1985.07.17

1984 (Gyo-Tsu) 339

Judgment upon case of constitutionality of the provisions of the Public Offices Election Law on Election Districts and the Apportionment of Seats

The Grand Bench

Jokoku Appeal shall be dismissed.
The costs of the Court shall be borne by the Appellants.

Concerning the ground for Jokoku appeal by the Appellants:

The gist of the ground for the Jokoku appeal is as follows:

(1) The judgment below, while holding that the provisions of the Public Offices Election Law on the apportionment of seats were unconstitutional as a whole at the time of the election, dismissed the Appellants' demand for the nullification of the validity of the election of the members of the House of Representatives conducted on December 18, 1983 (hereinafter referred to as the election at issue) and only went as far as declaring in the main text that the election in the Appellants' electoral district was illegal. That is in contravention of the Constitution.

(2) If it is not appropriate to nullify the validity of the election at issue at once, a judgment should be rendered which will come into force to nullify the election at issue when a reasonably necessary period of time has elapsed for the Diet to rectify the unconstitutional apportionment provisions.

1 Equality of the right to vote and the election system

(1) Article 14, paragraph 1 of the Constitution should be construed in connection with the inherent right of the people to elect the members of the House of Representatives and the House of Councillors which the Diet is composed of, not only to prohibit any discrimination in the qualification of an elector (Article 44, proviso), but also to require equality of the substance of the right to vote, i.e., equality in the amount of influence of each elector's vote in the election of the Diet members, that is, equality of the weight of each vote.

(2) An election system under a parliamentary democracy must be determined in conformity to the circumstances of each nation, with a view to having public interests and opinions represented impartially and effectively in government and on the other hand under the consideration of the demand for stability in politics. There is no universally suitable standard configuration for it. Our Constitution provides the Diet with the discretionary power to decide the actual mechanism of the election system of the members of both Houses (Articles 43, 47), and equality of the weight of each vote is not deemed under the Constitution as the sole and absolute decisive criterion for determining the election system, but, as a general rule, it should be interpreted to require a system to be harmoniously realized in relation to such other political objectives and factors as may be properly taken into consideration by the Diet.

Therefore, in order to judge whether the existing inequality of the weight of each vote, which has been created under the concrete mechanism of the election system that the Diet has set up at its discretion, is contrary to the constitutional requirement of equality of each vote, we must examine in addition, considering both the constitutional requirement and the objective of the election system as is mentioned above, as to whether the inequality could be endorsed as being within rational limits of the exercise of the discretion of the Diet.

(3) Relative to the election system of the members of the House of Representatives, the fact that the Public Offices Election Law has adopted the so-called single ballot medium constituency system since its enactment may be understood that it has the purports to take into consideration the close relationship between the candidates and the residents in the community and to retain the possibility of selecting delegates representing the will of the minority, while basically securing the reflection of the will of the majority of voters. Though, under this medium constituency election system, the most significant and fundamental factor to be considered in deciding the electoral districts and the apportionment of seats is the equality of ratio of the voters to the number of the seats of representatives in each district, there also exist other factors which should be taken into account, such as the administrative divisions of TO, DO, FU and KEN (Prefectures), other administrative subdivisions of municipalities such as city, town and village, and geographical circumstances. Another factor is how the Diet reflects the changes of social conditions, such as the phenomenon of the gravitation of the population to cities, in sectionalizing the election districts and apportioning the seats. Thus, in the decision for sectionalizing the election districts and apportioning the seats, a variety of political and technical factors are to be considered, but there is no definite and objective standard in regards to how these factors should be taken into account and reflected in the concrete decision of the Diet. Therefore, as to the constitutionality of the apportionment provisions, in the ultimate analysis, there is no other way than to decide it on the basis of whether the concrete decision of the Diet could be endorsed as a reasonable exercise of its discretion.

However, if, after such an examination from the above viewpoint, inequality of the weight of each vote which ensued from the mechanism of election with the concrete electoral districts and the apportionment of seats provided by the enactment or amendment of the Public Offices Election Law, or from the subsequent population movement, is found so excessive as might be regarded unreasonable even if various factors that the Diet may ordinarily consider are taken into account, then the Diet should be presumed to have exceeded the limit of its reasonable discretion, and the election system should be held unconstitutional unless specific reasons to justify the inequality are presented.

