Dissolving the House of Representatives is not as straightforward as you might think

Like many Westminster-style political systems, Japan employs a system where the Cabinet has the power to dissolve the lower house of the legislature prior to the expiration of said house’s full term. Once the House is dissolved, an election is held, new legislators take office and another four-year term begins.

This has become the standard process for holding lower house elections under the postwar Constitution. Only one election has ever been held following the natural expiration of the House’s four-year term of office (the 1976 election). In twenty-one other instances so far, the Cabinet has kept its nose to the air, waiting for opportune times to torpedo the legislative branch and hopefully have themselves re-elected.

In 2005, Jun’ichiro Koizumi dissolved the House after it voted down his postal privatization plan, and his LDP surged through the ensuing election to win a commanding majority for the next four years. This past July, Taro Aso dissolved the House a month before its four-year term was due to expire, only to watch the LDP fall and Yukio Hatoyama take over the prime minister’s office.

Dissolution is thus at the heart of the greatest shifts in Japanese politics. That said, most dissolutions have been highly sketchy from a legal perspective, thanks to some inadequate drafting in the constitution. There are two big questions which the Constitution and jurisprudence have never quite resolved…

Question 1: Who can dissolve the House?

The Constitution only says this:

第七条 天皇は、内閣の助言と承認により、国民のために、左の国事に関する行為を行ふ。・・・
  三 衆議院を解散すること。
Article 7. The Emperor, with the advice and approval of the Cabinet, shall perform the following acts in matters of state on behalf of the people: …
  3. Dissolution of the House of Representatives.

So it’s technically the Emperor’s job, not the Cabinet’s. However, three academic theories (never actually enshrined in black-letter law) have led to general acceptance that dissolution is a Cabinet decision:

# The Article 7 Theory (7条説): Enumerated Imperial acts of state in the Constitution are assumed to actually be acts of the Cabinet, on the basis that the Emperor must have the Cabinet’s advice and approval before acting.
# The Systemic Theory (制度説): Instead of looking to the text of the Constitution, this theory looks to the international standard for the Westminster parliamentary system, which assumes that the cabinet has the ability to dissolve the parliament.
# The Administrative Theory (行政説) or Article 65 Theory (65条説): Article 65 of the Constitution gives the cabinet general authority over public administration, which is generally defined to mean all legal authority other than legislation and jurisprudence. Dissolution of the House is neither legislation nor jurisprudence, so it must be administrative in nature and therefore under Cabinet control.

Question 2: When can the Cabinet and Emperor dissolve the House?

This one is trickier. Again, we start with the text of the Constitution:

第六十九条 内閣は、衆議院で不信任の決議案を可決し、又は信任の決議案を否決したときは、十日以内に衆議院が解散されない限り、総辞職をしなければならない。
Article 69. If the House of Representatives passes a non-confidence resolution, or rejects a confidence resolution, the Cabinet shall resign en masse, unless the House of Representatives is dissolved within ten days.

Note that it doesn’t say the House can be dissolved in any other instance. Nor does it say that there is no other instance when the House can be dissolved. It just says that the House can be dissolved if it holds a no-confidence vote.

This became an issue of intense debate in the early postwar years. In October of 1948, Shigeru Yoshida’s newly-formed second cabinet attempted to execute the first dissolution of the House under the new Constitution, without first receiving a resolution of no confidence. The opposition, led by Tetsu Katayama, cried foul and declared that Article 69 should be the limit of the Cabinet’s power to dissolve the House. Allied GHQ, which still had military control of Japan at the time and which had written the new Constitution, sided with Katayama and the “69ers.”¹ It was a ripe situation for a constitutional law stand-off until Katayama’s side passed a resolution of no confidence, which allowed the dissolution and election to go forward. This became known as the nare-ai kaisan (馴れ合い解散) or “collusive dissolution.” Yoshida’s side won the ensuing election, and he held on to his seat for a few more years after that.

Then came the nuki-uchi kaisan (抜き打ち解散) or “surprise dissolution” of August 1952. The Occupation was over, Yoshida was still in charge of the government, and he was facing mounting challenges from Ichiro Hatoyama.² Yoshida decided to pull the trigger on a new election early, and had the Emperor issue a dissolution order “under Article 7.” The election went forward, and Yoshida’s faction won a sufficient number of seats to secure Yoshida another two years in office.

A few Diet members who lost their seats decided to challenge the validity of the election. The Supreme Court doesn’t hear “political questions,” though; it only hears actual disputes over physical or proprietary damages. So the Diet members structured their lawsuit as a suit against the government for lost pay, and cited the unconstitutional election as the illegal act which caused their financial injury. Unfortunately for anyone who wanted a clear view on the question, the lawsuit failed: the Supreme Court, in the rambling fashion typical of Japanese judges, held that dissolution of the Diet was ultimately a political question beyond the scope of judicial review.

Thus the question was settled without being settled. Today, nobody knows whether it’s really legal for the Cabinet to dissolve the Diet out of the blue. All we know is that nobody will stop them if they do so. Since 1952, the Emperor has continued to issue most dissolution orders under his Article 7 power, and the members of the Diet have faithfully followed every order.

* * *

¹ I find GHQ’s position very interesting. Being Americans, they may have envisioned Diet elections working much like Congressional elections in the US, where the executive is stuck with their legislature until the next fixed election cycle.

² At the time, he had just returned to the Diet after a five-year purge from politics by skittish Allied officials who thought he was an Imperial war machine collaborator. He was Yoshida’s main rival within the ruling Liberal Party (forerunner of the LDP) throughout the early fifties. It may have had something to do with the fact that Yoshida was Catholic and Hatoyama was Baptist. Either way, the rivalry ended up running in the family: Hatoyama’s grandson Yukio Hatoyama recently defeated Yoshida’s grandson Taro Aso to become Prime Minister.

2 thoughts on “Dissolving the House of Representatives is not as straightforward as you might think”

  1. Is there a simple explanation behind giving the ability of the cabinet to dissolve the lower house in Westminster-style political systems?

    For now, I’ve filed it under the same category as the safety in American football and the platypus.

    By the way, when I opened that PDF file on the appeal rejection, I immediately thought that there was a moji-bake problem. Kerning, people!

  2. Problem is, they had to go and write a damned constitution. Why not just muddle through, like we do in England and New Zealand. Would seem to suit the Japanese more, I think. Or like the Australians, they could have written a constitution and subsequently ignored it by setting up offices not mentioned therein (like, for example, that chap in Canberra who calls himself the “Prime Minister”). When you have a real constitution and you tell people to take it seriously, they start finding inconsistencies and loopholes in the damned thing.

    Though, if you are going to take away all formal executive authority from your monarch, you have to define where it is going to sit, I suppose.

    By the way, the “cabinet” doesn’t advise the Queen or GG in other Westminster systems, the PM does. There is a crucial difference.

    “Is there a simple explanation behind giving the ability of the cabinet to dissolve the lower house in Westminster-style political systems?”

    Yes, it is useful for governments to show that they have a mandate to act when times change and allows governments to get past legislative deadlock or disapproval by appealing to the people. Some might even call this democratic.

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