a cabinet member by the upper house has no legal effect and that the censured minister need not resign. But Nishioka repeatedly expressed the view that the ministers in question must step down.

Third, we discussed reform of the electoral system for the House of Councillors. The current electoral system for the upper house combines assignment of seats by proportional representation and selection of members from electoral districts, with each of the 47 prefectures serving as a district. And under the existing allocations of seats to districts, there are major variations in the value of individual votes (that is, in the number of voters per seat). In the most recent upper house election, the disparity reached a maximum of five to one, and the Tokyo High Court has ruled this state of affairs unconstitutional. Nishioka has declared the need to correct this situation by reforming the electoral system, and late last year he came out with his own proposal for this purpose. Under his plan, the country would be divided into nine blocks in which seats would be assigned by proportional representation; the value of individual votes would be close to the same in all the blocks. (Takenaka Harukata)

TAKENAKA HARUKATA Since becoming president of the House of Councillors last July, unlike your predecessors, you have been holding regular press conferences, and you have also spoken out about the current political situation in an interview with a monthly magazine. I get the impression that your policy is to express your opinions more clearly than your predecessors, and I would like to ask the background to your active approach in this respect.

NISHIOKA TAKEO The upper house president’s responsibility is to arrange the house’s business and conduct it fairly, and everybody says that the president is not to express his own ideas, but I consider it only natural for the president to comment.

TAKENAKA So would you say that the presidents up to now have commented too little?

NISHIOKA That’s a matter of each president’s posture toward and thinking about politics, and so I think it would be presumptuous of me to ask why they didn’t comment more.

TAKENAKA The president’s authority to arrange parliamentary affairs is an extremely great power–something that I believe hasn’t been sufficiently recognized up to now. Given that authority, I expect that the cabinet must be concerned about the prospects for the conduct of parliamentary affairs when they see you expressing quite severe opinions about the current administration, such as the views you expressed in your interview published in the February issue of Bungei Shunjū. Did you consider this when you made your remarks?

NISHIOKA Yes.

TAKENAKA So you didn’t care if you caused those in the administration to be concerned?

NISHIOKA If my remarks make the people in the current administration feel concerned, it’s probably because they’re feeling guilty.

TAKENAKA How do you intend to conduct the affairs of the upper house?

NISHIOKA As you know, the opposition now holds a majority, so I think it will be an extremely difficult Diet session for the administration. What does the president think of first under these circumstances? For example, the budget proposed by the administration, the budget-related bills, foreign policy matters, and everything else must be the best possible for the sake of the people. I want to make judgments using that sort of yardstick. So even though the opposition may be in the majority, I will also work to bring around the opposition parties at times if it involves something that should be done at all costs for the sake of today’s Japan.

But before that, the relationship between the budget and laws in Japan is very tricky for the administration. This is something that struck me when I was first elected to the Diet: Laws serve as the basis for spending the money appropriated in the budget, so I think its backwards to present a draft budget and have the entire thing approved and only then go about getting the supporting legislation enacted. Making the laws comes first, and getting them enacted is what makes it possible to spend the money. The way it’s done might be called craftiness on the part of the administration; I find it remarkable that the opposition has kept quiet about this up to now.

TAKENAKA Indeed, the proper order would be for the Diet to pass judgment on individual policies and then to appropriate funds for those that it approved. I think it’s extremely important to present the draft budget after first deliberating the related legislation. Do you intend to apply this in a concrete form to the proceedings of the House of Councillors in your capacity as president?

NISHIOKA This can’t be done unless there’s a revolutionary shift of thinking in the Diet as a whole. The existing procedure has been used all along. And I don’t know of anybody who has suggested that it’s peculiar.

TAKENAKA The usual strategy is to threaten the opposition by warning that if they block the government’s bills it will be impossible to implement the budget that’s already been approved.

NISHIOKA It’s like creating a fait accompli and then coming up with an alibi. I think it’s totally backwards.