However, even if the variance in the number of voters or the population (the latter is almost always proportional to the former) per delegate under the apportionment provisions of the statute which was in conformity with the Constitution at the time of its enactment or amendment has grown, due to the subsequent relocation movement of the populace, so gross as to contradict the constitutional requirement of equal right to vote, the said apportionment provisions should not be held unconstitutional immediately on that account alone. Rather, it should be held unconstitutional only when the constitutionally required rectification has not been made within a reasonable period of time.

(4) It should be construed that the litigation arguing the validity of an election on the ground of unconstitutionality of the apportionment provisions themselves can be filed according to Article 204 of the Public Offices Election Law.

(5) What was mentioned above accords with the precedents of the Supreme Court Grand Bench judgments upon the case (Gyo Tsu) No. 75 of 1974, decided on April 14, 1976 (Minshu vol. 30, No, 3, p. 223, hereinafter referred to as Grand Bench judgment of 1976) and the case (Gyo Tsu) No. 57 of 1981, decided on November 7, 1983, (Minshu vol. 37, No. 9, p. 1243, hereinafter referred to as Grand Bench judgment of 1983). There is no reason to modify these precedents.

2 The constitutionality of the apportionment provisions at issue

(1) The apportionment provisions of Article 13, paragraph 1, Appendix No. 1, Supplementary Provisions paragraphs 7 to 9 of the Public Offices Election Law (hereinafter referred to as the apportionment provisions at issue), on which the election at issue was based, was amended by Law No. 63 of 1975 (hereinafter referred to as the Amendment Law of 1975), and as a result of the said amendment, the variance in the ratio of the maximum population per delegate to the minimum among electoral districts, based upon the national census conducted in October, 1970, was rectified by reducing from 4.83 to 1 to 2.92 to 1. (Figures relating to the variance are in round figures, the same hereafter). However, the variance in the ratio of maximum voters per delegate to the minimum among electoral districts on the date of the election of the members of the House of Representatives conducted in June, 1980, amounted to 3.94 to 1 (ref. Grand Bench judgment of 1983), and further increased by 4. 40 to 1 on the date of the election at issue, which are the facts lawfully found by the court below.

Inequality of the weight of each vote among electoral districts as indicated in the variance on the date of the election at issue, is found to be so excessive as might be regarded unreasonable under the election system of the members of the House of Representatives in which equality of the ratio of the voters or population to the number of the seats of representatives among electoral districts is the most important and fundamental factor, even if various factors which the Diet may ordinarily consider are taken into account. Just as stated in the Grand Bench judgment of 1983, we cannot find that any amendment of the apportionment provisions after the enactment of the Public Offices Election Law has modified the mechanism of the election so that the inequality of the weight of each vote may be regarded reasonable as a result of the amendment. No specific reasons can be found to justify the above-mentioned unreasonable inequality of the weight of each vote. Thus, we are compelled to hold that the variance of the weight of each vote at the time of the election at issue was so excessive as to contradict the constitutional requirement of equality of the right to vote.

(2) Although the variance in the ratio of the maximum population or voters per delegate to the minimum among electoral districts, as mentioned above, had been reduced to 2.92 to 1 by the Amendment Law of 1975, it amounted to 3.94 to 1 on the date of the election of the members of the House of Representatives in June, 1980, and 4.40 to 1 on the date of the election at issue. This magnification of the variance is presumed to have been the result of the subsequent changes in population.

