Giving Cabinet Legislative Power?

Congressional office on the constitution summarized “talking points” on emergency clause which has been discussed for constitutional amendment by conservative parties. The points include details on maintaining the legislative branch in natural disaster or invasion of a foreign country. The most controversial point is giving the executive branch a power for legislation in emergency. 

The talking points were submitted to a closed meeting of senior members in Commission on the Constitution of the House of Representatives. The leading parties, which consist of the Liberal Democratic Party (LDP) and Japan Innovation Party (JIP), have been arguing that the commission should wrap up their discussion and proceed to the next step in which actual draft of the amendment is brought on the table.

 

The talking points presumes a case, in which holding election of one of the Houses in the Diet is broadly incapable for a certain period. It is defined as “election difficulty situation.” The situation can be brought by natural disaster including major earthquake, outbreak of infectious disease, internal insurrection and military attack from outside. The concern of conservative lawmakers is what if one of those urgent situations occurred at the end of term of the lawmakers, or right after the Lower House is dissolved and empty.

 

Article 54 of the Constitution of Japan says that the Cabinet may convoke the Upper House to have an emergency session. However, the conservatives insist that the constitution needs to be amended for a possible case in which that emergency will be prolonged. One of the talking points gives the Cabinet a power to declare an election difficulty situation, which needs approval of each House with two-third majority in advance.

 

The conservatives further concern how to legislate necessary laws in emergency, a special situation in which the government cannot afford to wait for legislative process. The talking points enables the Cabinet to issue governmental ordinances in emergency. The ordinance has a power equivalent to laws. The emergency ordinance needs to be approved by both Houses as soon as they will be convoked.

 

“The Diet shall be the highest organ of state power, and shall be the sole law-making organ of the State,” says Article 41 of the Constitution. The emergency clause can fundamentally undermine this basic structure of the Constitution of Japan. Supremacy of the Diet will be eroded. If the Cabinet can issue an ordinance equivalent to a law, the Diet will no longer be “the sole law-making organ of the state.”

 

Some opposition parties argue that function of the legislative branch can be maintained by emergency session of the Upper House, even if the Lower House cannot have a meeting. The Lower House is constitutionally superior to the Upper House, even in a case that terms of Upper House members have been expired. The discussion over constitutional amendment on emergency clause have a fundamental problem for separation of powers, which consists of a basis of congressional democracy.

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