TAKENAKA But as president, you could use your power to arrange the proceedings; if you were to say, “We’ll deliberate the laws first,” everybody would have to defer to your authority.

NISHIOKA If I may come out and say what’s supposed to be left unsaid, here in Japan you can’t do something highly unconventional even when indicated by logic. This is actually a problem with our politics as a whole and with our entire society.

TAKENAKA Do you think that the management of Diet affairs should be changed in this way over the medium to long term, though?

NISHIOKA I think so. But there isn’t the least sign of this happening.

TAKENAKA In the newspapers these days there’s a lot of speculation about what will happen if the budget is passed and then the bills on special measures for government bonds, the child allowance, and the like are not enacted. But nobody is talking about the order being backward.

NISHIOKA The bill allowing the issue of deficit-financing bonds should absolutely be passed first.

TAKENAKA It’s certainly true that the budget can’t be set unless revenue sources have been determined. So the bills on the tax system and on bond issues need to be passed first. It’s just as you say. Do you have any thought of proposing that?

NISHIOKA I’ve been talking about it here and there, but people don’t seem to be getting my point clearly. Shifting the relationship between the budget and legislative bills is, to put it in extreme terms, a revolutionary change. So nobody is ready to discuss this seriously.

TAKENAKA The people in the administration would probably insist that it’s the cabinet’s right to draft the budget.

NISHIOKA But there’s no provision anywhere that stipulates whether the budget bill is to be deliberated before other related bills. The administration clearly has the right to submit the budget, but there’s no law serving as the basis for asserting that the budget bill is to be dealt with first.

The Weight of Upper House Censure Resolutions

TAKENAKA In a session of the House of Councillors late last November censure resolutions were passed against Chief Cabinet Secretary Sengoku Yoshito and Minister of Land, Infrastructure, Transport, and Tourism Mabuchi Sumio. What’s your assessment of this?

NISHIOKA The House of Councillors passed a resolution of censure against the chief cabinet secretary. In other words, the chamber expressed its view that he should resign. This has been the object of all sorts of discussion, but what was anomalous was the fact that the person against whom the resolution was directed noisily challenged the basis for the resolution. The biggest problem was his assertion that the resolution had no legal standing. The Constitution specifies that if the House of Representatives adopts a resolution of no confidence in the cabinet, the cabinet must resign or a general election must be called, but there’s no legal basis for a no-confidence resolution against an individual cabinet minister. It’s not logical to accept that type of resolution in the House of Representatives and to say there’s no basis for censure resolutions by the House of Councillors.

One more thing: Japan is a country under the rule of law; everything moves on the basis of laws. But there’s also something called customary law in the world. Over a period of several decades in the past there were few cases of censure resolutions being passed. They were always voted down. Just recently we have seen some cases of such resolutions being passed. The use of censure resolutions has become an established practice in the Diet over the course of these many years; given this fact, one can’t simply say they have no legal basis. Inasmuch as a censure resolution by the upper house is on a par with a no-confidence resolution by the lower house, and also considering the issue of customary law, it was my view that the chief cabinet secretary should resign.

TAKENAKA Do you oppose a censure resolution against the prime minister?

NISHIOKA As a matter of form, the House of Councillors could come out with a censure resolution against current Prime Minister Kan. But the House of Councillors doesn’t have the function of choosing the prime minister, so even if it were to pass a censure resolution, it would have no force by custom or by law. In that respect the prime minister differs from the other ministers.

TAKENAKA So even if such a resolution were passed against the prime minister, he wouldn’t need to resign?

NISHIOKA Legally he wouldn’t have to resign, but he’d probably suffer political damage.

TAKENAKA Two cabinet ministers have already been forced to resign. And now there’s talk of a possible censure resolution against Yosano Kaoru, who was recently appointed state minister for economic and fiscal policy, for changing his party and joining the cabinet formed by the DPJ, which he had been criticizing until recently. Do you think it can’t be helped even if censure resolutions keep being proposed against one minister after another?