Although inequality of the weight of each vote under the former apportionment provisions can be considered to have been solved once by the Amendment Law of 1975 (ref. Grand Bench judgment of 1983), the said variance in the ratio of 3.94 to 1 on the date of the election of the members of the House of Representatives in June, 1980, was so excessive as to contradict the constitutional requirement of equality of the right to vote. This inequality of the weight of each vote by the magnification of the variance had reached the point of contradicting the constitutional requirement of equal right to vote some time before the date of the election in June, 1980, just as the Grand Bench judgment of 1983 has pointed out then. In addition, it is commonly known, from the number of electors registered in poll books as of September every year, that this variance had been widening gradually and constantly between the abovementioned election and at the time of the election at issue. Nevertheless, in the instant case, as for the fact that any rectification of the variance had never been made between the time from which the inequality of the weight of each vote had grown out of conformity with constitutional requirement and the time of the election at issue, we cannot help finding that the rectification has not been made within a reasonable period of time as required by the Constitution, even if we take into consideration that the question of whether inequality of the weight of each vote has grown out of conformity with the constitutional requirement is a difficult question which is dependent upon whether the decision of the Diet could be approved as a permissible exercise of its discretion. Thereupon, we cannot but conclude the apportionment provisions at issue were unconstitutional at the time of the election at issue, contradicting the constitutional requirement of equal right to vote.

Since the apportionment provisions at issue are inseparable in the very nature of things, not only the particular part that causes unconstitutional inequality, but also the whole provisions are to be held unconstitutional (ref. Grand Bench judgment of 1976).

3 The validity of the election at issue

Although the apportionment provisions at issue were as a whole unconstitutional at the time of the election at issue, further consideration is necessary in order to decide whether the election at issue should be ruled invalid.

In the litigation of Article 204 of the Public Offices Election Law, a judgment to admit the plaintiffs' demand would nullify the validity of an election in the future and cause a second election to be held immediately within the statutory period of time to correct illegal situation. On the other hand, in the litigation based on the same article on the ground of the unconstitutionality of the apportionment provisions, a judgment to nullify the election at issue does not directly cause a second election to be held. A separate legislation to amend the provisions of apportionment of seats is required in order to hold a constitutional election and to correct the unconstitutional state of affairs. In this sense, the judgment in this kind of litigation requires different consideration from that in the ordinary litigation of Article 204 of the Public Offices Election Law, and even when the apportionment provisions are decided unconstitutional in the former litigation, the election based on them should not always be nullified. In overall consideration of such ill effects of not nullifying the validity of the election wherein the elector's fundamental right to vote is restricted by the unconstitutional apportionment provisions, such improper situation arising from the judgment to nullify the validity of the election, wherein the apportionment provisions must be amended without the representatives for the electoral district concerned, which the Constitution does not purport, and other various factors, it may justly be understood that the court, applying the basic principle of law implied in the system of So-called "Jijo-judgment" (Article 31, paragraph 1 of the Administrative Cases Litigation Law), passes a judgment to avoid such undesirable results as would be caused by the nullification of the validity of the election (See Grand Bench judgment of 1976). Now, we consider the case at issue from the standpoint stated above. The change of variance in the ratio of the number of voters or population per delegate among electoral districts is as the court below has found. The fact that the variance had been trending toward the gradual magnification could have been well predicted from the relocation movement of the populace, and so forth, and it cannot be denied that this trend was not the result of unpredictably peculiar circumstances. However, considering the various circumstances of the case at issue such as the period of time between the Grand Bench judgment of 1983, which clearly stated that the inequality of the weight of each vote under the same apportionment provisions as here had reached the unconstitutional level, and the election at issue, the variance in the ratio of the number of voters per delegate among electoral districts at the time of the election at issue, and so on, we conclude that this is the case where it is proper for the court to declare, according to the general principle of law as mentioned above, that the election at issue is illegal in that it was conducted under the unconstitutional apportionment provisions, and only to pronounce in the main text the illegality of the election and not to nullify the validity of the election itself.

4 Conclusion

Accordingly, the judgment of the court below which, from the same viewpoint as mentioned above, dismissed the demand of the Appellants and declared in the main text the illegality of the election held in the district at issue can be approved. The Appeal cannot be sustained as a whole including other points therein.

The Jokoku appeal is hereby dismissed pursuant to Article 7 of the Administrative Cases Litigation Law, and Articles 396, 384 of the Code of Civil Procedure, together with Articles 95, 89 and 93 of the Code of Civil Procedure as to the costs.

Aside from the supplementary opinion of Justice Jiro Terada, Justice Tadayoshi Kinoshita, Justice Masami Ito, and Justice Koichi Yaguchi, and another supplementary opinion of Justice Hisaharu Kidoguchi, this judgment is based on the concurrence of all Justices, except Justice Masataka Taniguchi who writes a dissenting opinion.



