The Case for Equal Representation in the Upper House

Japan’s National Diet is a bicameral legislature, consisting of the House of Representatives (lower house) and the House of Councillors (upper house). Bicameral systems vary in terms of the relative powers of the two bodies and the way in which their members are selected. A key factor to consider in evaluating any model of bicameralism is whether each chamber’s political legitimacy is commensurate with its powers and vice versa.

In a bicameral system that uses direct popular election for the first chamber only, it makes sense to give that body clear superiority over the second chamber, since the direct election of members gives the first chamber greater democratic legitimacy. A good example of such a “weak second chamber” is the French Parliament, in which the Senate, whose members are chosen by elected officials, is substantially weaker than the National Assembly, which is directly elected. Although the indirect election of members diminishes the democratic legitimacy of the second chamber, it confers on it a distinct character that allows it to perform its own special function within the legislature. However, when the distinct character of the second chamber results in an irreconcilable conflict with the first chamber, the decision of the more powerful first chamber prevails.

In the case of federal governments, such as that of the United States, the second chamber has the function of representing the states or other autonomous units that make up the federation or republic. In the powerful US Senate, each state is represented by two senators regardless of the size of its population. In this case, it is the principle of federalism enshrined in the US Constitution that justifies the structure and power of that chamber and gives it legitimacy.

In Japan’s case, the members of both legislative chambers are chosen by direct election, and while the House of Representatives is the superior body on balance, the powers of the House of Councillors are almost as strong. Since the members of both chambers are selected according to the same basic principles, people have questioned the upper house’s raison d’être ever since the US Occupation authorities presented their draft of the postwar Constitution in 1946. The fact the second chamber is invested with powers almost equal to the first is also difficult to explain given Japan’s unitary government.

In the following, we will examine these issues more closely and analyze their implications for the House of Councillors electoral system and the principle of equal representation.

A Bad System for Overcoming Divisions

Although the Japanese Constitution does not expressly mandate direct election of all Diet members, the members of both chambers are in fact selected in this manner. There is a certain internal logic to the current system. If the two chambers are roughly equal in power, they should also be equal in their democratic underpinnings; conversely, if their membership represents the populace equally, it follows that their powers should be roughly the same.

The main problem with having two chambers of roughly equal power is that, in the event of a partisan division, it becomes very difficult to accomplish anything legislatively—a situation that has famously plagued the US government in recent years. Since the 1990s, Japan has likewise experienced legislative gridlock as a consequence of a nejire kokkai, or “twisted Diet,” resulting when no single party has a majority in both chambers.

Under the Japanese Constitution, the House of Representatives clearly has preeminence when it comes to designating the prime minister; the party that controls the lower house is thus guaranteed the status of governing party. The lower house also has superiority to pass budget bills and approve treaties. Non-budget legislation requires the approval of both chambers, but in the event that the House of Councillors rejects a bill passed by the House of Representatives, the lower house can override the upper house’s veto with a two-thirds majority of the members present. Until the turmoil of the 1990s, these powers were sufficient to keep the wheels of legislation moving. As a result, the Japanese Diet was commonly regarded as an example of weak bicameralism, in which the second chamber has relatively little impact on the legislative process.

An Uppity Upper House

But all that changed in the 1990s, as the LDP’s iron grip on power weakened. As control of the two chambers shifted, the upper and lower houses came into conflict more and more often, and securing a super-majority in the lower house proved virtually impossible. Suddenly the power of the House of Councillors became a matter of considerable controversy.

The Constitution clearly gives the House of Representatives the power to designate the prime minister, who in turn forms the cabinet, and it also gives the lower house the power to force the cabinet’s resignation through a vote of no confidence. In other words, the cabinet can only exist with the confidence and support of the House of Representatives. The House of Councillors has little power to designate the prime minister or force the cabinet to resign through a vote of no confidence. Nonetheless, it can force the cabinet into an untenable position by blocking bills that the cabinet submits to the Diet. And even though the Diet accords the lower house precedence when it comes to the budget, the upper house can keep the budget from functioning as passed by blocking the legislation needed to implement new programs.

