Guest blog – The Implications of an Abe Government for public law in Japan

Written by Joel Rheuben (University of Tokyo)
After facing more than a year of deadlock in the Diet and a legislative agenda monopolised by earthquake recovery measures and the increase in the consumption tax, the outgoing Democratic Party of Japan (DPJ) Government has left in its wake a mess of unfinished business in a number of legislative areas. One of these areas is public law reform. The DPJ had been elected in 2009 on a platform of change after the long reign of the Liberal Democratic Party (LDP), and had promised a new era of government transparency and accountability. Behind the early pageantry of the “Government Revitalization Unit”, in which ministers publicly grilled senior civil servants over their agencies’ expenditure, the DPJ worked diligently to bring about much-needed change in matters such as local government, the civil service, freedom of information and administrative appeals.
With a more than comfortable majority in the House of Representatives and the passage of several of the more critical recovery measures out of the way, it remains to be seen which, if any, of the DPJ’s public law reforms the presumptive prime minister, Shinzo Abe, will run with. The LDP’s election manifesto calls for “administrative reform”, but is short on detail. However, the tenor of Mr Abe’s previous prime ministership (from September 2006 to September 2007) gives an indication of Mr Abe’s likely priorities.

The LDP’s manifesto does highlight two public law matters that were pet projects of Mr Abe under his previous administration. The first is constitutional amendment: in particular, softening the war-renouncing Article 9, but also a number of other conservative favourites, such as clarifying the Emperor’s role as Head of State and inserting a provision mandating “respect for the family unit”. Mr Abe made similar proposals previously, and took the first legislative step towards eventual amendment by putting in place a National Referendum Law, setting out the process for any future referenda on constitutional amendment.
The Constitution requires any proposed amendments to be approved by a two-thirds majority in both houses of the Diet before such a referendum can be put. The LDP now enjoys a two-thirds majority in the lower house when added to the seats of its coalition partner, New Komeito (which is cool towards amendment of Article 9 in particular), or else with the right-wing “third force” party Nippon Ishin no Kai (which is far more enthusiastic), but lacks even a simple majority in the upper house. Mr Abe will no doubt try to claim the LDP’s large majority as a mandate for amendment (despite an opinion poll in the Mainichi Shimbun newspaper the previous week in which only 2% of voters nominated constitutional amendment as a key issue), and may use the LDP’s numbers to put his proposals before the Diet’s Constitutional Committees, but is unlikely to push for a vote until at least after the next upper house election, due in July 2013.
The other of Mr Abe’s pet projects highlighted in the LDP’s manifesto is the proposal to create a “State System” by merging Japan’s 47 prefectures into a dozen or so larger, semi-autonomous regional blocks. Almost immediately upon becoming prime minister in 2006 Mr Abe introduced legislation for a pilot programme to precede a more comprehensive “State System” promotion bill. However, the DPJ allowed this programme to run out of steam, preferring instead to focus on a series of decentralisation bills to give greater powers and financial autonomy to towns and cities. Nor is there much enthusiasm among the prefectures themselves. In the aftermath of the 3/11 earthquake the prefectures of Japan’s north-east, long the most likely candidates for a merger, have cooled to the idea, instead choosing to co-operate through new and existing regional associations. The LDP’s manifesto also calls for further decentralisation to municipalities, but the “State System” issue is almost certain to re-emerge.
One key component of the DPJ’s reform agenda, to which the LDP’s manifesto (and indeed the party’s website) makes no reference, is freedom of information. The DPJ had promoted strengthening the country’s Information Disclosure Law for the better part of a decade, and soon after coming into power established a deliberative council to review the law in its entirety. An amendment bill was introduced to the House of Representatives in early 2011, but has languished in committee ever since.
There is reason to be pessimistic about the prospects of the LDP reintroducing the amendment bill. Bureaucrats opposed many of the deliberative council’s recommendations, and the resulting bill appears to have been eventually watered down by way of compromise. The LDP arguably stands to gain little from antagonizing the bureaucracy by reintroducing a piece of legislation that has already quietly slipped under the radar. Given that the LDP had already chosen for several years to ignore the results of an earlier review of the law in 2004, its current silence is arguably telling.
Another issue to have fallen by the wayside is reform of the system for appeals against agency decisions. Under the existing Administrative Appeals Law, these are conducted by way of internal review within the agency that made the original decision. Critics of the law point to problems such as inadequate investigation by officials reviewing decisions and the low rate of reversals. A separate deliberative council into the law recommended the creation of a separate corps of American-style administrative law judges with the power to deliberate in place of the agency and to issue non-binding draft decisions. However, the DPJ failed to implement its recommendations prior to the dissolution of the House of Representatives.
Mr Abe, if he chooses to attempt amendment of the Administrative Appeals Law at all, is more likely to revert to a previous LDP bill, which lapsed when the DPJ came to power in 2009. That bill came out of a study commissioned during Mr Abe’s prime ministership, and would have maintained a system of internal review while requiring agencies to consult with an external advisory body. This approach would give greater autonomy to agencies in conducting deliberations and in framing their own decisions, and so is undoubtedly the approach preferred by the bureaucracy.
The LDP may be more sympathetic to a group of four bills on civil service personnel reform that were abandoned by the DPJ in mid-2012. The bills build on the Basic Law for Civil Service Reform passed with bi-partisan support in 2008, and are designed to increase flexibility in appointing and promoting civil servants and in determining pay-scales, allow fluidity between the bureaucracy and the private sector, and harmonise labour rights for public servants with those of private sector employees. The LDP manifesto appears to be in agreement with the spirit, if not necessarily the letter, of these bills.
Overall, however, it is difficult to see the LDP taking up the DPJ’s reform agenda with gusto. This is disappointing, as efforts to improve administrative law in Japan over the past decade, such as the mostly cosmetic changes to the Administrative Case Litigation Law in 2004, have fallen short of the goals of the Justice System Reform Project set forth in 2001. Yet outside of Mr Abe’s preferred projects, public law under the LDP is likely to be very much “business as usual”.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.