NISHIOKA Realistically I don’t think that’s a possibility. If the opposition parties offered repeated censure resolutions as a tool to bring down the administration and succeeded in getting them adopted, they’d become the target of public criticism. A few days ago, in fact, there was a move to bring a censure resolution against Okazaki Tomiko, chair of the National Public Safety Commission, but it generated a lot of argument in the Liberal Democratic Party [currently the biggest opposition party], and the resolution ended up not being proposed. As I see it, the fear of public criticism directed against those making excessive use of censure resolutions acted as a deterrent.

TAKENAKA On January 10, before the opening of this year’s Diet session, you had a meeting with Prime Minister Kan at your official residence. What did you tell the prime minister about the management of Diet affairs if Chief Cabinet Secretary Sengoku, against whom a censure resolution had been passed, were to be kept in his post?

NISHIOKA I had returned to Kyūshū, but I judged that, as president of the upper house, I should see the prime minister if he said he wanted to meet me before the Diet session, and so I came back to Tokyo. The prime minister came to see me at the official residence of the upper house president. What he said at that time was quite easygoing; it was a Japanese sort of indirect, fuzzy talk not calling on logical argument. I said, “That’s not right.” Ordinarily the chief cabinet secretary attends a meeting of the directors of the rules and administration committees of both houses and explains that the government intends to convoke the ordinary session of the Diet on a certain day, and then the Diet session starts. But the House of Councillors could not approve of the attendance at a steering committee directors’ meeting by a chief cabinet secretary against whom it had adopted a censure resolution. In theory, though there’s no precedent for it, the prime minister could attend the meeting; that wouldn’t be a problem. But even if the prime minister attended such a meeting and the Diet session started, the House of Councillors would not accept a proposed budget previously approved by the cabinet and carrying the signature of the chief cabinet secretary. That’s how it will be, I explained.

TAKENAKA What did the prime minister say to that?

NISHIOKA He was speechless. As I saw it, though it may be peculiar for me to say so, this seems to have been the decisive point. It was because I declared my unwavering resolve.

TAKENAKA I once talked about censure resolutions with former House of Councillors President Saitō Jūrō [1995-2000]. While he was president a resolution of censure was brought against Defense Agency Director General Nukaga Fukushirō, but his judgment at the time was that Nukaga didn’t need to resign. Saitō’s reasoning was that the resolution had no legal force. And if the opposition parties were to refuse to participate in Diet proceedings on the grounds that they couldn’t accept Nukaga’s answers to legislative questioning, they would ultimately become the target of public criticism. Based on his own previous experience as chairman of the LDP’s Diet Affairs Committee, his assessment was that even if the opposition parties boycotted the Diet sessions, ultimately they’d be forced to yield. This time, if Chief Cabinet Secretary Sengoku had not stepped down, and the upper house had refused to accept the budget proposal and gone for three or four weeks without deliberations, did you not think that public criticism might come to be directed at the upper house?

NISHIOKA I did not. I thought the cabinet had to yield. In the political arena, of course some elements are based on laws, but it comes down to a matter of punch.

TAKENAKA Punch? [Laughs]

NISHIOKA If the president himself focuses on the lack of a legal basis, he can’t put on a performance like mine.

A Prime Minister Beneath Assessment

TAKENAKA Could you tell me how you assess the current prime minister?

NISHIOKA He’s beneath assessment.

TAKENAKA Why are you so harsh?

NISHIOKA It should be clear if you look at him. For one thing, a prime minister needs to have a purpose. A prime minister isn’t supposed to just build up a pile of tasks accomplished; he has to start out with a purpose and then use every means available on that basis. Forming a cabinet is part of this. But the current prime minister doesn’t have a purpose, so he’s acting haphazardly, and he can’t be trusted to govern Japan. The concrete examples are too numerous to cite.