In short, under Japan’s strong bicameral system, the House of Councillors can create all but insurmountable obstacles to governance in the event that it asserts its distinct character. This means that it is vital for those in power to maintain control of a majority of the seats in both chambers of the Diet. If a single party is unable to secure a majority in both houses on its own, it will attempt to do so by forming a coalition with a smaller party or parties. Coalition governments have been the norm in Japan since the 1990s, when the political landscape began shifting rapidly, resulting in frequent standoffs between the two chambers of the Diet.

Given the outcome, one suspects that the proper role of Japan’s House of Councillors is that of a sober deliberative body that encourages consensus-style politics, not that of a highly assertive and idiosyncratic second chamber.

A Case for Regional Representation?

The considerable powers of the House of Councillors have influenced decisions regarding its electoral system as well. As noted above, a powerful chamber must have a high degree of democratic legitimacy. Democratic legitimacy hinges first and foremost on direct election by the people. However, another important factor is equal representation.

In respect to first chambers, governments around the world have come under intense pressure to respect the principle of “one person, one vote,” and Japan is no exception. The question is whether, or to what degree, that principle applies to second chambers. What is the point of having two chambers if the members of both are elected directly in accordance with the same representational principles?

In some countries, the second chamber serves its own unique function by providing representation for geographical regions or local administrative entities. This is known as representation by area. Representation by area invariably conflicts with the principle of “one person, one vote,” or equal vote weight. US senators are directly elected from their states, but since each state has two senators, the residents of sparsely populated states are disproportionately represented. The Senate’s system of representation by area springs directly from principle of federalism built into the US Constitution.

Japan, however, does not have a federal system. Unlike the United States, it is not a combination of discrete geographical units, each with a high degree of constitutionally guaranteed independence and autonomy. For this reason, it would be difficult to justify applying the principle of representation by area to Japan’s House of Councillors.

Might it not be possible, nonetheless, to apply somewhat looser standards regarding vote-weight equality to the upper house than to the lower house? Would giving sparsely populated regions a larger number of representatives relative to their population be a valid way of endowing the upper house with a distinct character and a meaningful role in the legislature?

The High Court’s Activist Ruling

The Constitution guarantees a six-year term for members of the upper house, as opposed to four years for lower-house members, and stipulates that election for half the members shall take place every three years. Of the 121 seats up for election every three years, 48 are filled from a nationwide list by proportional representation. The remaining 73 members are elected from 47 prefectural districts, each of which is assigned from one to five seats. The current inequity stems from the fact that the populations of Japan’s largest and smallest prefectures differ by a factor of more than 20. The result is a regional disparity of up to 5:1 in the number of residents represented by a single member of the House of Councillors.

On April 27, 1983, the Supreme Court of Japan, ruling on the constitutionality of the 1977 upper house election, appeared to justify a disparity in vote weight of more than 5:1 on the grounds that it was permissible, under Japan bicameral system, for the Diet to invest the upper house with the distinct function of representing the prefectures. This ruling appears to have been based on a perception of the upper house as a weak, supplementary chamber subordinate to the House of Representatives.

By contrast, in its October 17, 2012, decision, the Supreme Court took a strong stand in favor of equal representation by population in the House of Councillors, calling for decisive steps to correct disparities in the value of a vote. In so ruling, the court noted that the Constitution gives the upper house powers roughly equal to those of the lower in such important matters as the passage of laws. In other words, if the powers of the upper house are roughly the same as those of the lower, it is only natural to demand the same degree of democratic legitimacy, which means equal representation. If the House of Councillors disproportionately represents certain areas of the country, then how can one justify that chamber’s ability to block legislation passed by the more democratically chosen House of Representatives?

Some have countered with the argument that representation by population alone would leave Japan’s less populated regions without an adequate voice in national affairs. But rural prefectures encompass a range of opinions and interests. The current upper house system, while providing rural prefectures with representation disproportionate to their population, clearly denies representation to the minority opinions and interests in those regions.

The high court’s 2012 ruling called for action to correct the disparity in the value of a vote by rethinking the entire upper house system of prefectural constituencies. One option would be larger regional constituencies consisting of several prefectures. In addition to facilitating a more equitable apportionment, the creation of larger constituencies with more seats would make it easier for candidates from smaller parties to secure seats, thus providing representation for a wider spectrum of view and interests.

(Banner photo: The National Diet Building. The House of Councillors is located to the right in the north wing of the building; © Jiji.)