The supplementary opinion by Justice Jiro Terada, Justice Tadayoshi Kinoshita, Justice Masami Ito and Justice Koichi Yaguchi is as follows:

1. The majority opinion states that the Court should dismiss, in accordance with the general principle of law which the majority opinion indicates, the demand of the Appellants, voters of the election at issue, for the nullification of the validity of the election, and should only declare in the main text the illegality of the election in the electoral district concerned, and approves the judgment of the court below which was to the same effect.

It is clear from the ruling of the majority opinion that the reason why the election at issue was decided illegal is that it was conducted under unconstitutional apportionment provisions. Therefore, the declaration by the Court of the illegality of the election at issue means nothing but that the election at issue contradicts the Constitution. It is also readily seen from the expression of the Grand Bench judgment of 1976 that its declaration of the illegality of the election in the main text meant the declaration of unconstitutionality of the election concerned.

2. The Grand Bench judgment of 1983, admitting that the variance of the weight of each vote at the time of the election of the members of the House of Representatives conducted in June, 1980 was contrary to the constitutional requirement of equality of the right to vote, decided that the apportionment provisions themselves could not be concluded unconstitutional in that a reasonable period of time for rectification by the Diet had not yet passed. However, the Grand Bench decision added, emphasizing the fact that the variance of the weight of each vote had reached the point of being contrary to the constitutional requirement of equality of the right to vote, that the apportionment provisions were expected to be rectified without delay. Nevertheless, the rectification has not been made yet. There is no objection, either from the majority or dissenting opinion, about the fact that a reasonable period of time for rectification has already passed. Taking into consideration this fact, together with the fact that the declaration of illegality by the court below, which has been approved by this Court, is in substance the declaration of unconstitutionality, necessity for urgent rectification is much greater than that at the time of the Grand Bench judgment of 1983. We cannot help emphasizing that the above-mentioned rectification measures should be taken without delay.

3. As the validity of the election is to be decided in the light of various factors indicated in the majority opinion, it is feasible that the validity of the election which would be held under the present apportionment provisions without the above-mentioned rectification measures being taken, could not but be denied. In that case, it is not impossible for the Court to rule that the effect of the decision declaring the election invalid will come about after a certain period of time, if it is not appropriate to make the election invalid at once. For, the litigation alleging the nullification of the validity of the election on the ground that it was conducted under unconstitutional apportionment provisions (hereinafter referred to as "apportionment litigation") is only permitted to be filed in a form of the litigation under Article 204 of the Public Offices Election Law (cf. Grand Bench judgment of 1976), and the character of the former is not exactly the same as that of the latter. As the majority opinion of this judgment points out, there is room for interpreting their contents separately, and the court could decide, within the scope of power entrusted to the judiciary by the Constitution, the content of judgment for the apportionment litigation in conformity with the purpose and necessity to permit such a litigation.

However, as the majority opinion states, this is a case in which the demand for the nullification of the election at issue should be dismissed, and only the declaration of illegality should be set forth. Therefore, argument (2) of the Appellants can not be accepted here.



The supplementary opinion by Justice Hisaharu Kidoguchi is as follows:

1. The majority opinion states that the election at issue was conducted under unconstitutional apportionment provisions, and that the so-called "Jijo-judgment" disposition should be adopted in this case, according to the general principle of law mentioned in the Court opinion. I am of the same opinion. I also agree with the supplemenetary opinion by Justice Jiro Terada, Justice Tadayoshi Kinoshita, Justice Masami Ito and Justice Koichi Yaguchi in this connection. But I would like to make some additional comment from my standpoint expressed in my dissenting opinion in the Grand Bench judgment of 1983.