For example, while of course there are some things that a prime minister can’t do right away even if he wants to, if it’s something that will become possible after being put off for a mere four or five months, he ought to be able to do it now. That applies to the TPP [Trans-Pacific Strategic Economic Partnership]. The prime minister went so far as to make an international commitment at the Davos conference, as a result of which he now faces a deadlock. It’s his own fault, but it’s bad news for the country. An earlier example was during last year’s upper house election campaign, when he spoke about raising the consumption tax and then quickly took back what he said. There are many issues in public administration, but the core element of parliamentary politics and public administration as a whole is taxes. If you say you’re increasing taxes, which are the biggest issue, then you have to do so.

TAKENAKA In his speech at the World Economic Forum in Davos, Prime Minister Kan declared his intention of reaching a conclusion about whether to participate in the TPP negotiations by June or so. You’re saying he should decide to do so right away and get to work on it.

NISHIOKA But no preparations have been made. There’s no way it can be accomplished in four or five months.

TAKENAKA There’s talk of the possibility that even if the budget is passed, the LDP may oppose the bill allowing the issue of deficit-financing government bonds. This may be an example of the problems that occur because the order of deliberation of the budget and of the related bills is backward. But if this bill is voted down in the upper house, it’s liable to cause extraordinary turmoil in the government bond market and elsewhere in the economy. What are your thoughts about that possibility?

NISHIOKA I believe that the approach of local elections will have a major impact on the way the opposition parties deal with this issue. We won’t know what decision the LDP and New Kōmeitō will reach until the time comes. The local elections will start on April 10, and if at that point the budget [for the fiscal year starting on April 1] still hasn’t been passed and an interim budget is drawn up as a makeshift, local governments will be hurting. In that case, which side will be criticized, the ruling coalition or the opposition? We simply can’t say at this point. It’s a difficult point.

TAKENAKA Do you personally think that the budget should be enacted?

NISHIOKA There are problems with the budget, but unless revenues are secured, we’ll fall into a state of great confusion. I think the bills relating to customs duties [renewing the provisions for reduced tariffs on food products and other items] will get passed. If they aren’t, consumer prices will immediately rise. The same goes for the local allocation tax and local taxes.

TAKENAKA What might be the basis for an agreement?

NISHIOKA I never think too much about the basis for an agreement. In my experience, there’s no point in trying to figure that out in advance. It’s a matter of judgments made when the time is at hand.

TAKENAKA Do you consider a number of possible patterns in advance?

NISHIOKA No.

TAKENAKA Some people suggest the possibility of revising the budget.

NISHIOKA That’s the biggest blunder the administration has made concerning budget deliberations this time. First, DPJ Secretary General Okada Katsuya made a remark during a TV program suggesting it might be acceptable to revise the budget, and then even Diet Affairs Committee Chair Azumi Jun said he would consider revising it. That’s something you mustn’t say, especially since the budget still hasn’t been submitted to the Diet. Revising a budget proposal is terribly difficult. I was chairman of the New Frontier Party’s Diet Affairs Committee during the so-called jūsen session [in 1996, when there was a major confrontation over the government’s proposal to use public funds as part of a plan to liquidate failed housing loan companies]; the Diet closed down for twenty-one days, but just a single line was added to the general provisions of the budget bill. Before that the budget had been revised three times, in 1953, 1954, and 1955. These revisions involved things like cutting a bit from government spending and using the money for public works, and the amounts involved were relatively small–billions of yen rather than tens of billions. Other than those cases, the budget proposal has never been revised.

TAKENAKA So that’s how difficult it is to revise the budget.

NISHIOKA And even so the DPJ has gone and said that it might be all right to revise it.

TAKENAKA So they yielded ground from the start.

Fixing the Electoral System

TAKENAKA To change the subject, at the first session of a new study group on electoral reform held on December 22 last year, you presented a proposal for changing the upper house electoral system to one that would divide the entire country into nine blocks, with members selected through open-list proportional representation. I’d like you to explain the thinking behind this proposal.

NISHIOKA While the problem of disparity in the value of votes has grown, up to now it’s been treated with ad hoc moves, such as taking seats away from four districts and adding them to four other districts. I felt that as a legislative organ the House of Councillors must not neglect this issue any longer. Upon becoming president of the house I started to address this matter based on a determination to conduct the next upper house election under a revised system. We can’t get anywhere if we keep the present local districts. The House of Representatives currently uses proportional representation for some of its seats. There are various ideas for changing the lower house electoral system, such as going back to the previous system of multiseat districts, but if we assume the single-member lower house constituencies are left in place, I think it will become necessary to do away with the proportional-representation seats at some point for the sake of consistency. What’s particularly undesirable is the present arrangement allowing candidates who are defeated in the single-member district races to take seats under the proportional-representation system. I’m assuming that at least this part will be eliminated before the next general election for the lower house.

There’s no point in having a bicameral legislature unless the two chambers have different electoral systems. With that in mind, I thought that proportional representation by blocks was the only choice. Last December I presented my proposal to each of the parliamentary groups, and the parties are now considering it quite seriously. People have begun to realize that I mean business. The Democrats have asked to meet with me as early as this week. But there’s one problem with this proposal: It doesn’t provide any way for unaffiliated candidates to run. The House of Councillors Legislative Bureau and Research Office have both concluded that it’s not possible to have unaffiliated candidates under the current proportional-representation system. It might be possible to get a law for this purpose enacted in the form of member-sponsored legislation, but if we stick to the current thinking, it would be inconsistent to allow unaffiliated candidates to run under a proportional-representation system. This issue also involves the Constitution, and I want to give it further consideration. Having done that, I hope to get the necessary legislation enacted by the end of the current session.

TAKENAKA Do you mean by the end of the regular Diet session?

NISHIOKA Yes.

TAKENAKA Well, it’s true that the disparity in the value of votes under the current system has been repeatedly ruled unconstitutional at the high-court level. In closing, I’d like to ask you for your thoughts on the proper shape of the House of Councillors and of the bicameral system.

NISHIOKA I’m now president of the House of Councillors, so I’m doing my utmost to preserve the authority of the chamber and see that its decisions are respected, as in the case of the censure resolution against the chief cabinet secretary. But ever since I was first elected to the Diet I’ve favored adoption of a unicameral system. It’s ironic that I’ve become president of the upper house, but now that I hold that position I’m acting accordingly. The camp favoring a unicameral Diet is now slowly growing. Last November or so there was some movement in this connection, and I pointed out that in any case it would be necessary to amend the Constitution. If that happened this whole discussion would become irrelevant. My idea is that we should start by revising the amendment process itself so as to switch from the current rigid Constitution to a flexible one.

TAKENAKA That would mean changing the current requirement for amendments to be approved by two-thirds majorities in both houses, which is a very difficult hurdle to clear.

NISHIOKA It means just requiring a regular majority. After that change is made, we can undertake serious revision of the Constitution.

TAKENAKA Constitutional scholars speak of checks and balances, along with the reflection of diverse opinions, as the basis for having a bicameral legislature. What do you think about those points?

NISHIOKA Ideally speaking, if it were possible to revise the Constitution so that, for example, instead of the present system of direct elections for the House of Councillors, the members would consist of people with a wealth of experience in local government and others assembled from all sorts of fields, such as the arts, culture, labor unions, and academic associations, then a bicameral system would be an option. Otherwise I think it will be quite difficult.

TAKENAKA Are checks and balances unnecessary?

NISHIOKA It’s not that they’re unnecessary; it’s that they’re not possible. So at this point we can’t get to the point of revising the Constitution, and all we can do is change the upper house electoral system within the current [bicameral] setup.

TAKENAKA Thank you for your time today.

Translated from the transcript of an interview conducted on February 1, 2011.

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