2. I insisted, concerning the election of the members of the House of Representatives held on July 22, 1980, in my dissenting opinion in the Grand Bench judgment of 1983, that the apportionment provisions, which were the same as those disputed in this case, were unconstitutional, and that the "Jijo-judgment" disposition should be adopted without denying the validity of the election. However, the majority opinion of that Grand Bench judgment stated that the apportionment provisions could not be determined unconstitutional because a reasonable period of time for rectification had not passed, while admitting that the variance in the ratio of the number of the voters per delegate under the apportionment provisions at that time was so wide as to contradict the constitutional requirement of equality of the right to vote. Therefore, this is the first time for the Supreme Court to take the "Jijo- judgment" disposition on the current apportionment provisions, amended by the Amendment Law of 1975, and the criticism that repetition of the "Jijo-judgment" disposition is not appropriate, does not make a valid point.

3. A suggestion is implied from the standpoint of the court that the Diet should realize the rectification of the apportionment provisions without delay, when the court admits maintaining the validity of the election conducted under the unconstitutional apportionment provisions by taking the "Jijo-judgment" disposition. Therefore, the Diet should take this into consideration fully, and rectify those provisions without delay. (It is advisable that the content of rectification should be such that there need not be another rectification within at least five years, according to the estimation of population movement. cf. Attached table No. 1 of the Public Offices Election Law.) Despite the "Jijo-judgment" disposition with the abovementioned import being adopted in this case, if an election would be conducted under the same unconstitutional apportionment provisions due to the failure of the Diet to rectify them, it would not be appropriate to repeat the "Jijo-judgment" disposition on the election concerned. In that case, the court, according to the general rule, should either nullify the election concerned at once, or at least render a judgment to the effect that the election will become invalid after a certain period of time, even if such constitutional complications as the majority opinion points out should arise.



The dissenting opinion of Justice Masataka Taniguchi is as follows:

1. I also believe that the apportionment provisions at issue are unconstitutional as a whole. The majority opinion has set forth the reasons, and I have nothing to add to them.

However, as to the issue of the validity of the election at issue, I cannot join the majority opinion. The reasons are mentioned below.

2. In the case demanding the nullification of the election of the members of the House of Representatives conducted on June 22, 1980, I stated an opinion that the apportionment provisions at that time were in violation of Articles 14, 15 and 44 of the Constitution and were contrary to the Constitution. (See my dissenting opinion in the Grand Bench judgment of 1983.) Then, I thought that the Court should not nullify the validity of the election conducted according to the unconstitutional apportionment provisions, and that the Court should take a "Jijo-judgment" disposition according to the general principle of law provided in Article 31 of the Administrative Cases Litigation Law. The reason for that was nothing but that I believed that to nullify the election itself would, as the majority opinion of the Grand Bench judgment of 1976 indicated, bring about such abnormal situations as the Constitution had not contemplated and that I could justly expect the Diet to exert itself for rectifying the unconstitutional apportionment provisions only if the Court expressly pointed out their unconstitutionality, considering that the revision of the apportionment provisions was exclusively left to the power of the Diet, and that the Constitution did not permit courts to take direct corrective measures on the matters of apportionment of seats and electoral districting. Besides, I especially took it into consideration that it was the first time for the Supreme Court to decide on the constitutionality of the apportionment provisions after being amended by the Amendment Law of 1975.

3. However, as to the election at issue, I cannot but reach a different conclusion from my prior opinion. The reasons are as follows:

(1) The apportionment provisions which are in violation of the Constitution are to be invalid according to Article 98 of the Constitution, and therefore, the election conducted under such unconstitutional apportionment provisions must rightfully be declared invalid. The "Jijo-judgment" disposition as is mentioned above may be permitted only in extremely exceptional cases. If the court always adopts, or must adopt, the "Jijo-judgment" disposition in the cases demanding the nullification of the validity of elections, such as the case of filing for the purpose of correcting the apportionment provisions that is before us, it will run contrary to the spirit of the Grand Bench judgment of 1976, which approved the application of Article 204 of the Public Offices Election Law to the litigation claiming the invalidity of elections on the ground of unconstitutionality of the apportionment provisions, referring to that means as being the sole litigation for voters to argue whether elections are proper or improper under the present laws. The main object of that Grand Bench judgment was to remedy the restrictions on the right to vote which is guaranteed as a basic human right by the Constitution, and it is rather a necessary conclusion that, but for exceptional cases, the court should declare nullification of the validity of the election. (We must also take it into consideration that such a form of litigation as demands an abstract declaration of the unconstitutionality of apportionment provisions is not permitted under the present laws.)

Moreover, if the Diet, who is expected to rectify promptly and properly the unconstitutional apportionment provisions, dawdles away its time without setting about correctional work, and let elections repeat under such unconstitutional apportionment provisions, and if the court always responds to those elections by taking "Jijo-judgment" dispositions, it will follow that the unconstitutional state of affairs is confirmed by the court. That I fear most. That is not the path that the court should follow.

(2) I have a view that the apportionment provisions at issue are unconstitutional as a whole. But in viewing the said provisions considered to be invalid, it does not necessarily follow that the whole election based on these invalid provisions is null and void.

As the litigation before us is permitted by virtue of Article 204 of the Public Offices Election Law, only the election in the electoral district whose apportionment of seats is declared invalid by the court in each case becomes null and void. Moreover, it is feasible to regard those elections not null or void which are conducted in the electoral districts where the variances in the number of electors per delegate can hardly be concluded unconstitutional, needless to say as to the electoral districts where the number of electors per delegate is about the national average. For in those electoral districts, the number of representatives may likely be the same even after the apportionment provisions have been amended to stand in accord with the constitutional requirement of equal right to vote, and, it is probably safe to say, the results of the elections would not differ after all. (Article 205, paragraph 1, the Public Offices Election Law.) A counterargument to this view would be that we might not say that the result of the new election would be the same, as there is a chance for a different person to be elected in the new election. But the issue here is the very disproportion in the apportionment of seats, and whether the result might differ or not must be judged on the basis of the apportioned number of delegates itself.

Here, it would be necessary to refer to the dissenting opinion of Justice Kishi in the Grand Bench judgment of 1976. He said that the election should be held effective as to the elected persons in such electoral districts as the apportioned number of delegates is less than it should be. That opinion is worth listening to, but I cannot agree with it. The possibility cannot be denied that the result may differ in the new election which would supposedly be conducted in such electoral districts under the condition that the number of delegates to be elected is different. Moreover, his logic leads to the conclusion that one single election should become partially invalid as to some elected Dietmen in these electoral districts where the apportioned number is unduly too large.

To consider as mentioned above is not inconsistent with the view that the apportionment provisions at issue are unconstitutional as a whole. For the validity of the election should be denied in each electoral district only when the unconstitutional defect leads to a different result of the election.

(3) In my view, though the apportionment provisions at issue are deemed unconstitutional as a whole, electoral districts which deserve the judgment to nullify the validity of election are naturally limited to those where, among those whose elections are disputed, the results of the elections are likely to differ, as the number of delegates apportioned to such electoral districts is unduly too less or too more than that to be apportioned according to the apportionment provisions in conformity with the constitutional requirement of equal right to vote. I am of an opinion that the Diet is generally presumed to have overstepped the limits of its permitted discretion when the variance in the number of electors per delegate exceeds the stage of one to three. (See the dissenting opinion of Justice Nakamura in the Grand Bench judgment of 1983.) Therefore, I think that the election should be declared invalid only in those electoral districts where the number of electors per delegate is apart more than fifty percent, up or down, from the national average, as there is a possibility of different results of election coming out in such electoral districts. This approach would escape from a criticism that the judgment nullifying the validity of election would make impossible the activities of the House of Representatives and bring about situations which the Constitution would not expect. For the quorum for the opening and the resolution of the House of Representatives will be well preserved.

(4) Now, how should we think of the impact of the judgment nullifying the validity of election?

In my opinion, the judgment nullifying the validity of an election, at the time it becomes irrevocable, will have the effect to nullify the election for the future, and the Dietmen elected in that election will lose their qualifications. In such electoral districts, new elections must necessarily be held after some period of time needed for amending the apportionment provisions. (The amendment must cover the whole apportionment provisions; partial amendment which increases the number of delegates, based on the view that the provisions are divisible, only in those electoral districts whose apportionments are unduly small, is not desirable at all.)

However, a criticism arises that the said amendment does not represent the intent of some portion of the people, pointing out that the amendment would have to be approved without the representatives from the electoral districts whose elections are declared invalid by the judgment. The majority opinion also emphasizes this point. But each Diet member elected in each electoral district does not represent his own electoral district; he represents the whole people (Article 43, paragraph 1 of the Constitution). Though the said situation is not preferable, the minimum and essential requirement of the Constitution is satisfied. The criticism is not in order. Moreover, one could say that the amendment does not in substance lack the reflection of the intent of the elector even under such situations, as the amendment of apportionment provisions is frequently decided by the intent of each party under the present circumstances of party politics.

(5) My opinion described above is criticized in that the unconstitutional state of the apportionment provisions is not remedied at all by the nullification of the validity of elections, or in that it will result in double disadvantages, because of the want of delegates representing them, to the voters of the electoral districts where the number of Dietmen is unduly small. I would like to answer to this criticism by the following.

Of what the Court is required here is the judgment as to the validity of the election of the members of the House of Representatives which was conducted on December 18, 1983. The amendment of the unconstitutional provisions is what the Diet is to do on its own responsibility, and it is a misplaced expectation that the Court will take direct corrective measures on them.

Talking about the point that the Diet members elected in the electoral districts with unduly small number of delegates are not present, that is the very kind of judgment that the party is asking for. If we were to deny such a result, it seems that we could not help denying in the first instance the lawsuit itself which, as in this case, demands for the nullification of election. Although it is practically a serious matter to bring to naught the intents of the voters who actually cast their votes, we must be satisfied with relieving those voters in the abovementioned electoral districts by immediately amending the apportionment provisions in order for them to meet the constitutional requirement of equal right to vote and by conducting a new election. I think that daring to take this approach proves better than letting stand for a long time the situation that the restriction on the right to vote, the fundamental right of the elector, is not being relieved.

4. The Supreme Court has been taking the position that the litigation demanding nullification of the validity of elections on the ground of unconstitutionality of the apportionment provisions is to be permitted by virtue of Article 204 of the Public Offices Election Law, and this type of litigation has been filed in many jurisdictions especially since the Grand Bench judgment of 1976 was rendered. Today it is settled as a system. Of course there are various problems, and some of them are difficult to solve, in permitting the litigations for nullifying the validity of elections in this way. But I think that we should follow the logical coherence, once we have permitted this type of litigation. A censure could not be unexpected to arise that to declare the invalidity of the election in this case would be too impetuous. I myself selected the way to take "Jijo-judgment" disposition on the issue of the validity of the election of the members of the House of Representatives held on June 22, 1980, finding the same apportionment provisions, as here, were unconstitutional. The problem of unconstitutionality of the apportionment provisions must be first rectified by the measures to be taken by the Diet, who legislated those provisions, on its own judgment, and it is never desirable for the Diet to await the court decisions declaring their unconstitutionality. I believe that I, having set forth such opinions as described in the Grand Bench judgment of 1983, should not repeat the "Jijo-judgment" type disposition once again in the light of Article 98 of the Constitution, under the present circumstances that the apportionment provisions have been left uncorrected after the amendment by the Amendment Law of 1975.

5. Since it is clear from the lawful finding of the court below that the number of electors per delegate in the electoral districts at issue is apart more than fifty percent from the national average, the electoral district here is the one where the election may have brought about different consequences. Therefore, we should adjudge the election to be invalid. Accordingly, the judgment of the court below, which dismissed the claim for nullifying the election and only declared its illegality, erred in the construction and application of law, and it is clear that the error proves material to the conclusion of the judgment. The appeal here has reason, and the Court should quash the judgment of the court below and set forth a judgment to nullify the election held in the electoral district at issue.

Justice Jiro Terada
Justice Tadayoshi Kinoshita
Justice Masami Ito
Justice Masataka Taniguchi
Justice Susumu Ohashi
Justice Hisaharu Kidoguchi
Justice Keiji Maki
Justice Seiichi Wada
Justice Mitsuhiko Yasuoka
Justice Reijiro Tsunoda
Justice Koichi Yaguchi
Justice Rokuro Shimatani
Justice Atsushi Nagashima
Justice Masuo Takashima
Justice Yasuyoshi Shiono did not participate in this judgment because of his retirement.
Presiding Judge, Justice Jiro Terada